Defendant's Response to Order to Show Cause,
in DVD CCA v. McLaughlin, Bunner, et al.

(Defendant's Memorandum of Points and Authorities in Opposition to Order to Show Cause Re: Preliminary Injunction; Jan. 7, 2000)

DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association,
Plaintiff,
                                 v.
ANDREW THOMAS MCLAUGHLIN and ANDREW BUNNER, et al.,
Defendants.

DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRELIMINARY INJUNCTION
----------------------------------------------------------------------------------------------------------------------

RICHARD ALLAN HORNING - SB #45349
THOMAS E. MOORE  III- SB #115107
MICHAEL W. STEBBINS - SB #138326
TOMLINSON ZISKO MOROSOLI & MASER LLP
200 Page Mill Road, Second Floor
Palo Alto, California  94306
Telephone: (650) 325-8666
Facsimile:   (650) 324-1808

ALLONN E. LEVY - SB#187251
HUBER & SAMUELSON, P.C.
210 N. Fourth Street, Suite 400
San Jose, CA  95112
Telephone:  (408) 295-7034
Facsimile:    (408) 295-5799

ROBIN D. GROSS - SB#200701
ELECTRONIC FRONTIER FOUNDATION
1550 Bryant Street, Suite 725
San Francisco, CA  95103
Telephone: (415) 436-9333
Facsimile:   (415) 436-9993

Attorneys for Defendant
ANDREW BUNNER

SUPERIOR COURT OF THE STATE OF CALIFORNIA - COUNTY OF SANTA CLARA

DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association,

Plaintiff,

          v.

ANDREW THOMAS MCLAUGHLIN and ANDREW BUNNER, et al.,

Defendants.
 

NO.  CV786804

DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

Date:  January 14, 2000
Time:  1:30 p.m.
Dept.: 2
Honorable William J. Elfving
 

1. INTRODUCTION

In this case, plaintiff seeks an injunction of unprecedented breadth and intrusiveness on traditional free speech rights in order to defend a supposed trade secret that was never very secret at all.  Plaintiff seeks prior restraint against hundreds of news sources on the internet, claiming the right to enjoin discussion of their Content Scrambling System (CSS).  That  discussion centered on the results of efforts to break the weak security structures on which the CSS depends.  Plaintiff's claim to be able to enjoin this discussion depends entirely on the assertion, for which it presents much speculation and little evidence, that the knowledge being distributed by the defendants was gained by misappropriation of a trade secret.  But, a clear understanding of the Content Scrambling System makes immediately apparent that there is no trade secret present in this case, and thus no justification for the extraordinary injunction which plaintiff seeks.

A Digital Video Disk, or DVD, is an optical storage disk whose method of storing information is essentially the same as that used on the more commonplace Compact Disk.  In order to limit the possibility of unauthorized copying of the data on the DVD, the consortium of content producers represented by plaintiff has elected to "encrypt" the video and audio data each disk contains.  Each member of the consortium of producers is assigned a unique "key," which is then used by an "encrypting" process to transform the actual video and audio data into a form that cannot be played by someone who does not know how to "decrypt" the data.

Plaintiff complains because third parties have learned how to break the encryption and recover the original video and audio data from DVDs.  Plaintiff has sued not the people who originally learned how to recover this data, but other people who have redistributed information published by those who learned how.  Plaintiff claims the right to enjoin people all over the world from talking about this issue, which is one of genuine public concern, because it claims the information results somehow from a misappropriation of trade secrets.

Plaintiff alleges on information and belief, and without giving any additional facts to support its contention, that the unknown third parties who originally disseminated the information about the CSS and its weaknesses must have gained that information by "reverse engineering" a particular piece of software, made by XING Co. (Complaint, para 43).  As we show through the affidavits of highly competent informants accompanying this brief in opposition to their motion, there is no basis whatever for their conclusion.  The Plaintiff is using an encryption scheme to distribute large quantities of data in a known format, and is providing alongside the encrypted data a file consisting of a large number of decryption keys, one of which is guaranteed to work at decrypting any given disk.  Under such circumstances, with large samples of encrypted data and valid decryption keys provided, the task of determining what decryption process will give back the original data is simple for those skilled in the art of cryptanalysis.

