I concur in the majority’s narrow holding, which, as I understand it, is that the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets. I further agree that the First Amendment requires independent appellate review of such preliminary injunctions, rather than the deferential review usually accorded such injunctions. I write separately for two reasons. First, I believe there is a need to clarify how the prior restraint doctrine under the First Amendment applies to the publication of alleged trade secrets. Second, I would forgo further proceedings in the Court of Appeal and simply affirm that court’s judgment. In my view, the DVD Copy Control Association’s (DVD CCA) trade secret claim against Bunner is patently without merit for the reasons explained below.
I.
I agree with the majority that computer code is a form of speech under the First Amendment. “Because computer code ‘is an expressive means for the exchange of information and ideas about computer programming’ [citation], ‘we join the other courts that have concluded that computer code, and computer programs constructed from code can merit First Amendment protection.’ ” (Maj. opn., ante, at p. 876.)
I also agree with the majority that the doctrine of prior restraint is not a model of clarity, and that the definitions of and justifications for the doctrine do not constitute a coherent doctrinal unity. (See Tribe, American Constitutional Law (2d ed. 1988) pp. 1039-1042 [noting that the “prior” in prior restraint can mean both prior to publication and prior to the full adjudication of the merits].) But the majority correctly identifies one of the meanings of and reasons for the prohibition against prior restraint, quoting Pittsburgh Press Co. v. The Pittsburgh Commission on Human Relations (1973) 413 U.S. 376, 390 [37 L.Ed.2d 669, 93 S.Ct. 2553] (Pittsburgh Press Co.): “ ‘The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.’ ” (Maj. opn., ante, at p. 886.) Thus, a preliminary injunction poses a danger that permanent injunctive relief does not: that potentially protected speech *892will be enjoined prior to an adjudication on the merits of the speaker’s or publisher’s First Amendment claims. Pittsburgh Press Co. recognized as much when affirming an order prohibiting sex discrimination in a newspaper’s classified ads: “[B]ecause no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.” (Pittsburgh Press Co., supra, 413 U.S. at p. 390; see also Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases (1998) 48 Duke L.J. 147, 158-164, 216-224 (Lemley & Volokh) [arguing that an important purpose of the prior restraint doctrine should be curtailing premature censorship of potentially protected speech through preliminary injunctions]; Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory (1984) 70 Va. L.Rev. 53, 87-88 (Redish) [arguing that the prior restraint doctrine recognizes that interim equitable relief poses a particular danger to First Amendment rights].)
The same distinction was recognized by this court in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 138 [87 Cal.Rptr.2d 132, 980 P.2d 846] (Aguilar), upholding a permanent injunction enjoining the use of certain racial epithets in the workplace. The Aguilar plurality quoted approvingly from Auburn Police Union v. Carpenter (1st Cir. 1993) 8 F.3d 886, 903, which upheld a statute prohibiting charitable solicitation for the benefit of law enforcement agencies: “ ‘Although the classic form of prior restraint involves an administrative licensing scheme [citation], a judicial injunction that prohibits speech prior to a determination that the speech is unprotected also constitutes a prior restraint. [Citation.] . . . An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint.’ ” (Aguilar, supra, 21 Cal.4th at p. 141, italics added.)
The present case involves a preliminary injunction issued prior to “a final adjudication on the merits that the speech is unprotected.” Hence, the danger posed by prior restraint is present. In general, a prior restraint comes with a “ ‘heavy presumption’ against its constitutional validity.” (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 [29 L.Ed.2d 1, 91 S.Ct. 1575].)
