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2nd Circuit Asks the 11 Questions that Determine the Fate of DeCSS

May 10, 2001, 17:54 (30 Talkback[s])

Bryan Taylor reader sent in a link to the list of questions presented after the close of oral arguments in the 2600/DeCSS appeal. The questions center around how the DMCA interacts with the First Amendment elements of the case. The questions are taken from a transcription on the dvd-discuss list.

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?