In November last year, Andrew Bunner won an appeal against an
injunction that barred him posting the code known as DeCSS on his
web site. The code had been written by a Norwegian teenager and
others who wrote it because the copy protection on DVDs, called
CSS, prevented them watching DVDs on their Linux-based computers.
Bunner came across the code, downloaded it and posted it on his
personal web site.
The DVD Copy Control Association (DVD CCA) won the original
injunction against Bunner by relying on California’s trade secrets
law. The DVD CCA’s argument was that the code was a breach of its
trade secrets which were contained in its DVD security software.
Bunner won his appeal by arguing that this law could not be used to
override his Constitutional rights of free speech.
The DVD CCA filed an appeal in December, describing the appeal
court’s application of the First Amendment as being carried out in
a “blunderbuss manner.” Its lawyers argued that, “because any trade
secret can be communicated by expression, the court of appeal’s
decision improperly eviscerates the only effective remedy
historically available to protect a trade secret that has been
stolen.”
A date for the hearing by the California Supreme Court has still
to be set.
