Re: [dvd-discuss] apeals court ruling

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

"D. C. Sessions" writes:

: On Wednesday 28 November 2001 21:58, you wrote:
: 
: > It's all so depressing.
: 
: Look on the bright side.  The 2nd Circuit is directly opposed
: to the 9th on this, which almost certainly means Supreme
: Court review.  If the 2nd had wriggled out of a direct conflict
: in this one, we might have had a tangle of case law that
: *in* *effect* removed First Amendment protection for the
: written word, but did it in roundabout fashion.  By the time
: the USSC got into the act, the secondary effects would be
: well-established beyond reversal.

There is no conflict in the circuits.  The 9th Circuit opinion
in Bernstein was withdrawn.  The 2d Circuit agreed with the 6th
Circuit in Junger that computer programs are protected by the 
First Amendment, and the 6th Circuit never decided what the
standard of review should be.

On the other hand, if worse comes to worse and this is the end
of the road for the Remierdes case---which I doubt---the decision
only applies to the defendant in Remierdes.  Since it seems to 
turn on the ``fact'' that one can run DeCSS by clicking on an icon,
any case where there is a version of the code that requires one to
use the command line should be clearly distinguishable.  And there
are going to be lots of distinctions that may be more significant
than that one.

The case decision gives strong support to the proposition that all
forms of code are protected by the First Amendment, and its factual
basis for applying intermediate scrutiny is so wrong that it
is not going to be that much of a precedent on that point.
Moreover, at a quick reading at least, it seems to completely ignore
the ``definition'' of pure speech given in Bartnicki.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
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