then held that republication of DeCSS by defendant Bunner^1089 was “pure speech within the
ambit of the First Amendment” and that the preliminary injunction therefore constituted an
unlawful prior restraint.^1090 “[A] person who exposes the trade secret may be liable for damages
if he or she was bound by a contractual obligation to safeguard the secret. And anyone who
infringes a copyright held by [the plaintiff] of by an DVD content provider may be subject to an
action under the Copyright Act. We hold only that a preliminary injunction cannot be used to
restrict Bunner from disclosing DeCSS.”^1091
On appeal, the California Supreme Court reversed the California Court of Appeal’s
decision, ruling that the trial court’s preliminary injunction did not violate the First
Amendment.^1092 Although the Court held that restrictions on the dissemination of computer code
were subject to scrutiny under the First Amendment because the code was a means of expressing
ideas,^1093 it found that the preliminary injunction passed scrutiny, assuming the trial court
properly issued the injunction under California’s trade secret law, because it was content neutral
(and therefore not subject to strict scrutiny) and achieved the requisite balance of interests by
burdening no more speech than necessary to serve the government interests at stake.^1094 The
Court emphasized that its holding was “quite limited,” and that its ruling that the preliminary
injunction did not violate the free speech clauses of the United States and California
Constitutions was based on the assumption that the trial court properly issued the injunction
under California’s trade secret law. “On remand, the Court of Appeal should determine the
validity of this assumption.”^1095
On remand, the California Court of Appeal held that the preliminary injunction was not
warranted under California trade secret law because DeCSS had been so widely distributed on
the Internet that it was no longer a trade secret.^1096 At the time of the hearing in the trial court for
a preliminary injunction, the evidence showed that DeCSS had been displayed on or linked to at
least 118 Web pages in 11 states and 11 countries throughout the world and that approximately
93 Web pages continued to publish information about DeCSS. Subsequent to the filing of the
law suit, a campaign of civil disobedience began among the programming community to spread
the DeCSS code as widely as possible. Persons distributed the code at the courthouse, portions
(^1089) According to Bunner, defendant Jon Johansen actually reverse engineered the CSS software and Bunner merely
republished it. He argued that he had no reason to know that DeCSS had been created by improper use of any
proprietary information since the reverse engineering of CSS performed by Johansen was not illegal under
Norwegian law. Id. at 1805-06.
(^1090) Id. at 1811.
(^1091) Id. at 1812.
(^1092) DVD Copy Control Ass’n v. Bunner, 31 Cal.4th 864 (2003).
(^1093) Id. at 876.
(^1094) Id. at 877-85.
(^1095) Id. at 889.
(^1096) DVD Copy Control Ass’n Inc. v. Bunner, 116 Cal. App. 4th 241 (6th Dist. 2004).