[dvd-discuss] _DVD-CCA v Bunner_ - formal vs. informal aspects

[Seth Finkelstein <sethf(at)sethf.com>]

[ Blogged at http://sethf.com/infothought/blog/archives/000397.html ]

	What follows are some thoughts I have about what the Bunner
DVD trade-secret case recent decision actually means. Note I am not a
lawyer, and the views below are my own, no warranty expressed or
implied, free advice is worth what you pay for it, and so on.

	In general, this is in the abstract, a formal, procedural,
decision. It is not a factual ruling. It's a matter of law. However
within those formal, procedural, matter-of-law constraints, I see
things as being said, which are not good. But I see it as problematic
in a much more complex fashion than the popular press is reporting it.

	The popular reporting may be that this decision ruled the
facts against Bunner. That's wrong. But I also think it's too abstract
(though not strictly wrong), to infer nothing at all about how the
facts are likely to be ruled on "remand" stemming from what's written
in this decision.

My understanding is that the Appeals Court says:
http://www.eff.org/IP/Video/DVDCCA_case/20011101_bunner_appellate_decision.html

  "Preliminary injunctions are ordinarily reviewed under the
   deferential abuse-of-discretion standard. We consider only whether
   the trial court abused its discretion in evaluating two
   interrelated factors."

They would like to let Bunner off. But they have a problem. They will
have a very hard time doing that under a "deferential"
"abuse-of-discretion standard". So they make a big jump:

  "However, not all restraining preliminary injunctions are entitled
   to such deferential review. ... Thus, in order to determine the
   appropriate standard of review, we must first decide whether the
   restraint imposed by the trial court's preliminary injunction
   implicated Bunner's First Amendment right to free expression. If
   so, we exercise independent review. "

	This jump gets them out of the "deferential" state, and into
the "independent review" state. And they are happy, because they then
can write on about the importance of free speech, as a principle.

	But this jump lands in the CA Supreme Court. The CA Supreme
Court slams it, hard. Not valid, error, core dump, etc. They send it
back to the Appeals Court.

	We have now returned from the jump. Since no further ruling on
facts has formally been made, we could abstractly be said to be no
worse off than before. That would be the formal answer. However,
informally, I think the key is in this part:

  "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.

	The Appeals Court *didn't* *want* *to* *do* *that* review
under an "abuse of discretion" standard. So though the case is now
being returned back to a favorably-inclined court, it's going back
with extremely strong "guidance" to be decided in a way that the
Appeals Court wanted to avoid - for the obvious reason that such a
path strongly implied upholding the injunction, as a practical matter.

	The Appeals Court is now locked back into the "abuse of
discretion" box.  Along with plenty of attitude conveyed, that the
defendant is a bad guy and the plaintiff is a good guy. In theory,
they could still have a favorable ruling. But I see them as being told
here to uphold the injunction unless they can come up with an
extremely good reason why not (again. "abuse of discretion").

	Of course, I-Am-Not-A-Lawyer. But I'm trying not to be a
defendant either 1/2 :-).

-- 
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/