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[ox-en] more on the DVD case froma saria

heres some more on the dvd case from sarai ... and yes a (t)wiki is a good idea

Message: 2
Date: Fri, 27 Jun 2003 01:33:29 [PHONE NUMBER REMOVED]
From: "Badri Natarajan" <asimov>
Subject: Re: [Commons-Law] DVD CCA v. Bunner Ruling
To: <commons-law>
Message-ID: <036c01c33c1e$05a9b7c0$70a486ca manager.cyberoam>
Content-Type: text/plain; charset="iso-8859-1"

The Bunner decision is not quite as bad as this article below paints it.
Sure, we lost on First Amendment grounds, but (as the article does point
out) the case isn't over yet.

For example, the Court has said:

"Our decision today is quite limited. We merely hold that the preliminary
injunction does not violate the free speech clauses of the United States and
California Constitutions, assuming the trial court properly issued the
under California's trade secret law."

Also see the EFF's press release about the decision for a somewhat different
perspective on it:

One of the strongest parts of Bunner's case is that the code in question has
lost trade secret protection because it is publicly available. The entire
basis of this decision was on the *assumption* that this was not true and
the original preliminary injunction was correctly granted. But the Court has
remanded this, and other trade secret issues for de novo reconsideration by
the Court of Appeal. There is an excellent chance that the Court of Appeal
will rule in Bunner's favour on these grounds.

The Court has ruled that *in this case* the First Amendment rights of Bunner
must give way to the Government's interest in assuring effective protection
of trade secrets. The Court has NOT ruled that First Amendment scrutiny is
not required for the disclosure of trade secrets, which is what the
entertainment companies wanted.

Even the Court's First Amendment analysis has one key weak point (in my
opinion). The Court distinguishes the US Supreme Court's judgment in
Bartnicki v Vopper where republishing of private phone conversations was
upheld on First Amendment grounds and uses some statements in Bartnicki to
justify its view that trade secrets and other matters of purely private
concern do not deserve such a high standard of First Amendment protection as
speech regarding matters of public concern.

The Court goes on to hold that disclosing the DeCSS code is a matter of
private concern. However, that conclusion is eminently arguable. Even as a
general proposition it cannot be assumed that trade secrets by their very
nature are purely matters of private concern. Although they may generally be
so, when they DO become matters of public concern, they will be subject to
First Amendment protection and trade secret law must give way to that.

For an excellent discussion of the interaction between trade secrets and the
First Amendment (written before this decision came out but discussing
earlier stages of this case in detail) see Pamela Samuelon's article at:


Martin Hardie
Avenida Julius Nyerere 812 7E
Maputo Mozambique (don't use the post!!)
(258) 82 449428
Artekale 30, 2A
Durango, 48200
Bizkaia, Euskal Herria,


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