The majority at one point seems to suggest that the bar against prior restraint never applies to trade secret publication cases if a court has made a preliminary finding that a defendant’s prior conduct has been unlawful. It generalizes that the United States Supreme Court “has declined to apply prior restraint analysis to a permanent injunction (Madsen [v. Women’s Health Center (1994)] 512 U.S. [753,] 763, fn. 2) and a preliminary injunction (Schenck v. Pro-Choice Network of Western New York (1997) 519 U.S. 357, *893374, fn. 6 [137 L.Ed.2d 1, 117 S.Ct. 855] (Schenck)) ‘issued not because of the content of petitioners’ expression . . . but because of their prior unlawful conduct’ (Madsen, at p. 763, fn. 2; see also Schenck, at p. 374, fn. 6).” (Maj. opn., ante, at pp. 886-887.) The majority concludes: “The injunction [in this case] is content neutral . . . , and the trial court found that Bunner had previously disclosed DVD CCA’s trade secrets in violation of California law. The court therefore issued the content-neutral injunction because of Burner’s ‘prior unlawful conduct.’ (Madsen, supra, 512 U.S. at p. 763, fn. 2.) Although the court made its finding of prior unlawful conduct in the context of a preliminary injunction and found only that DVD CCA was likely to succeed on the merits, this finding is sufficient to render inapplicable the heavy presumption against prior restraints. (See Schenck, supra, 519 U.S. at p. 374, fn. 6 [refusing to apply prior restraint analysis to a preliminary injunction because the injunction was content neutral and directed at prior unlawful conduct].)” (Maj. opn., ante, at p. 887.)
The majority’s analysis of the above cited cases is incomplete. A closer reading of these cases reveals that the United States Supreme Court declined to apply prior restraint analysis not simply because those cases concerned findings of past unlawful conduct, but also because they did not involve censorship of speech but merely limits on its time, place and manner. For example, footnote 2 of Madsen, on which the majority relies, states that prior restraint is not applicable because “petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone. Moreover, the injunction was issued not because of the content of petitioners’ expression . . . but because of their prior unlawful conduct.” (Madsen, supra, 512 U.S. at p. 763, fn. 2.) Schenck, supra, 519 U.S. at page 374, footnote 6, also emphasizes both reasons: “[Alternative channels of communication were left open to the protesters, and ‘the injunction was issued not because of the content of [the protesters’] expression, . . . but because of their prior unlawful conduct.’ ”
Our opinion in Planned Parenthood Shasta-Diablo, Inc. v. Williams (1994) 7 Cal.4th 860 [30 Cal.Rptr.2d 629, 873 P.2d 1224], also cited in support of the majority’s position, highlights the locational nature of the injunction, in rejecting the applicability of prior restraint analysis: “[Petitioners’ claim that the injunction operates as an unconstitutional ‘prior restraint’ on protected speech must fail. A prior restraint is a content-based restriction on speech prior to its occurrence. [Citation.] Valid time, place and manner restrictions which do not functionally prohibit all means of communication are not prior restraints.” (Id. at p. 871, fn. omitted.)
In Thomas v. Chicago Park District (2002) 534 U.S. 316 [151 L.Ed.2d 783, 122 S.Ct. 775], also cited by the majority, the court upheld a facial *894challenge to a municipal park ordinance that required a permit for a more-than-50-person event. The court rejected the argument that it was an invalid prior restraint similar to an administrative licensing scheme designed to promote censorship, holding that a licensing scheme did not need to “contain certain procedural safeguards in order to avoid constituting an invalid prior restraint” because the scheme was “not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum.” (Id. at pp. 321-322.)
The preliminary injunction in this case is subject-matter censorship entirely prohibiting Bunner from publishing a particular type of information related to the DVD CCA’s content scrambling system (CSS) and the descrambling program (DeCSS), not a content-neutral time, place, and manner regulation. (See also Oregon ex rel. Sports Mgmt. News v. Nachtigal (Or. 1996) 324 Ore. 80 [921 P.2d 1304, 1308] [law requiring court approval of publication of alleged trade secrets is directed at a “specific subject of communication, excluding some speech based on the content of the message” and is an unlawful prior restraint].) If the alleged trade secret is not in fact a trade secret, then the court will be enjoining protected speech. A preliminary injunction issued prior to an adjudication on the merits would therefore pose the precise danger of prior restraint identified in Pittsburgh Press Co., i.e., “the special vice . . . that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.’ ” (Pittsburgh Press Co., supra, 413 U.S. at p. 390; see also Lemley & Volokh, supra, 48 Duke L.J. at pp. 169-172; Redish, supra, 70 Va. L.Rev. at p. 88.) But that particular “special vice” would not threaten in the case of time, place, and manner restrictive injunctions or ordinances, where speech is not being entirely suppressed; instead, the special vice of those regulations is that their restrictions may be stricter than needed to accomplish the government objective. (See Madsen, supra, 512 U.S. at pp. 765-766.)1