In short, the plaintiff claims a trade secret misappropriation, but the information whose dissemination it seeks to enjoin can be readily discovered by a knowledgeable inspection of the product they are providing to its licensees.  Speculation about methods by which the information *could* have been illegitimately acquired do not turn the information into a trade secret.  Plaintiff, to be entitled to an injunction, must define its secret with particularity, and show that there is *no other* basis on which that information could have been acquired by third parties.  The plaintiff has not seriously attempted to carry that burden; it is in fact impossible for plaintiff to carry that burden, which is why its motion for a preliminary injunction should be denied.

2. STATEMENT OF FACTS

1. Cryptography and Cryptoanalysis

Fundamentally, plaintiff's Content Scrambling System is a form of encryption, that is,  a form of secret code or cipher.  Cryptography is the study of codes and ciphers to ensure the secrecy and authentication of information.  Cryptoanalysis is its counterpart, the study and development of techniques for code-breaking.

Cryptography and cryptoanalysis are not new to digital technology.  (Gilmore Decl. ¶ 23).  An example of a secret code is the one used by Julius Caesar.  His secret code involved the simple replacement of each letter of a message by the letter three places down in the alphabet.  Thus, for the letter "A," Caesar used the letter "D,"  for the letter "B," Caesar used the letter "E," etc.  The method that Caesar used -- letter substitution -- is a type of code.  The specific parameters of the Caesar code -- the shift of three letters down the alphabet- is referred to in cryptography as the "key."  The original, readable message is referred to as "plaintext," and the encoded message is referred to as "ciphertext."  In modern cryptography, one also sees the term "algorithm" to describe the process in mathematical terms by which a key is used to transform plaintext into ciphertext.

Systematic efforts at code-breaking are almost as old as cryptography itself.  For example, in World War II, through an enormous wartime effort the British and Polish succeeded in breaking a high-level German code called the Enigma and managed to keep this fact secret from the Germans and others for many years.  This success may have shortened the war by as much as a year.  The lesson of the Enigma is that one must be prepared for the adversary to expend unexpectedly large resources to break security systems, and that one must be ever-vigilant for the possibility that the most-trusted codes could have been broken without our knowledge.  (Wagner Decl. ¶ 9).

Modern computers, applying appropriate cryptoanalytical techniques, would have made short work of breaking the Enigma code.   Thus, modern cryptographic design must not only account for increasingly sophisticated cryptoanalytical techniques, but it must also account for the ever-increasing processing speed of computers.  Modern cryptographic design has done just that. In its more secure forms, modern cryptographic techniques produce codes that would take a high speed computer hundreds of years to break.  The growing market for e-commerce depends on these techniques to transmit credit-card information and the like securely over the Internet.  (Gilmore Decl. Decl. ¶ 23-24).

Cryptography and cryptoanalysis are serious disciplines.  It is critical for the advancement of cryptography and cryptoanalysis that advances in breaking the codes be  known and publicized.  If responsible scientists do not also share the information that they have, they are always running behind the miscreants: duplicating each others' work, and leaving their own systems wide open to attacks which some other scientist has already discovered but not published.  (Gilmore Decl. ¶ 37-39; Wagner Decl. ¶ 8, 12).

Professional cryptographers have also found that people with relatively little encryption experience insist on designing security systems in secret.  The details of these systems are kept from the public, frequently as "trade secrets", and "to enhance their security", while extravagant claims are made about their strength.  Some of these security systems reach massive deployment in infrastructures critical to the everyday functioning of society.  Eventually the details of the design come out, and the inherent weaknesses are pointed out.  (Gilmore Decl. ¶ 41; Wagner Decl. ¶ 22).

2. The DVD Content Scrambling System.

A DVD can contain much more information than a traditional compact disk; enough additional information to contain all the video data in a traditional movie, as well as a high-quality stereo sound track.  DVDs contain a security architecture.  One important component of the DVD security architecture is the use of encryption to prevent unauthorized parties from copying or watching DVD movies or other encrypted content.  The encryption algorithm used for these purposes is CSS.  (Wagner Decl. ¶ 24). Apparently, the impetus for using CSS came from the motion picture industry.  (Hoy Decl. ¶8).  The plaintiff, the DVD Copy Control Association, Inc., was organized to distribute and license CSS.  (Hoy Decl. ¶20-22).  Manufacturers of DVD playing equipment, or of software that plays DVDs on standard computers, have been licensed by plaintiff.  (Hoy Decl. ¶13-15).

