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Ruling expected on DVD hack attack

Court of Appeal's decision a setback for studios

SAN FRANCISCO — The California Supreme Court is expected to rule within 90 days in a case that could determine the extent of the studios’ legal arsenal in their battle against DVD hacking programs such as DeCSS.

Attorneys for the DVD Copy Control Assn., the licensing agency for the Content Scrambling System (CSS) used to encrypt DVDs, faced off before the seven-judge panel Thursday against a Web site operator accused of violating DVD-CCA’s trade secrets by posting DeCSS on the Internet.

DVD-CCA claims that DeCSS contains elements of CSS that are protected under California’s trade secret laws.

The trial court in the case granted DVD-CCA’s request for a preliminary injunction against the Web site operator, Andrew Bunner, barring him from posting the hacking program on his site. In November 2001, however, the California Court of Appeal overturned the injunction, ruling that it violated Bunner’s First Amendment rights by imposing a “prior restraint” on publishing DeCSS before it had been determined whether it violated the state’s trade secrets laws.

DVD-CCA appealed the ruling in February last year. Under Supreme Court rules in California, the judges are required to render a decision in the case within 90 days.

The Court of Appeal’s ruling was a significant setback for the studios and DVD-CCA, who hoped to use California’s strict trade secret laws to protect CSS as well as any future encryption system the studios may use, such as on next-generation high-definition DVDs.

First Amendment stand

It also marked the first time a court had accepted the First Amendment argument of those who claim that computer code, such as DeCSS, is a form of speech that must be protected.

In a case decided in 2001, the federal Second Circuit Court of Appeals in New York ruled that the Internet publisher 2600 magazine had no First Amendment right to post DeCSS on its Web site.

In arguing before the California court on Thursday, DVD-CCA chief attorney Robert Sugarman said the case against Bunner raised no First Amendment issues.

DeCSS “is a functional methodology to allow individuals to reveal a trade secret,” Sugarman said. “It’s not a matter of what’s being said.”

Attorneys for DVD-CCA also argued that unless trial courts could impose injunctions quickly on the dissemination of trade secrets, those secrets could not be protected.

DVD-CCA was supported in its claims by California Attorney General Bill Lockyer, who also spoke Thursday before the court.

“Computer hackers can’t distribute private property,” Lockyer said. Whatever speech elements DeCSS contains, it also includes “a degree of functionality” that makes it more like a burglary tool than speech, Lockyer said.

Attorneys for Bunner countered that DeCSS has been so widely disseminated that it’s no longer any kind of secret and that all Bunner did was take information that was in the public domain and republish it.

“It’s hard to call this a trade secret anymore because it’s out there,” Bunner said after the hearing.

Driving in reverse

He also noted that DeCSS was created by reverse-engineering CSS, a standard technique in cryptology research, not by using proprietary information acquired from DVD-CCA.

“This case is more important for others than for me,” Bunner said. “If you’re not allowed to reverse-engineer things, that’s a real problem.”

Both sides declined to speculate on how the Supreme Court will rule.

“The court was very much tuned into the issue and asked some very good and interesting questions, but it’s impossible to know from that how they’ll rule,” Sugarman said.

However the Supreme Court rules on the injunction, the case will ultimately be returned to the trial court to address the underlying claims.

(Mark Athitakis in San Francisco contributed to this report.)

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