13-1-01787 Case: DVD CCA v.

Andrew Bunner Background of the case: Let us first go over the facts of the case. It is alleged that a Norwegian lad named Jon Johansen was able to decode (using reverse engineering through a software by a Chinese company) the encryption of the codes (CSS) used by DVD CCA in the product they are offering. The decoded codes (DeCSS) were posted in different websites making it available to anyone who uses the internet. Bunner was able to access the codes and posted it in his website. Thus DVD CCA filed an injuction complaint against Bunner and was favor by the Trial Court. Bunner appealed and the Court of Appeals reversed the decision, dissolving the preliminary injunction and tasked the Trial Court to do further proceedings.

The principle of Ex Post To decide the case using an ex post perspective means to look back on what happed in the case and determine who did the offense and apply penalties applicable. If I were to decide the case base on the ex post principle I would decide in favor of Bunner. I have three points upon which I rooted my decision. First, what Bunner did was just posting an already widespread coding system. It is stated in the facts that Bunner copied the decoded codes in his websites and before he was able to post it in the internet a lot of other website owners already posted the same. To note, it was alleged that it was a Norwegian who decoded the CSS of the DVD CCA. It would suffice to say that the idea of decoding the CSS of the product of DVD CCA never came from Bunner because

he never did the decoding himself as he only copied what was posted in the website of others. Second, the allegation that Bunner violated the Uniform Trade Secrets Acts was unfounded because it was not stated as one in the UTSA. Trade secrets as defined are any formula, pattern, device or compilation of information which is used in a business. Another thing is that granting that it is a trade secret, but what the Norwegian guy did was reverse engineering the products to be able to decode those codes of DVD CCA. To give an example, it is like A made a very delicious recipe and was able to take down everything (the steps and the ingredients) in a piece of paper but as A is also careful, he was able to keep it safe. But here comes B who tasted the recipe made by A and examined very carefully through its delicate tasting skills and was therefore able to acknowledge the ingredients and was able to make a very similar recipe. Here in the given example, the trade secret of A was not acquired improperly since it was only Bs ability that he was able to distinguish the ingredients. Thus as logic would put it, B never committed any offense or violated any law. Back to the Bunner case, assuming the information was originally acquired by improper means (reverse engineering), it does not necessarily follow that once the information became publicly available that everyone else would be liable under the trade secret laws for re-publishing it simply because they knew about its unethical origins. Lastly, I stand on the moral principle of nullum crimen sine lege ("no crime without law"). During the time the case was still on going, there was still no concrete and no written bounds on the limitations of the use of the internet. According to my research, it was in the mid 1990s where the internet started to spread which would mean that because is still new, there was no problems encountered. As it progress then it was the time that people are learning more

which leads to more dilemmas in the internet. Back to the case, Bunner can never be liable for anything that is not a law as it would prejudice his right as a person. In summary, legally and logically, Bunner can never be liable for posting the DeCSS.

The Principle of Ex Ante In deciding based on the ex-ante principle, a court decides by looking forward of what will be the effect in the future of a decision made in the present. If I were to decide using the ex-ante principle I would still be in favor of Bunner. First, in deciding we should take into consideration the fact that in the business world there is always a competition. This competition is good for businesses because it pushes every business to be more innovative and develop a better and more secure way of keeping company secrets and information. Since we are pro-business competition, businesses should take the facts of this case as a factor in improving the security part of their products. If we prohibit third parties from developing business may become stagnant. In the case of Bunner, if we decide in favor of Bunner, it would create a rule in the future that for business to continue to exist they must be able to develop their product as well as securing them thorough intense research. Second, with a ruling the favor Bunner, another rule would be created in the future that encourages individuals and business to develop their skills and talents in order to make products that can compete with others that are less prone to security breach. It would create a notion to the public that the State is upholding its thrust of encouraging every to pursue science and research.

Lastly, if a decision is in favor of Bunner would allow legislators to witness the activities in the internet and can now make a proper law that would benefit both businesses and individual persons. Therefore, whether we see it through ex post of ex-ante, Bunner is still not liable for anything.