June 24, 2017

DVDCCA v. Bunner in California Supreme Court

DVDCCA v. Bunner – the “California DVD case” – was argued yesterday in the California Supreme Court. DVDCCA, which is basically the movie industry, sued Andrew Bunner for re-publishing the DeCSS program on his web site. DeCSS, you may recall, is a program for decrypting DVDs.

A previous case in Federal court, Universal v. Remeirdes (also known as “Universal v. Corley”, the “2600 case”, or the “New York DVD case”), led to a ruling that posting DeCSS violated the Digital Millennium Copyright Act (DMCA). There was no DMCA claim in Bunner; the movie industry argued instead that DeCSS contained their trade secrets, and so was illegal for Bunner to publish.

Bunner lost in the trial court but he won a reversal in the appeals court, with the appeals court ruling that DeCSS was speech and that an injunction against its publication would therefore be an unconstitutional prior restraint on speech.

Wired has a pretty poor story about this (bylined “Reuters”). Better is Lisa Bowman’s story at CNet News.com. Alex McGillivray was there and offers a deeper account of the legal arguments.

As usual in these cases, the plaintiffs’ lawyers offered strained analogies. California Attorney General Bill Lockyer called DeCSS a tool for “breaking, entering, and stealing”, ignoring that DeCSS only allows one to “break into” one’s own property. (The theory that using DeCSS amounts to a break-in was already rejected by a Norwegian court in the Johansen case.)

DVDCCA lawyer Robert Sugarman said something even odder. Bowman’s story quotes Sugarman as telling the court that DeCSS is designed “to allow individuals to steal a trade secret and, by virtue of that, hack into a system that protects the trade secrets of motion picture makers.” This description is wrong on several counts. First, it is at odds with the DVDCCA’s position, which is not that that DeCSS protects their trade secrets, but that it contains their trade secrets. Second, the only things “protected” by DeCSS are the digital versions of the movies, and movies in broad distribution can’t be trade secrets.

In any case, I have never understood why the industry’s basic trade secret argument wasn’t laughed out of court. By the time Bunner got hold of DeCSS and re-published it, it was available at hundreds of places on the Net, and had been available for months. Anybody who cared to know this “trade secret” already knew it, through no fault of Bunner’s. (I filed a declaration to that effect with the original trial court.) The industry never claimed that Bunner did anything illegal to get the “trade secret”; nor did they even prove that anybody else had done anything illegal to get it.