Advanced Copyright Issues on the Internet - Fenwick & West LLP

under the <strong>Copyright</strong> Act. We hold only that a preliminary injunction cannot be used to restrictBunner from disclosing DeCSS.” 728On appeal, the California Supreme Court reversed the California Court of Appeal’sdecision, ruling that the trial court’s preliminary injunction did not violate the FirstAmendment. 729 Although the Court held that restrictions on the dissemination of computer codewere subject to scrutiny under the First Amendment because the code was a means of expressingideas, 730 it found that the preliminary injunction passed scrutiny, assuming the trial courtproperly 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 byburdening no more speech than necessary to serve the government interests at stake. 731 TheCourt emphasized that its holding was “quite limited,” and that its ruling that the preliminaryinjunction did not violate the free speech clauses of the United States and CaliforniaConstitutions was based on the assumption that the trial court properly issued the injunctionunder California’s trade secret law. “On remand, the Court of Appeal should determine thevalidity of this assumption.” 732On remand, the California Court of Appeal held that the preliminary injunction was notwarranted under California trade secret law because DeCSS had been so widely distributed onthe Internet that it was no longer a trade secret. 733 At the time of the hearing in the trial court fora preliminary injunction, the evidence showed that DeCSS had been displayed on or linked to atleast 118 Web pages in 11 states and 11 countries throughout the world and that approximately93 Web pages continued to publish information about DeCSS. Subsequent to the filing of thelaw suit, a campaign of civil disobedience began among the programming community to spreadthe DeCSS code as widely as possible. Persons distributed the code at the courthouse, portionsof it appeared on tee shirts, and contests were held encouraging people to submit ideas abouthow to disseminate the information as widely as possible. 734The court stated, “Publication on the Internet does not necessarily destroy the secret if thepublication is sufficiently obscure or transient or otherwise limited so that it does not becomegenerally known to the relevant people, i.e., potential competitors or other persons to whom theinformation would have some economic value.” 735 However, in the instant case, the court heldthat the evidence in the case demonstrated that DeCSS had been published to “a worldwideaudience of millions” and “the initial publication was quickly and widely republished to an eageraudience so that DeCSS and the trade secrets it contained rapidly became available to anyone728729730731732733734735Id. at 1812.DVD Copy Control Ass’n v. Bunner, 31 Cal.4th 864 (2003).Id. at 876.Id. at 877-85.Id. at 889.DVD Copy Control Ass’n Inc. v. Bunner, 116 Cal. App. 4th 241 (6th Dist. 2004).Id. at 248-49.Id. at 251.- 171 -