Source code is free speech

The geek community breathed a sigh of relief yesterday when a court of appeal ruling overturned the controversial injunction against publication of the DeCSS source code.

The software shot to notoriety at the end of 1999 over concerns that it could be used to decrypt and copy DVDs.

In yesterday's ruling, the preliminary injunction granted to the DVD Copy Control Association to prevent the publication of Jon Johansen's DeCSS was overturned after webmaster Andrew Bunner appealed on free speech grounds of the First Amendment.

The DVDCCA alleged that DeCSS embodies, uses, and is a substantial derivation of its confidential proprietary information.

But the appeals court ruled that the DeCSS code itself simply "describes an alternative method of decrypting CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS."

The court did note, however, that if said source code were compiled to create a program, the "expressive" nature of the code would be lost.

"That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself," the court ruled, therefore the injunction counts as a prohibition of free speech.

"In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself," the ruling continued.

"Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial."

As well as a reversal on the injunction, the court also ruled that the defendant, Andrew Bunner, would be entitled to recover all his appellate costs.

One comment on the Slashdot message forum, which has been tracking the case, pointed out that "this case does not appear to have had any impact on the DMCA," which has long been the decryption community's bugbear, "but on a CA trade secret law. So we are not out of the woods yet with the federal law," it said.