[dvd-discuss] [Fwd: [C-FIT_Community] Next Developments in Bunner Code = Speech Case]

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

-------- Original Message --------
Subject: [C-FIT_Community] Next Developments in Bunner Code = Speech
Case
Date: Wed, 12 Dec 2001 08:47:35 -0500
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>


(Forwarded from DVD Discussion list, dvd-discuss@eon.law.harvard.edu)

The DVDCCA attempts to build a case by appeal to past historical
circumstances: "Two centuries of precedent under which injunctions
protecting misappropriated intellectual property from further
dissemination have peacefully co-existed with First Amendment
principles."

That peaceful coexistence was predicated on a distinction between
information producers and information consumers that was implicit in the
state of technology and the way the market developed on that basis.  Now
the unprecedented degree to which society now realizes the
Constitutional principles on which is founded, is treated as a breach of
the peace by those who wish to enforce outmoded views of "exclusive
rights."

-- Seth


-------- Original Message --------
Date: Tue, 11 Dec 2001 18:39:41 -0800
From: "James S. Tyre" <jstyre@jstyre.com>

In DVD Copy Control Ass'n v. Bunner, the CA state court trade secrets
case, DVDCCA now has filed its Petition for Review in the CA Supreme
Court, seeking to overturn the Court of Appeal's decision reversing the
trial court's preliminary injunction, on the ground that the injunction
was a prior restraint of speech.  Not surprisingly, DVDCCA makes much of
the Second Circuit's recent decision affirming the trial court in
Universal v. Reimerdes, the 2600 case.  Interesting read.

http://www.eff.org/ip/Video/DVDCCA_case/20011204_petition_for_review.pdf

...

"This trade secret case with national implications addresses the
fundamental question of whether the owner of an acknowledged trade
secret can obtain a preliminary injunction to prevent individuals from
destroying the trade secret through widespread' disclosure. In the face
of well-established law permitting injunctions to protect intellectual
property, the Court of Appeal reversed the preliminary injunction
granted by the Superior Court because it held that the First Amendment's
prior restraint doctrine prohibits the use of an injunction to prohibit
expression. Because any trade secret can be communicated by expression,
the Court of Appeal's decision improperly eviscerates the only effective
remedy historically available to protect a trade secret that has been
stolen. The result is not only inequitable, it is also inconsistent with
California's economic welfare and two centuries of precedent under which
injunctions protecting misappropriated intellectual property from
further dissemination have peacefully co-existed with First Amendment
principles. The Court of Appeal's decision applies the First Amendment
in a blunderbuss manner wholly inconsistent with governing authority and
the decisions of numerous courts.

II. ISSUES PRESENTED FOR REVIEW

1. Whether the injunctive relief provisions of the California Uniform
Trade Secrets Act (Civ. Code $ 3426, et seq. (1984)) (the "California
UTSA"), are unconstitutional as applied to the facts of this case.

2. Whether the issuance of a preliminary injunction to stop the
dissemination on the Internet of a computer program that knowingly
contains stolen trade secrets violates the First Amendment."


--------------------------------------------------------------------
James S. Tyre                               mailto:jstyre@jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net


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