• The First Amendment Voids Injunctions Barring Disclosure of Trade Secrets
  • May 6, 2003
  • Law Firm: Fenwick & West LLP - Mountain View Office
  • In DVD Copy Control Association v. Bunner, No. H021153 (Cal. Ct. App. filed Nov. 1, 2001), the California Court of Appeal overturned a preliminary injunction barring further disclosure of the plaintiff's alleged trade secrets on the ground that the injunction constitutes a prior restraint on speech.

    Bunner involves a computer program called DeCSS, which enables a DVD player not equipped with a licensed content scramble system (CSS) to play an encrypted or scrambled DVD. The DVD Copy Control Association (DVDCCA) controls the rights to CSS and licenses the decryption or unscrambling technology for DVD players. DeCSS thus allows its user to circumvent DVDCCA's restriction of the playback of encrypted DVDs to only those DVD players that have been equipped with the Association's licensed CSS decryption technology.

    In October 1999, a Norwegian citizen named Jon Johansen initially posted the source code for DeCSS on the Internet. Soon thereafter, defendant Andrew Bunner and other individuals allegedly republished DeCSS on their own websites or provided hyperlinks to copies of DeCSS residing on other websites. In December 1999, DVDCCA brought an action under California's Uniform Trade Secrets Act (UTSA) in Santa Clara County Superior Court against Bunner and other defendants, seeking to enjoin their future republication of, and linking to, copies of DeCSS on the Internet. After considering the parties' evidence and arguments, the trial court granted DVDCCA's request for a preliminary injunction. Bunner appealed the ruling.

    On appeal, the California Court of Appeal struck down the injunction as an unconstitutional prior restraint on Bunner's right to free expression under the First Amendment. Bunner, No. H021153, slip op. at 18. In reaching this conclusion, the court relied on Junger v. Daley, 209 F.3d 481 (6th Cir. 2000), which recognized that "computer source code is an expressive means for the exchange of information and ideas about computer programming" and therefore "is protected by the First Amendment." Id. at 485. Because DeCSS consists of "computer source code which describes an alternative method of decrypting CSS-encrypted DVDs," "the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of 'pure' speech." Bunner, No. H021153, slip op. at 14. In tipping the scales in favor of Bunner's First Amendment concerns, the Court of Appeal held that the DVDCCA's trade secret rights were not "more fundamental" than the First Amendment right to free speech. Id. at 19.