[Commons-Law] DVD CCA v. Bunner Ruling: One more point

[Badri Natarajan]

Incidentally, the *concurring* opinion of Moreno, J is in some ways more
interesting than the majority opinion.

Moreno says, (and I agree completely): "I concur in the majority's narrow
holding, which, as I understand it, is that the First Amendment does not
categorically prohibit preliminary injunctions to enjoin the publication of
trade secrets."

Nobody is disputing that point - the question is whether the preliminary
injunction is justifiable in this case on First Amendment grounds - I don't
believe so because this is not a matter of "purely private concern" - while
the California Supreme Court clearly believes that it *is* such a matter.

Moreno J, also encouragingly goes on to say: "Second, I would forgo further
proceedings in the Court of Appeal and simply affirm that court's judgment.
In my view, the DVD Copy Control Association's (DVD CCA) trade secret claim
against Bunner is patently without merit for the reasons explained below."

The Court of Appeal has been instructed to conduct a de novo factual review
of the case, but as Moreno, J says it is really unnecessary. Even a basic
knowledge of trade secret law clearly shows that the code in question has
become far too public to qualify for trade secret protection any longer. In
my opinion there is also some question as to whether DVD CCA made
"reasonable efforts" to maintain the secrecy of the code because they took
THREE MONTHS to file suit for preliminary injunction after the code was
freely available on the Internet.

Anyway, now we wait and watch for the Court of Appeal..

Badri