"The program DeCSS is a burglary tool," Lockyer told the judges, adding that the movie studios lose millions of dollars because of piracy over the Internet.
California's high court is considering whether a ban on the posting of the code, which cracks the content-scrambling system designed to protect DVD movies, violates free speech. Lockyer, who's gearing up to run for governor next year, appeared on the side of the DVD Copy Control Association, which is arguing that the posting of the code on the Net should be banned.
The case, DVD CCA v. Bunner, started four years ago, when the DVD CCA sued Andrew Bunner and hundreds of other people, saying they violated California trade-secret law by displaying links to the code.
A trial court in Santa Clara County, Calif., granted an injunction banning the posting of the code, but Bunner appealed, saying the injunction violated his free speech rights. The Sixth District Court of Appeals in San Jose, Calif., agreed with Bunner and reversed that injunction, so the DVD CCA appealed to the California Supreme Court.
During Thursday's hearing, DVD CCA attorney Robert Sugarman told the seven-judge panel that the software is designed "to allow individuals to steal a trade secret and, by virtue of that, hack into a system that protects the trade secrets of motion picture makers."
At one point, Judge Kathryn Werdegar asked whether DeCSS deserved a strict standard of trade-secret protection since it was already widely distributed on the Internet. Sugarman said that it did.
"If that were the case, especially with?the Web, an infringer could quickly post a trade secret and then say there's no real need or purpose for relief, because it's already out there," Sugarman said.
Bunner's lawyer, David Greene, told the court that the DVD CCA was trying to stop the flow of information by seeking a ban on posting the code by people who are unrelated to the case. Greene said Bunner put the code on his site after reading about it on Slashdot and wasn't involved in creating DeCSS or originally posting the code to the Web.
"To call Mr. Bunner a third party is being generous," Greene said. "He's a 100th party." Greene said the trial court, in granting the injunction, failed to consider that the ban violated Bunner's free speech rights. "We're not saying it's impossible for people to protect their trade secrets," Greene told the court, saying they just must do it within the limits of the First Amendment.
The judges are expected to issue a ruling in the coming weeks or months.
Federal courtsWeb publishers who posted DeCSS violated federal copyright law, namely the Digital Millennium Copyright Act. But the DVD CCA sued Bunner and others under state trade-secret laws. In a similar case brought by the DVD CCA against one-time Purdue University student and current Texas resident Matthew Pavlovich, the same court that is hearing the Bunner case that California courts did not have jurisdiction, because Pavlovich had no ties to the state.
The Bunner case has attracted attention from a wide variety of free speech advocates and programmers including the Electronic Frontier Foundation, the Institute of Electrical Engineers and the Computer and Communications Industry Association, which have urged the court to rule in favor of Bunner.
After Thursday's hearing, Bunner told a throng of reporters that a decision against him could have dire consequences for software development in general and the open-source community in particular. "It's probably more important for other people than it is for me," said Bunner, 26, who now works as a developer for Epiphany in San Mateo, Calif. "If this makes it harder for people to reverse-engineer things, then it makes it more difficult to make really useful things."
Many software developers depend on decryption programs like DeCSS to learn about the inner workings of certain programs and to make compatible products.
Bunner said he originally posted the code so that people could use it to play their DVDs on the Linux operating system, a practice that was all but impossible at the time. He said he forgot about it until the DVD CCA called him and told him he better take the code down. Bunner said he never thought that posting computer code on his Web site would put him at the center of a high-profile legal tangle over free speech and trade secrets.
"It's a little surreal," Bunner said, standing just a few feet from the attorney general while gazing at the television and radio microphones that had been thrust in front of his face.