2003 August 27 – A look at Bunner

(entry last updated: 2003-08-27 07:32:30)


So, I finished reading DVD CCA v Bunner last night. The first thing that the reader gets is a demonstration of something discussed at the early stages of any legal career – judges will do almost anything not to decide anything!

As has been noted elsewhere, the California Supreme court’s majority opinion goes out of its way to make as narrow a decision as it possibly could. Essentially, the opinion answers the following relatively simple question: "does prior restraint on a disclosure of illegally obtained information protected by trade secret law constitute a violation of the First Amendment?" Surprise – the answer is no.

Once that question is answered, however, the Court then turns around and declares that the District Court’s finding of fact ((1) CSS is still a trade secret and (2) that Bunner illegally obtained CSS information) is far from clear on the basis of the evidentiary record. In fact, it is so troubled that it asks the Court of Appeals, which has already acted to overturn the injunction against Bunner, to review the record and make the necessary determinations. Because, if Bunner did not get the information illegally, then the injunction is a violation of the First Amendment.

Moreover, there is a concurring opinion by Justice Moreno who asserts that there is no point in sending the case back to the Appelate Court for review. In his view:

DeCSS was not demonstrably secret in this case when Bunner republished it, and Bunner was neither alleged to be the original misappropriator not to be in privity with any such misappropriators.

[…] [A] plaintiff carries the burden of showing that the trade secret remains a secret despite the Internet posting. In the present case, nothing in the record indicates that the DVD CCA met that burden. In fact, the trial court failed to make any particularized findings at all that the information was still secret when Bunner republished it, instead treating the 20 or so defendants as a class and making general statements that these defendants had published secret information. Without evidence in the record that the proprietary information was still secret at the time Bunner downloaded it from the Internet, the DVD CCA cannot sustain its burden of demonstrating a likelihood of prevailing on the merits.

(concurring opinion, slip op. p. 16)

So, there is no reason for some of the hysterical assertions that the notion of "code as speech&quot has been overturned by this opinion. Moreover, there are certainly indications that this case will eventually lead to the finding that CSS is no longer a trade secret, and that posting of DeCSS will not be found to have been a criminal act.

What about the DMCA?

The Court, as I indicated above, was careful to avoid deciding too much, most notably avoiding digging into the DMCA. However, Moreno’s concurring opinion does nose around the edges of this issue, largely to suggest an explanation of why the District Court might have been a little overzealous in their award of injunctive relief:

It is likely that the trial court’s view of this case was colored by the content of the information — that DeCSS is designed to circumvent the encryption of DVD’s. But the fact that the information at issue is being used for a decrypting purpose is not significant from the standpoint of trade secret law. […] It may or may not be the case that Bunner’s action violated the Digital Millennium Copyright Act (DMCA) (17 U.S.C. sect. 1201), which explicitly prohibits various efforts to circumvent "technological measures that effectively control access" to copyrighted works (id., sect. 1201 (a)(1)(E), (2)(A)). Unlike trade secret law, the DMCA does not inquire into whether technology-circumventing devices are acquired by improper means or are based on secret information, but rather considers whether the primary purpose of those devices was improper. (Ibid.; see Universal City Studios, Inc. v. Corley (2d Cir. 2001) 273 F.3d 429, 440-441.) DVD CCA s complaint did not allege a violation of the DMCA and that issue is not before us.

(slip op., concurring opinion, p 18)

What we can draw from this quote is only the same thing that I think Moreno is saying — thank goodness this wasn’t something that had to be decided here and now!

A Less Comforting Element

The opinion, however, also raises an issue that is going to come back to haunt the digital information community. The Court spends a considerable amount of time seeking to establish whether a prior restraint on (code) speech is "content based" or "content free.&quot. The distinction is important because the standards for determining the legality of such prior restraint is different, with restraint on "content based" speech requiring that a much higher standard is met.

The Court concluded that CSS, as a trade secret (assumed to have been) illegally misappropriated, allowed them to apply the less restrictive standard applied to "content free" injunctions on speech. (sorry — it’s hard to figure out where to put the term of art "content free" without appearing perjorative!) You can read the opinion to see how they got there, but there was a part of the opinion that precisely defined just how messy things have gotten in the digital realm.

The case CBS Inc. v. Davis (510 US 1315) was apparently cited by Bunner at some point in the process as a case that showed that prior restraint should not be applied. As cited in the opinion, we find:

In CBS, a federal district court issued an injunction "prohibiting CBS from airing videotape footage taken at the factory of Federal Beef Processors, Inc." (Federal) (id. at p. 1325), because the tape disclosed Federal’s "’confidential and proprietary practices and processes….’" (Id. at p. 1316.) Concluding that the injunction was an unconstitutional prior restraint, Justice Blackmun stayed its enforcement. (Id. at pp. 1317-1318.) As a single justice order, CBS is arguably not binding on this court. In any event, it is distinguishable. Justice Blackmun, in finding a prior restraint, relied on the lack of clear evidence establishing that CBS had acquired Federal s proprietary information by improper means. (Id. at p. 1318.) In contrast, we assume for purposes of this appeal that Bunner knew or had reason to know that DVD CCA s trade secrets were acquired by improper means. Moreover, unlike the trade secrets at issue here (see ante, at pp. 21-23), the videotape footage at issue in CBS appeared to address a matter of public concern — "unsanitary practices in the meat industry" (CBS, at p. 1315). (emphasis added)

(majority opinion, slip op., p. 26)

Why this lengthy quote? What if the only way to see CBS’ news report had required that you have DeCSS? Would an injunction on disclosure of DeCSS still be "content free?"

One would hope not — locking away information that is in the public interest behind an electronically erected and implemented "pay-wall" would seem to be patently offensive to our notions of liberty, but I was struck by the fact that the Court’s discussion exposes a now-classic blind spot. The code in DeCSS is more than just speech – it’s a kind of meta-speech that, by technological design, unlocks lots of other speech.

We have decided to alienate ourselves from "real speech" through technological means because of its convenience in distribution and use. I can’t "watch" a DVD without the intervention of a technological artifact (unless you mean looking at the play of light and diffraction on a shiny disk). The "speech" on the DVD is inaccessible until I turn the crank of a particular technology – and it’s going to be vitally important that the crank remain as free as the speech that it locks away, or we’re going to find all sorts of unhappy threats to our liberty.