Court Says Net-Spread DVD Code Isn’t Trade Secret

A computer code that unlocked encrypted DVDs was so widely distributed on the Internet that it did not qualify as a trade secret, a California appeals court has ruled.

The DVD Copy Control Assn., which licenses encryption software for the movie, computer and consumer electronics industries, sought an injunction in 1999 to block programmer Andrew Bunner from republishing the code on the Internet.

The group dropped its case against Bunner last month.

The 6th District Court of Appeal in San Jose ruled that a trial judge improperly barred Bunner from publishing the DeCSS computer code. The code, originally published by a Norwegian teenager, incorporated encryption keys from the original CSS program licensed by the DVD Copy Control Assn.

“There is a great deal of evidence that by the time DVD CCA sought the preliminary injunction prohibiting disclosure of the DeCSS program, DeCSS had been so widely distributed that the CSS technology may have lost its trade-secrets status,” the appeals court said.

Robert Sugarman, an attorney for the association, did not immediately return a call for comment.

In 2001, the U.S. 2nd Circuit Court of Appeals in New York said in another case that it was illegal to distribute DeCSS and upheld a ban on the publication.

Bunner’s attorney, Allonn Levy, argued that the preliminary injunction violated his client’s free-speech rights.

“Both common sense and the 1st Amendment dictate that a trade secret that isn’t secret anymore just isn’t protectable,” Levy said in an e-mail.

The appeals court said Bunner was entitled to recoup the costs of his appeal.