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Calif. Court Rules Against DVD Code Poster

California's Supreme Court ruled in favor of the movie industry Monday in a widely watched DVD trade secrets case.

The state's highest ranking judges said that the courts can prevent computer users from posting computer code that unscrambles DVDs on their Web sites, but sent the case back down to a lower court for more scrutiny. The California Court of Appeal will have to reexamine the evidence in the case of DVD Copy Control Association (DVD-CCA) v. Andrew Bunner, which some say pits free speech against intellectual property.

In 1999, the DVD-CCA sued Andrew Bunner under California's Uniform Trade Secrets Act for posting DVD-decryption software called DeCSS on his personal Web site. The software lets users break the encryption security on DVDs. DVD-CCA, which licenses DVD encryption code, claims that DeCSS contains its trade secrets. Bunner was one of many who passed the code along; it was available for download on the sites of major news organizations and was even printed on T-shirts. DVD-CCA subpoenaed about 500 other individuals, including a T-shirt maker. Bunner was one of only three people who actually answered the subpoena.

"I didn't even think there was anything wrong with doing it, or that it was something contentious," Bunner told internetnews.com. The code was posted on his personal Web site, which, he says, probably contained his resume and some PERL code he'd written. Bunner said he was unclear on where the originally code came from.

DeCSS, the decryption code, was written by Norwegian citizen Jon Johansen, who claimed he developed it by reverse-engineering DeCSS. Johansen was acquitted of criminal charges in Norway, but that decision is being appealed.

DVD-CCA convinced a trial court to issue an preliminary injunction barring publication of DeCSS pending a final decision in the case, claiming that DeCSS contained its trade secrets. The preliminary injunction was appealed by Bunner, aided by pro bono counsel from the Electronic Frontier Foundation (EFF) and the First Amendment Project. In 2001, the Court of Appeal ruled that the ban on publication violated Bunner's constitutional right of free speech. In this latest legal maneuver, the Supreme Court required the Court of Appeal to reexamine the evidence.

David Green, executive director and staff counsel for the First Amendment Project, is leading Bunner's defense with Allon Levy, an attorney with Green Hopkins & Carley, with help from staff attorneys at the EFF and First Amendment Project and volunteers.

Bunner, who works for a software company, said he supports protection of intellectual property.

"How could I have known that something that was reverse engineered in Norway was in violation of trade secrets law?" he said. "I don't even understand the code, to be completely honest."

When determining whether to issue a preliminary injunction, court watchers say it's all about harm: Who would be hurt worse if the action continued? In this case, according to Cindy Cohn, legal director of the Electronic Frontier Foundation, the courts had to decide whether the proposed injunction impeded Bunner's right of speech no more than necessary to serve its interest in keeping the code secret.

"Preventing Andrew from publishing it will have no effect on keeping it a secret," Cohn told internetnews.com. "So the government's interest in the abstract might be strong, but in the specifics of this case, it's very, very weak."

Green said that the Supreme Court upheld the importance of constitutional rights by applying a rigorous first amendment test to the request for preliminary injunction.

"They're saying that these injunctions do have to withstand First Amendment scrutiny," he said.

Even though the DVD-CCA would indeed be harmed by the disclosure of its trade secrets, according to Green, the Court demanded that the organization prove it had a strong enough trade secrets case to balanced the harm to Bunner's freedom of speech.

Now, the parties have to wait to hear from the Court of Appeals how it wants them to proceed. They may be asked to file more briefs or to appear in court. The EFF's Cohn said Bunner's defense hinges on two points:

"First, that the code was obtained legally by reverse engineering. Second, that because the code was so widely disseminated already, it could not be considered secret. She said, "We've been waiting a year and a half. We want the lower court to let us go ahead and prove our case."