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

[microlenz(at)earthlink.net]

Interesting reading....the argument that if contracts can eliminate RE, then 
that creates a univeral protection that only patent is allowed.


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I also note that it is highly doubtful the alleged trade secret was acquired by
improper means within the meaning of the trade secret law. Civil Code section
3426.1, subdivision (a), defining “improper means,” states “[r]everse 
engineering . . . alone shall not be considered improper means.” Apparently the 
word “alone” refers to the fact that the item reverse engineered would have to 
be obtained “by a fair and honest means, such as purchase of the item on the 
open market for reverse engineering to be lawful.” (Legis. Com. Com., 12A pt. 1 
West’s Ann. Civ. Code, supra, foll. Civ. Code, § 3426.1, p. 238, quoting Rest. 
Torts § 757, com. (f).) According to the allegations of the complaint, the 
alleged initial misappropriator of CSS, Jon Johannsen, acquired the secret 
through reverse engineering. There is no allegation that he acquired the 
product containing CSS unlawfully, and that therefore improper means were 
employed. The DVD CCA argument below that violation of a “click license” 
agreement prohibiting reverse engineering constituted the improper means does 
not appear to have merit. To be sure, contract plays an important role in trade 
secret law by protecting the trade secret holder against “unauthorized use or 
disclosure through a contract with the recipient of a disclosure” or others who 
have had special access to trade secret information, via confidentiality 
agreements and the like. (Rest.3d Unfair Competition, § 41, com. d, p. 471, 
italics added.) But nowhere has it been recognized that a party wishing to 
protect proprietary information may employ a consumer form contract to, in 
effect, change the statutory definition of “improper means” under trade secret 
law to include reverse engineering, so that an alleged trade secret holder may 
bring an action even against a nonparty to that contract. Moreover, if trade 
secret law did allow alleged trade secret holders to redefine “improper means” 
to include reverse engineering, it would likely be preempted by federal patent 
law, which alone grants universal protection for a limited time against the 
right to reverse engineer. (See Bonito Boats, Inc. v. Thunder Craft