DVD Copy Control Association v. Bunner

Two companies—Toshiba and Matsushita Electric Industrial Co.—developed a content scrambling system (CSS) for digital versatile discs (DVDs) to encrypt the DVDs’ content and protect against unlawful copying and distribution of DVD movies. CSS encryption used an algorithm, and decryption required an understanding of that algorithm and a set of so-called master keys contained in compliant DVD players. The motion-picture, computer, and consumer-electronics industries formed the DVD Copy Control Association (DVD CCA) (plaintiff) to grant and administer licenses to the CSS technology. In 1999, Jon Johansen reverse-engineered the CSS encryption algorithm and master keys and wrote a decryption program called DeCSS to enable users to copy and distribute DVD movies. Johansen posted the DeCSS source code on a website, and it was soon republished on several other websites, including a site maintained by Andrew Bunner (defendant). DVD CCA sued Bunner in California state court, seeking injunctive relief for the alleged misappropriation of DVD CCA’s trade secrets relating to the CSS technology. The trial court concluded that DVD CCA was likely to succeed on the merits of its claim that Bunner had disclosed DVD CCA’s trade secrets in violation of California law and that DVD CCA would suffer irreparable harm without an injunction. The court thus issued a preliminary injunction prohibiting Bunner from posting or otherwise disclosing the DeCSS program, the CSS algorithm, the master keys, and any other information derived from the proprietary CSS information. Bunner appealed, and the California Court of Appeal reversed. The court held that even though DVD CCA was likely to prevail on the merits and would suffer irreparable harm without an injunction, the injunctive relief granted by the trial court violated the First Amendment because DeCSS was pure speech, and the injunction was an invalid prior restraint on that speech. The California Supreme Court granted review.