San Francisco -- 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:
http://www.eff.org/pub/Intellectual_property/DVD/20000515-appeal-brief.html
Background
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:
http://www.eff.org/IP/Video
http://www.eff.org/IP/Video/DVDCCA_case/20000515-appeal-brief.html
For more information on The First Amendment Project, see:
http://www.thefirstamendment.org
For more information concerning EFF's Campaign for Audiovisual
Free Expression, see:
http://www.eff.org/cafe
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 (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.
Contact:
Katina Bishop - Electronic Frontier Foundation
(415) 436-9333 ex. 101
Robin Gross - Electronic Frontier Foundation
(415) 863-5459