DVD Copy Control Association, Inc. v. Bunner

A single digital versatile disk (DVD) could contain an entire full-length motion picture. To protect against piracy, technology known as the content-scrambling system (CSS) was developed. CSS technology scrambled the data on the disk and then unscrambled it once the DVD was played on a compliant DVD player or computer. DVD Copy Control Association, Inc. (DVD CCA) (plaintiff) became the sole licensing entity for CSS technology. Manufacturers of compliant DVD players and computers needed to know CSS master keys for such unscrambling to work, so each manufacturer licensed from DVD CCA different master keys and the technical know-how sufficient to make a compliant device. At least one of those license agreements, with licensee Xing Technology Corporation (Xing), contained a provision that prevented reverse engineering of the CSS technology. However, the academic cryptography community was actively discussing how to crack CSS, and on July 15, 1999, the website www.slashdot.org (Slashdot) hosted a discussion containing a statement that it had the parts needed to decode DVDs and had obtained CSS information by reverse engineering a DVD software decoder. According to DVD CCA’s president, a computer program called DeCSS first appeared on the internet on October 6, 1999 and was linked to DVD CCA’s trade secrets through postings that contained the master key licensed to Xing. Andrew Bunner (defendant) first became aware of DeCSS on or around October 26, 1999 from participating in Slashdot discussions. Thinking that DeCSS would be useful for Linux operating system users, Bunner posted the DeCSS program on his website. In December 1999, DVD CCA filed suit under the California Uniform Trade Secrets Act against the operators of every DeCSS-posting website that it could identify. DVD CCA also filed a motion for a preliminary injunction, informing the trial court that since October 1999, DeCSS had been displayed on or linked to at least 118 websites in 11 states and 11 countries worldwide. Bunner defended on the grounds that an injunction would infringe his free-speech rights under the state and federal constitutions. The district court granted the preliminary injunction, and Bunner appealed.