I.D. No.: 13-1-01788 DVD CCA vs.

Bunner Looking back on what had happened: Jon Johansen, a 15 year old Norwegian boy said to have reverse engineered the codes of the CSS on his DeCSS, through the software of Xing Technology Corporation, which was a licensee in an agreement with the users that specifically prohibits reverse engineering. The said DeCSS was posted by Andrew Bunner in his website, permitting the end users of unauthorized decryption and copying of DVDs. Thus, DVD CCA has filed an injunction complaint against Bunner and the court decided in favor of the former. Upon appeal by Bunner, the Court of Appeals reversed the decision, dissolving the preliminary injunction and reprimanding the trial court for further proceedings. Ex-post Principle If I were to decide using the ex post principle, I would deny the appeal of Andrew Bunner and resolve the case in favor of DVD CCA. Bunner's allegation that what he had done was within the First Amendment of right to speech was untenable. It is true that the state reserves and protects some rights to its constituents. And these rights are demandable by each constituents when the state would not adhere wih it. However, what Bunner did was not within the meaning of speech, that the state reserves and protects, it was a nonspeech activity. If we were to distinguish wether the encryption activity is a speech activity or not, I would consider it more of a process and of a function rather than a speech or expression. Since it is a nonspeech activity, we must consider if the State has a compelling interest on it. In the case at hand, the State do have. It was alleged that the one who had reverse engineered the software was a Norwegian. As a state in United States, it must protect its businesses' trade secrets, which is shown in their Uniform Trade Secrets Acts. Bunner, knowing that the DeCSS would kill or lessen the profit of DVD CCA, he should not expose those software in his website. Also, DVD CCA had even done something to stop his act even before reaching the court. Bunner, as a citizen of United States, he must have respected the right of DVD CCA of their trade secrets. The state has the right to compel Bunner to stop from doing his acts because it is no longer within the meaning of speech or expression that the state reserves to the people. Instead, the state can demand from Bunner to obey the said Uniform Trade Secrets Acts.

Ex-ante Principle If I were to decide using the ex ante principle, I would still deny the appeal of Andrew Bunner and resolve the case favoring DVD CCA. It is true that what had happened can never be rewind, but we cannot deny the fact that the past must be considered in order to foresee the future. Indeed, the State cannot deny the right of a

citizen to freedom of expression. It has the duty and responsibilty to protect that right. But at the same time, the State also needs to protect the economy of the country for the general welfare. Allowing Bunner to expose the DeCSS in his website would mean pirating DVDs, thus, killing the business of DVD CCA. And piracy is a threat against the national security. If Bunner will be tolerated, future pirates will no longer be afraid anymore. This will allow other companies to do the same, and instead of innovating ideas, these companies will only depend on the existing products. No innovations would lead to lesser employment, slower economic improvement or maybe no improvement at all. This would also lead to an abuse on the right to freedom of expression. If deciding in favor Bunner, it will also allow other nationals to be confident on reverse engineering of the products of the United States, which prejudicial to its own citizens. Denying the appeal of Bunner would discourage other individuals, specifically website owners, to post softwares permitting unauthorized decryption and copying movies, as well as other nationals to be tolerated on the issue of reverse engineering.