A Copyfighter’s Musings

See the article.

Trade Secrets v. Free Speech

Why are conflicts so rare?
1. TS regulates conduct, not speech, or “things” (manufactures?) and not information
2. Misappropriators are generally competitors, so they don’t really want revelation of the secret to the public (public/private distribution distinction)
3. Private, not public, concern. Think narrowly – one firm trying to take another firm’s product.
4. Limiting principles – is it a secret? was it legitimate reverse engineering? not bound by a contract?

Why they might become more common
A. Factors contributing to conflict
    1. More information than “things” in information economy
    2. More trade secrets being claimed in IP crazy times
    3. Stronger TS laws than before
    4. Licensing, that often stretch beyond TS law, help people claim things as secrets – esp. stop reverse engineering
    5. The Internet – once they’re out, it’s easy to spread them by oneself, without a publisher
B. DVD CCA v. Bunner
    Problems with case
          1. By saying everyone is bound by no reverse engineering license, seems more like a patent protection.
          2. Was Johansen a licensee? We don’t know.
          3. Bunner isn’t misappropriator – it’s out there on tons of websites
    Why an injunction?
          Johansen violated a license, DeCSS came from his efforts, defendants purposely ignoring law (knowledge that it’s a secret), CSS is very valuable, minimal harm to Bunner
C. Bunner’s First Amendment Defense
     0. Trial court completely ignores it, Appeals accepts it.
     1. Prior restraint because code is speech (important to court that it’s SOURCE code) – then follow Bernstein/Junger on encryption export controls.
     2. Went further and said this was a regulation of “pure speech”
     3. Even if preliminary injunctions are ok in copyright, TS not part of constitution and is unlimited in time/fair use – Samuelson notes (correctly) that this isn’t convincing – just because it doesn’t have fair use and isn’t in the constitution doesn’t mean it has different First Amend rules by definition, and it does have limiting principles.
D. Critique of First Amendment analysis in Bunner
     1. Trial court should have at least explained itself.
     2. Not enough to say TSs are property. More appropriately thought of as unfair competition laws. Even if property, still should examine it because TS determines whether certain information can be discosed, not simply time/place restriction.
     3. Saying code is speech is not enough – should look also at whether it communicates ideas and contributes to public debate. DeCSS was definitely a matter of discussion, particularly in IP community.
     4. Appeals court was thus correct.
     5. Distinguishing this from copyright is unconvincing as noted above.
     6. Appeals court should have weighed unique vulnerability of destruction of TS
     7, The Internet shouldn’t lessen First Amend protection. While the danger is there, it’s not as big as some say. Most people still don’t want to reveal TS, so as to keep their own advantage. It’s not wholly different from other realms.
     8. What should CA Supremes do? Should say it’s no longer a TS, and, if chooses to address First Amend, agree with CA but for different reasons.

Implications of Pentagon Papers and Bartnicki cases
A. Pentagon Papers
    Four factors involved: misappropriated, knew they’d been misappropriated, risked criminal and civil liability, could damage important interests.
    Those factors mirror many TS cases.
    But that doesn’t solve it – Pentagon Papers involved traditional press and criticizing gov’t. Also, TSs are backed by particular laws. Also, some cases have allowed them and, with procedural safeguards, PRs are allowed. Doesn’t resolve if Ellsberg could have been stopped.
B. Bartnicki
    Includes private/public distinction. Three part test: wasn’t involved in interception, obtained it lawfully, is of public concern.
C. Implications for Bunner
    1. If you’re under contract, you’re screwed. Only in special circumstances, like whistleblowing for major public interest, have a chance.
    2. Rarely will succeed when you’ve appropriated secret. Has to be some serious merit in the disclosure.
    3. Innocent recipients are better off, particularly when public disclosure for public concern.
            How to draw line? Can’t limit it just to traditional media. Samuelson trusts that judges can figure this out case by case.
    4. Should require how probability of harm
    5. Injunctions should include standard limitations – limit in time, until publicly known,

Postscript: code as speech
    Although not perfect in all cases, source v. object code should be important.

Filed by Derek Slater at 8:15 pm under
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