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Computer Law Review and Technology Journal

Abstract

Bad facts make bad law. In DVD Copy Control Association, Inc. v. Bunner, the California Supreme Court addressed a sympathetic plaintiff suing a group of hackers for ignoring the terms of a click wrap license and reverse engineering trade secrets from a computer program. To ensure that justice prevailed, the court held that a preliminary injunction against re-posting computer code containing those purported trade secrets was not a prior restraint on speech, but rather was content-neutral. In the trial court, despite the fait accompli of the computer code's Internet release to the hacker community, the court implausibly found that the plaintiffs had a trade secret and that they were likely to prevail at trial. The court also enjoined the defendant owners of websites from re-posting the code. The appeals court overturned the injunction, holding that trade secrets were not "more fundamental" than the First Amendment. Consequently, the California Supreme Court had to find a legal theory under which an injunction against the publication of computer code, issued prior to a complete adjudication of the case, was not a content-based, prior restraint of speech.Relying upon the pivotal assumption that the injunction had been correctly issued under California trade secret law, the court made two determinations. First, it held that the injunction's restraint of speech was incidental to its purpose of protecting trade secrets and, hence, was content-neutral. Second, it held that the defendants' initial re-posting of the program was "prior improper conduct" adequate to remove the injunction from a strong presumption of invalidity under the prior restraint doctrine. On remand, the Court of Appeals examined the validity of that pivotal assumption. It determined that the plaintiff had shown neither a likelihood of success on the merits nor a balance of harms in favor of the injunction and, once again, overturned the injunction.

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