DVD Copy Control Ass’n, Inc. v. Bunner, 31 Cal. 4th 864, 75 P.3d 1 (Cal. 2003)

Jon Johansen, a Norwegian resident, reverse engineered the Content Scrambling System (CSS), computer software used to encrypt the contents of Digital Versatile Discs (DVDs), and wrote a program called DeCSS that decrypts motion pictures stored on DVDs, thus enabling users to freely copy and distribute the movies. Johansen posted the DeCSS source code on the Internet. Upon discovering the posting of DeCSS, the DVD Copy Control Association, Inc. (DVD CCA) and the Motion Picture Association (MPA) sent notices to those websites on which DeCSS was posted (including Andrew Bunner’s website), demanding that they remove the program. When Bunner and the others refused to remove DeCSS from their websites, the DVD CCA filed suit, alleging violation of the Uniform Trade Secrets Act (UTSA). The DVD CCA sought only an injunction (and no damages) prohibiting Bunner and others from posting, disclosing or distributing the DeCSS program, which the trial court granted. The Court of Appeal reversed the preliminary injunction, holding that the DeCSS program was “pure speech” and as such was protected under the First Amendment. The California Supreme Court reversed the judgment of the Court of Appeal on the ground that the injunction burdened no more speech than necessary to serve the significant government interests promoted by the UTSA. The Supreme Court also held that the injunction did not constitute a “prior restraint” since the injunction was content neutral and was issued because of Bunner’s prior unlawful conduct involving violations of the UTSA.