DVD Hacking Is Not Protected Speech

The California Supreme Court has held that an injunction against disseminating software for illicit copying of encrypted DVD movies does not violate First Amendment guaranties of freedom of speech. DVD Copy Control Assoc. v. Bunner, Case No. S102588, 2003 DJDAR 9602 Cal. LEXIS 6295, (Cal. August 25, 2003). The Court did, however, remand the case back to the appeals court to determine if the injunction was warranted under California trade secret law.

In December of 1999, the DVD Copy Control Association (DVD CCA) brought an action under California's Uniform Trade Secrets Act (UTSA) against Andrew Bunner, a Norwegian teenager, and numerous other internet website operators to prevent future use of DVD decryption software (DeCSS) that had been reverse engineered in violation of applicable licenses and published on the internet. The trial court held that the DVD CCA was likely to prevail on its trade secret claim and issued a preliminary injunction against publishing the offending program or "linking" to webpages containing it. The Court of Appeals, finding that the DeCSS was protected speech, reversed on First Amendment grounds, holding that even if the DeCSS contained DVD CCA's trade secrets, that would not override the First Amendment. DVD CCA appealed to the California Supreme Court.

The California Supreme Court agreed with the appeals court that computer code is protected speech but went on to note that the original trial court injunction issued under the UTSA was content neutral. In other words, the injunction was not based on the particular content of the "speech" or any disagreement with its message or viewpoint. Rather, the injunction was justified by the reasonable efforts of...