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California Supreme Court Rules in Favor of Studios in deCSS Case

28 Aug, 2003 By: Holly J. Wagner

The California Supreme Court has handed movie studios and the Motion Picture Association (MPA) a limited victory in a case that sought to quash circulation of a formula that breaks the locks on the Content Scrambling System (CSS) for DVDs.

CSS encrypts DVD content to be played only on approved players. International region codes are part of CSS.

The court decided that republishing the algorithm that cracks CSS — known as deCSS — or linking to Web pages that published it is not protected free speech, but also instructed the lower court to review the basis for the decision it upheld.

The DVD Copy Control Association (DVD-CCA), a coalition of content owners (primarily movie studios) and player manufacturers, administers and licenses CSS. When its members discovered that Andrew Bunner and others had published deCSS on their Web sites and in other forms, DVD-CCA sued to force them to remove the code from Web pages and cease circulating it in other forms.

DVD-CCA won the underlying case, and Bunner was the only defendant to appeal that decision; he won on appeal. He contended the code was widely available by then, and that forcing him to remove it was a violation of his First Amendment right to free speech. DVD-CCA contended the code is not pure speech, but property that was stolen from the organization in violation of a licensing agreement.

The state Supreme Court's Aug. 25 decision refuted Bunner's free speech contention and sends the case back to the Court of Appeals, which the majority opinion instructs to “determine the validity” of the assumption that the initial court order was properly issued and to make an independent examination of the entire record of the case to date.

“If, after this examination, the court finds the injunction improper under California's trade secret law, then it should find that the trial court abused its discretion,” the majority opinion reads. The decision was rendered in the latest of a string of appeals.

“The appeals court can now examine the movie industry's fiction that deCSS is still a secret and that a publication ban is necessary to keep the information secret,” said Cindy Cohn, legal director for the Electronic Frontier Foundation (EFF). EFF is serving as co-counsel in the case.

“deCSS is obviously not a trade secret since it's available on thousands of Web sites, T-shirts, neckties and other media worldwide,” Cohn said.

Initially, Norwegian teen Jon Johansen cracked CSS by reverse engineering. His stated goal was to make DVDs playable on computers that run on the Linux operating system, a computer operating system analogous to Microsoft's Windows or the Macintosh operating system with one key difference: Linux is an “open source” code system, which means the computer codes it comprises are not commercially protected. Instead, the codes are freely available to professional and amateur programmers like Johansen — who is now in his 20s — without paying the license fees that accompany use of a proprietary system like Windows or the Macintosh operating system. The underlying case established that Johansen reverse-engineered CSS using software that a licensee corporation, Xing Technology Corp., created. Bunner republished the results of Johansen's reverse engineering, deCSS.

While Macs and PCs running on Windows software can access the content on DVDs via player software, at the time CSS prevented Linux users from playing the discs on their computers. Since then, a company called Sigma Designs began marketing DVD player software for Linux under its license to manufacture products using CSS.

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