*895But concluding that prior restraint analysis applies in the case of preliminary injunctions of alleged trade secret publications is not the same as concluding that all such injunctions are prohibited. Both the United States Supreme Court and this court have recognized that the First Amendment right to free expression may be legitimately circumscribed by state law intellectual property rights. (See Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669-670 [115 L.Ed.2d 586, 111 S.Ct. 2513] [newspaper’s right to publish limited by confidentiality agreement enforceable under state contract law]; Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562 [53 L.Ed.2d 965, 97 S.Ct. 2849] [upholding right of publicity against having performance misappropriated by television broadcast]; Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396 [106 Cal.Rptr.2d 126, 21 P.3d 797] [upholding right of publicity against literal depictions of celebrities].) Trade secret law is an indisputably important means of protecting a certain form of intellectual property for the benefit of society as a whole. (See Kewanee Oil Co. v. Bicron Corp. (1974) 416 U.S. 470, 481, 493 [40 L.Ed.2d 315, 94 S.Ct. 1879]; maj. opn., ante, at p. 878.) As the majority correctly recognizes, “trade secret law creates a property right ‘defined by the extent to which the owner of the secret protects his interest from disclosure to others.’ ” (Maj. opn., ante, at p. 880, quoting Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986, 1002 [81 L.Ed.2d 815, 104 S.Ct. 2862].) Because the very existence of a trade secret is destroyed by its disclosure, a categorical inability by trade secret holders to obtain preliminary injunctive relief against the publication of trade secrets could significantly undermine their property rights. (See Garth v. Staktek Corp. (Tex.App. 1994) 876 S.W.2d 545, 550 [preliminary injunction necessary “to provide meaningful legal protection” to trade secret holders].) In this respect, a trade secret plaintiff differs, for example, from defamation plaintiffs who may rectify damages to their reputation not only with monetary damages but also through the rehabilitation of their reputation with additional speech and publication. Furthermore, as the majority suggests, the fact that publication of most trade secrets does not *896address matters of publicconcern is a factor that may somewhat lighten the heavy presumption against the constitutional validity of a prior restraint.
The question, then, is how should a court balance First Amenclment protections with an alleged trade secret holder’s property rights when asked to issue a preliminary injunction against publication? The answer lies in requiring the plaintiff to make a sufficient evidentiary showing before the injunction is granted.
The majority recognizes that a preliminary injunction against the disclosure of an alleged trade secret without sufficient evidentiary support is an unlawful prior restraint. As it states in discussing Bridge C.A.T. Scan Associates v. Technicare Corp. (2d Cir. 1983) 710 F.2d 940: “[T]he Second Circuit Court of Appeals invalidated an injunction prohibiting the plaintiff from disclosing trade secrets contained in an exhibit to its complaint. In finding that the injunction was an invalid prior restraint, the court concluded that there was no evidence the plaintiff had acquired the defendant’s trade secrets by improper means or that the secrets were not publicly available. [Citation.] In this decision, however, we assume that Bunner misappropriated protectable trade secrets.” (Maj. opn., ante, at pp. 887-888.) In its discussion of CBS Inc. v. Davis (1994) 510 U.S. 1315 [127 L.Ed.2d 358, 114 S.Ct. 912], the majority also distinguishes it from the present case in part because “Justice Blackmun, in finding a prior restraint, relied on the lack of clear evidence establishing that CBS had acquired [the plaintiff’s] proprietary information by improper means.” (Maj. opn., ante, at p. 887.) Implicit in these statements is the assumption that a preliminary injunction of a trade secret publication without the requisite evidence in support would be an unlawful prior restraint.
I agree, but this conclusion raises the question of what evidentiary showing a plaintiff should be required to make in order to overcome the presumption against a prior restraint. Ideally, the required showing for granting preliminary injunctions would separate meritorious trade secret claims from those involving protected speech. A court is to grant a preliminary injunction only if it finds a “ ‘likelihood that the plaintiff will prevail on the merits at trial’ ” as well as that the interim balance of harms favors the plaintiff. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 [219 Cal.Rptr. 467, 707 P.2d 840].) But in reality, courts are accorded a great deal of leeway in deciding whether to grant such injunctions. “ ‘ “[By] balancing the respective equities of the parties, [the trial court] concludes that, pending a trial on the merits, the defendant should or . . . should not be restrained from exercising the right claimed by him.” ’ [Citation.] [][]... Generally, the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a showing that it has been abused.” (Ibid.) A trial court may grant a preliminary *897injunction based only on a showing that “the questions of law or fact are grave and difficult,” and the balance of harms favors plaintiff. (Wilms v. Hand (1951) 101 Cal.App.2d 811, 815 [226 P.2d 728].)
