Victory! A California Court of Appeal, Sixth Appellate District,
has just overturned the injunction imposed by a lower court in the DVDCCA v. Andrew Bunner case.
If you remember, the injunction prevented Andrew Bunner "and numerous other named and unnamed individuals"
from publishing "or otherwise disclosing or distributing, on their web sites or elsewhere, the DeCSS program,
the master keys or algorithms of the Content Scramble System ('CSS'), or any information derived from this
The DVD Copy Control Association (DVDCCA), a trade association of businesses in the movie industry which
also controls the rights to CSS, believed that because Bunner and others were publishing or linking to the
DeCSS program, they were distributing confidential proprietary information ("trade secrets"). As such, the
DVDCCA initiated their action to prevent the publication of DeCSS on December 27, 1999, under California's
Uniform Trade Secrets Act (UTSA).
California's version of the Uniform Trade Secrets Act (UTSA) is designed to protect "economically valuable
trade secrets from misappropriation."
Since the DVDCCA established that CSS was its "trade secret," the trial court granted it it's injuction
against Bunner as his publication of DeCSS violated the UTSA because it disclosed one of DVDCCA's trade secret
master keys, the master key had been obtained by improper means, and Bunner had reason to know both that DeCSS
contained the master key and that the master key had been obtained by improper means.
In overturning the injuction, California's Court of Appeal ruled that DeCSS, which is essentially computer
source code, is "an expressive means for the exchange of information and ideas about computer programming."
And as such, it is protected under the First Amendment. Therefore, the trial court's preliminary injuction
which barred Bunner from publishing DeCSS was characterized as a prohibition of "pure" speech.
The Court of Appeal goes on to state that "in the case of a prior restraint on pure speech, the hurdle is
substantially higher [than for an ordinary preliminary injuction]: publication must threaten an interest
more fundamental than the First Amendment itself. DVDCCA's statutory right to protect its economically
valuable trade secret is not an interest that is 'more fundamental' than the First Amendment right to
freedom of speech."
These findings thus compelled them to reverse the preliminary injuction and to hold that a preliminary
injuction cannot be used to restrict Bunner from disclosing DeCSS.