forwarded from John Gilmore

[Perry E. Metzger]

Message-Id: <200105101918.MAA24228 at toad.com>
To: cypherpunks at toad.com, cryptography at c2.net
Subject: New questions from the 2nd Circuit in the 2600 case.
Date: Thu, 10 May 2001 12:18:33 -0700
From: John Gilmore <gnu at toad.com>
X-Spam-Rating: taz3.hyperreal.org 1.6.2 0/1000/N

		United States Court of Appeals
		  for the Second Circuit

...on the 8th day of May two thousand one,

			   ORDER

The panel modifies the oral instruction for supplemental letter briefs
in the captioned case, given at the close of the argument on May 1,
2001, by authorizing the parties and the Intervenor to augment their
responses to no more than 25 pages, and inviting responses to the
following questions:

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
levevl 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?

The references to the District Court's opinion are intended only to
identify some passages that concern the question posed and not to
imply that no other passages in the opinion are pertinent to the
question.  Responses need not be amplified if a "yes" or "no" will
suffice.

The parties and Intervenor shall submit their supplemental letter
briefs to this Court no later than Wednesday, May 30, 2001.

FOR THE COURT:
Roseann B. MacKechnie, Clerk
By: ___Lucille_Carr___




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