CAL. HIGH COURT TACKLES FIRST AMENDMENT ISSUES ON DeCSS
Cal. Supreme Court -- reviewing reversal of an injunction against posting DeCSS DVD-decryption software -- wrestled Thurs. with challenges of applying trade-secrets law to Internet publication. At oral argument, justices hammered defendant Andrew Bunner’s attorney David Greene on his contention preliminary injunction was an improper prior restraint on expression. But they grilled appellant DVD Copy Control Assn. (DVD CCA) lawyer Robert Sugarman about logic of court order to protect an erstwhile secret already spread widely over Internet.
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Court also heard Cal. Attorney Gen. Bill Lockyer (D) make an empassioned plea to protect state’s high-tech industry against unauthorized circulation of proprietary information. “DeCSS is a burglary tool,” he said. He argued, as amicus to DVD CCA, Cal. had strong interest in: (1) Protecting trade secrets concerning new products and processes. (2) Preventing and combating piracy, whose threat is demonstrated by music file-sharing. (3) Encouraging investment in technology companies. (4) Encouraging creative arts and protecting artists’ livelihoods. (5) Promoting commercial ethics. All Cal. technology is “at risk to the destructive work of hackers and misappropriation by competitors or others if the [secrets] rule is relaxed,” Lockyer said. Justices gave him pass on normal interrogation they conducted of other lawyers.
Most of hour-long argument centered on proper injunction test under First Amendment: Strict scrutiny, which is difficult for plaintiffs and trial courts to justify, or intermediate scrutiny, laxer balancing test. Sugarman contended intermediate scrutiny was proper because injunction was aimed at operational rather than expressive aspects of DeCSS, was content-neutral and wasn’t prior restraint because trial court found previous misconduct in misappropriation of encryption secrets. Greene countered Bunner’s reposting was “pure speech” because it was part of broad discussion about DVD encryption among cryptologists, academics and others.
Greene also said no finding of prior misconduct could excuse restraint because trial court tried to peg Bunner’s wrongdoing on others’ Slashdot.org postings dismissive of legal protections. Bunner didn’t write DeCSS, and court conceded liability of author turned on an obscure point of Norwegian law, Greene added. Chief Justice Ronald George questioned Greene’s contention.
Justice Maria Rivera pressed Greene. She expressed skepticism that program was expressive rather than functional, at one point repeating his statement back in apparent incredulity. Rivera and another justice from intermediate Cal. Courts of Appeal, Ronald Robie, sat in place of Supreme Court justices Ming Chin and Joyce Kennard, who had recused themselves.
Justice Kathryn Werdegar repeatedly gave Sugarman hard time about logic of trying to protect CSS encryption as trade secret after DeCSS had circulated widely. Greene argued law denied trade secret relief once cat is out of bag; Sugarman responded that defense would swallow entire doctrine once misappropriators know posting online gets them off. Posture of that issue was complicated by fact that it’s before trial court for full development on stayed summary-judgment motion, but court did address it preliminarily in injunction proceeding.