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?