(Fwd) Re: [dvd-discuss] DeCSS - the saga continues

[microlenz(at)earthlink.net]

Yes....

The appelate court ruling was well thought out and quite clear. This
brief is really badly written and suffers from a number of rhetorical
flaws (rhetoric as argument not rhetoric as speech)

Begging the question. At no time has the DVDCCA ever proven 
that the CSS was actually misappropriated in any sense that a jury
would believe - where's  the breaking and entering, the disgruntled
employee. The DVDCCA is throwing a lot of terms around but has
actually not proven ANY of them. Furthermore, maybe the courts 
should
look at it this way - the DVD is supposedly the greatest thing since
people discovered round stones rolled better than odd shaped 
ones. So
why shouldn't they figure out how they work and tell others about it. 

Appeals to authority. The DVDCCA suppositions regarding the 
framers belief in trade secrets is one big crock of BS.....well not be
a CaSS justice I can't hand this one back to them flaming. It's quite
clear that patent and copyright were set up so that trade secrets
would have NO protection. PERIOD. NOr did trade secrets have 
any.
Those "people" should look at the formulas for COke, Pepsi or Gino
pizza in Chicago. Now THOSE are trade secrets. Not the 
nonsense they
are pushing.

OK IANAL but I found it interesting their argument that the US 
COnstitution FA doesn't trump a state law-a state can abridge the 
FA
but the government cannot (I know that this was a matter of 
discussion
in the 19th century but settled eventually...or so one might have
hoped). The funny thing is that there are probably 350Million US
citizens who don't believe that a state law trumps the FA.

> 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
> .p df
> 
> ...
> 
> "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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