Outline of Amicus Brief: Pavlovich v

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Moreover, Bunner had neither a contractual nor a fiduciary relationship with DVD CCA that could be said to impose a duty on him to maintain the confidentiality of CSS. Thus his republication of the program does not implicate one of the fundamental concerns of trade secret law, “[t]he maintenance of standards of commercial ethics.” Kewanee Oil Co. v. Bicron Corp., 416 U.S. at 481-82. 10 Rather than being a typical trade secret case, the issues presented here bear a striking resemblance to those before the Supreme Court in Bartnicki v. Vopper, 532 U.S. 514. In Bartnicki, the Supreme Court was asked to decide whether the federal wiretap statute, 18 U.S.C. § 2511(1)(c), which prohibits the disclosure of an illegally intercepted communication, could be enforced in an action for damages against an individual and two radio stations who lawfully obtained, and subsequently disclosed the contents of, a tape of an illegally intercepted cell phone conversation. Like 10 Although trade secret law furthers the additional interest of protecting creative endeavors, see id., this interest cuts two ways. On the one hand, there is an interest in protecting the creative endeavors of those who create a new product. On the other hand, there is an interest in encouraging the expansion of knowledge that results by permitting others to build on work that has gone before. As discussed in the amicus brief submitted by the Intellectual Property Law Professors and the Computer & Communications Industry Ass’n, trade secret law strikes a balance by allowing trade secret information to be acquired through reverse engineering. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. at 476; Chicago Lock Co. v. Fanberg, 676 F.2d 400 (9 th Cir. 1982); Cal. Civ. Code §3426.1(a) (excluding reverse engineering as an “improper means” of acquiring trade secret information). 17
the Uniform Trade Secrets Act, the wiretap statute prohibits disclosure of an illegally intercepted conversation by a person who “knows[s] or ha[s] reason to know that the information was obtained” through an illegal interception. The Bartnicki Court recognized that it was faced with “a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.” Bartnicki, 532 U.S. at 518. It stated the issue thus: “Where the . . . publisher of information obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain” Id. at 528 (quoting Boehner v. McDermott, 191 F. 3d 463, 484-85 (D.C. Cir. 1999) (Sentelle, J., dissenting)). The Court answered the question in the negative. Relying on a long line of cases holding that the state may not prohibit the disclosure of lawfully obtained information, the Court held that the statute could not be applied under the circumstances of that case. Bartnicki, 532 U.S. at 527-35. Three factors were important to the Court’s decision. First, while it assumed for purposes of analysis that the defendants knew or should have known that the tape was the product of an illegal interception, the Court 18
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 and 14: of a publication”); Procter & Gam
Page 15 and 16: motivation) from its expressive com
Page 17 and 18: B. An Injunction Prohibiting the Di
Page 19 and 20: Relying once again on Corley, DVD C
Page 21: Corp., 416 U.S. 470, 481-82, 493 (1
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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