The capabilities of encryption systems are evaluated by determining how much work would be required to penetrate their security or privacy.  An encryption system which takes a large amount of work to break is called "strong"; one which takes a lesser effort, which could be mounted by a credible adversary, is called "weak".   (Gilmore Decl. ¶ 24).  Even from the very beginning, it was already widely known in the computer security community that CSS provides (at most) a very low level of security, because it uses 40-bit keys.  Forty-bit keys are widely recognized as providing only low security. Public demonstrations have shown that they can be cracked within hours using the computing power available to students.  Forty-bit keys can be cracked in a fraction of a second by organizations with more resources, as the challenge at the annual RSA Conference has repeatedly demonstrated.  (Wagner Decl ¶_25).

In addition, all 400 keys that CSS has used or ever will used is on each DVD .  (Hoy Decl. ¶ 15).  A graduate student with available tools could easy access the keys.  (Wagner Decl.  ¶ 27).

   A. DeCSS

The public did not initially know the mathematical operation of the CSS; the DVD industry elected to keep its inner workings secret.  Sometime before October 1999, however, someone broke much of the DVD security system and built a program (called DeCSS) that implements the same encryption process used in DVD players.  As far as anyone knows, DeCSS was built, not with the purpose to violate copyright or other intellectual property protections on DVDs, but rather to secure interoperability with the open-source operating system, Linux.  With DeCSS and related programs, users of Linux and other publicly supported operating systems can play DVDs, as is already possible with the commercial Microsoft operating systems.  (Bunner Decl. ¶ 6-9; Gilmore Decl. ¶ 9-16; Stephensen Decl. ¶ 3-17).

Plaintiff suspects that a Norwegian, Jon Johanson, might have been involved because he posted DeCSS on a website.  (Hoy Decl. ¶ 25).  Plaintiff further suspects that CSS licensee Xing might have been the source of the software that, as plaintiff pejoratively puts it, was "hacked."  (Hoy Decl. ¶ 27).  Plaintiff does not indicate what Xing did to arouse that suspicion.

The DeCSS source code made it possible for the cryptographic community to analyze the security of the DVD security system without undertaking any tedious reverse engineering work.  One cryptographer, David Wagner regards CSS so flawed that it would make a fine homework exercise for a university level class in cryptography and codebreaking.  (Wagner Decl. ¶ 31).

3. DISCUSSION

1. Standards On A Motion For A Preliminary Injunction On Trade Secrets

Code of Civil Procedure Section 526 sets forth the basic principles for issuing a temporary restraining order or a preliminary injunction.  Generally, a court must find that:
    · The plaintiff is likely to prevail on the merits (Code of Civ. Proc. § 526(a)(1));
    · There is a threat of irreparable injury to the plaintiff if the injunction were not granted (Code of Civ.  Proc. § 526(a)(2));
    · Monetary damages are inadequate (Code of Civ. Proc. § 526(a)(4)); and
    · The balance of relative harm favors issuing an injunction, (see e.g. Shoemaker v. Co. of Los Angeles, 37 Cal. App. 4th 618, 633, 43 Cal. Rptr. 2d 398 (1995)).

A "trade secret" consists of (a) information, (b) which derives value because it is unknown to others, and (c) which is subject to efforts that are reasonable under the circumstances to maintain its secrecy.   Civ. Code §3426.1(d).  "Misappropriation" of a trade secret means:  "Disclosure by a person who . . used improper means to acquire knowledge of the trade secret; or . . . at the time of disclosure . . . knew or had reason to know that his or her knowledge of the trade secret was . . . derived from . . . a person who had used improper means to acquire it . . . ."  Civ. Code §3426.1(b)(2).  The plaintiff has the burden of proving both the existence of a trade secret and unlawful misappropriation in order to prevail.  Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 66 Cal. Rptr. 2d 731 (1997).

