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DVD COPY CONTROL ASSOCIATION, INC., Plaintiff and Respondent,
v.
Andrew BUNNER, Defendant and Appellant.
Supreme Court of California.
*73 Richard R. Wiebe, San Francisco; Huber Samuelson, HS Law Group, Allonn E. Levy, San Jose; First Amendment Project, Oakland, James R. Wheaton, David A. Greene; Tomlinson Zisko Morosoli & Maser, Thomas E. Moore III, Palo Alto; Electronic Frontier Foundation, San Francisco, *74 Cindy A. Cohn and Robin D. Gross for Defendant and Appellant.
Howard M. Freedland and Edward J. Black for American Committee for Interoperable Systems and Computer & Communications Industry Association as Amici Curiae on behalf of Defendant and Appellant.
Howard, Rice, Nemerovski, Canady, Falk & Rabkin and Annette L. Hurst, San Francisco, for Institute of Electrical and Electronics Engineers, Inc. United States Board as Amicus Curiae on behalf of Defendant and Appellant.
Jennifer Granick, San Francisco, for Computer Professionals for Social Responsibility as Amicus Curiae on behalf of Defendant and Appellant.
Ann Beeson, Kevin S. Bankson; and Ann Brick for the American Civil Liberties Union and the American Civil Liberties Union of Northern California as Amici Curiae on behalf of Defendant and Appellant.
Jane E. Kirtley for Silha Center for the Study of Media Ethics and Law as Amicus Curiae on behalf of Defendant and Appellant.
Weil, Gotshal & Manges, Jared B. Bobrow, Christopher J. Cox, Jeffrey L. Kessler, Robert G. Sugarman, Gregory S. Coleman, Edward J. Burke, Jonathan S. Shapiro, Sondra Roberto, Richard Simon, Rachel H. Laskey and John F. Greenman, New York, NY, for Plaintiff and Respondent.
Jennifer M. Urban and Pamela Samuelson for Intellectual Property Law Professors, the Computer & Communications Industry Association and the United States Public Policy Committee of the Association for Computing Machinery as Amici Curiae on behalf of Plaintiff and Respondent.
Richard A. Epstein; Thomas C. Rubin; Covington & Burling, Robert A. Long, Jr., Washington, DC, and Anthony Hermann for Microsoft Corporation, Ford Motor Company, The Boeing Company, Sears Roebuck & Co., The Procter & Gamble Company, AOL Time Warner, Inc., BellSouth Corporation, The Coca Cola Company and the National Association of Manufacturers as Amici Curiae on behalf of Plaintiff and Respondent.
John K. Williamson, Ronald E. Myrick; Milbank, Tweed, Hadley & McCloy and James Pooley, Palo Alto, for the Intellectual Property Owners Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Dan Robbins, Jason M. Okai; Williams & Connolly, David E. Kendall, Thomas G. Hentoff, Janet C. Fisher, Suzanne H. Woods, Washington, DC, Julia B. Shelton; Paul, Hastings, Janofsky & Walker; Roger M. Milgrim, New York, NY; John Fithian; Daniel L. Brenner, Neal M. Goldberg, Washington, DC, Michael S. Schooler, Diane B. Burstein; David M. Proper; William Daly; and Thomas J. Ostertag, New York, NY, for Motion Picture Association of America, Inc., American Federation of Musicians of the United States and Canada, American Federation of Television and Radio Artists, AFMA (formerly the American Film Marketing Association), American Society of Composers, Authors and Publishers, American Society of Media Photographers, Inc., Association of American Publishers, Inc., Business Software Alliance, Broadcast Music, Inc., Department of Professional Employees, Directors Guild of America, Graphic Artists Guild, Interactive Digital Software Association, National Academy of Recording Arts & Sciences, Inc., National Association of Theatre Owners, National Cable & Telecommunications Association, Inc., National Football League, *75 National Football League Properties, Inc., National Hockey League, National Music Publishers' Association, Office of the Commissioner of Baseball, Producers Guild of America, Professional Photographers of America, Recording Industry Association of America, Screen Actors Guild, Inc., Video Software Dealers Association and Writers Guild of America, West, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Catherine Z. Ysrael, Regina J. Brown and Emilio E. Varanini IV, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiff and Respondent.
