Code as Free Speech – III

Court Overturns Ban on Posting DVD Descrambling Code, Finding a Free-Speech Violation
Follow the link above to the Electronic Frontier Foundation’s release on the recent victory in a DeCSS case. Bunner posted (or linked to) some code that the “DVD Copy Control Association” claimed was a trade secret. “Not” said Bunner and lots of other people. “If it’s a secret, how come we know it?” They posted. The evil corporations sued for an injunction. Injunction was granted. Bunner appealed. Injunction was overturned as “an abuse of the trial court’s discretion.” The appeals court went on to say, “It is important to stress that our conclusion is based upon the appellate record filed in this court. It is not a final adjudication on the merits. The ultimate determination of trade secret status and misappropriation would be subject to proof to be presented at trial.”

This is all shuffle and jive. Or as the man said, “there are no secrets… only information we don’t have yet.” Posting code that belongs to someone else is wrong, just as posting a picture of Minnie Mouse is wrong, generally unenforceable unless someone literally wants to make a federal case out of it — but wrong. The free speech issue here doesn’t have anything to do with the subtler question of is my source code a protected expression like my words in a book. This posting and the overturning of a court injunction against it is a free speech issue like flag burning. I wish it had been about Minnie Mouse. The issue of free speech is cluttering the discussion.

Thanks to DH for the Findlaw link. I’m looking forward to reading what she might write about these matters.

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