## Facts

- DVD Copy Control Association, Inc. (DVD CCA) licensed the Content Scramble System (CSS), an encryption system used to prevent unauthorized copying of DVDs.
- Hackers reverse engineered a licensed DVD player and created DeCSS, a program that decrypts CSS; DeCSS was widely disseminated online.
- Andrew Bunner did not perform the reverse engineering but republished DeCSS source code on his website after it appeared elsewhere.
- DVD CCA alleged DeCSS contained CSS trade secrets (including keys and related technical information) and sued Bunner for trade secret misappropriation under the California Uniform Trade Secrets Act (CUTSA).
- The trial court issued a preliminary injunction barring Bunner from disclosing or distributing DeCSS or otherwise disclosing CSS trade secrets.
- The court of appeal reversed on free speech grounds, treating the injunction as an unconstitutional prior restraint.
- The California Supreme Court reviewed the case, accepting the trial court’s trade-secret and misappropriation findings as true solely for purposes of the constitutional analysis.

## Issues

1. Whether a preliminary injunction prohibiting dissemination of computer code embodying another’s alleged trade secrets is an unconstitutional prior restraint under the First Amendment and the California Constitution.
2. Whether such an injunction should be evaluated as a content-based speech restriction subject to strict scrutiny, or as a content-neutral restriction aimed at preventing trade secret misappropriation that only incidentally affects speech.
3. Whether, assuming misappropriation of a valid trade secret, the injunction can be upheld if narrowly tailored to protect trade secret rights without unnecessarily burdening speech.

## Decision

- The California Supreme Court reversed the court of appeal’s First Amendment ruling and held that, assuming the trial court’s findings are correct, the preliminary injunction did not violate federal or state free speech protections.
- The Court assumed DeCSS source code has expressive aspects, but held that its expressive nature does not immunize dissemination when it embodies misappropriated trade secrets.
- The Court declined to treat the injunction as automatically invalid as a classic prior restraint and rejected applying strict scrutiny as a categorical rule in this trade secret context.
- The Court remanded for independent appellate review of the record on whether DVD CCA was likely to succeed on its CUTSA claim, including whether CSS in fact retained trade secret status at the time of the injunction.

## Legal Principles

- The First Amendment does not categorically bar injunctions restraining disclosure of another’s trade secrets when the defendant knew or had reason to know the information was acquired through improper means.
- Computer code may qualify as speech, but speech protections do not prevent enforcement of trade secret law against wrongful acquisition, use, or disclosure of protected confidential information.
- A trade secret injunction may be treated as protecting a property interest and regulating wrongful conduct, with only incidental effects on speech, rather than as a content-based restriction on public debate.
- To be constitutionally permissible in this setting, an injunction should be narrowly tailored to restrain disclosure of the trade secret itself and leave open discussion, commentary, and criticism unrelated to disclosure of the protected secret.
- If the information is no longer secret or has become generally known, trade secret protection may fail, undermining the legal basis for speech-restrictive relief.

## Conclusion

The California Supreme Court held that a preliminary injunction against reposting DeCSS was not per se an unconstitutional prior restraint when based on findings of trade secret misappropriation, but remanded for independent review of whether CSS actually qualified as a trade secret and whether misappropriation was likely shown. On remand, the injunction was ultimately reversed because CSS was found to have lost trade secret status by widespread public disclosure.


DVD Copy Control Ass’n, Inc. v. Bunner, 31 Cal. 4th 864, 75 P.3d 1 (Cal. 2003)