"If You Can Put It On A T-Shirt, It's Speech" 
Posted by Michael on Tuesday August 01, 2000
from the clear-as-mud dept.

We got word last night that Copyleft has joined the ranks of 
the named defendants in the DeCSS suit - they received their 
subpoena yesterday, because they "distribute" the DeCSS 
source code - on t-shirts. 

Carnegie Mellon Professor David Touretzky testified before the 
court on this very issue. (See his Gallery of CSS Descramblers.)

Here's Touretzky being questioned:

Q. The next item, the DeCSS T-shirt, why did you post this on
   the website on the gallery?

A. Well, this is a photograph of a T-shirt that's offered for
sale by an outfit called CopyLeft, and I purchased one of
those shirts myself. And the point of including it here is it
seems to me that there is some confusion among all the parties
in this case about whether something is speech or not.
And my reaction is if you can put it on a T-shirt,
it's speech. And so the point of showing the T-shirt was to
illustrate that and, also, to raise the question if this
T-shirt, itself, would have to be prohibited, then I wonder
what would happen to me if I wore the shirt in public.
Wearing the shirt in public could, perhaps, be interpreted as
engaging in trafficking a circumvention device.
So if one really wants to afford the plaintiffs the
protection that they seek, I think I would only be able to
wear my shirt in the privacy of my own home and must not go
outdoors with it.

Touretzky drew up a lengthy argument showing that if the DeCSS 
source code were banned, the only way to prevent that knowledge 
from being transmitted would be to ban it in all its forms - 
image file, various perturbations of the code into forms similar 
to plain English, annotated commentary, even on t-shirts and 
hidden in image files - all of these would have to be banned 
because the source code is easily retrievable from all of them. 
The Technical Term for this is "opening up a can of worms". 
Touretzky was trying to show the court that the issue was 
hardly open-and-shut - if you look at it one way, it's a device 
which can perform a task, but if you look at it another, it's 
speech that's expressive and communicative. If you're a 
programmer who's never taken much of a look at the legal issues 
surrounding computer programs, it may be patently obvious to 
you that code is speech, but to the judicial system, it is not 
so clear.

The judge was apparently much impressed, and started seriously 
thinking about the free-speech implications of banning DeCSS, 
possibly for the first time in the case. He seemed to take 
Touretzky's argument to heart - either all would have to be 
banned, or none. Apparently the MPAA took Touretzky's argument 
to heart as well, and they're therefore doing what is necessary 
to remain consistent with their argument: 
going after the T-shirts.

Maybe they'll go after the New York Times as well. Perhaps if 
the Times gets dragged into the case for posting an image of 
the illegal shirt, it might finally become clear to all and 
sundry that this case is about much more than copyright 
infringement.
--------------------------------------------------------------------
Subject: [CAFE-News] EFF DeCSS Trial Summary

DVD Update: July 31, 2000
Universal City Studios et al v. 2600 Magazine

EFF DeCSS Trial Summary:
Facts in EFF's Favor as MPAA Claims Collapse Under Scrutiny

EFF defense team established a solid record at trial that the 
major film studios are attempting to use the DMCA to ban DeCSS 
so it can monopolize the DVD player market. Despite its immense 
investigative resources and months of effort, the MPAA was 
forced to concede at trial that it could not find a single 
instance of piracy related to the software. The First Amendment 
rights of all citizens have been endangered because of the 
studios' panic and over reaction.

Norwegian teenager Jon Johansen testified for the defense that 
he was working to build a DVD player for the Linux operating 
system when he posted the program to the LiVid list that he 
and two others authored. LiVid Project Leader Matthew 
Pavlovich testified that his development group used DeCSS to 
create a Linux DVD player that can compete with the studios' 
and DVD-CCA's current monopoly on DVD players. The studios 
were hoping to ban the software before a competing DVD player 
could be created that is not required by a CSS license to 
restrict features which allow people to exercise their legal 
rights. Journalist Emmanuel Goldstein, the editor of 2600 
Magazine testified that he published the code in his 
reporting of Hollywood's crazed reaction to the software's 
existence, when the studios launched this legal attack 
against him.

The high point of trial was the electrifying testimony of 
Professor David Touretzky of Carnegie Mellon University's 
Computer Science Department, EFF's final witness before 
resting its case. Touretzky explained to the court how 
computer programmers use computer code to communicate to 
one another with precision. He showed the court how an 
injunction against DeCSS chills his ability to express 
himself. Judge Lewis Kaplan stated Touretzky's testimony 
was "persuasive" and "educational" and would likely change 
his First Amendment analysis of the case. The judge did not 
indicate that he intends to rule in favor of defendants 
however, and EFF is prepared to take an immediate appeal 
to the Second Circuit Court of Appeals. Trial briefs are 
due August 8 and a short turn-around is expected for a ruling.

After the close of trial, DVD-CCA filed a motion to intervene 
in the NY litigation to fight EFF's challenge to unseal the 
Xing CSS license entered into evidence. DVD-CCA has requested 
to keep its CSS license out of the public record and Judge 
Kaplan will accept papers opposing DVD-CCA's intervention and 
secrecy request until August 2 at 5p.m.

You can subscribe to EFF's mailing list to receive the regular 
DVD updates. To subscribe, email majordomo@eff.org and put 
this in the text: subscribe cafe-news

EFF's archive of MPAA v 2600 litigation:
http://www.eff.org/IP/Video/MPAA_DVD_cases/