In what we consider to be good news in the DeCSS appeal, we received an order from the 2nd Circuit today vacating the previous order seeking a Supplemental brief and directing the parties to answer 11 questions in 25 pages by May 30. The tone of these questions indicate that they are taking our First Amendment arguments very seriously.

This is the text of the order:

United States Court of Appeals

for the Second Circuit

on the 8th day of May 2001

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 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?

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___