BROWN, J.
Today we resolve an apparent conflict between California's trade secret law (Civ.Code, § 3426 et seq.)[1] and the free speech clauses of the United States and California Constitutions. In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to know that the secrets were acquired by improper means. The trial court found that the operator misappropriated these trade secrets in violation of section 3426.1 and issued a preliminary injunction pursuant to section 3426.2, subdivision (a), prohibiting the operator from disclosing these secrets. Accepting as true the trial court's findings, we now consider whether this preliminary injunction violates the First Amendment of the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. We conclude it does not.
I.
A.
Digital versatile discs (DVD's) "are five-inch wide disks capable of storing more than 4.7 [Gigabytes] of data. In the application relevant here, they are used to hold full-length motion pictures in digital form. They are the latest technology for private home viewing of recorded motion pictures and result in drastically improved audio and visual clarity and quality of motion pictures shown on televisions or computer screens." (Universal City Studios, Inc. v. Reimerdes (S.D.N.Y.2000) 111 F.Supp.2d 294, 307, fn. omitted (Reimerdes).)
"[T]he improved quality of a movie in a digital format brings with it the risk that a virtually perfect copy, i.e., one that will not lose perceptible quality in the copying process, can be readily made at the click of a computer control and instantly distributed to countless recipients throughout the world over the Internet." (Universal City Studios, Inc. v. Corley (2d Cir.2001) 273 F.3d 429, 436 (Corley ).) Recognizing this risk of widespread piracy, the motion picture industry insisted that a viable protection system be made available to prevent users from making copies of motion pictures in digital form. Without such protection, it would not have agreed to release movies on DVD's.
To provide this protection, two companies, Toshiba and Matsushita Electric Industrial Co., Ltd., developed the Content Scrambling System (CSS). "CSS is an encryption scheme that employs an algorithm configured by a set of `keys' to encrypt a DVD's contents. The algorithm is a type of mathematical formula for transforming the contents of the movie file into gibberish; the `keys' are in actuality strings of 0's and 1's that serve as values for the mathematical formula. Decryption *76 in the case of CSS requires a set of `[master] keys' contained in compliant DVD players, as well as an understanding of the CSS encryption algorithm. Without the [master] keys and the algorithm, a DVD player cannot access the contents of a DVD. With the [master] keys and the algorithm, a DVD player can display the movie on a television or a computer screen, but does not give a viewer the ability to use the copy function of the computer to copy the movie or to manipulate the digital content of the DVD." (Corley, supra, 273 F.3d at pp. 436-437.)
The motion picture, computer, and consumer electronics industries decided to use the CSS technology to encrypt copyrighted content on DVD's and agreed that this content should not be subject to unauthorized (i) copying or (ii) transmission, including making the content available over the Internet. To this end, they began licensing the technology in October 1996. Under the terms of the licensing agreement, licensees had to maintain the confidentiality of proprietary information embodied in the CSS technology, including the "master keys" and algorithms. The agreement also contained other terms and conditions designed to ensure the confidentiality of this proprietary information. These industries later established the DVD Copy Control Association, Inc. (DVD CCA) as the entity charged with granting and administering the licenses to the CSS technology.
Despite these efforts to safeguard the CSS technology, Jon Johansen, a Norwegian resident, acquired the proprietary information embodied in the technology including the master keys and algorithms by reverse engineering software created by a licensee, Xing Technology Corporation (Xing). Xing's software is licensed to users under a license agreement, which specifically prohibits reverse engineering. Using the proprietary information culled from this software, Johansen wrote a program called DeCSS that decrypts movies stored on DVD's and enables users to copy and distribute these movies. According to DVD CCA, DeCSS "embodies, uses, and/or is a substantial derivation of confidential proprietary information" found in the CSS technology. Johansen posted the source code[2] of DeCSS on an Internet Web site[3] in October 1999.
