It found that the preliminary injunction did not violate the free speech clauses and remanded for the Appellate Court to "make an independent examination of the entire record" to determine whether there was misappropriation of trade secret.
Finally, on February 27, 2004, the California Court of Appeal for the Sixth District concluded that the CSS technology had lost its trade secret status.
It was originally written to enable Linux systems to play DVDs, and it uses encryption keys that were obtained by reverse engineering existing DVD players.
It was posted on a website by Jon Johansen, one of the original authors, and both the source code and the binary image of the program spread quickly, in part due to an article by Slashdot.
The central issue was whether the injunction violated Bunner's right to free speech assuming DVD CCA likely had a valid trade secret claim.
[2] 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".
[3] The Electronic Frontier Foundation, which was "thrilled" by the Court of Appeal's final decision, praised it as a vindication of "what we have long said"—the fact that DeCSS "has been available on thousands of websites around the world for many years".
[Bunner's attorneys] are arguing that you can't issue injunctions under First Amendment, and we think that is contrary to the way laws have been interpreted for the past 200 years", said Jeffrey Kessler, a partner at Weil, Gotshal & Manges.
He stated that First Amendment protections needed to be balanced against the theft and distribution of intellectual property, as well as the DVD CCA's optimism regarding a ruling in their favor, and that the organization would appeal to the U.S. Supreme Court should the decision go the other way.