Forwarded from: Marjorie Simmons <lawyer@private> The following is an observation -- not legal advice. It pertains to infosec in an evidentiary way because of logs. Or rather, in this case, no logs. Court opinion at: http://www.courtinfo.ca.gov/opinions/documents/H021153A.PDF On Feb 27, 04, the California Court of Appeal (6th dist.) reversed the order granting a preliminary injunction to DVDCCA in the trade secret case DVD Copy Control Assn. Inc., v. Andrew Bunner, H021153 / CV786804. The court's opinion as rendered is a straightforward trade secret analysis. By the numbers, to colloquialize. Note the opinion covers trade secret matters, not copyright, and is based upon the appellate record filed in that court. It is not a final adjudication on the merits, thus the ultimate determination of trade secret status and misappropriation would be subject to proof to be presented at trial. However, the court found that DVDCCA was not likely to succeed in its trade secret claim on the merits. (That's a big red flag for the lower courts.) Also, the case was brought under California State law -- that state's Trade Secrets Act and its specific provisions. The states each differ in their similar laws. An intelligent and well-reasoned opinion, I'd say, overall. On remand to the lower court, the DVDCCA's claim for its intellectual property right remains. <Opinion Excerpts> "According to DVD CCA, DeCSS incorporates trade secret information that was obtained by reverse engineering CSS in breach of a license agreement. . . . [T]he test for a trade secret is whether the matter sought to be protected is information (1) that is valuable because it is unknown to others and (2) that the owner has attempted to keep secret. . . . [In] order to qualify as a trade secret, the information must be secret, and must not be of public knowledge or of a general knowledge in the trade or business. . . . Publication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value. . . . [Here], the secrecy element becomes important at two points. First, if the allegedly proprietary information contained in DeCSS was already public knowledge when Bunner posted the program to his Web site, Bunner could not be liable for misappropriation by republishing it because he would not have been disclosing a trade secret. Second, even if the information was not generally known when Bunner posted it, if it had become public knowledge by the time the trial court granted the preliminary injunction, the injunction (which only prohibits disclosure) would have been improper because DVD CCA could not have demonstrated interim harm. . . . Bunner first became aware of DeCSS on or around October 26, 1999. But there is no evidence as to when he actually posted it. . . . [A]ssuming the information was originally acquired by improper means, it does not necessarily follow that once the information became publicly available that everyone else would be liable under the trade secret laws for re- publishing it simply because they knew about its unethical origins. In a case that receives widespread publicity, just about anyone who becomes aware of the contested information would also know that it was allegedly created by improper means. Under DVD CCA's construction of the law, in such a case the general public could theoretically be liable for misappropriation simply by disclosing it to someone else. This is not what trade secret law is designed to do. . . . *** It is important *** [emphasis mine] to point out that we do not assume that the alleged trade secrets contained in DeCSS became part of the public domain simply by having been published on the Internet. Rather, the evidence demonstrates that in this case, the initial publication was quickly and widely republished to an eager audience so that DeCSS and the trade secrets it contained rapidly became available to anyone interested in obtaining them. Further, the record contains no evidence as to when in the course of the initial distribution of the offending program Bunner posted it. Thus, DVD CCA has not shown a likelihood that it will prevail on the merits of its claim of misappropriation against Bunner. . . . [T]he preliminary injunction prohibiting disclosure was intended to protect the trade secret. Therefore, even if Bunner was liable for misappropriation, if the information had since become generally known, a preliminary injunction prohibiting disclosure would have done nothing to protect the secret because the secret would have ceased to exist. Further, assuming that an injunction against the use of information could be justified, we can conceive of no possible justification for an injunction against the disclosure of information if the information were already public knowledge. . . . [The court concurs with the Religious Technology Center v. Netcom opinion and acknowledges the dualities of the 'Net: ] The court is troubled by the notion that any Internet user, . . . can destroy valuable intellectual property rights by posting them over the Internet, especially given the fact that there is little opportunity to screen postings before they are made. . . . Nonetheless, one of the Internet's virtues, that it gives even the poorest individuals the power to publish to millions of readers, can also be a detriment to the value of pintellectual roperty rights. The anonymous (or judgment proof) defendant can permanently destroy valuable trade secrets, leaving no one to hold liable for the misappropriation. There is little question that such behavior is unethical and that it probably violates other laws. But that which is in the public domain cannot be removed by action of the states under the guise of trade secret protection." </Opinion Excerpts> see also: http://arstechnica.com/news/posts/1078007042.html Appeals court rules DeCSS is no longer a trade secret Ars Technica Newsdesk Posted 02/28/2004 @ 4:24 PM, by Fred "zAmboni" Locklear ~~~~~ Marjorie Simmons http://www.carpereslegalis.com ~~~~~ - ISN is currently hosted by Attrition.org To unsubscribe email majordomo@private with 'unsubscribe isn' in the BODY of the mail.
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