California Appellate Court Rules DeCSS Ban Unlawful

On February 27, 2004, in the case of DVD Copy Control Association Inc v Bunner, the California Court of Appeal dissolved a preliminary injunction first granted four years earlier under the state's Uniform Trade Secrets Act (UTSA) prohibiting the defendant, Andrew Bunner, from using or publishing the DeCSS code on a web site or in any other medium. The DeCSS code is software that decrypts the content scrambling system (CSS) code found on DVD movies and allows users to copy the contents of the DVD to a computer in an unencrypted format for later viewing. Bunner posted the DeCSS code to his web site sometime after October 25, 1999. In posting the code, Bunner believed that the DeCSS code would be useful for other users of the Linux operating system given that the plaintiff, the DVD Copy Control Association (DVD CCA), had not licensed CSS to any manufacturer making DVD drives for Linux. In the opinion of the appellate Court, however, the evidence did not justify the issuance of an injunction under the UTSA. The DVD CCA could not show either a likelihood of success on the merits of its case nor could it establish that further harm would ensue if the preliminary injunction were removed. There was evidence that by the time the DVD CCA sought the injunction, the code had likely lost its trade secret status due to its mass distribution. It was not the original publication that doomed the status of the information; rather, it was the fact that the DeCSS code was rapidly and widely republished over the Internet so that it quickly became available to anyone interested in obtaining it. This republication effectively destroyed the trade secret status of the CSS information contained in it. For a copy of the decision (DVD Copy Control Association Inc v Bunner), see: http://www.ipjustice.org/H021153A.pdf. For more information, see: http://news.com.com/2100-1026_3-5166887.html. Summary by: Colin Adams