Soon thereafter, DeCSS appeared on other Web sites, including a Web site maintained by Andrew Bunner. Bunner *77 posted DeCSS on his Web site allegedly because "it would enable `Linux' users to use and enjoy `DVDs' available for purchase or rental in video stores" and "make `Linux' more attractive and viable to consumers." Bunner also claimed he wanted "to ensure [that] programmers would have access to the information needed to add new features, fix existing defects and, in general, improve the `[D]eCSS' program."
B.
Upon discovering the posting of DeCSS on the Internet, DVD CCA and the Motion Picture Association (MPA) made extensive efforts to identify those Web sites disclosing proprietary CSS technology or linking to sites posting this information. The MPA then sent notices to these Web sites and their Internet service providers demanding that they remove this information from the sites. Despite receiving these notices, many of these Web sites refused to remove the information. DVD CCA then filed this action against Bunner and numerous other named and unnamed individuals who had published or linked to Web sites publishing DeCSS (collectively defendants), alleging trade secret misappropriation.[4]
In the complaint, DVD CCA did not seek damages. Instead, it only sought an order "enjoining and restraining [d]efendants... from making any further use or otherwise disclosing or distributing, on their web sites or elsewhere, or `linking' to other web sites which disclose, distribute, or `link' to any proprietary property or trade secrets relating to the CSS technology and specifically enjoining [d]efendants... from copying, duplicating, licensing, selling, distributing, publishing, leasing, renting or otherwise marketing the DeCSS computer program and all other products containing, using and/or substantially derived from CSS proprietary property or trade secrets...."
Soon after filing the complaint, DVD CCA filed an ex parte application for a temporary restraining order (TRO). The trial court denied the request for a TRO but issued an order to show cause "why the injunction and restraints sought in [DVD CCA's] proposed preliminary injunction should not be entered against defendants...."
Following a hearing and after considering written declarations submitted by the parties, the trial court issued a preliminary injunction. The injunction enjoined the named defendants, including Bunner, from "[p]osting or otherwise disclosing or distributing, on their [W]eb sites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambling System ..., or any other information derived from this proprietary information." The court, however, refused to enjoin the defendants from "linking to other [Web sites] which contain the protected materials" because "such an order [would be] overbroad and extremely burdensome."
In issuing the injunction, the court concluded that DVD CCA was likely to prevail on the merits and would suffer irreparable harm without injunctive relief. First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of *78 a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet. Fifth, the court concluded that DVD CCA would suffer irreparable harm without an injunction. "If the Court does not immediately enjoin the posting of this proprietary information, [DVD CCA's] right to protect this information as secret will surely be lost...." The court then observed that an injunction would cause minimal harm to the defendants. Finally, the court acknowledged potential enforcement problems, but held that "a possibility or even a likelihood that an order may be disobeyed or not enforced in other jurisdictions is not a reason to deny the relief sought."
Only Bunner appealed, and the Court of Appeal reversed. Rather than review the trial court's findings in support of injunctive relief, the Court of Appeal assumed that DVD CCA was likely to prevail on the merits and would suffer irreparable harm. The court then held that the preliminary injunction, even if justified under California's trade secret law, violated the First Amendment. According to the Court of Appeal, DeCSS was "pure speech," and the injunction was an invalid prior restraint on pure speech. In reaching this conclusion, the court distinguished those cases where courts had enjoined trade secret misappropriation over a First Amendment defense because "they involved the actual use of a secret or the breach of a contractual obligation." The court also found inapplicable the many cases upholding injunctions in copyright cases against First Amendment challenges because of the differences between trade secret and copyright protection. We granted review to decide this important constitutional question.
II.
California has adopted without significant change the Uniform Trade Secrets Act (UTSA). (§ 3426 et seq.; see Cadence Design Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 221, 127 Cal.Rptr.2d 169, 57 P.3d 647.) Under California's version of the UTSA, a trade secret consists of "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." (§ 3426.1, subd. (d).)
