DeCSS is a decryption program designed to enable the playback of digital videodiscs protected by the Content Scramble System (CSS), an anti-piracy device installed on commercial DVDs to deter copying. Two months after DeCSS appeared on the Internet in October 1999, DVD-CCA sued several hundred people -- including Andrew Bunner, the defendant in Thursday's case, for republishing the software code on various Web sites.
     
A lower California court awarded an injunction against DeCSS, but an appellate court overruled that decision, stating that "the scope of protection for trade secrets does not override the protection offered by the First Amendment" to publish computer code on the Internet.

Gwen Hinze, a staff attorney for the Electronic Frontier Foundation, observed in an e-mail that the case raises significant issues about First Amendment rights in online expression and added, "At the time the trial court granted the preliminary injunction, DeCSS had been available on Web sites in 11 countries across the world, for over three months."

During the Supreme Court hearing, Justice Kathryn Werdegar asked whether the injunction was justified because the trade secret DVD-CCA sought to protect was so widely known. DVD-CCA attorney Robert Sugarman stressed that that it should be. Otherwise, he said, "An infringer could post a trade secret [on the Internet] and then claim there's no real need for [injunctive] relief."
     
He also said Bunner either knew or should have known that the DeCSS code was a trade secret because posts on Slashdot.org, a popular Internet forum for technology experts, "made it clear the hack [of CSS] was illegal." But David Green, Bunner's attorney, answered that argument by saying, "Merely because you read the same magazines does not mean you have the same motivations as other readers."
     
Sugarman also argued that content-neutral speech such as DeCSS does not deserve the same protection as speech aimed at persuading listeners to a viewpoint. And siding with the DVD-CCA, California Attorney General Bill Lockyer challenged the concept of classifying code as speech. "There's almost no pure speech," he said of DeCSS. "The program is a burglary tool."
     
"It is pure speech," Green responded. "It's pure transmission of information via language."
     
Lockyer emphasized that the case is economically important to California. "The movie industry estimates that 350,000 movies are illegally downloaded every day," he said, though Bunner is being tried for publishing rather than for piracy. Green countered that the academic, technical, and media communities have a strong interest in DeCSS.
     
Justice Carlos Moreno asked whether the plaintiffs would have a better claim under the Digital Millennium Copyright Act, which bans devices designed to bypass anti-piracy technologies. Green conceded that such a claim could be stronger, which suggests a possible future course of legal action should the court rule against the DVD-CCA.