Bunner Hearing

Went to the Bunner hearing at the California Supreme Court today. The issue is whether a trade secret preliminary injunction to stop Bunner from distributing deCSS is valid. The trial court said yes. The Appeals court said that it was a prior restraint on speech and that the plaintiff needed to meet the First Amendment burden and had not. Bill Lockyer (the California Attorney General) and Robert Sugarman (from Weil Gotshal) argued on behalf of the Plaintiff. David Green argued on behalf of Bunner. Each argument was interesting in its own way.

Sugarman led off with the argument that the injunction prevented conduct not speech (citing Bartnicki). In other words, that the posting of deCSS was not "pure speech" deserving of First Amendment protection, but instead is conduct. This was his and AG Lockyer's major theme and they proposed an interesting test for Defendants desiring First Amendment protection. Sugarman said that unless Bunner could disaggregate pure speech from functional speech or conduct, then the injunction was OK and did not need to be reviewed by First Amendment principles. Thus the burden of disaggregation is on speakers. This was repeated by Sugarman and Lockyer over and over again but is not (and should not) be the law. Imagine if the Supreme Court had said: “we know flag burning is expressive, but it is also conduct. Unless you can remove the conduct from the expressive component you lose. Why don't you just write about burning the flag?”

I thought that Green answered this concern well (though not as directly as above) by stressing that the First Amendment is concerned with state actions, not the speech they prevent. If the injunction constrains pure speech, then, even if it also constrains functional speech, it must meet the constitutional tests.

Next Sugarman delved into whether the injunction was content neutral. I felt that the Justices mostly agreed with him that it was. I am midway through a great draft of an article by Eugene Volokh which makes the case that Intellectual Property laws are, by their nature, not content neutral. This was a hard sell for Green, who focused on the injunction, prohibiting disclosure of specific content.

Justices Moreno and George then brought up the trade secret issue of impropriety and the related prior restraint issue of prior unlawful conduct. Sugarman answered that though reverse engineering is not illegal under the Uniform Trade Secrets Act, Johansen had also violated a click wrap agreement. He argued that Bunner knew or should have known that he was publishing a misappropriated trade secret. Sugarman agreed that a finding of prior unlawful conduct was important in terms of saving the injunction from the prior restraint analysis. Later Green tried to clear up the Court misconception that there had been such a finding below. Green said that in the trial court's analysis of the preliminary injunction test, the trial court found that likelihood of success was low but that the balance of harms was overwhelmingly in favor of the injunction. Sugarman contested this in his rebuttal.

Werdegar then asked about the standard of review in terms of whether the deCSS is a trade secret. Sugarman basically didn't answer though he seemed to suggest that the answer was no. Green said the answer is yes. I am a little worried that this will be the Court's escape route from the tougher First Amendment issues.

Lockyer basically echoed Sugarman. The Justices were extremely generous to him and let him talk almost without interruption. The only thing he added was a list of what the State's interests: preservation of secrets, prevention of piracy (he named Napster as the bogeyman -- that is the first time I have heard Napster in the context of trade secrets), encouraging investment, promoting the arts, promoting commercial ethics and protecting California businesses.

I thought Green's presentation was very good. As stated above, he hammered home that the restriction is what is at issue, not the speech and that there was no finding of prior unlawful conduct. He was fuzzy on what the test should be in other trade secrets cases -- and was repeatedly questioned on this. He also made a compelling argument that Bunner's speech related to a matter of important public concern. And, when questioned about why Reimerdes could be enjoined under the DMCA but not Bunner under trade secret law, he admitted that the Plaintiffs could have enjoined Bunner under the DMCA and (IMHO) did not persuade the judges that there was a principled decision to be drawn.

Painting / Hacking


Lisper extraordinaire, Paul Graham, just posted his essay Hackers and Painters -- apparently originally a speech at Harvard.

The essay explains his choice to follow up CS grad school by studying painting. In so doing he talks about different approaches to programming:

For example, I was taught in college that one ought to figure out a program completely on paper before even going near a computer. I found that I did not program this way. I found that I liked to program sitting in front of a computer, not a piece of paper. Worse still, instead of patiently writing out a complete program and assuring myself it was correct, I tended to just spew out code that was hopelessly broken, and gradually beat it into shape. Debugging, I was taught, was a kind of final pass where you caught typos and oversights. The way I worked, it seemed like programming consisted of debugging.

the dearth of great programming gigs:

All makers face this problem. Prices are determined by supply and demand, and there is just not as much demand for things that are fun to work on as there is for things that solve the mundane problems of individual customers. ... When I say that the answer is for hackers to have day jobs, and work on beautiful software on the side, I'm not proposing this as a new idea. This is what open-source hacking is all about.

and some hopeful thoughts about the novelty of programming as a medium of expression:

Over and over we see the same pattern. A new medium appears, and people are so excited about it that they explore most of its possibilities in the first couple generations. Hacking seems to be in this phase now.

I could quote the entire essay in pieces here. But I won't because you should read the whole thing

Month Off

So, I've take almost a month off web logging. Have been really busy in the interim and away from computers. Got a new job, quit my old one. Took a trip to the New Orleans Jazz and Heritage Festival and to visit some old friends at the Berkman Center. Now I am back to work and back to web logging though I will be linking less, (hopefully) commenting more, linking to a few things others' haven't and also posting more code. At least that's the plan.

Saving Software

The fifth 2003 DMCA exemption hearing happened in L.A. today. As Brewster Kahle has written, his presentation was about saving software, I hope he succeeds.