California's Supreme Court on Thursday heard oral arguments in a case that pits the motion picture industry against a man who distributed a DVD descrambling program through his website, until he was forced by a court order to remove it.
Andrew Bunner, now 26, was one of hundreds of people who mirrored a copy of the open-source DeCSS program on the Web in 1999, after learning about the controversy surrounding the program on the "news for nerds" community site Slashdot. Shortly thereafter he was named in an injunction ordering him to take down the program, as part of broadly targeted lawsuit filed by the DVD Copy Control Association -- a motion picture industry group -- under a 1979 state law designed to protect trade secrets.
DeCSS was written by Norwegian teenager Jon Johansen, in part based on information Johansen reverse-engineered from a commercial DVD-playing program that included a click-wrap license agreement that barred reverse engineering.
Bunner, with the support of the Electronic Frontier Foundation and the First Amendment Project, appealed, and an appeals court overturned the injunction in 2000, ruling that the order violated the First Amendment of the U.S. Constitution. The DVD-CCA then appealed to the state Supreme Court.
In a packed courtroom Thursday, the argument focused mostly on whether a computer program should be considered "pure speech" afforded the full protection of the First Amendment, or a mixture of expression and functionality protected by a lower standard.
Robert Sugarman, a lawyer for DVD-CCA, argued the latter view. He said the appellate court erred by treating DeCSS as pure speech, because code is designed to be functional -- to be executed on a computer -- and "not to communicate ideas [or] to comment on something of public concern."
California Attorney General Bill Lockyer, appearing as a friend of the court, also sided with the industry, describing DeCSS as a "burglary tool" built for "entering and stealing the property" of the movie studios. Lockyer warned the court in stark terms that California's motion picture, music and technology industries would all suffer grave financial losses if trial courts had to treat computer code as speech when considering legal bids to suppress a program.
Bunner: A Matter of Principle
David Greene, from the non-profit First Amendment Project, represented Bunner. He argued that a computer program is no different from music lyrics or a novel -- it's just written in a different language, designed to be interpretable by machine. "This is pure speech because... it is purely the transmission of information via a language," said Greene.
Several Justices on the seven-judge panel asked how the case was affected by New York federal judge Lewis Kaplan's 2000 decision against publisher Eric Corley. Corely was forced to permanently remove a copy of DeCSS from his website after Kaplan ruled the program was not pure speech. "Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement," wrote Kaplan at the time.
But the New York case was decided under the DMCA, a federal law that makes it illegal to distribute tools that circumvent copy protection schemes. In contrast, the California injunction was explicitly aimed at protecting alleged trade secrets that had been incorporated into DeCSS; by definition, it targets the information conveyed by the program's code, irrespective of what the program is used for, said Greene.
"This injunction has nothing to do with function," Greene said. "It has to do only with the information component."
Greene also argued that it was unclear that DeCSS included improperly-obtained information to begin with, since it was written in Norway, where the enforceability of click-wrap agreements is a murkier matter than in the U.S. Sugarman argued that the DeCSS did use protected trade secrets, and that Bunner knew it, and knew he would enjoined for mirroring it. "There's no question that the Slashdot website made it clear that this would occur," said Sugarman.
With more than three years passed since the DVD-CCA's injunction was first granted, DeCSS is now widely available online. But in an impromptu press conference following the hearing, Bunner said he's continuing to fight the case on principle.
"This thing is pure speech," Bunner said. "People have written haikus that capture the algorithm for decrypting DVDs. If that's not speech, I don't know what is."
A decision from the court is expected within 90 days.