Here, the plaintiff has brought a weak case in an attempt to prop up weaker technology, creating the potential for harm to the technology community and the public at large.  The plaintiff has fallen well short of carrying its burden.1

2. Plaintiff Is Unlikely To Succeed On The Merits.

i. Plaintiff's Alleged Trade Secret Is Readily Ascertainable By Proper Means

A "trade secret" is protectible only so long as it is kept secret by the party creating it.   Vacco Industries, Inc. v. Van Den Berg, 5 Cal. App. 4th 34, 50, 6 Cal. Rptr. 2d 602 (1992).  A purported trade secret can be disclosed and nullified by the very products produced by the use of the secret.  Id.  The crux of the issue is whether, through reasonable diligence and proper means, the purportedly secret information is readily accessible from the disclosed information. See Futurecraft Corp. v. Clary Corp., 205 Cal. App. 2d 279, 281, 23 Cal. Rptr. 198 (1962) ("[I]t is no 'trick,' but only a matter of some labor and time, for an engineer or a machinist to cut open a valve and see in bare display all the details of its configuration. Every time a valve was sold, all the 'secrets' in its design were transmitted to the purchaser, who then was empowered to transmit them to others as he wished or willed."); see also Legis. Comm. Comment - Senate, Civ. Code § 3426.1.

CSS was designed as weak cryptography.  CSS's 40-bit key-length fell below what is generally considered to be secure.  This inherent vulnerability was aggravated by the fact that each one of the millions of DVDs circulated around the globe contains all 400 keys, each DVD contains an example of ciphertext (the scrambled video image) and each DVD gives a clear indication of what the plaintext is supposed to look like (the unscrambled video -- the movie "Titanic" for example).  Those three elements -- the keys, the ciphertext and the plaintext - are related mathematically by the algorithm.  Deducing the algorithm and thereby breaking the code is simply a matter of reasonable diligence.2

The plaintiff has argued, in effect, that breaking the code cannot be accomplished by "proper means" because of the "no reverse engineering" covenant in the license agreements to CSS.   First of all, the plaintiff has failed to put a single license agreement, the "best evidence," before the court.3  The plaintiff has therefore failed to carry its burden  on this point.  Secondly, the supposed point-of-origin of DeCSS is Norway.  Reverse engineering is legal in Norway for the purpose of interoperability (with Linux, for example) regardless of "no reverse engineering" clauses.  (Request for Judicial Notice, Ex. A).

In any event, the plaintiff's notion that a purported license clause could counterbalance the inherent weaknesses of CSS as cryptography was and is extremely naive.   Breaking the CSS code can be accomplished with cryptoanalytical techniques that bypass the license agreement. (See explanations in: Wagner Decl. ¶ 27,34; Gilmore Decl. ¶ 29; Stevensen Decl. ¶ 18-19).

ii. Plaintiff's Alleged Trade Secret Lost Its Status As Such When DeCSS was Posted On The Internet

"Once trade secrets have been exposed to the public, they cannot later be recalled." Religious Technology Center v. Netcom On-Line Communication Services, Inc., 923 F. Supp. 1231 (N.D. Cal. 1995) (citing In re: Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir. 1991)).  The DeCSS program has been posted on web sites around the globe.  It is public.  Plaintiff's suggestion that breaking CSS was accomplished improperly does not make DeCSS any less public.

Judge Whyte addressed a similar situation in Religious Technology Center.  In that case, the defendant posted excerpts from purportedly secret texts of the Church of Scientology on an Internet bulletin board.  The defendant's source of the texts was other, anonymous postings on the Internet.  In ruling on the Church's motion for preliminary injunction, the court noted that it was troubled by "the notion that any Internet user, . . ., can destroy valuable intellectual property rights by posting them over the Internet." 923 F. Supp. at 1256.  The court further noted that the Church had succeeded in demonstrating that the ultimate, anonymous source likely gained the information through improper means.   Id.   However, that fact did "not negate the finding that, once posted, the works lost their secrecy."  The court concluded that while the Church might have had rights against the alleged original misappropriators,  it had none against the defendant.

iii. Plaintiff Has Failed to Carry Its Burden on the Issue of Misappropriation

Plaintiff has failed to adduce any proof that any of the defendants are misappropriators.  Again, to prove the misappropriation of trade secrets, the plaintiff must show that each defendant, including the Does and international defendants, either gained the trade secret by improper means themselves or "knew or had reason to know that his or her knowledge of the trade secret" was derived from "a person who had used improper means to acquire it . . . . "  Civ. Code §3426.1(b)(2).

There is no direct evidence of misappropriation.  The plaintiff does not even suggest that the defendants in this case were subject by a license agreement to any duty of non-disclosure.  The plaintiff speculates that the source of any original alleged misappropriation might have involved Jon Johansen in Norway and software created by CSS licensee Xing.  The fact remains, however, that the plaintiff has no direct evidence of who created DeCSS or where.

