Academic journal article Santa Clara High Technology Law Journal

Virtual Speech: At the Constitutional Crossroads

Academic journal article Santa Clara High Technology Law Journal

Virtual Speech: At the Constitutional Crossroads

Article excerpt

Open source software has changed the landscape of IP litigation and altered the Internet-based marketplace for digital entertainment. Open source software is free, and no one controls its distribution rights. Thus, it has dramatically altered existing business relationships. The impact on intellectual property and entertainment litigation has been dramatic. In California, lawyers once confined to tangible property now must extend existing law to virtual reality--a minefield for the unwary practitioner.


Proprietary commercial software vendors operate in an industry of highly protected trade secrets. "Open Source" is a term used by some to describe "free software." (1) Open source proponents believe that scientific knowledge must be shared and distributed. (2) Thus, the genesis of open source--the idea is that "source" code is fundamental to the furtherance of computer science and is freely available--is necessary for innovation to continue.

A series of guidelines have been crafted to describe software qualified as Open Source. (3) The Open Source Definition allows greater liberties with licensing. Therefore, the free redistribution of open source software by proprietary software vendors stands in contrast to current business practices, which thrive on the trade secrets, copyrights, patents and licenses that make distributing software profitable. The term "free software" does not describe its price but rather, the right to access the software's source code and includes the freedom to run, modify and redistribute copies or modified versions of the program. (4) Some companies, including major players in media-based industries, regard free, open source software as a serious threat to their intellectual property ("IP") and financial interests.

The paradigm shift between the free speech rights advocates and the companies co-opting source code for their own profitability is most pronounced in the most recent case, DVD Copy Control Association v. Bunner (5) ("Bunner"), that has resolved the convergence between California's trade secret law, section 3426 of the California Civil Code, (6) and the free speech clauses of the United States and California Constitutions.


In order to obtain an injunction prohibiting disclosure of an alleged trade secret, a plaintiff's first hurdle is to show that the information it seeks to protect is indeed a trade secret. (7) California has adopted without significant change the Uniform Trade Secrets Act ("UTSA"). (8) Combinations of general concepts are also protectable as trade secrets. A California Superior Court found that a computer program was entitled to trade secret recognition for the "specific implementation involving a particular combination of general concepts ... even though all or some of them might well be known to the industry." (9)

Similarly, the U.S. District Court for the Northern District of California concluded that a computer program contained elements that entitled it to trade secret protection. The court noted that a trade secret could consist of the individual units of the computer program, its overall "architecture," structure or a combination thereof, as long as the program otherwise meets the value and secrecy requirements. (10) Software may constitute a trade secret. (11)

An action for the misappropriation of trade secrets is another vehicle that companies can use to protect their software. Trade secret misappropriation occurs whenever a person: (1) acquires another's trade secret with knowledge or reason to know "that the trade secret was acquired by improper means" (12); (2) discloses or uses, without consent, another's trade secret that the person,

   [a]t the time of disclosure or use, knew or had reason to know that
   his or her knowledge of the trade secret was: (i) [d]erived from or
   through a person who had utilized improper means to acquire it;
   (ii) [a]cquired under circumstances giving rise to a duty to
   maintain its secrecy or limit its use; or (c) [d]erived from or
   through a person who owed a duty to the person seeking relief to
   maintain its secrecy or limit its use (13);

or (3) discloses or uses, without consent, another's trade secret that the person "[b]efore a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. …

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