United States Court of
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,
Hon. Jon O.
Hon. Jose A.
Hon. Alvin W.
Universal City Studios, Inc., Paramount Pictures
Metro-Goldwyn-Mayer Studios Inc., Tristar
Columbia Pictures Industries, Inc., Time
Company, L.P., Disney Enterprises Inc.,
Fox Film Corporation,
Eric Corley, also known as Emmanuel Goldstein and 2600
Shawn C. Reimerdes, Roman Kazan,
United States of America,
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:
Universal City v. Reimerdes
Page 2 of 3
Are the anti-trafficking provisions of the Digital Millennium
Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29
2. Does DeCSS have both speech and non-speech
3. Does the dissemination of DeCSS have both
speech and non-speech
4. Does the use of DeCSS
to decrypt an encrypted DVD have both speech and non-speech
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
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?
If not, what modification or supplementation would be
required to conform to First Amendment requirements?
Universal City v. Reimerdes
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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.