There is no circumstantial evidence of misappropriation:  (a)  CSS was capable of being broken without the use of any improper means and the plaintiff has failed to carry its burden by excluding that possibility; (b) if Mr. Johansen had been the person who reverse engineered the Xing software, such reverse engineering would have been legal in Norway; and (c) if CSS had been reversed engineered improperly, the plaintiff has failed to carry its burden of proving that each of the 75 defendants had guilty knowledge of such  impropriety.  (see e.g. Bunner Decl. ¶ 11-14).

Thus, the plaintiff has no likelihood of success on the merits in this case.  CSS was (unintentionally) designed to surrender its secrets by proper means, and plaintiff cannot link its suspicions of misappropriation to either of these defendants.

 B. Plaintiff Has Failed To Show That An Injunction Would Be Anything But Futile Or That It Will Suffer Irreparable Harm

The plaintiff cannot possibly gain a useful injunction against the entire world, and an injunction against only a hand-full of the allegedly offending web sites in the world cannot possibly resurrect the secrecy of CSS code.  "The law does not require the doing of a futile act."  Olson v. Biola Coop. Raison Growers Assn., 33 Cal. 2d 664, 684, 204 P.2d 10 (1949).  On the Internet, all web sites are potentially accessible everywhere.  Some of the web sites listed in plaintiff's moving papers are in foreign countries.  The plaintiff has argued that the jurisdiction of this Court should reach foreign nationals.  But jurisdiction begins with service of process.  This court cannot extend its jurisdiction over foreign nationals absent compliance with the multilateral international convention for service abroad, the "Hague Convention."  See Dr. Ing. H.C.F. Porsche v. Superior Court, 123 Cal. App. 3d 755, 760, 177 Cal. Rptr. 155 (1981).  The plaintiff has made no attempt to comply with the requirements of that Convention.

As for irreparable injury, one is tempted to state that any injury that the plaintiff has suffered is self-inflicted.  Putting that aside, the plaintiff's assertion of irreparable injury is all smoke and no fire.  Plaintiff argues that in the absence of a preliminary injunction DVD is dead as a media.  The flaw is the assumption that a private agreement between the DVD manufacturers and the motion picture industry requiring the scrambling of video on DVD dictates DVD's future success or failure. At this point, the consuming public dictates the success or failure of DVD.  Public demand is now much more likely to be influenced by the convenient size of DVD, its large digital storage capacity and potential for interoperability.   The plaintiff has failed to produce any evidence that the absence of an injunction will have any impact on that demand for DVD or the motion picture industry's and consumer electronics manufacturer's present desire to exploit that demand.4

The plaintiff also surmises that video piracy will increase.  Not necessarily. The plaintiff's reliance on the security of CSS has proven to be misplaced.  The public disclosure that CSS is insecure alerts the Motion Picture Industry's anti-piracy forces  that DVDs are vulnerable to piracy.5

3. The Relief Requested By Plaintiff Runs Afoul Of Established Constitutional Principals Guaranteeing Freedom of Speech

Our democratic society values and diligently protects its hard fought freedoms.  Both the United States and California Constitutions guarantee the freedom to speak freely, to generate discourse and to advance innovation through the exchange of ideas.

The First Amendment provides that 'Congress shall make no law . . . abridging the freedom of speech . . . [I]t is settled that when . . . the judicial process is invoked to restrict expressive activities on public property, 'state action' is implicated entitling the aggrieved party to the protection of the First and Fourteenth Amendments. [Citations.]

San Diego Unified Prot. Dist. v. U.S. Citizens Patrol, 63 Cal. App. 4th 964, 970, 74 Cal. Rptr. 2d 364 (1998) (citing Planned Parenthood v. Williams, 7 Cal.4th 860, 868, 30 Cal. Rptr. 2d 629 (1994)).  Article I, Section 2, Subdivision (a) of the California Constitution provides, in part:  "Every person may freely speak, write and publish his or her sentiments on all subjects . . . A law may not restrain or abridge liberty of speech . . . ."  California courts view these "free speech provisions as more protective, definitive and inclusive of rights to expression of speech than their federal counterparts . . . ."  San Diego Unified, 63 Cal. App. 4th at 970 (emphasis added).

