When teenage software engineer, Jon Johansen, wrote a decryption code for DVDs in the late 90’s, he did not expect the long arm of the law to take him to court. His crime? The publication and distribution of illegal numbers.

Known as the deCSS (“CSS De-scrambler”) code, this court case- and the others that followed- was set firmly at the intersection of technology, free speech, and trade secret rights. Can a string of numbers be unlawful? Are coding languages- their use, and subsequent publication- protected by the First Amendment rights as traditional languages? Can the mathematical expression of computer-users put the creator in prison? Unwittingly, Johansen opened up a can of digital worms that plagued the courts of two countries, for years.

In the late 1990s, DVDs (Digital Video Discs or Digital Versatile Dics) were all the rage; they stored two of the most popular types of entertainment: Films and music. In order to prevent piracy and redistribution, these discs were protected by encrypted codes.

But hackers are inquisitive problem-solvers. In 1999, Jon Johansen, along with two other anonymous hackers, sought out how to decrypt the code- allowing not just for the copying of any DVD, but also allowing the discs to play on other operating systems like Linux, instead of Windows. Once the functional code was developed, it was posted online.

Once online, the deCSS code garnered attention, including from some heavy hitters. Complaints were filed by the US DVD Copy Control Association and the Motion Picture Association. Johansen’s home was subsequently raided by Norwegian authorities, and he was charged with “breaking a protective device or in a similar manner, unlawfully obtains access to data or programs which are stored or transferred by electronic or other technical means”.

Staring down the barrel of a two year prison sentence, Johansen’s lawyers argued that not only does Norwegian law allow for the copying of DVD information, but no one else’s data had been breached. In this case, not only was Johansen’s act victimless, but it was determined no crime had been committed.

All charges against him were dismissed.

Round II: Universal City Studios, Inc. vs Corely

Across the pond, in the United States, Eric Corely found himself squarely in the sights of seven movie studios, claiming his publication violated the DMCA’s (Digital Millenium Copyright Act) prohibition against “providing circumnavigation devices”. Corely’s alleged crime was the publication of deCSS on his website, 2600.com.

Universal City Studios, Inc. argued that the mere publication of such a code facilitated a means by which others could “circumnavigate” encryption, and so, was not protected by the First Amendment.

The court ruled that Corely was not permitted to publish, distribute, or even link to, deCSS code. And although Corely appealed to the higher court- where they did find that “code is speech”- the Judge also determined that not all speech is created equal; As deCSS is a functional set of instructions meant to be executable, the court still found in favor of Universal City Studios.

Round III: Universal City Studios, Inc. vs
Reimerdez et al.

Continuing a long line of litigious action, Universal City Studios took a litany of other defendants to court. After Johansen’s original deCSS post, its distribution online caught like wildfire in the years that followed. And as the websites that published the code grew extensively, so too did the list of new defendants.

In this case, Reimerdez et al. posted the deCSS code on various websites, in an act of “electronic civil disobedience”, all citing their First Amendment right to express, publish, and distribute the language of code.

Again, the court ruled that computer code is indeed speech, however, there remained caveats to its protection. In his ruling, Judge Kaplan explained:

“In an era in which the transmission of
computer viruses — which, like DeCSS, are simply computer code and thus to some
degree expressive — can disable systems upon which the nation depends and in
which other computer code also is capable of inflicting other harm, society
must be able to regulate the use and dissemination [305] of code in appropriate
circumstances. The Constitution, after all, is a framework for building a just
and democratic society. It is not a suicide pact”. (Read Judge Kaplan’s opinion here)

In response to the Judge’s verdict, Carnegie Melon professor of Computer Science, Dr. David Touretzky, performed his own “electronic civil disobedience”. Touetzky requested computer scholars send him creative works featuring deCSS, thereby demonstrating that regardless of a code’s ‘executable nature’, its writing is indeed a creative, expressive act, able to communicate meaning in innumerable ways, and thus equally deserves First Amendment protection.

Submissions sent to Touretsky included: A dramatic reading of the code, a Star Wars-themed scrolling sequence, a country song, a haiku, and the code printed on t-shirts and ties. [You can see the submissions on Touretzky’s “Gallery of CSS Descramblers”, here.]

On the impetus to publish the deCSS Gallery, Touetzky stated:

“If code that can be directly compiled and executed may be suppressed under the DMCA, as Judge Kaplan asserts in his preliminary ruling, but a textual description of the same algorithm may not be suppressed, then where exactly should the line be drawn? This web site was created to explore this issue, and point out the absurdity of Judge Kaplan’s position that source code can be legally differentiated from other forms of written expression.” 

Round IV: DVD Copy Control Association vs Andrew Bunner

Andrew Bunner, creator of the aforementioned deCSS t-shirt and website CopyLeft, was sued for the sale of a ‘circumnavigation device’ in the form of casual wear.

The DVD Copy Control Association sued Bunner under California’s Uniform Trade Secret Act, maintaining the position that the decryption code was, in fact, distribution of technology they controlled and so should not be considered protected speech. Upon appeal, however, the court found in favor of Bunner and his First Amendment right of expression.

Of all the courts’ rulings, over many years of litigation, and a long list of defendants, the Judge in this case finally determined that previous rulings forbidding the publishing and distribution of deCSS code was, in fact, unconstitutional. The court ruled:

“DeCSS… is not lewd, profane, obscene or libelous, nor did it involve any fighting words. DVD CCA does not ask this court to create a new judicial exception for software containing a misappropriated trade secret, and we decline to do so here. Although the social value of DeCSS may be questionable, it is nonetheless pure speech.” [Read excerpts of the ruling here.]

But as with all the cases of deCSS, the ruling was a double-edged sword: Although defendants’ constitutional First Amendment rights were restored, and code was determined to be “pure speech”, the rights of businesses and proprietary ownership also remained intact. First, in the case of Bunner, the court ruled that to bar the publication and distribution of [coded] speech is unconstitutional:

“The scope of protection for trade secrets does not override the protection offered by the First Amendment. The First Amendment prohibits the enactment of any law “abridging the freedom of speech …” The California Legislature is free to enact laws to protect trade secrets, but these provisions must bow to the protections offered by the First Amendment.”  

Simultaneously, however, trade secrets are still protected and- depending on the state- publication, distribution, and sales of code such as deCSS, are still open for future litigation. 

Wrap Up

From its inception, deCSS code has both flourished online and confounded the courts. 

After years of litigation, rulings, and appeals, some things are clear, while others remain murky. Is the writing of computer code protected by our First Amendment rights to free speech? Yes. Are companies’ trade secrets still protected, even if those “secrets” take the form of a computer language? Yes.

So, while individuals can produce code as a means of expression, equally are companies permitted to pursue litigation in order to protect their proprietary information. 

Comically, in the case of the DVD Copy Control Association and their attempts to quash the publication of the deCSS, the courts determined the code is no longer a trade secret as it’s circulation has become so ubiquitous online.   

So, can numbers be illegal? Constitutionally, no. But there are those who certainly think they can be dangerous.

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