DVD Decryption Ruling Ambiguous

It’s ALL ambiguous right now.

Hollywood asked that the DVD decryption code be declared a trade secret and banned from the Internet – they got part of that:

The case has pit freedom-of-speech arguments against an entertainment-industry effort to protect what it says are trade secrets. Hollywood is happy because the court upheld an injunction that prohibits Internet posting of code that allows computer users to crack copy-protection on DVD movies. Web-site owners such as Andrew Bunner, the San Francisco computer programmer who was sued for posting the code called DeCSS, are happy because they’ll get another chance to challenge Hollywood’s argument that copy-protection code is a trade secret. [Mercury News]

That’s a lot of happiness.

The bigger issue, however, is the conflict between freedom of speech and the desire by companies to protect trade secrets.

“The ruling means that there is no longer an argument that the First Amendment bars the issuance of a preliminary injunction,” said Robert Sugarman, an attorney representing the DVD Copy Control Association.

“The big picture is this is a victory for software publishers,” Johnathan Band, a Washington-based intellectual property lawyer, told Bloomberg News. “The Supreme Court held that the First Amendment does not trump trade-secret law. Software publishers are going to still be able to use trade secrets law to protect their products.”

….Cindy Cohn, legal director for the Electronic Frontier Foundation in San Francisco, said she would have preferred that the state Supreme Court had upheld the appellate court’s ruling on the First Amendment matter but welcomes the opportunity to argue the trade-secrets issue.

The DVD Copy Control Association, she said, now must prove that its content-protection code is a secret.

“We’ll go back down to the court of appeal and present the facts and it will be painfully clear that DeCSS is not a secret,” she said. “It’s on T-shirts. It’s on neckties. It’s in thousands of places. Just do a Google search and you’ll find it.”

So now we will find out if the code is a “trade secret.”

Speaking of ambiguity – check out this juxtaposition on the same Yahoo! page as this story is promo/link to another story:

Special Feature
Tech Tuesday: Copying DVDs
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Get the know-how and tools to backup your DVDs

It comes complete with a neat little graphic and everything. You see, the DVD industry claims that backing up your DVDs is illegal. The story by ExtremeTech writer Jim Louderback:

I’m not in the habit of turning mild-mannered law-abiding citizens into criminals. I don’t gamble, buy cigarettes for teenagers or employ illegal aliens to watch my kid. I don’t even like gangsta rap. But I do like movies, and my passion for technology means I may have doomed my four-year-old to a life of crime. I might be about to do the same to you.

We’re about to explore how to copy DVDs, a topic of murky legality, where shadowy bootleggers co-exist with upright citizens who wouldn’t dream of exceeding the speed limit. School age children, and those with weak hearts are advised to stop reading now, click back to the main Yahoo page, and find a tamer article to read – perhaps one featuring JLo and Ben. For the rest of you, let’s get started.

Just remember, I warned you.

DVD movies, like music CDs, are stored digitally on that plastic disc, in a stream of zeroes and ones almost as long as War and Peace and Remembrance of Things Past combined. VCR and cassette recorders, by contrast, transcribe in an analog format – closer to what your eye and ear perceive.

Each time a cassette or VHS tape is copied, the music or video degrades. That’s because the recording can’t match the original source. That’s why the “master” was so important in the pre-digital days, because only it could generate the best copies for sale or share.

But when you make a copy of a digital file – whether it’s a Rolling Stones song, Harry Potter movie or Excel spreadsheet – the copy is identical to the original. It’s hard to mess up ones and zeros.

And so on and so forth. He has links to products that copy DVDs, and to free shareware that does the same.

Every meaningful reading of “fair use” would indicate that making a personal use back-up copy of a DVD you have legally purchased is perfectly legitimate – every reading, that is, other than the dreadful DMCA, which prohibits use of digital decryption. That’s why (among other reasons) the DMCA is terrible law and outrageous nonsense.