In the Supreme Court of the State of California
I also went to court (about a week later) to hear arguments in DVD Copy Control Assn. v. Andrew Bunner. It was my second time at the California Supreme Court; the first time was for an argument in a related matter (DVD Copy Control Assn. v. Matthew Pavlovich). Alex Macgillivray, whom I saw there, wrote about the hearing. California's Attorney General, Bill Lockyer, appeared and argued as an amicus for DVD CCA. His remarks mainly centered on the importance of trade secrecy to California businesses, and didn't really address the specific facts of the Bunner case. Lockyer's argument appeared to be that weakening trade secret law would harm businesses in California, and that California had an interest in preventing that from happening. David Greene of the First Amendment Project, arguing for Bunner, responded that there are no reported prior California cases parallel to this one (in which a trade secret claimant seeks a preliminary injunction against a third party republisher of information), so ruling for Bunner couldn't really weaken trade secret law.
My biggest frustration during the argument came when Robert Sugarman, arguing on behalf of DVD CCA, suggested that the Court should not pay much attention to Bunner's first amendment claims, since a large number of "creative" people from the entertainment industries had filed briefs in support of DVD CCA. Sugarman appeared to be suggesting that, if the "creative community" had no problem with the injunction, the injunction must not offend the first amendment. I call this the "we own the first amendment and you can't have any" argument; it is peculiarly common in cases in which copyright is implicated. If a defendant claims a first amendment interest, an entertainment plaintiff will retort that the first amendment is actually about protecting the expression interests of, say, movie studios. The subtext is that other speakers do not have free expression interests worth protecting.
Sugarman actually took a very peculiar position with respect to the first amendment, claiming that the first amendment was meant basically to protect political speech and debates about matters of public concern. Speech on other topics, he suggested, was not really what the first amendment was about, and speech calculated to produce a result was far away from that amendment's purpose. It can only be described as bizarre to hear entertainment lawyers, lawyers for movie studios, maintaining that the first amendment is really about protecting political speech and not necessarily other kinds of expression, that the first amendment is really very narrow. This is, of course, exactly what people seeking to censor sexually explicit or violent expression in the movies always say -- that the first amendment is supposed to protect expression of beliefs, and political and perhaps religious arguments, and pictures of naked people or pictures of people getting shot are neither of those. Why, aside from their duty to maximize profits, movie studios would contemplate applying the first amendment to depictions of sex but not to descriptions of algorithms is simply beyond me. Technical speech -- as an important subject of major political and religious conflict, and a major source of social change in Europe not long before the adoption of the first amendment, must have been more obviously "expressive" at that time than sexually explicit visual images, which law and custom continued actively to suppress for many years. Or are Copernicus and Galileo to receive lessened protection for their expression because they had the "functional" goal of allowing people to calculate the positions of the planets?
I find it offensive that works like those in Touretzky's Gallery of CSS Descramblers are implicitly called uncreative and unexpressive by Sugarman. They contain more artistic and intellectual originality (and, one might say, courage) than some recent studio products.
The California Supreme Court is very informal compared to other courts. Before the beginning of arguments, the clerk came out to chat with the members of the public sitting in the gallery. He started off by giving some of the history of the Court, and at the end asked whether anyone had any questions!
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