The appeals court had overturned a lower court injunction
against publication of code that can be used to break the
anti-copying protection of DVDs, based on the publisher's First
Amendment rights.
DVD-CCA, the organisation that licenses DVD technology for
Hollywood movie studios, originally filed the lawsuit in December
1999 and obtained a lower court injunction in January 2000 against
defendant Andrew Bunner. He had published the software, known as
DeCSS, that decrypts DVDs. When an appeals panel overruled the
lower court injunction last November, DVD-CCA then appealed to the
California Supreme Court to challenge the appeals court’s
ruling.
The appeals court had ruled that the trial judge failed to
consider the First Amendment rights of Bunner to republish
information readily obtainable in the public domain when it issued
the injunction.
DVD-CCA contends that republication of DeCSS software
constitutes illegal misappropriation of a trade secret. Bunner had
republished DeCSS on his web site after reading about it on
Slashdot.org and deciding it was newsworthy.
"Well established trade secret law clearly holds that only those
individuals who have undertaken an affirmative duty to treat
information as a trade secret are required by law to keep it
secret," said EFF Intellectual Property Attorney Robin Gross.
"People who obtain information from the public domain have a First
Amendment right to republish that information."
"We're confident the Supreme Court will recognise, as the Court
of Appeal did, that this is a classic First Amendment case," said
David Greene, Executive Director for the First Amendment Project
and main author of the groups' legal brief.
DVD-CCA's reply brief is due on June 11, 2002, and oral argument
will be scheduled before the California Supreme Court for sometime
in the next eighteen months.
