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Appeals Court rules DeCSS ban violated free speech

An appellate court in California has reversed a 1999 injunction barring the publication of a DVD-cracking tool on the Internet, finding the earlier decision by a trial judge violated the defendant’s free speech rights.

The case, before California’s Sixth Circuit Court of Appeals, was closely watched as a test of how much protection companies can expect in California for trade secrets that become widely distributed online, CNET News reported.

The plaintiff, the DVD Copy Control Association, had argued that Andrew Bunner violated its intellectual property rights by posting on the Internet the DeCSS code that can be used to bypass Hollywood’s encryption scheme for DVDs. Bunner’s attorneys had countered that the code was no longer a secret by the time he posted it on his Web site.

“The preliminary injunction...burdens more speech than necessary to protect DVD CCA's property interest and was an unlawful prior restraint upon Bunner’s right to free speech,” the three-judge panel wrote in its decision.

The decision ends the last strand of Hollywood’s legal attack on DeCSS in the United States, an effort that began when Norwegian programmer Jon Johansen posted DeCSS on the Internet. A criminal case against Johansen in his home country was thrown out late last year.

The ruling does not make it legal in California to post DeCSS online, an action that has been found illegal by a federal appeals court. But the case does mark a rare victory for free speech advocates in the United States facing off with Hollywood over encryption technology that hampers DVD copying and prevents discs from playing on unauthorized machines.

This case differs from one in which the motion picture industry recently won a key decision last week against DVD-copying software maker 321 Studios, when a federal judge ordered the company to pull its products from stores. That case applied the Digital Millennium Copyright Act (DMCA), which makes it illegal to circumvent copy-protection schemes or traffic in circumvention tools.

By contrast, the Bunner case dealt with California state trade secrets law, addressing technical arguments over what practices constitute trade-secret violations and what steps companies must take to preserve their claims to secrecy after proprietary information is made public.

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