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In only his second appearance before the California Supreme Court as attorney general, Bill Lockyer had it easy on Thursday. A total of two questions were lobbed his way during his 10 minutes of oral arguments in San Francisco, and both were softballs. For the most part, the court’s justices, including two pro tems subbing for Justices Joyce Kennard and Ming Chin, were content to let Lockyer explain why he felt it important to take the unusual position of weighing in against the First Amendment in a case involving a young software engineer’s right to post stolen computer code on the Internet. Lockyer’s co-counsel and the opposition lawyer weren’t as lucky as the AG: Both got hammered with tough, penetrating questions, but in the end, it wasn’t clear how the court would rule. In DVD Copy Control Association v. Bunner, S102588, the high court is being asked to decide whether 26-year-old San Franciscan Andrew Bunner violated the state’s Uniform Trade Secrets Act by posting DeCSS, a computer code that unscrambles encrypted DVDs. A Norwegian teen-ager had created the code through reverse engineering in 1999, and Bunner — as well as hundreds of others — helped spread it through the cyber world. Representatives of the computer, movie and electronics industries sued Bunner, claiming that the value of trade secrets would be eviscerated if stolen code could be handed out freely via the Internet. Santa Clara County Superior Court Judge William Elfving granted a preliminary injunction preventing Bunner, now a software engineer at San Mateo’s Epiphany Inc., from posting the code. But in late 2001, San Jose’s 6th District Court of Appeal reversed, saying that Bunner’s free speech rights trumped the state’s trade secrets law. Calling Bunner a “hacker,” Lockyer told the high court Thursday that DeCSS is nothing more than “a burglary tool” used by Bunner and others for “breaking, entering and stealing.” He argued that the code is a functional methodology subject only to intermediate scrutiny under the First Amendment and not pure speech entitled to strict scrutiny. “It’s only incidentally speech that’s expressive or pure,” he said. Robert Sugarman, who represents the DVD Copy Control Association, had said pretty much the same earlier, noting that Bunner posted the code to “provide others with access,” not to comment on DeCSS as a matter of public concern. “Neither the [trade secrets] statute nor the injunction was aimed at the content of speech,” the partner at New York’s Weil, Gotshal & Manges said. Chief Justice Ronald George asked Sugarman about the significance of Bartnicki v. Vopper, 532 U.S. 514, a 2001 U.S. Supreme Court ruling that provided First Amendment protection to a radio commentator who repeatedly disclosed the substance of an illegally intercepted cellular telephone conversation. Sugarman replied that the circumstances were different, that the event in Bartnicki involved a labor dispute of public interest. Then, George said, “you would distinguish between matters of public concern and those of a private nature?” But when confronted with the same question later, Bunner’s lawyer, David Greene, said there is no way his client’s run-in with the DVD association could be considered a private matter. “This was being covered by major media,” argued Greene, who is executive director and staff counsel for the Oakland, Calif.-based First Amendment Project. “This program was available for download on CNET.” Justice Carlos Moreno, meanwhile, asked Sugarman to explain why what Bunner had done was illegal: He hadn’t created the code, so what was he doing that was improper? And is his liability derivative from the Norwegian boy’s initial illegal act? Sugarman argued that a provision of the state law makes it illegal to acquire a trade secret unlawfully. “That,” he said, “leads you inexorably to the conclusion that those who further disseminate the knowledge are subject to the [law's] provisions.” Greene argued that suit has never been brought against anyone as far down the pole as Bunner, someone who merely posted a code available on Web sites in 11 countries. “There was no finding of wrongdoing” on Bunner’s part, he said, which makes the court’s injunction against him unconstitutional prior restraint. Greene also insisted that the wide availability of the code nullified claims that it was a trade secret. “A trade secret, by its nature, is a limited right,” he said. “Any right you have disappears when it becomes publicly known.” That argument intrigued Justice Kathryn Mickle Werdegar, who wondered whether that was something the court could independently review, considering it wasn’t part of the original trial record. One fact in the DVD association’s favor is the New York-based 2nd U.S. Circuit Court of Appeals 2001 ruling in Universal City Studios Inc. v. Corley, 273 F.3d 429. In that factually similar case, Eric Corley, publisher of “2600: The Hacker Quarterly,” posted DeCSS on his Web site, and was sued for violating the federal Digital Millennium Copyright Act, aimed at fending off online piracy. Corley challenged the DMCA’s constitutionality, but the 2nd Circuit held that DeCSS is mixed speech and conduct for purposes of the First Amendment, and that DMCA’s encryption-busting programs are content neutral. Corley’s free speech claims were denied. The ruling raised questions by some of the California justices Thursday, especially 1st District Court of Appeal Justice Maria Rivera, who was sitting in for Chin. Rivera wanted to know how Corley’s injunction differed from Bunner’s. The preliminary injunction in Corley’s case affected only the functional aspect of DeCSS, Greene said, whereas the injunction against Bunner affected both functionality and speech. After the hearing, Bunner, sharply dressed in a blue suit with a matching red-and-blue tie, expressed awe at being at the center of a supreme court hearing. He recalled posting the computer code years ago, then about three months later getting a call that he was being sued. “It’s a little surreal,” he said. Bunner said he doubts he will repost the code if he wins because it is already so widely available. When asked why he would continue with the case then, he said it was to ensure that others could post similar programs in the future. “This case is more important to other people,” he said, “than me.”

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