[dvd-announce] Second Circuit asks First Amendment questions for DeCSS post-hearing brief

[Wendy Seltzer <wendy@seltzer.com>]

In an unusual move, the Second Circuit has asked the parties to Universal 
v. Reimerdes to respond to 11 questions, focused closely on the First 
Amendment concerns Dean Sullivan raised at oral argument for 2600.  I would 
take this as an indication that the judges are seriously considering 2600's 
First Amendment arguments -- that DeCSS code is protected speech and the 
DMCA's anticircumvention provision cannot constitutionally prohibit its 
publication and dissemination.  The questions ask for clarification on many 
points raised by the EFF and amici in earlier briefing.

In addition, the EFF and Cryptome now have transcripts of May 1's oral 
arguments, which the Court allowed to run well beyond 
schedule.  <http://cryptome.org/mpaa-v-2600-caa.htm> or 
<http://www.eff.org/IP/Video/MPAA_DVD_cases/20010501_ny_hearing_transcript.html> 
2600 has audio recordings at <http://www.2600.com/news/display.shtml?id=397>

If you're interested in brainstorming these questions further, join Openlaw 
participants in the TWiki web, 
<http://cyber.law.harvard.edu/twiki/bin/view/Openlaw/SupplementalBriefs>, an 
editable set of web pages you can post to directly.  (Use this link to 
register: <http://cyber.law.harvard.edu/twiki/bin/view/TWiki/TWikiRegistration>)

The parties and government have been given until May 30 to file 25-page 
briefs addressing the questions below.  (thanks to Arnold Reinhold for the 
transcription):

1. Are the anti-trafficking provisions of the Digital Millennium Copyright 
Act content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y. 2000).

2. Does DeCSS have both speech and non-speech elements?

3. Does the dissemination of DeCSS have both speech and non-speech elements?

4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and 
non-speech elements?

5. Does the existence of non-speech elements, along with speech elements, 
in an activity sought to be regulated alone justify intermediate level 
scrutiny?

6. If DeCSS or its dissemination or its use to decrypt has both speech and 
non-speech elements and is not subject to intermediate level scrutiny 
simply because of the non-speech elements, is intermediate level scrutiny 
appropriate because of the close causal link between dissemination of DeCSS 
and its improper use? See 111 F. Supp. 2d at 331-32.

7. If the District Court is correct that the dissemination of DeCSS 
"carries very substantial risk of imminent harm," 111 F. Supp. 2d at 332, 
does that risk alone justify the injunction? In other words, does that risk 
satisfy the requirements for regulating speech under Brandenburg v. Ohio, 
395 U.S. 444 (1969), thereby rendering unnecessary an inquiry as to whether 
non-speech elements of DeCSS or its dissemination or its use (if such 
exists) may be regulated under United States v. O'Brien, 391 U.S. 367 (1968)?

8. Are the three criteria identified at 111 F. Supp. 2d 333 the correct 
criteria for determining the validity, under intermediate level scrutiny, 
of the use of DeCSS that has been enjoined?

9. If not, what modification or supplementation would be required to 
conform to First Amendment requirements?

10. Are the three criteria identified at 111 F. Supp. 2d 341 and the "clear 
and convincing evidence" standard the correct criteria and the correct 
standard of proof for testing the validity of the injunction's prohibition 
of posting on the defendant's website and of linking?

11. If not, what modification or supplementation would be required to 
conform to First Amendment requirements?

--
Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html