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" (§ 3426.1, subd. (b)(1)); (2) discloses or uses, without consent, another's trade secret that the person "[u]sed improper means to acquire knowledge of" (id., subd. (b)(2)(A)); (3) 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" (a) "[d]erived from or through a person who had utilized improper means to acquire it" (id., subd. (b)(2)(B)(i)), (b) "[a]cquired under circumstances giving rise to a duty to maintain its secrecy or limit its use" (id., subd. (b)(2)(B)(ii)), or (c) "[d]erived from or through a person who owed a duty to the *79 person seeking relief to maintain its secrecy or limit its use" (id., subd. (b)(2)(B)(iii)); or (4) discloses or uses, without consent, another's trade secret when the person, "[b]efore a material change of his or her position, knew or had reason to know that it was a trade secret when that knowledge of it had been acquired by accident or mistake" (id., subd. (b)(2)(C)).
Acquisition of a trade secret by "`[i]mproper means' includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." (§ 3426.1, subd. (a).) "Reverse engineering or independent derivation alone," however, is not "considered improper means." (Ibid.)
California's trade secret law provides a trade secret owner with several remedies against a misappropriator, including injunctive relief. Indeed, section 3426.2, subdivision (a) expressly states that "[a]ctual or threatened misappropriation may be enjoined." Thus, California law clearly contemplates the use of injunctive relief as a remedy for trade secret misappropriation.
As relevant here, DVD CCA sought and obtained only injunctive relief against Bunner. On review, the Court of Appeal did not examine the trial court's underlying factual findings. Instead, it assumed that these findings justified "injunctive relief in the absence of any free speech concerns" under California's trade secret law. The appellate court, nonetheless, held that the injunction violated Bunner's free speech rights under the First Amendment and reversed.
Because of the unusual procedural posture of this case, we follow the lead of the Court of Appeal and assume as true the trial court findings in support of the preliminary injunction. (Cf. Bartnicki v. Vopper (2001) 532 U.S. 514, 524-525, 121 S.Ct. 1753, 149 L.Ed.2d 787 (Bartnicki) [making certain assumptions about the facts "[b]ecause of the procedural posture of" the case].) Specifically, we accept for purposes of this appeal that DVD CCA is likely to prevail on its claims that (1) the CSS technology and its master keys and algorithms are trade secrets; (2) publication of these trade secrets on the Internet has not destroyed their trade secret status; (3) publication of DeCSS discloses these trade secrets; (4) the creator of DeCSS acquired these trade secrets by improper means; and (5) Bunner knew or had reason to know that DeCSS disclosed trade secrets acquired by improper means.[5] We also assume that DVD CCA will suffer irreparable harm without injunctive relief and that the injunction will cause minimal harm to Bunner. Thus, the narrow question before us is whether the preliminary injunction violates Bunner's right to free speech under the United States and California Constitutions even though DVD CCA is likely to prevail on its trade secret claim against Bunner.
III.
A.
In answering this question, we must first determine whether restrictions *80 on the dissemination of computer codes in the form of DeCSS are subject to scrutiny under the First Amendment. We conclude they are.
"`[A]ll ideas having even the slightest redeeming social importance,' including those concerning `the advancement of truth, science, morality, and arts' have the full protection of the First Amendment." (Junger v. Daley (2000) 209 F.3d 481, 484 (Junger), quoting Roth v. United States (1957) 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498.) "Even dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection." (Corley, supra, 273 F.3d at p. 446.) "[F]or example, courts have subjected to First Amendment scrutiny restrictions on the dissemination of technical scientific information, [citation] and scientific research, [citation] and attempts to regulate the publication of instructions [citation]." (Id. at p. 447, fn. omitted.)
