EFF - The Electronic Frontier Foundation

For Immediate Release: May 15, 2000

EFF Appeals California DVD Software Ban

'Prior Restraint' of Speech Unconstitutional


Katina Bishop - EFF Communications Manager
+1 415 436 9333 x101

Robin Gross - EFF Staff Attorney

San Francisco CA -- The Electronic Frontier Foundation today appealed a January 20 order barring publication of DeCSS software on dozens of Web sites. The appeal to the California Sixth Appellate Court seeks to overturn the preliminary injunction that unfairly valued the DVD- CCA's claim of potential future financial harm above important First Amendment rights.

DeCSS is free software that allows people to play DVDs without technological restrictions, such as region codes, that are preferred by movie studios.

"The trial court simply ignored the defendant's First Amendment right to publish DeCSS on his Website," said David Greene, Executive Director and staff council to the First Amendment Project, and a member of EFF's DVD legal defense team. "The court's injunction is a prior restraint on free expression, one of the most severe civil penalties in our legal system. Even a momentary deprivation of the right to speak or publish causes serious and irreparable harm, far more grave than any monetary loss."

A "prior restraint" is government action that prevents a citizen's speech or publication from reaching its listeners. It can only be imposed for a very brief period, in extreme situations where the act of publishing threatens an interest more fundamental than the First Amendment itself, such as the safety of troops in wartime. In this case, the Preliminary Injunction prohibited publication of DeCSS after only a brief examination of dubious evidence. Furthermore, the order is unclear about exactly what is prohibited.

DVD-CCA claims that the defendants were mis-appropriating its trade secrets by posting DeCSS on their Websites. However, trade secret law only prevents publication by those who entered into contracts to protect the secret.

According to Eben Moglen, law professor at Columbia University, " In this appeal, EFF raises the central Constitutional question concerning the use of sweeping injunctions to control the flow of discussion and information on the Internet on allegations that commercial secrets are involved. I look forward to a decision in the court of appeals that takes Constitutional rights seriously."

EFF's Appeal brief is available at:


The movie industry initiated legal attacks against Web publishers in California, New York, Connecticut, and Norway over the DeCSS software code posted on their sites. EFF is defending the DVD cases as part of its Campaign for Audiovisual Free Expression (CAFE). CAFE was launched last year to address complex social and legal issues raised by new technological measures for protecting intellectual property.

For complete information on the MPAA and DVD-CCA cases, see:

For more information on The First Amendment Project, see:

For more information concerning EFF's Campaign for Audiovisual Free Expression, see:

The Electronic Frontier Foundation (http://www.eff.org) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. 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.

The First Amendment Project (http://www.thefirstamendment.org) 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.


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