The U.S. Supreme Court has held that the Internet is one of the most egalitarian mediums invented and one of the greatest democratic tools for the 21st century.  Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997).  The Internet is "the most participatory form of mass speech yet developed - [and] is entitled to the highest protection from governmental intrusion."  Id. at 883, 884.  The Supreme Court recognized in Reno that the Internet is a "unique and wholly new medium of worldwide human communication" which disseminates "content as diverse as human thought."  Id. at 852.  Recognizing the need for the highest level of protection from governmental restraints on speech, the Supreme Court likened expression in on-line chat rooms to town criers with voices resonating far from the soap box, and likened expression in newsgroups having characteristics similar to traditional street pamphleteers.  Id. at 2344.

1. The DeCSS  Program, Descriptions Of The DeCSS Program, And Links To Other Cites That Include The DeCSS Program, As Presented On The Relevant Internet Cites, Are Constitutionally Protected Speech

Plaintiffs urge an injunction baring the publication of information in the form of the DeCSS program, descriptions of the DeCSS program, and links to other web sites, presented on various web sites, including news web sites such as slashdot.org.  (Bunner Decl. ¶ 4-5).  Careful analysis of the requested injunction shows an attempt at restraining speech on at least three distinct levels:  (a) the suppression of the DeCSS source code itself; (b) the suppression of textual descriptions of the computer program on web sites; and (c) the suppression of "links" that direct users to other sites (which may contain speech totally unrelated to DeCSS),  but which also contain either other links which lead to the DeCSS program, or the DeCSS program itself.  Indeed, the scope of the injunction potentially encompasses The San Jose Mercury News and its mercurycenter.com, which displays a link.  (Req. for Jud. Notice, Ex. B).

The DeCSS program itself is speech in that it is a written expression of language.6  Other forms of writing, in different languages or "codes," such as music, have long been considered "speech" deserving First Amendment protection .  Music, either in the form of sheet music, or in the form of code played on a player piano is "speech"  for purposes of First Amendment inquiry. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).  Similarly, other instruction sets and manuals are also protected speech.  United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979).  Copyright cases which have examined computer code have similarly concluded that programs embody expression and qualify as "literary work."  17 U.S.C. §101;  Johnson Controls v. Phoenix, 886 F.2d 1173, 1175 (9th Cir. 1989).  In addressing this issue, a recent Northern District court specifically found that computer code is speech deserving of First Amendment protection.  Bernstein v. U.S. Dept. of State, (Bernstein I), 922 F. Supp. 1426 (N.D. Cal. 1996).7

As in the Bernstein case, here, the DeCSS program is written information, albeit in computer language rather than in plain English.8  There is nothing about this functional writing to suggest it is more like conduct than speech.  Bernstein I, 922 F. Supp. at 1435.   Furthermore, as is indicated in the supporting affidavits, the need for discourse and academic inquiry in the fields of programming and cryptography supports the importance of protecting this particular speech.  (Wagner Decl. ¶ ; Gilmore Decl. ¶ 33-39; Stevenson Decl. ¶ 15-17; and see also Sweezy v. New Hampshire, 354 U.S. 234, 249-250 (1957) (importance of protecting scholarship and academic inquiry).  Finally, any doubt that the program, the text, and the links are "speech" for purposes of First Amendment analysis is removed by the fact that the information appears on the Internet - a forum uniquely tailored for the exchange of information.

2. Plaintiff's Requested Injunction, Restraining Speech Prior To Publication, Is Presumptively Unconstitutional

A "prior restraint" is any governmental action, including a court injunction, that prevents speech from reaching the public.  San Diego Unified, 63 Cal. App.4th at 970.  Any prior restraint is the most dangerous imposition on individuals' freedom of speech.  Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights").  Therefore, request for such a restraint "comes to [the] Court bearing a heavy presumption against its constitutional validity."  New York Times Co. v. United States, 403 U.S. 713, 714 (1971).  As discussed previously, California courts protect free speech even more zealously than federal courts.  Gilbert v. National Enquirer, 43 Cal. App.4th 1135, 1144 (1996).  In California, "Prior restraints are disfavored and presumptively invalid."  Gilbert at 1144, 51 Cal. Rptr. 2d 91.  Even cases involving actionable speech do not support a preliminary injunction restraining the speech before it reaches its intended audience.  Gilbert, at 1144; Wilson v. Superior Court, 13 Cal.3d 652, 657-8, 119 Cal. Rptr. 468 (1975).

