August 27, 2003

DVD-CCA v. Bunner, my punditry on What It Means

What follows are some thoughts I have about what the Bunner DVD trade-secret case recent decision actually means. Note I am not a lawyer, and the views below are my own, no warranty expressed or implied, free advice is worth what you pay for it, and so on.

In general, this is in the abstract, a formal, procedural, decision. It is not a factual ruling. It's a matter of law. However within those formal, procedural, matter-of-law constraints, I see things as being said, which are not good. But I see it as problematic in a much more complex fashion than the popular press is reporting it.

The popular reporting may be that this decision ruled the facts against Bunner. That's wrong. But I also think it's too abstract (though not strictly wrong), to infer nothing at all about how the facts are likely to be ruled on "remand" stemming from what's written in this decision.

My understanding is that the Appeals Court says:
(emphasis mine in all the below)

"Preliminary injunctions are ordinarily reviewed under the deferential abuse-of-discretion standard. We consider only whether the trial court abused its discretion in evaluating two interrelated factors."

They would like to let Bunner off. But they have a problem. They will have a very hard time doing that under a "deferential" "abuse-of-discretion standard". So they make a big jump:

"However, not all restraining preliminary injunctions are entitled to such deferential review. ... Thus, in order to determine the appropriate standard of review, we must first decide whether the restraint imposed by the trial court's preliminary injunction implicated Bunner's First Amendment right to free expression. If so, we exercise independent review. "

This jump gets them out of the "deferential" state, and into the "independent review" state. And they are happy, because they then can write on about the importance of free speech, as a principle.

But this jump lands in the CA Supreme Court. The CA Supreme Court slams it, hard. Not valid, error, core dump, etc. They send it back to the Appeals Court.

We have now returned from the jump. Since no further ruling on facts has formally been made, we could abstractly be said to be no worse off than before. That would be the formal answer. However, informally, I think the key is in this part:

"If, after this examination, the court finds the injunction improper under California's trade secret law, then it should find that the trial court abused its discretion. (See ibid. [holding that, in determining whether the "issuance of a preliminary injunction constitutes an abuse of " discretion under the First Amendment, the reviewing court must independently review the factual findings subsumed in the constitutional determination]; ... [holding that preliminary injunctions are reviewed "under an abuse of discretion standard"].) Otherwise, it should uphold the injunction.

The Appeals Court didn't want to do that review under an "abuse of discretion" standard. So though the case is now being returned back to a favorably-inclined court, it's going back with extremely strong "guidance" to be decided in a way that the Appeals Court wanted to avoid - for the obvious reason that such a path strongly implied upholding the injunction, as a practical matter.

The Appeals Court is now locked back into the "abuse of discretion" box. Along with plenty of attitude conveyed, that the defendant is a bad guy and the plaintiff is a good guy. In theory, they could still have a favorable ruling. But I see them as being told here to uphold the injunction unless they can come up with an extremely good reason why not (again. "abuse of discretion").

Of course, I-Am-Not-A-Lawyer. But I'm trying not to be a defendant either 1/2 :-).

Update: A smart, top-flight, veteran, California lawyer tells me that I'm misreading that key standard of review aspect. The Appeals Court is in fact being told to exercise a fully independent review, not a deferential review. If so, I'll own up to misreading the above.

Again, IANAL

By Seth Finkelstein | posted in infothought , legal | on August 27, 2003 12:57 AM (Infothought permalink) | Followups
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I haven't read the brief yet and I'm not a lawyer either, but from the excerpts my interpretation is this:

The appeals court ruled that all/lots of trade secret preliminary injunctions were invalid because they violated the First Amendment.

DVD CCA appealed. The Supreme Court overturned saying no, you can't get rid of trade secret law so easily, but you can review the facts and overturn the injunction based on them.

The appeals court will now look at the facts, see that DeCSS is obviously no longer a trade secret (since it's all over the place), and again get rid of the injunction.

DVD CCA probably won't appeal, and the Supreme Court probably won't hear the case again because the issues of law have now been settled.

Again, this is my meaningless opinion.

Posted by: Aaron Swartz at August 28, 2003 01:31 PM

I suspect there's an error right here:

"The appeals court will now look at the facts, see that DeCSS is obviously no longer a trade secret ..."

I believe people are letting wishful thinking rule. That sort of reasoning was exactly the type of idea strongly refuted in the 2600 case.

