[free-sklyarov] Linux update withholds security info on DMCA terror

Seth David Schoen schoen at loyalty.org
Fri Nov 2 08:18:54 PST 2001

ascott writes:

> Maybe we should tell Alan that he should not worry and, citing the recent
> appeals court decision to "overturn the order that barred hundreds of
> people from publishing" DeCSS code, since it has been found to be an
> expression of speech
> (http://news.cnet.com/news/0-1005-200-7751876.html), that his security
> fixes, updates, conversations and documentation will be covered under our
> country's First Ammendment to our Constitution which allows him to share
> this info freely and protects this freedom specifically.
> The last thing that I want to see is Alan Cox step down from kernel
> developement.  Surely, you jest.
> I hope that this recent turn of events for DeCSS help in Dmitry's case, as
> well.
> see
> http://www.eff.org/IP/Video/DVDCCA_case/20011101_bunner_appellate_decision.html
> Here's the crux.
> "Like the CSS decryption software, DeCSS is a writing composed of computer
> source code which describes an alternative method of decrypting
> CSSencrypted 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. If the source code were "compiled" to create object
> code, we would agree that the resulting composition of zeroes and ones
> would not convey ideas. (See generally Junger v. Daley, supra, 209 F.3d at
> pp.482483.) That the source code is capable of such compilation, however,
> does not destroy the expressive nature of the source code itself. Thus, we
> conclude that the trial court's preliminary injunction barring Bunner from
> disclosing DeCSS can fairly be characterized as a prohibition of "pure"
> speech. "
> While I know this is not a complete win (or is it?  I'm not sure.), I feel
> that it is a major turning point toward possibly getting it right, none
> the less.  In fact, it may have been the first bit of good news I've read
> all month and I would certainly like to read more of it.

The trouble is that this only (partly, and possibly only temporarily)
disposes of the "misappropriation of trade secrets" claim used to
attack DeCSS.  It doesn't do anything to the "circumvention device"
claim -- it wasn't a ruling on or about the DMCA!

The Second Circuit could do something about the latter claim by
deciding Emmanuel Goldstein's appeal in his favor.  That would make a
lot of people breathe easier.  They've been briefed pretty well and
they've expressed curiosity about the free speech issues involved, so
we can hope.

The trade secret claim has been viewed as weaker than the DMCA claim
by most lawyers I know.  They often think that the DMCA was written to
prevent what Emmanuel Goldstein was doing (although they hope it will
be found unconstitutional), whereas the UTSA was not written to
prohibit what Andrew Bunner was doing.

This decision definitely doesn't provide a precedent for Dmitry's case
because he's in Federal court and this decision was made by a
California state court (and the law in question is a different law
in each case).  Although there are situations where state court
decisions could affect how Federal courts rule, deciding on the
constitutionality of a Federal law doesn't seem to be one of them.

Anyway, I'm going to have a party to celebrate the Bunner ruling.
It's great news!

Seth David Schoen <schoen at loyalty.org> | Its really terrible when FBI arrested
Temp.  http://www.loyalty.org/~schoen/ | hacker, who visited USA with peacefull
down:  http://www.loyalty.org/   (CAF) | mission -- to share his knowledge with
     http://www.freesklyarov.org/      | american nation.  (Ilya V. Vasilyev)

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