“ At this point in the proceeding, the harm to the Defendants is truly minimal. They will simply have to remove the trade secret information from their web sites. They may still continue to discuss and debate the subject as they have in the past in both [sic] an educational, scientific, philosophical and political context. Defendants have not provided evidence of any economic harm which an injunction could currently cause, although if such an injunction were not granted it is quite possible that this could change which could potentially shift the burden of harm in Defendants' favor. ”

“ DVDCCA does suggest, however, that DeCSS is insufficiently expressive because it is composed of source code and has a functional aspect. "The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. ”

“ Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography. [¶] ...The fact that a medium of expression has a functional capacity should not preclude constitutional protection. [¶] ... [¶] ... [C] omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. ”

“ The parties recognize that First Amendment protection is not without limits. Obscenity, libel, and "fighting words" have long been recognized as falling outside the scope of the First Amendment because they lack any social value. ”

“ Protection of Source Code Containing a Trade Secret The First Amendment protects a "wide range of expression" from pure entertainment to political speech. (Schad v. Mount Ephraim (1981) 452 U.S. 61, 65.) "All ideas having even the slightest redeeming social importance unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinionhave the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." ”

“ CSS is designed to restrict the playback of an encrypted (scrambled) DVD to a CSS-equipped DVD player or DVD drive, which is capable of decrypting (unscrambling) the DVD. CSS is primarily composed of algorithms and 400 "master keys." ”

“ The order enjoined defendants from " [p] osting or otherwise disclosing or distributing, on their web sites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambling system ('CSS') , or any other information derived from this proprietary information." The court expressly refused to enjoin the defendants from linking to other web sites that contained protected information, because the links were indispensable to Internet access and a website owner could not be held responsible for the content of other web sites. ”

“ In addition, a person who exposes the trade secret may be liable for damages if he or she was bound by a contractual obligation to safeguard the secret. And anyone who infringes a copyright held by DVDCCA or by any DVD content provider may be subject to an action under the Copyright Act. We hold only that a preliminary injunction cannot be used to restrict Bunner from disclosing DeCSS.
DISPOSITION The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs. ”

“ In support of his position Bunner submitted a declaration from an expert on Norwegian intellectual property law stating that no Norwegian criminal law or other legal precedent prohibited reverse engineering of computer software. DVDCCA, however, objected to Bunner's request for judicial notice of Norwegian law. Aided by the declaration of its own expert in Norwegian law, it maintained that reverse engineering of a decryption program was in fact unlawful in Norway. ”

“ The trial court granted a preliminary injunction, which required the defendants to refrain from republishing the program or any information derived from it. Bunner appeals from that order, contending that the First Amendment to the United States Constitution protects his publication of the information as an exercise of free speech. [1]
FACTUAL BACKGROUND A DVD is a thin disk five inches in diameter which can store a large amount of digital data. ”