Outline of Amicus Brief: Pavlovich v
Outline of Amicus Brief: Pavlovich v
Outline of Amicus Brief: Pavlovich v
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access the site in order to study the program, see, e.g., Wagner Dec., AA<br />
257-266, or to obtain information about the controversy generated by the<br />
creation <strong>of</strong> DeCSS, including having access to the program itself. See, e.g.,<br />
Jane C. Ginsburg, Copyright Use and Excuse on the Internet, 24 Colum-<br />
VLA J.L. & Arts 1, *13 (2000). Newspapers, magazines, or online<br />
publications may wish to provide access to DeCSS as part <strong>of</strong> the ongoing<br />
debate. See Shapiro Reply Dec. 18-47, 49-96, AA 348-65 (including<br />
examples <strong>of</strong> discussion <strong>of</strong> the controversy on the Slashdot website and on<br />
the websites <strong>of</strong> online publications); cf. Lerma II, 908 F. Supp. at 1365<br />
(noting that, in copyright context, Washington Post’s downloading <strong>of</strong><br />
documents that were also alleged to be trade secrets was legitimate fair use<br />
because <strong>of</strong> their newsworthiness). Thus for the purpose <strong>of</strong> analyzing an<br />
injunction in a trade secrets case, a prohibition on disclosure is not the same<br />
as a prohibition on use, and must be treated as a restriction <strong>of</strong> pure speech.<br />
Nor can the posting <strong>of</strong> the program be considered “expressive<br />
conduct” subject to intermediate scrutiny under United States v. O’Brien,<br />
391 U.S. 367 (1968). First, unlike the statute at issue in O’Brien, the<br />
Uniform Trade Secrets Act, like the statute in Bartnicki, contains two<br />
separate prohibitions: disclosure (speech) and use (conduct). The statute in<br />
O’Brien, on its face, applied only to conduct: the destruction or mutilation<br />
<strong>of</strong> a draft card. O’Brien, 391 U.S. at 375. It was not possible to separate<br />
the conduct prohibited by the statute (draft card burning regardless <strong>of</strong> its<br />
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