Metropolitan News-Enterprise


Monday, March 1, 2004


Page 1


C.A. Overturns Injunction Against Posting DVD Code


By KENNETH OFGANG, Staff Writer/Appellate Courts


A trade secrets injunction barring a Web site operator from posting source code for a DVD decryption program was overturned Friday by the Sixth District Court of Appeal.

It was the second time the Court of Appeal had ruled in favor of Andrew Bunner in his dispute with the DVD Copy Control Association, the exclusive licensing entity for the content scrambling system that protects the content of commercial DVDs from unauthorized use.

The panel had overturned Santa Clara Superior Court Judge William J. Elfving’s injunction in November 2001, concluding that the injunction was a prior restraint on speech and violated the First Amendment. The state Supreme Court reversed in DVD Copy Control Assn., Inc. v. Bunner  (2003) 31 Cal.4th 864, sending the case back to the Sixth District justices to decide whether the injunction was consistent with the Uniform Trade Secrets Act.

The DVD CCA dismissed the underlying suit after the case was sent back to the Court of Appeal and sought to dismiss the appeal as moot, but Justice Eugene Premo explained in Friday’s opinion that the court decided to resolve the issues because they were likely to recur.

The justices said the injunction did not pass muster under the UTSA because the code was no longer secret by the time San Francisco computer programmer Andrew Bunner posted it, and was even more widely known by the time the injunction was issued.

In suing Bunner and others, the DVD CCA—an arm of Hollywood studios—said the release of the code enabled users to replicate thousands of copyright-protected movies daily.

The code, known as DeCSS, was originally cracked by Norwegian teenager Jon Johansen, who was  acquitted in his native country of charges he stole trade secrets. By the time Elfving heard the DVD CCA’s request for a temporary restraining order, the code had been displayed on or linked to at least 118 Web pages in 11 states and 11 foreign countries, the association reported.

Premo, writing for the Court of Appeal, acknowledged that posting on the Internet “does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value.”

But the court cannot “ignore the fact that the allegedly proprietary information may have been distributed to a worldwide audience of millions prior to Bunner’s first posting,” the justice wrote.

“[A]ssuming the information was originally acquired by improper means, it does not necessarily follow that once the information became publicly available that everyone else would be liable under the trade secret laws for re-publishing it simply because they knew about its unethical origins,” Premo declared. “In a case that receives widespread publicity, just about anyone who becomes aware of the contested information would also know that it was allegedly created by improper means. Under DVD CCA’s construction of the law, in such a case the general public could theoretically be liable for misappropriation simply by disclosing it to someone else. This is not what trade secret law is designed to do.”

Besides, the jurist explained, by the time the preliminary injunction was granted, hundreds of Web sites had posted the program and “untold numbers of persons” had downloaded it. Under those circumstances, Premo concluded, it was an abuse of discretion for the judge to conclude that the harm to the DVD CCA as a result of Bunner’s posting outweighed the harm that Bunner would suffer as a result of the injunction.

The case is DVD Copy Control Association, Inc. v. Bunner, 04 S.O.S. 974.


Copyright 2004, Metropolitan News Company