Response Augmentation Order
In Universal, et al. v. 2600, et al. (May 8, 2001)
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the
United States Courthouse, Foley Square, in the City of New York, on the
8th day of May two thousand one,
Present:
Hon. Jon O. Newman,
Hon. Josˇ A. Cabranes,
Circuit Judges,
Hon. Alvin W. Thompson,
District Judge.
UNITED STATES COURT OF APPEALS
Filed
May 8 2001
Roseann B. MacKechnie, CLERK
SECOND CIRCUIT
Universal City Studios, Inc., Paramount Pictures Corporation,
Metro-Goldwyr-Mayer Studios Inc., Tristar Pictures, Inc.,
Columbia Pictures Industhes, Inc., Time Warner Entertainment
Company, L.P., Disney Enterprises Inc., Twentieth Century
Fox Film Corporation,
P1aintiff-Appe1lees,
v.
00-9185
Eric Corley, also known as Emmanuel Goldstein and
2600 Enterprises Inc.,
Defendant-Appellant.
Shawn C. Reimerdes, Roman Kazan.
Defendants.
United States of America,
Intervenor.
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:
- 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).
- Does DeCSS have both speech and non-speech elements?
- 3Does the dissemination of DeCSS have both speech and non-speech elements?
- Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements?
- Does the existence of non-speech elements, along with speech elements, in an activity sought to be regulated alone justify intermediate level scrutiny?
- 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.
- 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)?
- Are the three criteria identified at 111 P. Supp. 2d 333 the correct criteria for determining the validity, under intermediate level scrutiny, of the use of DeCSS that has been enjoined?
- If not, what modification or supplementation would be required to conform to First Amendment requirements?
- Are the three criteria identified in 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?
- 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 opion on 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 [signature]
USCA Order-4
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