In a stunning blow to the US Constitutional guarantee of free speech that has ramifications in the technical community, the California Supreme Court ruled yesterday that protecting trade secrets outweighs free speech. Specifically, the court found that an individual can't post a corporation's trade secrets on the Internet, as Andrew Bunner allegedly did when he posted code for the decss.exe utility, Linux software that cracks the DVD Copy Control Association (DVD-CCA) DVD-encryption algorithms. DeCSS lets Linux users play DVD movies on their systems. But because DVD-CCA designed its encryption algorithms to protect DVD content from theft, the association argued that people can use the DeCSS code to extract that information illegally.
"The court's decision confirms that the First Amendment is not a shield to allow thieves to distribute stolen property," said a lawyer representing the DVD-CCA. "And so it establishes an overall precedent that an injunction on the basis of trade secrets is not a violation of the First Amendment."
The court's decision, however, wasn't quite as sweeping as it sounds at first. Bunner was originally named in an injunction as part of a broad DVD-CCA lawsuit. A California appeals court overturned the injunction when Bunner appealed, holding that protecting trade secrets wasn't as important as "the First Amendment right to freedom of speech." DVD-CCA then appealed the case to the California Supreme Court. Yesterday, the court ruled that the order to remove the code "does not violate the free speech clauses of the United States and California constitutions." But the court also ordered the appeals court to analyze whether the code is a protected trade secret, given its widespread exposure on the Internet.
DVD-CCA accused Bunner of violating its trade secrets because he posted the software on his Web site. Bunner, however, didn't write the offending bit of code. A Norwegian teenager named Jon Johansen, who was acquitted in Norway of charges that he stole trade secrets, originally cracked the code. Bunner's lawyers argued that he was just one of many people who posted the offending code and that he did so after hundreds of thousands of other people had already posted it. "This case is about the right of people to publish publicly available information," said a lawyer who represented Bunner. "If a person finds information on the Web and posts it, he or she should not be sued by a big corporation.