In my view, the need to safeguard the First Amendment right against prior restraint, while not barring trade secret holders from obtaining preliminary injunctions, requires that we make the standard for granting such injunctions more rigorous. As Professor Redish has stated: “[Bjecause such prior restraints are imposed by a judicial officer following some form of adversarial judicial process, the heavy negative presumption traditionally associated with the prior restraint doctrine is inappropriate. Nevertheless, because prior restraints are issued following only an abbreviated judicial inquiry, they are properly employed only if the asserted governmental interest could not be adequately protected by regulation following a full adversarial trial and only if the court determines that a strong likelihood exists that the government will be able to establish that the challenged expression is regulable under substantive first amendment standards. . . . The traditional equitable principle that the issuance of such preliminary relief is largely a matter of the court’s discretion . . . would have to change. Such broad discretion is not consistent with first amendment concerns, and any court issuing such preliminary relief against expression should expect no deference in the course of appellate review.” (Redish, supra, 70 Va. L.Rev. at pp. 88-89, fns. omitted.)
A preliminary injunction in the case of an alleged trade secret publication may be appropriate because the trade secret holder’s property rights “could not be adequately protected by regulation following a foil adversarial trial.” (Redish, supra, 70 Va. L.Rev. at p. 88.) But when a publication presumptively protected by the First Amendment is alleged to contain trade secrets, the broad discretion usually granted trial courts in these matters should be, while not eliminated entirely, considerably narrowed. A mere showing that the questions of law or fact are grave and difficult would be insufficient to warrant a preliminary injunction. Rather, a plaintiff should be required to actually establish a likelihood of prevailing on the merits, regardless of the balance of harms.
The majority, as I understand it, implicitly acknowledges this heightened standard when it holds, based on general First Amendment principles, that a trial court’s determination in these cases would be subject to independent appellate review. As the majority states: “[T]he Court of Appeal must . . . ‘make an independent examination of the entire record’ (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499 [80 L.Ed.2d 502, 104 S.Ct. 1949]), and determine whether the evidence in the record supports the factual findings necessary to establish that the preliminary injunction was warranted under California’s trade secret law.” (Maj. opn., ante, at p. 890.) *898The First Amendment’s requirement that appellate courts make an independent examination of the whole record is designed to “make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” (Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. 499.) Accordingly, an appellate court must overturn the issuance of a preliminary injunction against a publication allegedly containing trade secrets if it finds, on its own examination of the record, no likelihood that the trade secret holder will prevail on the merits. Otherwise, such independent appellate review would be devoid of meaning.
In sum, a preliminary injunction on speech issued without a credible determination that plaintiff will prevail on the merits is a quintessential case of suppressing speech “ ‘before an adequate determination that it is unprotected by the First Amendment’ ” (Pittsburgh Press Co., supra, 413 U.S. at p. 390) and would therefore be an unlawful prior restraint. Unlike the Court of Appeal, however, I would hold that when the alleged trade secret holder bringing an action against a trade secret publisher or would-be publisher actually establishes both a likelihood that it will prevail on the merits, and that the balance of harms is in its favor, the issuance of a preliminary injunction would be an appropriate means of preserving the secrecy that is the essence of plaintiff’s property interest, subject to independent appellate review. Because the majority arrives at essentially the same conclusion, albeit by a different analytical path, I concur in its holding.2
II.
As we recently reaffirmed: “ ‘[Bjecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable.’ ” (Winter v. DC Comics (2003) 30 Cal.4th 881, 891 [134 Cal.Rptr.2d 634, 69 P.3d 473].) Undertaking independent review, I conclude, as a matter of law, that there is no likelihood that the DVD CCA would prevail on the merits. There is therefore no need to remand to the Court of Appeal for further proceedings. The unnecessary delay in resolving this litigation can only further burden speech protected by the First Amendment.
