From http://www.2600.com/news/display.shtml?id=852

2600 DMCA APPEAL LOST - FELTEN LAWSUIT THROWN OUT Posted 28 Nov 2001 22:39:50 UTC A decision has come down in our DMCA appeal in the 2nd Circuit Court of Appeals. We lost. The text of the decision is now available and Judge Kaplan's decision of August 2000 was upheld. We will update this story as we continue to learn more. And we want to thank everyone who has continued to support us in this long and difficult battle. ... The decision is linked at http://www.2600.com/news/112801-files/UniversalBrief_3.pdf I've read through it (71 pages). The Court of Appeals seems to have done a thorough job of considering the arguments of both sides. They want to take a narrow interpretation of the 1st ammendment, in order to allow new developments of law concerning electronic media to emerge. They were thoroughly convinced that computer code is speech, whether in object form, source code or something else. They devoted many pages to defending this position. But they also distinguished the functional from the speech elements of a run-able program (following Judge Kaplan), and believe that the functional component, which essentially can break the law without a user doing much other than running it, lessens 1st ammendment protection. Like Kaplan, they think providing a clickable hyperlink to download a file on another site is the same as providing that file on your site. They don't seem to think that fair use implies any particular ability to copy in a way the customer chooses - seeming to say that the copyright owners can dictate what constitutes fair use. I'm looking forward to seeing a more complete analysis by someone with better credentials than I have...the above are just a few things I noticed. -- gbn