By Farhad Manjoo - Wired
A California State Appeals Court ruled on Thursday that computer code used to "descramble" DVDs is "pure speech," and citing the First Amendment, the court reversed a trial court's order to block the code from appearing on the Web.
But since a federal appeal is still pending in a similar New York case involving the right to publish the DVD descrambler -- called DeCSS -- it's still unclear whether the "code is speech" defense sung by many techno-libertarians will provide them any shelter from the law.
"This is a great decision -- the court recognized that the First Amendment prevails even when people claim trade secret laws," said Robin Gross, an attorney for the Electronic Frontier Foundation who represented defendants in the case. "They were also clear that computer code is pure speech worthy of First Amendment protection."
The California case began in late 1999, when the DVD Copy Control Association (DVDCCA), and movie industry trade group, sued Andrew Bunner, a Web developer, and numerous other unnamed individuals for posting and linking to the DeCSS code on the Web.
The DVDCCA said the defendants were using "confidential proprietary information" and were therefore violating movie companies' trade secrets.
In January 2000, the trial court issued a preliminary injunction against the defendants, barring them from posting "or otherwise disclosing or distributing, on their websites or elsewhere, the DeCSS program ... or any other information derived from this proprietary information."
The appeals court reversed that ruling Thursday. The court did not decide whether or not Bunner disclosed a movie trade secret -- that will be decided in trial, which is still pending. Instead, the court said that Bunner can only be barred from posting the code if it has been proven, in a trial, that he has violated a secret.
"DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is 'more fundamental' than the First Amendment right to freedom of speech or even on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint," the ruling stated.
The DVDCCA could not be reached for comment on Thursday.
The question of whether computer code is speech has been debated for a while in the tech community.
In August 2000, U.S. District Judge Lewis Kaplan ruled in favor of the movie companies in a federal suit over DeCSS, ruling sternly that "computer code is not purely expressive any more than the assassination of a political figure is purely a political statement."
That case is currently pending appeal, and although the latest California ruling imposes no binding precedent on the appeal, Gross said that it will "certainly bolster our argument that code is speech."