As explained in the majority opinion, Bunner is alleged to have downloaded from the Internet and republished the DeCSS source code incorporating CSS, the DVD CCA’s proprietary information. The general rule is that *899“[o]nce the secret is out, the rest of the world may well have a right to copy it at will; but this should not protect the misappropriator or his privies.” (Underwater Storage, Inc. v. United States Rubber Co. (D.C. Cir. 1966) 371 F.2d 950, 955.) DeCSS was not demonstrably secret in this case when Bunner republished it, and Bunner was neither alleged to be the original misappropriator nor to be in privity with any such misappropriators.
Civil Code section 3426.1, subdivision (d) defines “trade secret” as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [1] (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 [f] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” A legislative committee comment further states: “The language ‘not being generally known to the public or to other persons’ does not require that information be generally known to the public for trade secret rights to be lost. If the principal person who can obtain economic benefit from information is aware of it, there is no trade secret. A method of casting metal, for example, may be unknown to the general public but readily known within the foundry industry.” (Legis. Com. com., 12A pt.1 West’s Ann. Civ. Code (1997 ed.) foll. Civ. Code, § 3426.1, p. 239 (Legislative Committee Comment).)
The Legislative Committee Comment further explains the original draft defined a trade secret in part as “not being readily ascertainable by proper means” and that “the assertion that a matter is readily ascertainable by proper means remains available as a defense to a claim of misappropriation. [I] Information is readily ascertainable if it is available in trade journals, reference books, or published materials.” (Legis. Com. com., 12A pt. 1 West’s Ann. Civ. Code, supra, foll. Civ. Code, § 3426.1, p. 239.)
Therefore, had Bunner obtained DeCSS information from a computer magazine or a newspaper, the information would be considered “readily ascertainable” and not a trade secret. Instead, he learned of DeCSS from a computer discussion group and downloaded it from a Web site on the Internet. The date of Bunner’s initial posting is unclear from the record, and the availability of DeCSS on the Internet at the time of the posting is also not clear. The DVD CCA’s attorney declared that at the time the complaint against Bunner and others was filed in December 1999, approximately two months after the initial posting, at least 118 Web sites had been identified that either contained proprietary information related to CSS or provided links to other Web sites with such information. How can information published in a computer magazine be regarded as “readily ascertainable” but not information *900published on numerous Web sites? Nor is it at ail clear that information published in a trade journal would have greater permanency than information published on the Internet.3
Courts that have considered the matter have agreed that, generally speaking, a party not involved in the initial misappropriation of a trade secret cannot be prosecuted under trade secret law for downloading and republishing proprietary information posted on the Internet, primarily because the information is in the public domain and is no longer secret. (Religious Technology Center v. Netcom On-Line Communications Services, Inc. (N.D.Cal. 1995) 923 F.Supp. 1231; Religious Technology Center v. Lerma (E.D.Va. 1995) 908 F.Supp. 1362; Religious Technology Center v. F.A.C.T.NET, Inc. (D.Colo. 1995) 901 F.Supp. 1519.) This conclusion is also consistent with the principle that the First Amendment generally prohibits limitations, absent some extraordinary showing of governmental interest, on the publication of information already made public. (The Florida Star v. B.J.F. (1989) 491 U.S. 524 [105 L.Ed.2d 443, 109 S.Ct. 2603] [state could not punish publication of name of sexual offense victim lawfully acquired]; Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [61 L.Ed.2d 399, 99 S.Ct. 2667] [newspapers could not be punished for publishing the name of a juvenile charged with an offense, lawfully obtained by monitoring police radio transmissions]; Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829 [56 L.Ed.2d 1, 98 S.Ct. 1535] [invalidating criminal sanctions against third party that published report of judicial review commission]; Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 491 [43 L.Ed.2d 328, 95 S.Ct. 1029] [state could not forbid or punish the publication of the name of a rape victim obtained from public records].) Furthermore, Internet speech and publication are fully protected by the First Amendment. (Reno v. ACLU (1997) 521 U.S. 844, 870 [138 L.Ed.2d 874, 117 S.Ct. 2329].) Thus, both trade secret law and the First Amendment are in accord that information republished on the Internet after having been made public on the Internet generally cannot be sanctioned.
