25 August 2003

The opinion in DVD Copy Control Association v. Bunner, which just issued from the California Supreme Court today, is on its face about the conflict between copyright and trade secrets on the one hand and the First Amendment on the other. That is a considerable overstatement. It is really about touching second base—and sends the case back to second base.

   The trial court granted a preliminary injunction against Bunner for posting the source code to DeCSS (a program that defeats the copy protection on DVDs) on a website. That's first base. The California Court of Appeals reversed, skipping directly to the question of whether the First Amendment prohibits such an injunction and ignoring the other factors that one ordinarily examines in determining the validity of a preliminary injunction, particularly the factual predicates that determine the probability of success. The California Supreme Court pointed out that failure, characterizing it as a failure to touch second base and sending the runner (case) back, while needlessly pointing out that the First Amendment does not inherently prohibit a preliminary injunction against revelation of a trade secret (that also happens to be regulated by copyright law).

   I am still chewing a bit on the opinion, but I am greatly troubled by the dearth of references to a parallel matter arising out of the Ninth Circuit: Bernstein. In Bernstein, the Ninth Circuit found that treating the source code for a computer-based encryption system as a "munition" under ITAR (the trade regulations regarding export of munitions) violated the First Amendment. The California Supreme Court was not bound by Bernstein; failure to explicitly consider it, however…

   I'll have more to say on this at a later date, and try to relate it more directly to authors' concerns—because it does bear directly on authors' concerns, particularly when writing upon controversial issues.