26 August 2003

Outcome Determinative
In yesterday's decision in DVDCCA, the California Supreme Court held that while one must consider the First Amendment and free speech rights in determining whether computer source code is subject to an injunction, that posting the code to DeCSS did not improperly impinge those rights. The critical language—what in first-year civil procedure courses was referred to as "outcome determinative" in federal/state choice of law—occurs fairly early in the opinion:

In determining the appropriate level of scrutiny, the critical question is whether the injunction is content neutral or content based. Content-based injunctions are subject to “the level of heightened scrutiny set forth in Perry Ed. Assn. [v. Perry Local Educators Assn. (1983)] 460 U.S. [37,] 45].” By contrast, content-neutral injunctions are subject to the lesser level of scrutiny set forth in Madsen [v. Women's Health Center], 512 U.S. [753], 765 (1994). In this case, we conclude that the preliminary injunction issued by the trial court is content neutral and should be reviewed under the [lesser] standard articulated in Madsen.

DVDCCA, slip op. at 11–12 (citations omitted). This essentially determines that the injunction will be upheld. In constitutional law questions, it is very rare for an asserted constitutional right to be vindicated under the lowest levels of scrutiny. By denying heightened scrutiny in these circumstances, the California Supreme Court put a very large thumb on the scales of justice.

   Whether this was correct or not—I think it incorrect, but I'm not on the California Supreme Court—it does raise some disturbing issues for writers. The injunction was based upon the trial court's finding that Bunner knew, or should have known, that the source code to DeCSS infringed the trade secret rights in the CSS (Content Scrambling System) built into consumer DVD players. This clashes, unfortunately, with some issues that writers could well encounter.

  • The detailed accounting statements and methods of a business could be characterized as a trade secret. The summary result is not, as the summary result would be necessary to pay taxes. Does that mean, then, that under California law publishing the details of Enron's bookkeeping could be enjoined as an infringement of Enron's trade secrets—even if the public interest is thereby served in disclosing a criminal act?
  • The Coca-Cola Corporation has successfully kept the formula for Coke under wraps for a century. Anyone coming into possession of that formula, however innocently, "should know" that it is a trade secret. Although "reverse engineering" is explicitly excluded as a source of improper knowledge, the lack of success over the last century in performing such a task would make a "reverse engineering" defense dubious. So, then, would a magazine that published the formula be enjoinable?
  • Perhaps the most disturbing possibility involves disclosure of a criminal act that has substantial and immediate consequences for the public. Screaming "Soylent Green is people!" seems to fall within this realm.

    There is a trick in here; it is the designation of the particular injunction as "content neutral" or "content based." This is sheer sophistry; any injunction against speech is at some level based upon the content of the speech, or it is instead a silencing of a speaker on all subjects. Can this really be what DVDCCA means?