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 257-266, or to obtain information about the controversy generated by the creation of DeCSS, including having access to the program itself. See, e.g., Jane C. Ginsburg, Copyright Use and Excuse on the Internet, 24 Colum- VLA J.L. & Arts 1, *13 (2000). Newspapers, magazines, or online publications may wish to provide access to DeCSS as part of the ongoing debate. See Shapiro Reply Dec. 18-47, 49-96, AA 348-65 (including examples of discussion of the controversy on the Slashdot website and on the websites of online publications); cf. Lerma II, 908 F. Supp. at 1365 (noting that, in copyright context, Washington Post’s downloading of documents that were also alleged to be trade secrets was legitimate fair use because of their newsworthiness). Thus for the purpose of analyzing an injunction in a trade secrets case, a prohibition on disclosure is not the same as a prohibition on use, and must be treated as a restriction of pure speech. Nor can the posting of the program be considered “expressive conduct” subject to intermediate scrutiny under United States v. O’Brien, 391 U.S. 367 (1968). First, unlike the statute at issue in O’Brien, the Uniform Trade Secrets Act, like the statute in Bartnicki, contains two separate prohibitions: disclosure (speech) and use (conduct). The statute in O’Brien, on its face, applied only to conduct: the destruction or mutilation of a draft card. O’Brien, 391 U.S. at 375. It was not possible to separate the conduct prohibited by the statute (draft card burning regardless of its 9
motivation) from its expressive component (public burning of a draft card to express opposition to the war in Vietnam). Id. at 376. The same is hardly true here. The unlawful use of DeCSS can easily be enjoined without requiring that the disclosure of DeCSS be prohibited. See Bartnicki, 532 U.S. at 527 ( rejecting argument that delivery of taped conversation was expressive conduct: “If the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.” (quoting circuit court’s decision in Bartnicki v. Vopper, 200 F. 3d 109, 120 (3d Cir. 1999))); accord Wilson v. Superior Ct., 13 Cal. 652, 660 (1975) (“It would be anomalous if the mere fact of publication and distribution were somehow deemed to constitute ‘conduct’ which in turn destroyed the right to freely publish.”). DVD CCA nevertheless argues that Bunner’s purpose in posting DeCSS was to enable others to “illegally” decrypt DVDs so that they could play them on the Linux platform and that, accordingly, his disclosure of DeCSS is not pure speech. Reply Brief at 5, 11. One’s purpose in disclosing information (i.e., in speaking) does not transmute speech into expressive conduct. Moreover, to the extent that a statute is applied to outlaw pure speech in order to prevent unlawful conduct, that speech must rise to the level of incitement before it can be prohibited. Ashcroft v. Free Speech 10
Page 1 and 2: IN THE SUPREME COURT OF THE STATE O
Page 3 and 4: TABLE OF AUTHORITIES FEDERAL CASES
Page 5 and 6: Wilson v. Superior Ct., 13 Cal. 3d
Page 7 and 8: 1201 et seq. (“DMCA”), by makin
Page 9 and 10: whether CSS had lost its trade secr
Page 11 and 12: In sum, regardless of whether the s
Page 13: of a publication”); Procter & Gam
Page 17 and 18: B. An Injunction Prohibiting the Di
Page 19 and 20: Relying once again on Corley, DVD C
Page 21 and 22: Corp., 416 U.S. 470, 481-82, 493 (1
Page 23 and 24: the Uniform Trade Secrets Act, the
Page 25 and 26: Significantly, however, as the Cour
Page 27 and 28: the Internet, 24 Colum-VLA J.L. & A
Page 29 and 30: questionable. 14 But regardless of
Page 31 and 32: justify prior restraint to protect

Outline of Amicus Brief: Pavlovich v

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