## Facts

- DVD Copy Control Association, Inc. (DVD CCA) licensed the Content Scramble System (CSS), an encryption method used to control access to DVD movie content, under confidentiality restrictions.
- DeCSS, a computer program capable of decrypting CSS, became widely available on the Internet after reverse engineering of a licensed CSS implementation.
- Andrew Bunner obtained DeCSS from the Internet and republished and/or linked to it on his website; the trial court found he knew it had been acquired by improper means.
- DVD CCA sued under California’s Uniform Trade Secrets Act (UTSA) and obtained a preliminary injunction barring Bunner from posting, disclosing, or distributing DeCSS or related CSS material.
- After prior appellate and California Supreme Court proceedings concerning free speech and trade secret injunctions, the case returned to the Court of Appeal to independently review whether the preliminary injunction was warranted under trade secret law.

## Issues

1. Whether, when the preliminary injunction issued, CSS information still qualified as a protectable trade secret under California’s UTSA.
2. Whether widespread Internet dissemination made CSS “generally known” or “readily ascertainable by proper means” to persons who could gain economic value from its use.
3. Whether DVD CCA showed a sufficient likelihood of success on the merits to justify a preliminary injunction restricting republication of DeCSS.

## Decision

- The Court of Appeal reversed the order granting the preliminary injunction.
- DVD CCA did not establish a reasonable probability that CSS remained a trade secret at the time the injunction was issued.
- Extensive and unrestricted online availability of DeCSS and CSS-related information rendered CSS generally known or readily ascertainable, eliminating the secrecy required for UTSA protection.
- With no qualifying trade secret supporting the restraint, the injunction burdened more speech than necessary and could not be sustained as a trade secret remedy.

## Legal Principles

- Under California’s UTSA, information is a trade secret only if it derives economic value from not being generally known or readily ascertainable by proper means and is subject to reasonable secrecy efforts.
- The party seeking a preliminary injunction must show a reasonable probability of prevailing on the merits at the time injunctive relief is sought.
- Trade secret protection can be lost through broad public dissemination, including widespread, unrestricted Internet distribution, even if the initial disclosure was unauthorized.
- Courts may enjoin disclosure of misappropriated trade secrets in appropriate cases, but an injunction is improper when the claimed trade secret no longer exists because secrecy has been destroyed.

## Conclusion

The Court of Appeal set aside the preliminary injunction against Bunner because the evidence showed that DeCSS and related CSS information had already spread widely online, defeating the continuing secrecy required for trade secret status and leaving no UTSA basis to restrain further publication.


DVD Copy Control Ass’n, Inc. v. Bunner, 10 Cal. Rptr. 3d 185 (Cal. Ct. App. 2004)