In the instant case, plaintiff concedes that it seeks to protect only private (as opposed to national) interests.  Planitiff has declined to narrowly tailor its requested relief.  As such, plaintiff cannot overcome the presumption that the requested prior restraint is unconstitutional.  The proper remedy for plaintiff is to sue for damages if it perceives any harm that is directly caused by the defendants' speech (Gilbert, at 1144), not to restrain that speech before it reaches the intended audience.

3. The Requested Court Action Would Have a Chilling Effect On Speech, And Would Cause Harm To Society

The requested injunction would send an unprecedented wave across cyberspace, chilling cyber-speech in its wake.  The injunction would tell web operators that, contrary to principles of free speech, web publishers are required to rule out any possibility that speech may infringe on potentially untraceable intellectual property rights of others before they may post that speech, link to it, or otherwise discuss it.9   The injunction would also immediately stop the current innovation embodied by the DeCSS program and will chill other attempts at education, creativity, collaboration, innovation, and creation of other non-proprietary programs and systems.

The requested injunction would be the first step in creating a liability minefield on the Internet that will effectively bar individual participation in this public forum.  Individuals who do not have the resources to rule out any potential complaints of infringement or misappropriation will be forced to refrain from posting, linking or discussing anything on the web for fear of lawsuits.  Additionally, the removal of links to other web sites (through the injunction) will also effectively restrain any additional speech contained on the "linked" web site, regardless of whether or not it relates to DeCSS.

4. CONCLUSION

By this motion, plaintiff seeks to hold back the water after the dam has broken.  Moreover, in a country founded on personal freedoms and sustained by creativity and growth, public discourse over issues of academic and public concern and independent innovation should not be subjugated by private interests.  For these reasons and those set forth above, these defendants respectfully urge the Court to deny the motion.

Dated: January 7, 2000   TOMLINSON ZISKO MOROSOLI & MASER LLP

By:
     Richard Allan Horning
     Attorneys for Defendant ANDREW BUNNER
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Footnotes:

1     So short, in fact, that one wonders whether plaintiff intends to introduce new material and "sandbag" the defendants.  We hope the plaintiff will resist that temptation.  Absent the showing of a good reason, courts do not consider points and evidence raised for the first time in reply papers.  Campos v. Anderson, 57 Cal. App. 4th 784, 794 n. 3, 67 Cal. Rptr. 2d 350 (1997) (withholding a point until closing brief unfair to opposing party).

2     By contrast, the German Enigma code was a far more difficult task to break because the code-breakers did not have the keys or examples of plaintext with which to work.

3  See Defendants' Evidentiary Objections accompanying this brief.

4     Plaintiff also seems to ignore the fact that DeCSS has opened a new market for DVD.  DeCSS is necessary for users of the Linux operating system to use DVD discs with their computers.

5     Moreover, in Recording Industry Ass'n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1074 n.1 (9th Cir. 1999), the Ninth Circuit noted that whether or not piracy actually causes the entertainment industry significant financial harm is a matter of considerable debate.

6     Once a court is presented with evidence that the subject of the case involves written information, it need not analyze whether or not the written information is expressive.  It is only where the subject of the case is shown to be "conduct" that the court must analyze whether or not that conduct is expressive and therefore deserving of first amendment protection.  Texas v. Johnson, 491 U.S. 397, 404 (1989); Spence v. Washington, 418 U.S. 405, 409 (1974).  Where conduct and not writing is involved, the court must analyze if there is an intent to convey a particularized message likely to be understood by others.  Johnson, 491 U.S. at 404.

7     A related opinion, Bernstein v. Dept. of State, (Bernstein III), 974 F. Supp. 1288 (N.D. Cal.1997) by the same court was appealed in Bernstein v. Dept. of Justice, 192 F.3d 1308 (9th Cir. 1999), which is currently under review and cannot be cited to this Court.

8     As noted in Bernstein I, the language in which written information is memorialized is irrelevant to the analysis (Bernstein I , citing Yniguez v. Arizonans for Official English, 69 F.3d 920, 934-936 (9th Cir. 1995), cert. granted).

9     Again, there is a complete lack of evidence in plaintiff's declarations demonstrating that the original DeCSS program involved any misappropriation of trade secrets, much less evidence that the defendants who subsequently re-published, linked to, and discussed the DeCSS program had any knowledge that the program involved misappropriated trade secrets.

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