California Supreme Court Finds Trade Secret Protection May Outweigh Free Speech Claims

A preliminary injunction prohibiting a web site operator from posting the source code for a DVD decrypting program containing another party's trade secrets does not violate the First Amendment of the U.S. Constitution or the free speech clause of the California Constitution, the California Supreme Court unanimously ruled. DVD Copy Control Association, Inc. v. Bunner (S102588, Aug. 25, 2003).

The case resulted from the Internet publication of the source code for a computer program called "DeCSS." DeCSS defeats certain encryption/ decryption technology called the "content scramble system" (CSS) that is designed to prevent the unauthorized use of motion pictures stored on DVDs. DeCSS was allegedly first published online in October 1999 by a Norwegian teenager named Jon Johansen, and soon proliferated on other web sites, including that of California computer programmer Andrew Bunner. The DVD Copy Control Association (DVDCCA), a trade association that licenses CSS to hardware and software manufacturers, then filed a claim against Bunner and others who had divulged DeCSS on the Internet or linked to sites that did, alleging trade secrets misappropriation under California's Uniform Trade Secrets Act, Cal. Civ. Code 3426 et seq. (the Act). The Santa Clara County Superior Court granted a preliminary injunction to prevent future disclosure of DeCSS.

Bunner appealed, leading California's Sixth District Court of Appeal to find that the DeCSS source code constituted "pure" speech (i.e., speech without conduct) and that the trial court's injunction amounted to an unconstitutional prior restraint on pure speech. Accordingly, the Court of Appeal reversed the lower court's order, holding that the preliminary injunction, even if justified under the Act, violated the First Amendment of the U.S. Constitution. Distinguishing trade secrets from other interests for which courts have upheld speech injunctions, such as copyrights and contractual obligations, the Court of Appeal held that the right to protect a trade secret is not an interest more fundamental than the First Amendment right to free speech.

Injunction Passes Scrutiny Under U.S., California Constitutions

The California Supreme Court's analysis of whether the preliminary injunction violated defendant's right to free speech under the U.S. and California Constitutions differed from that of the Court of Appeal.

The Supreme Court agreed that computer code such as DeCSS, as a means of expressing an idea...