As such, "[i]t cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine." (Reimerdes, supra, 111 F.Supp.2d at p. 326.) "A computer program states or represents a procedure or algorithm in a programming language. The same algorithm could be written in a natural language like English or a programming language like C or LISP, but it remains the same algorithm." (Tien, Publishing Software as a Speech Act (2000) 15 Berkeley Tech. L.J. 629, 633, fn. omitted.) Of course, "[n]ot everyone can understand each of these forms. Only English speakers will understand English formulations. Principally those familiar with the particular programming language will understand the source code expression. And only a relatively small number of skilled programmers and computer scientists will understand the machine readable object code. But each form expresses the same idea, albeit in different ways." (Reimerdes, at p. 326, fn. omitted.) Moreover, "the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information...." (Corley, supra, 273 F.3d at p. 447.) Because computer code "is an expressive means for the exchange of information and ideas about computer programming" (Junger, supra, 209 F.3d at p. 485), "we join the other courts that have concluded that computer code, and computer programs constructed from code can merit First Amendment protection" (Corley, at p. 449; see also Junger, at p. 485; United States v. Elcom Ltd. (N.D.Cal.2002) 203 F.Supp.2d 1111, 1126-1127; Reimerdes, at p. 327.)
B.
"As computer code ... is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated.... But that conclusion still leaves for determination the level of scrutiny to be applied in determining the constitutionality of" an injunction prohibiting the dissemination of computer code.[6] (Reimerdes, supra, 111 F.Supp.2d at p. 327.) In determining the appropriate level of scrutiny, the critical question is whether the injunction is content neutral or content based. (See Madsen v. Women's Health Center (1994) 512 U.S. 753, 762-764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (Madsen); Los Angeles Alliance for Survival v. Los Angeles (2000) 22 Cal.4th 352, 364-365, 93 Cal.Rptr.2d 1, 993 P.2d 334 (Los Angeles Alliance).) Content-based injunctions are *81 subject to "the level of heightened scrutiny set forth in Perry Ed. Assn. [v. Perry Local Educators Assn. (1983)] 460 U.S. [37,] 45 [103 S.Ct. 948]." (Madsen, at pp. 763-764, 114 S.Ct. 2516.) By contrast, content-neutral injunctions are subject to the lesser level of scrutiny set forth in Madsen, supra, 512 U.S. at page 765, 114 S.Ct. 2516. In this case, we conclude that the preliminary injunction issued by the trial court is content neutral and should be reviewed under the standard articulated in Madsen. (See Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1023-1025, 43 Cal.Rptr.2d 88, 898 P.2d 402 (Planned Parenthood II) [reviewing a content-neutral injunction under the Madsen test].)
"Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech `without reference to the content of the regulated speech.'" (Madsen, supra, 512 U.S. at p. 763, 114 S.Ct. 2516, quoting Ward v. Rock Against Racism (1989) 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661.) "[L]iteral or absolute content neutrality" is not necessary. (Los Angeles Alliance, supra, 22 Cal.4th at p. 368, 93 Cal.Rptr.2d 1, 993 P.2d 334.) "The government's purpose is the controlling consideration," and a governmental regulation of speech is only content based if the government adopted the regulation "because of disagreement with the message it conveys." (Ward, at p. 791, 109 S.Ct. 2746.) This is true for "speech cases generally...." (Ibid.) Thus, an injunction "that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." (Ibid.) However, injunctions "that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497.)
Applying this standard, we conclude that the preliminary injunction at issue here is content neutral. The underlying basis for the injunction is the trial court's holding that Bunner misappropriated DVD CCA's property its trade secrets in violation of California's trade secret law. (See Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986, 1003-1004, 104 S.Ct. 2862, 81 L.Ed.2d 815 (Monsanto) [holding that trade secrets are a "property right ... protected by the Taking Clause of the Fifth Amendment"].) In issuing the injunction, the court therefore relied on the fact that DVD CCA made reasonable efforts to keep the information secret (§ 3426.1, subd. (d)(2)), and that DVD CCA received a "competitive advantage over others ... by virtue of its exclusive access to the" information (Monsanto, at p. 1012, 104 S.Ct. 2862). Thus, the injunction singled out Bunner's communications because of DVD CCA's efforts to maintain the secrecy of the CSS technology and the competitive advantage it enjoyed from those efforts and not because of the communications' subject matter or any disagreement with Bunner's message or viewpoint. In other words, the trial court issued the injunction to protect DVD CCA's statutorily created property interest in information and not to suppress the content of Bunner's communications. Because the injunction is justified without reference to the content of Bunner's communications, it is content neutral. (See Bartnicki, supra, 532 U.S. at p. 526, 121 S.Ct. 1753 [finding a statute that singled out communications "by virtue of the fact that they were illegally intercepted ... rather than the subject matter" is content neutral].)
