DVD-CCA v. Bunner, reverse-engineering, and trade-secret

I came across another especially interesting passage in one opinion in decision from the DVD trade-secret case, This discusses reverse-engineering as applied to the case (remember, for contrast, the Bowers v. Baystate case upholding shrinkwrap prohibitions against reverse-engineering):

I also note that it is highly doubtful the alleged trade secret was acquired by improper means within the meaning of the trade secret law. Civil Code section 3426.1, subdivision (a), defining "improper means," states "[r]everse engineering . . . alone shall not be considered improper means." Apparently the word "alone" refers to the fact that the item reverse engineered would have to be obtained "by a fair and honest means, such as purchase of the item on the open market for reverse engineering to be lawful." ... According to the allegations of the complaint, the alleged initial misappropriator of CSS, Jon Johannsen, acquired the secret through reverse engineering. There is no allegation that he acquired the product containing CSS unlawfully, and that therefore improper means were employed. The DVD CCA argument below that violation of a "click license" agreement prohibiting reverse engineering constituted the improper means does not appear to have merit. To be sure, contract plays an important role in trade secret law by protecting the trade secret holder against "unauthorized use or disclosure through a contract with the recipient of a disclosure" or others who have had special access to trade secret information, via confidentiality agreements and the like. ... But nowhere has it been recognized that a party wishing to protect proprietary information may employ a consumer form contract to, in effect, change the statutory definition of "improper means" under trade secret law to include reverse engineering, so that an alleged trade secret holder may bring an action even against a nonparty to that contract. Moreover, if trade secret law did allow alleged trade secret holders to redefine "improper means" to include reverse engineering, it would likely be preempted by federal patent law, which alone grants universal protection for a limited time against the right to reverse engineer.

Note, regarding Jon Johansen and DeCSS, that he did not in fact do the reverse-engineering. It was actually done by an anonymous German (and as I say, it's obvious why the person is remaining anonymous).

In any case, the above is one opinion, and it's arguing against the finding of the lower court. So while it's a piece of evidence, I'm not exactly reassured (and it's California, other places may vary).

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)