Re: [dvd-discuss] Bunner wins DeCSS trade secret appeal

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- John Zulauf <johnzu@ia.nsc.com> wrote:
> After writing the lengthy note below.  A simple thought occurred.  If
> binary and object files do not "convey ideas" -- then why are the
> plaintiff complaining that their "secrets" have been illegally obtain by
> reading those files (the Xing player for instance).
> 
> Either (a) the binary and object files do not convey ideas, and
> therefore any ideas generated by inspection of those files cannot
> violate a "trade secret" law (b) binary and object files DO convey ideas
> and therefore (if truthful) constitute protected speech.  (Need citation
> for the freedom of the press consists "at least" of the ability to
> publish the truth.

The citation for press freedom would come from Bartnicki v Vopper, Florida Star
v. B.J.F., NAACP v. Claiborne Hardware Co. Although it has to be on a matter of
public concern. 

A case that failed because it wasn't a public concerned was Trans Union v FTC:
The DC Circuit just denied a rehearing Oct 23:
http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/00-1141b.html TU wanted
to sell mailing lists taken from credit reports. The court found that the
privacy interest allowed a lower level of scrutiny for the marketing lists. TU
had argued that Congress should have used an "opt-out" instead of an "opt-in"
system under a least restrictive means test. The Court said that "opt-in" was
OK because intermediate scrutiny requires only "narrowly tailored" solutions,
not necessarily the least restrictive means.

I would interpret this to mean that those who have a direct duty to
confidentiality cannot "publish the truth". In other words, trade secret law is
legal. Of course, once you move passed the people who actually have the duty,
then trade secret law provides no barrier to speaking the truth, which is
exactly what the Bunner court ruled.

I did a quick search at http://www.halligan-tradesecrets.com/200.html for cases
regarding trade secrets and object code. Here's an interesting one that might
be good to dig up for the analysis.

Barr-Mullin, Inc. v. Browning, 108 N.C. App. 590, 424 S.E.2d 226 (1993).

Plaintiff formerly employed Defendant as a software developer to create "a
lumber optimization system" to maximize the amount of lumber cut from each log.
After leaving Plaintiff's employ, Defendant developed and marketed competing
software. Plaintiff brought suit, alleging misappropriation of trade secrets
contained in the software source code, and moved for a preliminary injunction.
Defendant argued that the software could not contain trade secrets since it was
widely distributed in object code form, which it was possible to reverse
engineer. The ourt concluded that distribution in object code form alone did
not negate trade secret protection because of the great difficulty in obtaining
useful source code by reverse engineering the object code version. The court
granted a preliminary injunction, based upon testimony that it would have been
virtually impossible to have created the competing software, based solely on
reverse engineering Plaintiff's software.



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