Indeed, the governmental purpose behind protecting trade secrets like *82 the CSS technology through injunctive relief is wholly unrelated to their content. "Trade secret law promotes the sharing of knowledge, and the efficient operation of industry; it permits the individual inventor to reap the rewards of his labor by contracting with a company large enough to develop and exploit it." (Kewanee Oil Co. v. Bicron Corp. (1974) 416 U.S. 470, 493, 94 S.Ct. 1879, 40 L.Ed.2d 315 (Kewanee).) The law also maintains important standards of commercial ethics. (Id. at p. 481, 94 S.Ct. 1879.) Assuming, as we do, that the trial court properly applied California's trade secret law, the preliminary injunction necessarily serves the broader governmental purpose behind the law. Because the injunction does not purport to restrict DVD CCA's trade secrets based on their expressive content, the injunction's restrictions on Bunner's speech "properly are characterized as incidental to the primary" purpose of California's trade secret law which is to promote and reward innovation and technological development and maintain commercial ethics. (San Francisco Arts & Athletics, Inc. v. United States Olympic Com. (1987) 483 U.S. 522, 536, 107 S.Ct. 2971, 97 L.Ed.2d 427 (SFA & A).)
The fact that the preliminary injunction identifies the prohibited speech by its content does not make it content based. "An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group's past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public." (Madsen, supra, 512 U.S. at p. 762, 114 S.Ct. 2516.) In this case, the specific deprivation to be remedied is the misappropriation of a property interest in information. (See § 3426.1, subd. (d) ["`Trade secret' means information"]; Beckerman-Rodau, Prior Restraints and Intellectual Property: The Clash Between Intellectual Property and the First Amendment from an Economic Perspective (2001) 12 Fordham Intell. Prop. Media & Ent. L.J. 1, 60 (Prior Restraints and Intellectual Property) ["Like other types of intellectual property, a trade secret is information or knowledge that is commercially valuable" (fn. omitted)].) Thus, any injunction remedying this deprivation must refer to the content of that information in order to identify the property interest to be protected. Such an injunction remains content neutral so long as it serves significant governmental purposes unrelated to the content of the proprietary information. (See SFA & A, supra, 483 U.S. at pp. 536-537, 107 S.Ct. 2971 [finding that an injunction that specifically prohibits the defendant's use of the word "Olympic" is content neutral because its restrictions serve "the primary congressional purpose of encouraging and rewarding the [United States Olympic Committee's] activities"].) Because the preliminary injunction at issue here does not "involve government censorship of subject matter or governmental favoritism among different viewpoints," it is content neutral and not subject to strict scrutiny. (Los Angeles Alliance, supra, 22 Cal.4th at p. 377, 93 Cal.Rptr.2d 1, 993 P.2d 334.)
Bartnicki, supra, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787, does not mandate a different conclusion. Bartnicki addressed the constitutionality of several statutes, including title 18 United States Code section 2511(1)(c) which punished the disclosure of illegally intercepted communications. (Bartnicki, at p. 520, fn. 3, 121 S.Ct. 1753.) Although the majority observed that a *83 "naked prohibition [like title 18 United States Code section 2511(1)(c)] against disclosures is fairly characterized as a regulation of pure speech" (Bartnicki, at p. 526, 121 S.Ct. 1753), it did not conclude that such a prohibition should be subject to strict scrutiny. Indeed, the Bartnicki majority never expressly identified the level of scrutiny it applied. (Smolla, Information as Contraband: The First Amendment and Liability for Trafficking in Speech (2002) 96 Nw. U. L.Rev. 1099, 1118 (Information as Contraband) ["Astonishingly, at no point in Justice Steven's opinion does the Court come right out and say what standard of review or doctrinal test it is applying to the laws before it"].) In any event, five justices in Bartnicki endorsed the application of a lesser standard even though the statute arguably prohibited "pure speech." (See Bartnicki, supra, 532 U.S.