First Amendment Defense Fails in DVD Copy Control Trade Secret Case

Reprinted with permission from the IP Litigator, January/February 2004

Published by Aspen Law & Business

In DVD Copy Control Association, Inc. v. Bunner [31 Cal. 4th 864, 75 P.3d 1, 4 Cal. Rptr. 3d 69 (Aug. 25, 2003)], the California Supreme Court rejected a Web site proprietor’s First Amendment defense against the DVD Copy Control Association’s (the Association’s) claim of trade secret misappropriation. At issue in that case was the right of Bunner, the Web site proprietor, to publish on the Internet a script of computer code used to de-encrypt DVDs, enabling them to be copied at digital quality. The trial court had found that Bunner obtained the computer code from a third party and that Bunner either knew or had reason to know that the third party had reversed engineered the code in violation of a license agreement. Accordingly, the trial court ruled that Bunner’s disclosure of the computer code on the Internet constituted trade secret misappropriation under the California statute