The trial court, in preliminarily concluding that the trade secret was not lost, stated: “Plaintiffs moved expeditiously, reasonably and responsibly to protect their proprietary information as soon as they discovered it had been disclosed by investigating, sending cease and desist letters all over the world and then filing suit against those who refused within two months of the *901disclosure.” But under Civil Code section 3426.1, subdivision (d), the question whether the information in question “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy” is separate from the question whether the information is “not. . . generally known to the public or to other persons who can obtain economic value from its disclosure or use.” In order to claim the existence of the trade secret, both conditions must be present. Therefore, even when a trade secret holder acts with perfect diligence, it has no action against the republisher of no-longer-secret information who does not act in privity with the original misappropriator. (See Religious Technology Center v. Lerma, supra, 908 F.Supp. 1362, 1368 [information posted on the Internet for 10 to 12 days no longer a trade secret].)
That is not to say that a trade secret is automatically lost any time it is posted on the Internet. Amici curiae Intellectual Property Law Professors et alia argue, for example, that information posted on an obscure Internet site and detected quickly should not lose trade secret status. This position is consistent with case law holding that minor disclosures of a trade secret followed by a brief delay in withdrawing it from the public domain do not cause trade secret status to be lost. (Hoechst Diafoil Co. v. Nan Ya Plastics Corp. (4th Cir. 1999) 174 F.3d 411, 418 [recognizing as well established that the required secrecy is relative rather than absolute]; Gates Rubber Co. v. Bando Chemical Indus., Ltd. (10th Cir. 1993) 9 F.3d 823, 849.) But a plaintiff carries the burden of showing that the trade secret remains a secret despite the Internet posting. In the present case, nothing in the record indicates that the DVD CCA met that burden. In fact, the trial court failed to make any particularized findings at all that the information was still secret when Bunner republished it, instead treating the 20 or so defendants as a class and making general statements that these defendants had published secret information. Without evidence in the record that the proprietary information was still secret at the time Bunner downloaded it from the Internet, the DVD CCA cannot sustain its burden of demonstrating a likelihood of prevailing on the merits.4
III.
In sum, the DVD CCA has failed to establish that the information Bunner republished was still secret at the time he republished it on his Web site.5
*902It is likely that the trial court’s view of this case was colored by the information that DeCSS is designed to circumvent the encryption of DVD’s. But the fact that the information at issue is being used for a decrypting purpose is not significant from the standpoint of trade secret law. (See Chicago Lock Co. v. Fanberg (9th Cir. 1982) 676 F.2d 400 [overturning trade secret injunction against publication of key codes for tubular locks by two locksmiths who acquired codes properly by reverse engineering].) It may or may not be the case that Bunner’s action violated the Digital Millennium Copyright Act (DMCA) (17 U.S.C. § 1201), which explicitly prohibits various efforts to circumvent “technological measures that effectively control access” to copyrighted works (id., § 1201 (a)(1)(E), (2)(A)). Unlike trade secret law, the DMCA does not inquire into whether technology-circumventing devices are acquired by improper means or are based on secret information, but rather considers whether the primary purpose of those devices was improper. (Ibid.; see Universal City Studios, Inc. v. Corley (2d Cir. 2001) 273 F.3d 429, 440-441.) DVD CCA’s complaint did not allege a violation of the DMCA and that issue is not before us. All I would decide is that it is manifest from the record that the DVD CCA did not establish a likelihood of prevailing on its trade secret claim.
Therefore, I conclude that the trial court’s preliminary injunction against Bunner was an unlawful prior restraint. Accordingly, instead of remanding to the Court of Appeal for further proceedings, I would affirm its judgment on the alternate grounds stated above.
Appellant’s petition for a rehearing was denied October 15, 2003, and the opinion was modified to read as printed above. Kennard, J., Baxter, J., and Chin, J., did not participate therein.
In further support of its claim that the prior restraint doctrine does not apply, the majority quotes without discussion the statement in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. (2d Cir. 1979) 604 F.2d 200, 206, that “[t]his is not a case of government censorship, but a private plaintiff’s attempt to protect its property rights.” If this dictum is supposed to convey that the prior restraint doctrine applies only to official government censorship and not to injunctions issued in the course of litigation between private parties, then it is simply untrue. (See Metropolitan Opera Association, Inc. v. Local 100, Hotel & Restaurant Employees International Union (2d Cir. 2001) 239 F.3d 172, 176 [preliminary injunction against publication an unlawful prior restraint in private defamation actions].) Nor is it at all clear that the prior restraint doctrine does not apply whenever a plaintiff claims its intellectual property rights are being violated.
