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Seemingly unfazed at the prospect of becoming one of the first courts in the country to OK a prior restraint on an Internet publisher, a California Sixth District panel sounded ready last week to uphold a preliminary injunction won by a movie industry trade group. The group is trying to shut down sites that it says are exposing its trade secrets by publishing DVD decryption code that allows consumers to pirate movies. “It asks this court to be the first in the world to come out and create a First Amendment exception for trade secrets,” warned David Greene in arguments Thursday. “This could be the very first court we are aware of that would grant an injunction against a third-party publisher,” added Greene, an attorney with the First Amendment Project in Oakland, Calif. Greene told the justices they should reconsider a temporary injunction that blocked Web publication of coding that unscrambles DVD encryption because the trial court judge failed to first explicitly apply a First Amendment analysis. Greene described his clients merely as third-party publishers whose actions lie outside the reach of trade secrets law. The DVD Copy Control Association, which licenses the encryption technology, filed its complaint in 1999 in California’s Santa Clara County Superior Court against 500 unknown defendants accused of posting and distributing the decryption code. In January 2000, Judge William Elfving granted a temporary injunction. The suit, along with a similar copyright action in New York, has stirred both the high-tech and legal communities with high-tech trade groups and the Recording Industry Association of America filing amicus briefs. The justices appeared skeptical that the defendant’s right to post DVD decryption code was on a par with the press freedoms recognized in First Amendment heavyweights Near v. Minnesota and the Pentagon Papers case. “You don’t mean it’s an unlimited right?” quizzed Justice Eugene Premo. Justice Franklin Elia, turning Greene’s argument on its head, asked how companies could protect intellectual property if would-be thieves cowered behind free speech protections. “If that sort of protection is allowed, you might as well eliminate all trade secret laws,” Elia said. Greene countered by noting that The New York Times and San Jose Mercury News had included links to the Web sites where the coding was published. “I’m not saying the First Amendment applied blanket immunity,” Greene said. “The First Amendment affords a necessary level of protection.” But the panel, which also included Justice Nathan Mihara, seemed unconvinced. “The First Amendment is not a license to trample the legal rights of copyright holders,” Elia said. Robert Sugarman, representing the motion picture trade group, didn’t dispute that the code is technically speech. “We are dealing with speech, no doubt about it. It has an expressive [quality], but it has a utilitarian use to hike into my client’s products,” said Sugarman, a partner with Weil, Gotshal & Manges’ New York office. “We don’t feel it’s appropriate to shield the publication of trade secrets with the First Amendment. That’s years of jurisprudence down the drain.” A decision in DVD Copy Control Association v. Bunner, H021153, is expected within 90 days.

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