The DVD-CCA brought a trade secrets case against Andrew Bunner for publishing alleged trade secrets regarding DVD encryption, that is, the DVD decryption code known as DeCSS. The district court entered a preliminary injunction against Bunner posting the code on January 20, 2000 (Order Granting Prelim. Injunction for plaintiffs against defendants, in DVD CCA v. McLaughlin, Bunner et al.).
Bunner appealed, citing his free speech rights under the Constitution and California Constitution. He lost his constitutional challenge in the California Supreme Court, but the case was sent back to the California appeals court to determine whether the injunction had been properly issued under state trade secrets law. The appeals court has determined that the injunction was not properly issued.
Read the published (technical legal term meaning you can officially cite the case) decision: DVD-CCA v. Bunner [PDF]
This is a solid, black letter law decision. One highlight however:
One of the analytical difficulties with this case is that it does not fit neatly into classic business or commercial law concepts. The typical defendant in a trade secret case is a competitor who has misappropriated the plaintiffs business secret for profit in a business venture. In that scenario, the defendant has as much interest as the plaintiff has in keeping the secret away from good faith competitors and out of the public domain. But here, according to DVD CCA it has no good faith competitors. And the alleged misappropriators not only wanted the information for themselves, they also wanted the whole world to have it.
Below, the conclusion:
We conclude that evidence in the limited record before us does not justify the issuance of an injunction under the UTSA. DVD CCA presented no evidence as to when Bunner first posted DeCSS and no evidence to support the inference that the CSS technology was still a secret when he did so. Further, there is a great deal of evidence to show that by the time DVD CCA sought the preliminary injunction prohibiting disclosure of the DeCSS program, DeCSS had been so widely distributed that the CSS technology may have lost its trade secret status. There is no evidence at all to the contrary. Thus, DVD CCA has not shown a likelihood of success on the merits; nor has it demonstrated that it would suffer further harm if the preliminary injunction did not issue. The preliminary injunction, therefore, burdens more speech than necessary to protect DVD CCAs property interest and was an unlawful prior restraint upon Bunners right to free speech. It follows that issuance of the injunction was an abuse of the trial courts discretion. [citations omitted]
Congratulations to Bunner and EFF!
Read the case archives: DVD-CCA v. Bunner and DVD-CCA v. Pavlovich
Jason Schultz pulls some more good quotes from the decision (EFF wins DVD-CCA v. Bunner Appeal).
The Intersection of Trade Secret and the DMCA
One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law. One of the justifications for trade secret law is that there is no other law that will protect these valuable ideas, such as copyright or patent. After all, you can't have a trade secret and patent on the same concept. In return for making an idea public, you get a patent. If you keep the idea secret, you can keep it secret for as long as you want, but if it becomes public, you cannot protect the idea. Here is the key paragraph from the decision on this:
The [district] court determined that while the harm to defendants in being compelled to remove trade secret information from their Web sites was truly minimal, the current and prospective harm to DVD CCA was irreparable in that DVD CCA would lose the right to protect CSS as a trade secret and to control unauthorized copying of DVD content.
Well, no. Under Reimerdes, loss of trade secret status would have no bearing on the DVD CCA's ability to control unauthorized copying of DVD content. There would be no harm to loss of the trade secret. Thus, no need to invoke trade secret law.