It should also be noted that the Court of Appeal properly rejected the DVD CCA’s reliance on copyright cases in arguing that preliminary injunctions should be routinely granted. As the Court of Appeal stated: “Protections for trade secrets ... are not comparable to protections for copyrights with respect to the First Amendment. First, since both the First Amendment and the constitutional authority underlying the Copyright Act are contained in the United States *895Constitution, the resolution of a conflict between free speech and copyright involves a delicate balancing of two federal constitutional protections. Article I of the United States Constitution explicitly grants Congress the power ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ (U.S. Const., art. I, § 8.) The [Uniform Trade Secrets Act], on the other hand, lacks any constitutional foundation. ...[][] Second, injunctions in copyright infringement cases have been upheld ‘on the ground that First Amendment concerns are protected by and coextensive with the [Copyright Act’s] fair use doctrine.’ (Nihon Keizai Shimbun, Inc. v. Comline Business Data (2d Cir. 1999) 166 F.3d 65, 74.) The ‘fair use’ exception permits copying and use of a copyrighted work ‘for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research’ under certain circumstances. (17 U.S.C. § 107.) It ‘offers a means of balancing the exclusive rights of a copyright holder with the public’s interest in dissemination of information affecting areas of universal concern, such as art, science and industry.... In contrast, the UTSA contains no exception for ‘fair use’ or any other vehicle for safeguarding First Amendment concerns.”
I note that the above standard applies only when there is no indication that the trade secret involves matters of public concern, as in the present case. As the majority suggests, when public concern is implicated, the burden of overcoming the presumption against prior restraint would be substantially higher. (See New York Times v. United States (1971) 403 U.S. 713 [29 L.Ed.2d 822, 91 S.Ct. 2140].)
I note that since the time the preliminary injunction went into effect, it appears that the DVD CCA’s proprietary information has been widely distributed. According to several uncontradicted declarations attached to Bunner’s motion to dismiss for mootness, filed in this court on February 7, 2003, DeCSS remains available at hundreds of locations on the Internet. Moreover, CSS and its algorithms and keys have been the subject of extensive academic research and discussion, including technical papers describing and analyzing CSS, and computer science courses in which the methods and flaws of CSS encryption are taught.
Moreover, in assessing the balance of harms, the trial court neglected to consider the harm to Bunner’s First Amendment rights. (See American Booksellers Association, Inc. v. Superior Court (1982) 129 Cal.App.3d 197, 206 [181 Cal.Rptr. 33].)
I also note that it is highly doubtful the alleged trade secret was acquired by improper means within the meaning of the trade secret law. Civil Code section 3426.1, subdivision (a), defining “improper means,” states “[r]everse engineering . . . alone shall not be considered improper means.” Apparently the word “alone” refers to the fact that the item reverse engineered would have to be obtained “by a fair and honest means, such as purchase of the *902item on the open market for reverse engineering to be lawful.” (Legis. Com. com., 12A pt. 1 West’s Ann. Civ. Code, supra, foll. Civ. Code, § 3426.1, p. 238, quoting Rest. Torts § 757, com. f.) According to the allegations of the complaint, the alleged initial misappropriator of CSS, Jon Johansen, acquired the secret through reverse engineering. There is no allegation that he acquired the product containing CSS unlawfully, and that therefore improper means were employed. The DVD CCA argument below that violation of a “click license” agreement prohibiting reverse engineering constituted the improper means does not appear to have merit. To be sure, contract plays an important role in trade secret law by protecting the trade secret holder against “unauthorized use or disclosure through a contract with the recipient of a disclosure” or others who have had special access to trade secret information, via confidentiality agreements and the like. (Rest.3d Unfair Competition, § 41, com. d, p. 471, italics added.) But nowhere has it been recognized that a party wishing to protect proprietary information may employ a consumer form contract to, in effect, change the statutory definition of “improper means” under trade secret law to include reverse engineering, so that an alleged trade secret holder may bring an action even against a nonparty to that contract. Moreover, if trade secret law did allow alleged trade secret holders to redefine “improper means” to include reverse engineering, it would likely be preempted by federal patent law, which alone grants universal protection for a limited time against the right to reverse engineer. (See Bonito Boats, Inc. v. Thunder Craft Boats, Inc. (1989) 489 U.S. 141, 155 [103 L.Ed.2d 118, 109 S.Ct. 971].)