August 26, 2003 · Lessig
So like bored guests at a dinner party, everyone seems keen to change my subjects. (If I believed in smileys I’d insert one here, but I don’t.) So ok, let’s talk about what YOU want to talk about.
As you likely know, the Supreme Court of California has held that a preliminary injunction in a trade secret case does not necessarily violate the first Amendment. The decision was in the context of deCSS code that enabled the decryption of CSS protections for DVDs. The opinion is here and worth a read.
Two points, one annoying and one important.
Annoying first: Gaggles have written me asking how is it that if “code is speech” the First Amendment doesn’t guarantee that code can’t be regulated? This is an argument that has been around for a long time, and its staying power is something I don’t quite get. Sure, code is speech. But why do you think speech can’t be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney’s permission, and you’ll see how far that gets you. The truth is, the Constitution notwithstanding (“Congress shall make no law…”), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation.
Important second: The court assumed a bunch of important facts. In particular it assumed:
“First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet.”
But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.