Does the dissemination of DeCSS have both speech and non-speech elements?
No. Unlike Corley’s criticism of the Studios, the DMCA, and Judge Kaplan, which is plainly “speech” (which the DMCA does not reach and the injunction does not prohibit), the provision of decryption devices to the public, including the provision of DeCSS, is the unlawful provision of a device, a “digital crowbar,” not speech within the meaning of the First Amendment, for the reasons set out in the answer to question 2 above. See also U.S. Br. 15-23; Studio Br. 19-22. Even if the answer were “yes”, moreover, that would only occasion intermediate scrutiny. Studio Br. Point I. 4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements? This question is not presented on this appeal because Corley has not decrypted any DVDs, or sought to. Studio Br. 59-63; U.S. Br. Point III. But the answer is “no”: the use of DeCSS to decrypt an encrypted DVD has no “speech elements,” just as breaking into a museum or library or using a computer to break an electronic lock
