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IP: EFF Appeals California DVD Software Ban
From: Dave Farber <farber () cis upenn edu>
Date: Thu, 18 May 2000 18:55:46 -0700




For Immediate Release
May 15, 2000

EFF Appeals California DVD Software Ban
'Prior Restraint' of Speech Unconstitutional

Contact:

Katina Bishop - Electronic Frontier Foundation
(415) 436-9333 ex. 101

Robin Gross - Electronic Frontier Foundation
(415) 863-5459

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."

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.





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