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[dvd-discuss] Prior Restraint of DeCSS

US District Judge Lewis Kaplan:

Another is a balancing approach in which there would be a 
balancing between the limitation on expression inherent in 
protecting a copyright and the values served by protecting 
the copyright. In this case, I have no doubt about where that 
balance falls either, assuming that were the appropriate test. 
The plaintiffs here have enormous investments in copyrighted 
material, the commercial significance of which is a matter of 
broad and obvious public knowledge. The creation of media 
content is one of the large industries in this country and 
one of our major exports today. The protection of intellectual 
property rights in materials owned by Americans is an 
important feature of our foreign policy and our trade policy. 
You only have to read the newspapers to know that. ...

If I were to balance the interest in protection of copyrights 
against the extent to which free dissemination of that set of 
machine-executable instructions serves the goals traditionally 
served by protection of speech -- an informed society, the 
ability to engage in self-government, the ability to realize 
social and intellectual goals -- the balance in my judgment 
falls on the side of copyright protection, even though I 
recognize that there is perhaps some interest served on the 
defendants' side of the ledger.

The final point that defendants make is the argument that an 
injunction here would be an unlawful prior restraint. It is an 
argument that is invoked almost as a talisman on the assumption 
that any and all prior restraints are unconstitutional, short of 
an immediate and grave threat to national security or something 
approaching that. I suppose, for popular and even first-year
law school purposes, that is not a bad statement. But it is not 
really entirely accurate.

Bearing in mind the very weighty interests on the plaintiffs' 
side of the equation here and the, to me, quite limited, 
although probably not nonexistent, expressive interests in the 
machine-executable code, and  the lack of time sensitivity of 
the latter, I conclude that a preliminary injunction in this 
case is consistent with the prior restraint doctrine and, 
therefore, the motion is granted. A preliminary injunction 
will issue.

Universal City Studios, Inc. et al v. Reimerdes, Corley 
and Kazan - Hearing Transcript, Southern District of New 
York, January 21, 2000



Court of Appeal of the State of California:

The availability of injunctive relief against copyright 
infringement is supported by justifications that are inapplicable 
to trade secrets. Both the First Amendment and the Copyright Act 
are rooted in the United States Constitution, but the UTSA lacks 
any constitutional basis. The prohibition on disclosure of a 
trade secret is of infinite duration while the copyright 
protection is strictly limited in time, and there is no "fair 
use" exception as there is for copyrighted material. These 
significant distinctions between copyright and trade secret 
protections explain why courts have concluded that the First 
Amendment is not a barrier to injunctive relief in copyright 

infringement cases.

We must conclude that Bunner's republication of DeCSS was 
"pure speech" within the ambit of the First Amendment. It is 
therefore necessary for us to apply independent review to the 
trial court's issuance of a preliminary injunction. ...

DVDCCA's statutory right to protect its economically valuable 
trade secret is not an interest that is "more fundamental" than 
the First Amendment right to freedom of speech or even on equal 
footing with the national security interests and other vital 
governmental interests that have previously been found 
insufficient to justify a prior restraint. Our respect for 
the Legislature and its enactment of the UTSA cannot displace 
our duty to safeguard the rights guaranteed by the First 
Amendment. Accordingly, we are compelled to reverse the 
preliminary injunction.

DVD Copy Control Association v. Andrew Bunner, Order Reversing 
Preliminary Injunction, November 1, 2001