trade secret/free speech and ipr

[Ian Murray <seamus2001@xxxxxxxxx>]

DVD Group Seeks Reversal of Ruling on Decoding Tool
Industry argues posting of decryption program should not be protected by
the 1st Amendment.
>From Bloomberg News

May 30, 2003

San Francisco computer programmer Andrew Bunner was spreading trade
secrets - not exercising free-speech rights - when he posted a program
that decrypts DVDs on a Web site, a DVD industry group told California's
highest court Thursday.

The DVD Copy Control Assn. Inc., which licenses encryption software for
the movie, computer and consumer-electronics industries, is seeking
reversal of an appeals court ruling that said Bunner's posting was
protected by the 1st Amendment.

"He posted so others could take advantage of the functional methodology to
steal trade secrets, not to communicate ideas," Robert Sugarman, an
attorney for the DVD Copy Control Assn., told the California Supreme Court
at a hearing in San Francisco.

The suit against Bunner is among hundreds the entertainment industry has
brought to stop the program's spread.

Movie companies lose more than $3 billion in annual sales to piracy,
according to the association.

Consumers, meanwhile, will spend as much as $15.4 billion on digital video
discs this year.

Bunner republished a program written by a Norwegian teenager called DeCSS
that decrypts DVDs. His attorneys argued that the trial court in San Jose,
which barred Bunner from posting the program, improperly used California's
Uniform Trade Secrets Act to stifle his free-speech rights.

"Trade secret by nature is a limited right," said Bunner's attorney, David
Greene, adding that DeCSS had been available on the Internet for three
months before the DVD Copy Control Assn. sued. "Those rights disappear
once it becomes public."

Justice Kathryn Werdegar questioned whether the court needs to protect
trade secrets, once the information has been released to the public.

"If the material at issue here is no longer considered a trade secret,
would that dispel the need for prior restraint?" Werdegar asked. A court
exercises prior restraint when it intervenes to prevent material from
being published.

Sugarman said that reasoning poses a danger to the protection of trade
secrets.

"An infringer could quickly post a trade secret and say there's no need
for an injunction because it's already out there," Sugarman said.

California Atty. Gen. Bill Lockyer, who filed court documents in support
of the DVD Copy Control Assn., told the court that using the Internet to
disseminate information was like using "the loudest megaphone on the
planet."

"The program DeCSS is a burglary tool," Lockyer said, citing an industry
claim that 350,000 movies are illegally downloaded each day.

The entertainment industry has had success stopping the spread of DeCSS by
suing individuals under the 1998 Digital Millennium Copyright Act, which
bans the creation of software that allows users to open digital works
protected by copyright. In 2001, an appeals court in New York upheld a ban
on DeCSS.

In California, the DVD Copy Control Assn. sued hundreds of people,
including Bunner.

The judges hearing Bunner's case Thursday questioned whether a computer
program is a form of pure speech.

Greene said the appeals court correctly characterized DeCSS as pure speech
that was part of a lively debate in academic and technology circles.

"This program was available for download on CNet," Greene said, referring
to a popular Web site.