San Jose, CA - A California appeals court today overturned as unconstitutional a 1999 trade secret injunction against Andrew Bunner that prohibited him from distributing the DeCSS DVD decryption computer code, because the court found there was no evidence that the Content Scrambling System (CSS) encryption technology used in DVD movie disks was still a trade secret by the time that Bunner posted DeCSS code on his website. The Court held that the injunction therefore violated Bunner's constitutional free-speech rights.
"We are thrilled that the Appeal Court recognized that the injunction restricting Andrew Bunner's freedom of speech was not justified," said Electronic Frontier Foundation (EFF) Staff Attorney Gwen Hinze. "The Court's ruling that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS vindicates what we have said all along: DeCSS has been available on thousands of websites around the world for many years."
"This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet," said Richard Wiebe, a San Francisco attorney who represents Bunner along with EFF. "The Court of Appeal correctly recognized the obvious conclusion that information that is in the public domain and that has been republished for years around the world can't be a trade secret."
The DVD Copy Control Association (DVD CCA) sued Mr. Bunner, together with hundreds of others, in 1999 for posting, or linking to, the reverse-engineered DeCSS code. The California Supreme Court last year ruled that a preliminary injunction restraining publication of a computer program could only be constitutionally justified in very narrow circumstances and sent the case back to the California Court of Appeal for the Sixth Appellate District, which issued today's ruling, to decide whether the injunction against Mr. Bunner was justified.
The case will now return to the Superior Court for Santa Clara County, California. Bunner has a pending motion for summary judgment in the Superior Court in which he seeks a similar ruling that he is not liable to DVD CCA because the CSS information is no longer a trade secret and is in the public domain. DVD CCA has sought to prevent the Superior Court from hearing the motion by trying to dismiss its case against Bunner without prejudice to suing him again in the future.
Co-counsels with EFF in the Bunner case were: Richard Wiebe; David Greene and James Wheaton of the First Amendment Project; Thomas Moore of Tomlinson, Zisko, Morosoli, and Maser LLP; and Allonn Levy and Arthur Plank of Hopkins and Carley LLC.
Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org
Richard Wiebe
Attorney
Law Offices of Richard R. Wiebe
wiebe@pacbell.net
David Greene
Executive Director and Staff Counsel
First Amendment Project
dgreene@thefirstamendment.org
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/
