linking could be enjoined only under circumstances applicable to a print medium. The court
found that the defendants’ arguments ignored the reality of the functional capacity of decryption
computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted
materials by anyone anywhere in the world. Accordingly, “the fundamental choice between
impairing some communication and tolerating decryption cannot be entirely avoided.”^1074
Having rejected all constitutional challenges to the district court’s injunction, the Second
Circuit affirmed the district court’s final judgment.^1075 The defendants decided not to appeal the
case further to the Supreme Court.^1076
(iv) A Related DVD Case Involving Trade Secret Claims- DVD Copy Control Association, Inc. v. McLaughlin (the Bunner case)
This case,^1077 although initially filed in state court alleging only misappropriation of trade
secrets, presented another fact pattern amenable to a claim under the anti-circumvention
provisions of the DMCA. The plaintiff in that case, DVD Copy Control Association, Inc. (DVD
CCA), was the sole licensor of CSS.^1078 The plaintiff alleged that various defendants had
misappropriated trade secrets in CSS by posting on their websites proprietary information
relating to how the CSS technology functions, the source code of DeCSS, and/or providing links
to other websites containing CSS proprietary information and/or the DeCSS program.^1079
On Dec. 29, 1999, the court denied an application by the plaintiff for a temporary
restraining order that would have required the defendants to remove the DeCSS program and
proprietary information from their websites, as well as links to other sites containing the
same.^1080 However, on Jan. 21, 2000 (the day after the court in Reimerdes issued its preliminary
injunction under the DMCA), the judge reversed course and issued a preliminary injunction
prohibiting the defendants from “[p]osting or otherwise disclosing or distributing, on their
websites or elsewhere, the DeCSS program, the master keys or algorithms of the Content
Scrambling System (‘CSS’), or any other information derived from this proprietary
information.”^1081
(^1074) Id. at 458.
(^1075) Id.
(^1076) Lisa Bowman, “Copyright Fight Comes to an End” (July 3, 2002), available as of July 8, 2002 at
http://news.com.com/2102-1023-941685.html.
(^1077) No. CV786804 (Santa Clara Superior Court, Dec. 27, 1999).
(^1078) Id. ¶ 4.
(^1079) Id. ¶¶ 1, 27-29, 45-50, 60-61.
(^1080) Deborah Kong, “DVD Movie Fight Loses,” San Jose Mercury News (Dec. 30, 1999) at 1C.
(^1081) Order Granting Preliminary Injunction, DVD Copy Control Assoc. v. McLaughlin (Sup. Ct., County of Santa
Clara, Jan. 21, 2000), available as of Jan. 19, 2002 at
http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000120-pi-order.html.