DVD-CCA, the organisation that licenses DVD technology for Hollywood studios, originally filed the lawsuit in December 1999 and obtained an injunction from a lower court in January 2000 prohibiting Andrew Bunner and several others from publishing the controversial code on their web sites.
Bunner was the only defendant to appeal. He achieved a victory when the appeals court overruled the lower court's injunction in November 2001.
The appeals court ruled that the trial judge failed to consider the free speech rights of Bunner – under the First Amendment to the US Constitution – to republish information readily obtainable in the public domain. Bunner had republished DeCSS on his web site after reading about it on "news for nerds" site Slashdot and deciding that it was newsworthy.
DVD-CCA then appealed to the California Supreme Court to challenge that ruling, contending that republication of DeCSS software constituted illegal misappropriation of a trade secret.
The Supreme Court has agreed, arguing that the property rights and trade secret rights held in the DVD software are more important in these circumstances than Bunner's right to free speech.
The court held that "Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorized copying of movies on DVDs".
In the court's opinion:
"the trial court issued the injunction to protect DVD CCA's statutorily created property interest in information — and not to suppress the content of Bunner's communications"
and:
"prohibiting Bunner — who knew or had reason to know that the trade secrets were acquired by improper means — from disclosing those secrets upholds the standard of commercial ethics maintained by trade secret law."
The DVD CCA welcomed the ruling. According to Cnet News.com, the group's lawyer, Robert Sugarman, said in a statement: "The Court's decision confirms that the First Amendment is not a shield to allow thieves to distribute stolen intellectual property."
The case continues, however, as the court's decision was limited to the question of whether "the preliminary injunction [granted by the trial judge] does not violate the free speech clauses of the United States and California Constitutions, assuming the trial court properly issued the injunction under California's trade secret law."
The case has therefore been remanded back to the Court of Appeal to decide whether the injunction was properly granted in the first place.
Bunner, and civil liberties groups including the Electronic Frontier Foundation (EFF) argue that as the code had been placed on the internet prior to Bunner finding it, then it is no longer a trade secret at all, and no injunction should have been granted.
EFF lawyer Gwen Hinze, told CNet News, "We are pleased that the court has found that a strong level of First Amendment scrutiny applies in trade secrets cases". But she added, "We don't think that there is a trade secret here."