02-3-00609

October 3, 2013

Intro to Law
Case: DVD CCA v. Bunner

EX POST APPROACH

In the case at hand, with respect to the facts that were presented as to how the
events unfold that had prompted the petitioner or the plaintiff to file a complaint in the
Court of Law. When this case is to be viewed on an ex post approach, it would seem to
favor the defendant, Andrew Bunner (Bunner); who was accused to have violated the
Californias Trade Secret Law. Based on the facts at hand, Bunner is an owner of a
website which had shared a program named DeCCS that permits the unauthorized
decryption of copying of DVDs. DVDs are protected from unauthorized use by the
encryption of a Content Scramble System, or CSS, that scrambles the pictures
contained in the DVD; further, is protected by Law for its copyrighted content. Bunners
website was only one (1) out of numerous other websites that had published or shared the
DeCCS program which was said to have been posted on October 1999 on the internet by
a 15 year old Norwegian named Jon Johansen. DVD CCA asserted that DeCCS was
illegally created by a third party hacker who reverse engineered software created by a
CSS licensee. DVD CCA demanded the accused and the other defendants to remove

DeCCS from their websites but failed or refused to remove the said program; thus, this
complaint was filed.
With this very limited information or record, nothing had mentioned if Bunner or
the other defendants actually performed any acts of copying or duplication of the contents
of the DVD that would be a clear and fair evidence that there was a deliberate intent to
perform piracy on the DVDs. When DVD CCA invoked that the respondents had violated
the California Trade Secret Law or Uniform Trade Secrets Act, maybe partially correct.
Partially since Bunner did not create the file that he shared or posted on his website nor
there was a mention that there were directions or descriptions on how to use the program
to copy contents of the DVDs. Art. 3426.1 (d) (1) (2) of the Uniform Trade Secrets Act
states:

3426.1. As used in this title, unless the context requires

otherwise:

(d) "Trade secret" means information, including a formula,

pattern, compilation, program, device, method, technique, or process,
that:
(1) Derives independent economic value, actual or potential, from
not being generally known to the public or to other persons who can
obtain economic value from its disclosure or use; and

(2) Is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

Thus, if a decision should be formulated based on the facts, when looked in an

ex post manner, it would likely favor the defendant plainly because of inadequate records
or facts to pinpoint the actual offense. However, if the DVD CCA would charge the
Norwegian, Jon Johansen, the Law stated above would clearly show a violation perhaps
to a certain degree to charge the Norwegian.
If the petitioners would point out the mere posting of the DeCCS program on his
website is the actual offense, the defense would be based on the protection on the First
Amendment as based on preceding cases such as Schad v. Borough of Mount Ephraim
and Roth vs. US. It is considered that the First Amendment protects a wide range or
expressions running from a pure entertainment to political speech, but expressions or
speech without any redeeming social value, such as obscenity and fighting words, receive
no First Amendment Protection. Therefore, whatever Bunner may post on his website is
his practice to his right of freedom of speech and will receive First Amendment
Protection unless the speech content would be of obscenity and fighting words that has no
social value.
The issue on Trade Secrets for this case may seem to be unnecessary when the
issue of the Protection of the First Amendment would have been finalized. It would never
reach this point since there was no actual violation or breach on the trade of secrets.
Mainly, Bunner is not an employee of any DVD making company so as he would not

have any idea on the secrets on the security or the encryptions that protects the DVD
from piracy. He in fact did not disclose any secret since he has no source or secrets from
the DVD companies to begin with if the facts are to be the basis of this case. Though the
protection of intellectual property is of crucial part, still there is no actual data or record
to point that Bunner really had disclosed the secret to such line of trade or business. So
the invoking of the DVD CCA of accusing Bunner to have violated the Trade Secrets
Law would have little standing or would be deemed futile.
As a conclusion, when viewed in an ex post manner, this case would greatly
favor the defendant Andrew Bunner due to inadequate records and facts to actually put
the hammer down on him to have violated the Law.

EX ANTE APPROACH

It would be somehow tempting to conclude or view the ex ante approach to be a

purely economic and propriety interest for DVD CCA since it is mainly based on the
protection of their business copyrighted content that if not protected accordingly would
be in danger of a considerable loss from their huge investments on creating the motion
pictures for the DVDs. But economic and propriety interests aside, if such mentioned
performed by Norwegian Jon Johansen and Andrew Bunner would go unchallenged or
uncontrolled, and without legal consequences, then there is a danger of loss not only for
the companies that their actions have directly affected but the whole movie industry and
perhaps music industry would totally collapse at the expense of such selfish actions.

When this happens countless people would lose jobs and many families would be
affected. This would result to a weakened economy and a depreciated work force or
industry to venture into such very expensive projects. People would actually think that
they can get away with piracy so easily and that it is encouraging to pirate DVDs perhaps
to sell for own profit or just for personal use. The Court in this case may have
successfully decided the correct decision in relation to the overall effect if such acts
would go uncontrolled and unchallenged; the dire ramification it may bring to the
industry and the countrys economy would be unimaginable.
As an overall conclusion to this case, I still consider that the records or
information of this case is insufficient to have arrived at a fair decision that would
somehow satisfy at least if not both then the public concerned on how the trial has been
observed.