April 23, 2014

avatar

Trade Secrets and Free Speech

Yesterday the California Supreme Court issued its ruling in DVDCCA v. Bunner, a case pitting trade secrets against freedom of speech. The court ruled that an injunction against disclosure of a trade secret is valid, even though it restricts some speech.

The case relates to CSS, the encryption scheme used to scramble the data on DVDs. CSS was developed in secret, and an outfit called the DVD Copy Control Association (DVDCCA) claims that the details of CSS are its trade secret. Andrew Bunner posted DeCSS, a program that unscrambles CSS-encrypted content, on his web site. DVDCCA sued Bunner for misappropriating its trade secret. A lower court issued an injunction, ordering Bunner not to publish DeCSS. Bunner appealed, arguing that the injunction violated his free speech right.

The lower court ruled that Bunner knew (or should have known) that CSS was a trade secret, and that Bunner knew (or should have known) that the original source of DeCSS had gotten the trade secret improperly. I think these factual findings were highly questionable, but the Court accepted them for the purposes of its decision. So the issue before the state Supreme Court was merely whether an injunction against publishing a trade secret violates freedom of speech. The Court ruled that it does not, at least not when the speech is software code.

Why does it matter that the speech is software code? As Seth Finkelstein points out, the Court seemed to say that software code cannot be of public concern, because only experts can read it:

DVD CCA’s trade secrets in the CSS technology are not publicly available and convey only technical information about the method used by specific private entities to protect their intellectual property. Bunner posted these secrets in the form of DeCSS on the Internet so Linux users could enjoy and use DVD’s and so others could improve the functional capabilities of DeCSS. He did not post them to comment on any public issue or to participate in any public debate. Indeed, only computer encryption enthusiasts are likely to have an interest in the expressive content– rather than the uses–of DVD CCA’s trade secrets. (See Tien, Publishing Software as a Speech Act, supra, 15 Berkeley Tech. L.J. at pp. 662-663 ["Programming languages provide the best means for communicating highly technical ideas–such as mathematical concepts–within the community of computer scientists and programmers"].) Thus, these trade secrets, as disclosed by Bunner, address matters of purely private concern and not matters of public importance. …

This seems like a pretty odd position to take. Information about Enron’s finances is of public concern, even though only accountants can interpret it in its raw form. Information about the Space Shuttle wing structure is of public concern, even though only a few engineers understand it fully. CSS is a controversial technology, and information about how it works is directly relevant to the debate about it. True, many people who are interested in the debate will have to rely on experts to explain the relevant parts of DeCSS to them; but the same is true of Enron’s accounting or the Shuttle’s engineering.

Odder still, in my view, is the notion that because DeCSS is directly useful to members of the public, it is somehow of less public concern than a purely theoretical discussion would be. It seems to me that the First Amendment protects speech precisely because the speech may have an effect on what people think and how they act. To suppress speech because of its impact seems to defeat the very purpose of the free speech guarantee.