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Intellectual Property Rights

On August 2, 2002, the Office of the Attorney General filed an amicus brief in DVD Copy Control, Inc. v. Bunner. The issue presented in this case now before the California Supreme Court is whether a preliminary injunction issued under the Uniform Trade Secrets Act (UTSA) may, consistent with the freedom of speech clause of the First Amendment to the United States Constitution, prohibit the posting of a decryption program (DeCSS) on the Internet. This computer program breaks an encryption code (CSS) placed on DVDs. The decryption program allows for the unauthorized copying and viewing of DVDs. The decryption code contains CSS which plaintiffs contend is a trade secret that was unlawfully misappropriated by a third party. The Attorney General's amicus brief argues that the trial court correctly determined that plaintiff had established the requisite elements for an injunction under the UTSA and, more specifically, that the status of the trade secret had not been destroyed due to its publication on the Internet, and that the act of creating DeCSS is not a form of reverse engineering that the UTSA exempts from its coverage. The brief also argues that the injunction prohibiting publication of DeCSS on the Internet should be reviewed under an intermediate scrutiny standard because the unique properties of computer code make DeCSS "mixed" speech with functional and expressive elements, and that the injunction withstands intermediate scrutiny because of the significant governmental interests in protecting trade secrets and combating content piracy. On May 29, 2003, Attorney General Lockyer personally appeared before the Court and presented oral argument. On August 25, 2003, the California Supreme Court, in a unanimous opinion, agreed with the Attorney General's position and held that injunctions may be issued under the Uniform Trade Secrets Act to prohibit the positing of trade secrets on the Internet without violating the First Amendment.

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