[9777] in cryptography@c2.net mail archive
Re: California appeals court holds that DeCSS code is protected speech
daemon@ATHENA.MIT.EDU (John Gilmore)
Sun Nov 4 10:51:18 2001
Message-Id: <200111040515.VAA03704@toad.com>
To: "James S. Tyre" <jstyre@jstyre.com>
Cc: Steve Bellovin <smb@research.att.com>,
cryptography@wasabisystems.com, gnu@toad.com
In-reply-to: <4.3.2.7.2.20011103120027.00b26d70@earthlink.net>
Date: Sat, 03 Nov 2001 21:15:13 -0800
From: John Gilmore <gnu@toad.com>
> Second, the court ruled that the preliminary injunction which the lower
> court had issued was an unconstitutional prior restraint on speech, but
> went out of its way not to answer whether damages and/or a permanent
> injunction after trial would suffer the same fate.
Actually, the fact that the issue in question is a "prior" restraint
-- a preliminary injunction issued before a full judicial
determination about the merits of the case -- is what dominated their
whole analysis. If they had analyzed a permanent injunction, they
would have been straying way off into dicta. I think they did it right.
They also spent a good bit of time showing how trade secrets don't get
the same level of protection as First Amendment speech OR copyright
(e.g. trade secrets are not in the constitution). This let them
distinguish this case from the far-too-many cases in which preliminary
injunctions are issued to censor speech because of an allegation of
COPYRIGHT infringement.
John
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