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Electronic Frontier Foundation/First Amendment Project Media ReleaseFirst Amendment Right to Publish Computer Code UpheldCourt Overturns Ban on Publication in Trade Secret CaseFor Immediate Release: Thursday, November 1, 2001Contact:David Greene, FAP Executive Director James Wheaton, FAP Senior Counsel Robin Gross, EFF Intellectual Property Attorney 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, DVDCCA. 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, DVDCCA 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 U.S. 2nd Circuit Court of Appeals will likely decide soon a separate case in which EFF appealed an injunction barring 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. The 6th Appellate Court's decision overturning the injunction: 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 Web sites in the world: 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: - end -
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