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The Honolulu Advertiser
Posted on: Tuesday, August 26, 2003

DVD copy-control group hails latest court ruling

By David Kravets
Associated Press

SAN FRANCISCO — The California Supreme Court ruled yesterday that courts may block Internet users from posting codes that could be used to illegally copy DVD movies, in a case that pitted trade-secret rights against free speech.

The justices did not resolve whether the code that sparked the case was in fact a trade secret, leaving that for a lower court to determine. They did rule, however, that they would not tolerate the posting of legitimate trade secrets online and reversed a lower court that said disseminating trade secrets was protected free speech.

The case centered on San Francisco computer programmer Andrew Bunner, who in 1999 posted the code to crack the encryption technology and, according to the movie industry, helped users replicate thousands of copyright movies per day.

The DVD Copy Control Association, an arm of Hollywood studios, said it controls the encryption system, which scrambles data to prevent unauthorized copying of a movie sold in the DVD format. The association sued Bunner and others under California's Uniform Trade Secrets Act.

A San Jose judge ordered Bunner to remove the encryption-cracking code from the Internet. But the 6th District Court of Appeal in San Jose lifted that injunction, a move the DVD Copy Control Association said was akin to giving crooks the technology to reproduce protected material such as movies on a large scale.

The court of appeal ruled that protecting trade secrets is not as important as "the First Amendment right to freedom of speech."

A unanimous Supreme Court, however, ruled otherwise yesterday.

Justice Janice Rogers Brown, in reversing the appeals court on a 7-0 vote, said an order to remove the code "does not violate the free-speech clauses of the United States and California constitutions."

The case is not fully resolved, however, because the Supreme Court also ordered the San Jose appeals court to analyze whether the code is still a protected trade secret given its widespread exposure.

The DVD association hailed yesterday's decision.

"This opinion has wide applications to trade-secret law," said association attorney Robert G. Sugerman. "Owners of trade secrets can now protect those trade secrets."

Bunner did not devise the decryption code, but instead posted it on one of his Web sites. The Norwegian teen who cracked the code, Jon Johansen, was acquitted in Norway in January of charges he stole trade secrets.

Bunner, 26, said he has removed any reference to it from the Internet and is fighting the case to stand up for free-speech rights. He is one of dozens of people in the United States being sued by the association for posting the code.

Bunner's attorney, David A. Greene, said the appeals court could still ultimately support his actions because the code's global dissemination may not grant it status as a trade secret anymore.