California Supreme Court Hears Dvd Trade Secret Case

Online Newsletter, June, 2002

The Electronic Frontier Foundation (EFF) and the First Amendment Project on May 22, asked the California Supreme Court to affirm an appeals court decision permitting publication of software pending a lower court's ruling on a trade secret case. The appeals court had overturned a lower court's injunction against publication of the software based on the publisher's First Amendment rights.

DVD-CCA, the organization that licenses DVD technology for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained a lower court injunction in January 2000 against defendant Andrew Bunner for publishing DeCSS software that decrypts DVDs. When an appeals court overruled the lower court injunction last November, DVD-CCA then appealed to the California Supreme Court to challenge the appeals panel ruling.

The appeals panel had ruled that the trial judge failed to consider the First Amendment rights of Bunner to republish information readily available in the public domain when it issued the gag order.

DVD-CCA contends that republication of DeCSS software constitutes illegal misappropriation of a trade secret. Bunner had republished DeCSS on his Website after reading about it on Slashdot and deciding it was newsworthy.

"Well established trade secret law clearly holds that only those individuals who have undertaken an affirmative duty to treat information as a trade secret are required by law to keep it secret," said EFF intellectual property attorney Robin Gross. "People who obtain information from the public domain have a First Amendment right to republish that information."

"We're confident the [California] Supreme Court will recognize, as the Court of Appeals did, that this is a classic First Amendment case," said David Greene, executive director for the First Amendment Project and main author of the groups' legal brief.

DVD-CCA's reply brief is due on June 11, and oral argument will be scheduled before the California Supreme Court within the next 18 months.

The First Amendment Project (FAP) is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists. and artists in service of these fundamental liberties. The FAP Website is at: http://www.thefirstamendment.org

Additional information on this case is available on the EFF Website at: http://www.eff.org