Re: [dvd-discuss] Re: _DVDCCA v. Bunner_ - free speech loses!

[microlenz(at)earthlink.net]

On 25 Aug 2003 at 13:19, Seth Finkelstein wrote:

Date sent:      	Mon, 25 Aug 2003 13:19:34 -0400
From:           	Seth Finkelstein <sethf@sethf.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	[dvd-discuss] Re: _DVDCCA v. Bunner_ - free speech loses!
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> On Mon, Aug 25, 2003 at 01:13:14PM -0400, Seth Finkelstein wrote:
> > http://www.courtinfo.ca.gov/opinions/documents/S102588.PDF
> 
>  More info: [cites to various cases cut-out for readability]
> 
> "Our decision today is quite limited. We merely hold that the
> preliminary injunction does not violate the free speech clauses of the
> United States and California Constitutions, assuming the trial court
> properly issued the injunction under California's trade secret law. On
> remand, the Court of Appeal should determine the validity of this
> assumption. Because there appears to be some confusion over the proper
> standard of review, we offer guidance below."


They punted again....throughout the decision the word "assumed" pops up often 
enough that it's deliberate. Moreno pretty much called the majority on that in 
his concurring decision. He stated he concurred with their decision but not 
their reasons. He doesn't assume the facts of the lower courts and comes to a 
different conclusion and so assumes nothing but concludes the court was wrong.

Moreno's decision is the most interesting one to read.


> 
> "In upholding the preliminary injunction against Bunner's First
> Amendment challenges, we rely on the assumption that DVD CCA is likely
> to prevail on the merits of its trade secret claim against Bunner. As such, "any
> factual findings subsumed" in the trade secret misappropriation determination
> "are subject to constitutional fact review." ...
> 
> "[W]here a Federal right has been denied as the result of a [factual]
> finding . . .  or where a conclusion of law as to a Federal right and
> a finding of fact are so intermingled as to make it necessary, in
> order to pass upon the Federal question, to analyze the facts," the
> reviewing court must independently review these findings. ...
> "[F]acts that are germane to" the First Amendment analysis "must be
> sorted out and reviewed de novo, independently of any previous
> determinations by the trier of fact."  ... And "the reviewing court
> must ` "examine for [itself] the statements in issue and the
> circumstances under which they were made to see . . . whether they are
> of a character which the principles of the First Amendment
> . . . protect." ' "  ...
> 
> On remand, the Court of Appeal must therefore "make an independent
> examination of the entire record" ... and determine whether the
> evidence in the record supports the factual findings necessary to
> establish that the preliminary injunction was warranted under
> California's trade secret law ... [noting that appellate courts must
> independently review factual findings relevant to the resolution of
> any First Amendment issues]). If, after this examination, the court
> finds the injunction improper under California's trade secret law,
> then it should find that the trial court abused its discretion. (See
> ibid. [holding that, in determining whether the "issuance of a
> preliminary injunction constitutes an abuse of " discretion under the
> First Amendment, the reviewing court must independently review the
> factual findings subsumed in the constitutional determination]; ...
> [holding that preliminary injunctions are reviewed "under an abuse of
> discretion standard"].) Otherwise, it should uphold the injunction.
> 
> -- 
> Seth Finkelstein  Consulting Programmer  sethf@sethf.com  http://sethf.com
> Anticensorware Investigations - http://sethf.com/anticensorware/
> Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/