A unanimous decision by a California court on Thursday in the original DeCSS case has given hope to those of us involved and those who have been closely following these cases.

We're still waiting for a decision in our appeal, which was heard back in May.

The Electronic Frontier Foundation has issued the following release concerning the events of Thursday:

First Amendment Right to Publish Computer Code Upheld

Court Overturns Ban on Publication in Trade Secret Case

In a tremendous victory for freedom of speech on the Internet, a California appellate court today unanimously overturned a trial court's injunction banning dozens of individuals from publishing on their websites DeCSS computer code that unscrambles DVDs. Unscrambled DVDs may be played on any computer.

The appellate court held that a lower court judge violated the First Amendment rights of defendant Andrew Bunner in ordering Bunner and other publishers of the software to remove it from the web on a preliminary request by the major movie studios' DVD licensing organization, DVD-CCA. Bunner had republished the software after learning about it on Slashdot News. The lower court enjoined Bunner from publishing DeCSS based on claims of trade secret misappropriation even though he found the program in the public domain and simply republished it.

"The court recognized that trade secrets do not trump the First Amendment rights of citizens to publish and discuss information readily available in the public domain," stated David Greene, Executive Director of the First Amendment Project who argued the appeal before the 6th District Appellate Court.

According to the court's ruling, "the California Legislature is free to enact laws to protect trade secrets, but these provisions must bow to the protections offered by the First Amendment." The court found that the injunction barring Bunner's publication of DeCSS "can fairly be characterized as a prohibition of 'pure' speech."

"In an era of expanding dubious legal claims by intellectual property owners that threaten to stifle speech and innovation, this decision paves the way for preserving liberty online by balancing legitimate restrictions with First Amendment guarantees," stated Robin Gross, an EFF intellectual property attorney handling the case.

The studios objected to DeCSS software, which programmers wrote in the fall of 1999 as part of an independent project to create a DVD player for the Linux operating system. In early 2000, DVD-CCA filed this lawsuit against hundreds of Web publishers seeking to ban the publication of DeCSS. Santa Clara County trial court Judge William Elfving granted the request for a preliminary injunction on January 21, 2000, and ordered defendants to remove DeCSS from their personal websites. The case is expected to go to trial next spring before Judge Elfving.

Andrew Bunner was represented on appeal by David Greene and James Wheaton of the First Amendment Project, 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 6th Appellate Court's decision overturning the injunction

More information on DVD-CCA v. Bunner including legal filings and media releases

The U.S. 2nd Circuit Court of Appeals will likely decide soon a separate case in which EFF appealed an injunction banning 2600 Magazine's Editor-in-Chief Emmanuel Goldstein from publishing or linking to DeCSS under the Digital Millennium Copyright Act's anti-circumvention provisions. Dean Kathleen Sullivan of Stanford Law School argued that case on behalf of the EFF in May 2001.

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: http://www.eff.org

About FAP:

The First Amendment Project is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties and has a website at: http://thefirstamendment.org