I read the CA Supreme Court as telling the Appeals Court to review the facts and to uphold the injunction, on the formal theory that the trial court did not have "abuse of discretion" (and the informal theory that the defendant is a bad guy and the plaintiff is a good guy).

Posted by: Seth Finkelstein at August 28, 2003 03:15 PM

Jumping in as another non-lawyer trying to make sense of it all, I read it the same way Aaron does. The Supreme Court was very explicit that its decision says nothing about the facts of the case and that the Court of Appeals needs must re-examine the facts. If anything, I see Moreno's consenting decision as giving strong indication the court expects the Court of Appeals to throw it out once that re-examination is done.

Posted by: Bradley Rhodes at August 28, 2003 09:38 PM

Yes, but in what manner does the CA Supreme Court give "guidance" to the Appeals Court to review the facts?

It's the "abuse of discretion" standard which seems problematic to me.

"... then it should find that the trial court abused its discretion"

The Supreme Court isn't saying the Appeals Court should review the facts from the start, de novo. Rather, it seems to be saying to defer to the trial court.

IANAL, IANAL, I could be wrong. But that standard seems to me to be very bad for the factual finding.

Posted by: Seth Finkelstein at August 28, 2003 10:39 PM

I read Moreno as in essence dissenting on how to treat the facts. He concurs on the outcome of the law principle, but he's basically dissenting on the informal aspect of the defendant's a bad guy, the plaintiffs a good guy, so the "guidance" works out to upholding an injunction

Posted by: Seth Finkelstein at August 28, 2003 10:47 PM

I read the case completely opposite. Moreno *doubts* that the case can stand an independant evaluation of whether (a) a trade secret exists and (b) whether Bunner knew or should have known that (c) the trade secret was aquired by improper means. Read the footnote expressing sceptisism at to whether a consumer form contract can change the statutory meaning of improper means.

Moreno dissented because (?)he thought that their court should have done the analysis *and thrown out the injunction*. The majority didn't want to do the work and kicked it back to the court of appeals. I think there's every reason to suspect that the court of appeals won't unhold the injunction once they evaluate the factual record regarding the trade secret.

Posted by: Roy Murphy at September 2, 2003 01:20 PM

Roy - I'm actually in complete agreement with you about Moreno's viewpoint. That is, he thinks a re-evaluation should come out in favor of Bunner.

My issue has been that even though the majority did not do a factual re-evaluation, did they set up a situation where a re-evalution would be judged on a standard unfavorable to Bunner?

I originally thought this was the case ("abuse of discretion"). But a smart, top-flight, veteran, California lawyer indicates I've misread the significance of that passage, that in fact the Appeals Court isn't being constrained under the guidance.

I still get the impression that the majority, while not deciding the facts, between the lines, thinks the defendant is a bad guy and the plaintiff is a good guy. But maybe they're merely indulging themselves in some bile there, as opposed to sending a signal.

Posted by: Seth Finkelstein at September 3, 2003 02:27 AM

There are something like 6 points which have to be found in favor of the DVDCCA in order for the injunction to stand. Any one of them falling means that they aren't entitled to the injunction. And, in fact, there's evidence to knock down one or two of them, IMHO. *Any* review of those facts is going to involve a non-zero probability of one or more of them being found wanting. Bunner had lost his motion precisely because the findings underlying the injunction were not reviewed.

I don't think it's an issue of "good guy" "bad guy". I think you can find scepticism on the 6 points in the majority opinion as well.

Posted by: Roy Murphy at September 3, 2003 11:33 AM

The variety of points is why I think the standard of review is the key. Remember the difference between having ten years of experience, and one year of experience ten times over.

That is, several reviews without deference, is very different from several reviews all being constrained to defer to the original finding unless clear abuse is found.

This relates back to my orginal point, why I thought the Appeals Court wanted to avoid reviewing the findings because they apparently felt constrainted via the "abuse of discretion" standard.
I thought they were still so constrained, but it looks like I was wrong there, IANAL.

I believe the sympathies of the majority opinion are manifest in such passages as:

"By prohibiting Bunner from exploiting and destroying DVD CCA's trade secrets because of his actual or constructive knowledge of its illegal acquisition, the preliminary injunction merely applies this venerable standard of commercial ethics to a constitutionally recognized property interest in information."

Posted by: Seth Finkelstein at September 3, 2003 02:37 PM