November 29, 2001

Electronic Frontier Foundation asks court to eject DVD case

Author: JT Smith

San Jose - The Electronic Frontier Foundation (EFF) today asked a California Superior Court judge to dismiss a case involving a DVD descrambling program called DeCSS because that program is widely available on the Internet and cannot be considered a trade secret. The DVD Copy Control Assocation (DVD CCA) filed the lawsuit against Andrew Bunner and others in December 1999, alleging that Web publishers of DeCSS unlawfully misappropriated trade secrets.

The case, officially known as DVD CCA v. Bunner, could set an important precedent in how far trade secret law can affect First Amendment free speech rights.

Building on a November 1st victory when the California Court of Appeal reversed the court's preliminary injunction confirming that the publication of DeCSS is protected by the First Amendment, Bunner and his legal team today asked the court to recognize that - because it is widely available - the information contained in DeCSS cannot be a "secret" protected under trade secret law.

California trade secret law prohibits injunctions once a trade secret becomes generally known to the public. Noting that Bunner found DeCSS in the public domain and simply republished it, the motion also relies on declarations from five leading academic scientists in the area of computer who confirm that DeCSS is not a secret.

The evidence includes the following facts:

* Hundreds, if not thousands, of sites on the Internet continue to publish DeCSS where it may be freely examined, copied, or downloaded.

* The CSS algorithms and keys have been the subject of worldwide academic study, research, teaching, and communication. Professors at Carnegie-Mellon, Berkeley and Lulea University of Sweden state that they use DeCSS as an example in their courses of how to avoid designing an encryption system easily vulnerable to circumvention.

* Wired Magazine and the Massachusetts Institute of Technology?s journal Technology Review have published DVD descrambling programs. The Wall Street Journal has published one of the CSS encryption keys.

* DVD CCA has ceased policing its alleged CSS trade secrets, claiming it would be too burdensome for it to examine every website now posting a DVD descrambling program.

Based on these facts, EFF told the court that "DVD CCA seeks to put the Court in the impossible position of trying to put the genie back into the bottle."

DeCSS is a controversial program that unscrambles the information on DVDs. It was created as part of a project to develop a DVD player for computers running the Linux operating system. DeCSS was published on the Internet in 1999 by a Norwegian teenager and quickly republished by hundreds of other publishers around the globe. In early 2000, DVD CCA filed the lawsuit against hundreds of Web publishers seeking to ban its publication. Only one of the publishers, Andrew Bunner, has been subject to the jurisdiction of the California court. If Bunner's motion is successful, the other publishers of DeCSS will also be free from the chilling effects of this California lawsuit.

Andrew Bunner is represented in the Superior Court by Richard Wiebe of San Francisco, Allonn Levy of San Jose's HS Law Group, Tom Moore of Tomlinson Zisko Morosoli & Maser in Palo Alto, Professor Eben Moglen of Columbia University Law School, and Electronic Frontier Foundation attorneys Cindy Cohn and Robin Gross.

The following academics and scientists provided supporting declarations:

* Princeton Computer Science Professor Edward Felten (on sabbatical this year at Stanford Law School?s Center for the Internet and Society; chief technical adviser to the U.S. Department of Justice in United States v. Microsoft)

* University of California-Berkeley Computer Science Professor David Wagner

* Carnegie-Mellon University Principal Computer Scientist Dr. David Touretzky

* Carnegie-Mellon University Computer Scientist Gregory Kesden

* Computer Scientist Roland Parviainen of Sweden?s Luleå University of Technology

Current EFF filing in DVD CCA v. Bunner:
http://www.eff.org/sc/20011128_bunner_sum_judg_motion.html

The 6th District Court of Appeal decision overturning the injunction:
http://eff.org/sc/20011101_bunner_appellate_decision.html

More information on DVD CCA v. Bunner including legal filings, expert declarations, and media releases:
http://www.eff.org/Cases/DVDCCA_case/

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world at http://www.eff.org/

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