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Friday, May 16, 2003
Justices decree DVD show must go on


Claiming that a controversial DVD de-scrambling code has long been available online worldwide, a man accused of improperly linking Internet viewers to the code asked earlier this year that the case against him be declared moot.

On Wednesday, the California Supreme Court rejected his plea 4-1, ensuring that the closely watched case remains on the court's May 29 oral argument calendar in San Francisco. Carlos Moreno was the only justice voting to grant the motion, while Justices Joyce Kennard and Ming Chin recused themselves.

If the court had agreed that DVD Copy Control Association v. Bunner, S102588, was moot, it would have meant an automatic victory for Andrew Bunner, who won at the intermediate appellate level in 2001. San Jose, Calif.'s 6th District Court of Appeal agreed with Bunner that his First Amendment rights to free speech trumped the state's trade secrets law.

"Our respect for the Legislature and its enactment of the [Uniform Trade Secrets Act] cannot displace our duty to safeguard the rights guaranteed by the First Amendment," Justice Eugene Premo wrote for the court.

That ruling overturned a Santa Clara County judge's preliminary injunction, which had ordered Bunner to remove the Internet link that directed people to DeCSS, a computer code that helps unscramble the Content Scrambling Code that encrypts and protects DVDs.

In a similar case -- Pavlovich v. Superior Court (DVD Copy Control Association), 29 Cal.4th 262, the California Supreme Court ruled six months ago that a Texas man could not be sued in California for posting DeCSS on the Internet.

In asking the court to declare the Bunner case moot, his lawyers argued that the disputed code has been disseminated worldwide, "not only on the Internet, but also in print, in university classes and in a wide variety of other media and formats."

"We feel quite honestly that from the time the case was filed in 1999, the case was moot," Allonn Levy, an associate at San Jose's Hopkins & Carley, said Wednesday. "Even at that point, anyone anywhere in the world could find this code. When you have code that is so available, it is laughable to call it a trade secret."

Lawyers for the plaintiff, DVD Copy Control Association, could not be reached for comment Wednesday. But in court papers they argued that Bunner's motion to dismiss based on mootness was premature and "an improper attempt to circumvent the appellate process."

"Simply put, Bunner knowingly and illegally disseminated DVD CCA's stolen trade secrets by posting them on the Internet," Christopher Cox, a partner in the Redwood Shores, Calif., office of Weil, Gotshal & Manges, wrote in opposition to Bunner's motion. "As a result, Bunner cannot claim that the ensuing republication of those secrets is a ground for dismissing this action."

He also argued that there is no evidence that the actual trade secrets behind the CSS encryption code -- the algorithms and master keys -- are widely known.

Asked Wednesday whether the motion to dismiss was just a way of trying to avoid the possibility of a reversal by the state's high court, one of Bunner's lawyers, San Francisco solo practitioner Richard Wiebe, gave an emphatic "no."

"It was based," he said, "on well-established rules of appellate mootness."


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