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"If You Can Put It On A T-Shirt, It's Speech"
Carnegie Mellon Professor David Touretzky testified before the court on this very issue. (See his Gallery of CSS Descramblers.)
Here's Touretzky being questioned:
19 Q. The next item, the DeCSS T-shirt, why did you post this on
20 the website on the gallery?
21 A. Well, this is a photograph of a T-shirt that's offered for
22 sale by an outfit called CopyLeft, and I purchased one of
23 those shirts myself. And the point of including it here is it
24 seems to me that there is some confusion among all the parties
25 in this case about whether something is speech or not.
1 And my reaction is if you can put it on a T-shirt,
2 it's speech. And so the point of showing the T-shirt was to
3 illustrate that and, also, to raise the question if this
4 T-shirt, itself, would have to be prohibited, then I wonder
5 what would happen to me if I wore the shirt in public.
6 Wearing the shirt in public could, perhaps, be interpreted as
7 engaging in trafficking a circumvention device.
8 So if one really wants to afford the plaintiffs the
9 protection that they seek, I think I would only be able to
10 wear my shirt in the privacy of my own home and must not go
11 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/
---------------------------------------------------------------
The Electronic Frontier Foundation (http://www.eff.org) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world.
And this is all coming from the tech culture that has no shared political issues, if you belive Mr Katz.
/. the Copyleft site viewing it?
Perhaps you should have read Mr. Katz more carefully.
He never said we didn't have political issues, he just said that most of 'em weren't about concrete issues like food, clothing, and shelter; they're about more esoteric issues, like speech and freedom. And that we don't do anything substantive about them.
How many of us have actually *DONE* something about this issue? Not buying a damn t-shirt, actually showing up at political fundraisers and asking your Congressman what his position is?
Actually writing a letter to your Senator, not just yet another completely ignored form email?
The biggest political stand most geeks take is changing their fucking signature line, or the background color of their web page.
And most of us won't even do that much; how many people are taking this opportunity to actually BUY one of those t-shirts, not just
--
To remind you the PGP code was published as a book, shipped out of the US, scanned and reentered by volunteers. This is the way US export controls were circumvented.
If the T-shirt case is won by MPAA someone may rise the old Fred Zimmerman case again. And this has much wider implications than we can actually imagine.
disclaimer: I bought one of the T-shirts and I am wearing it from time to timeBaker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
it's rather hilarious that the overall sentiment on slashdot is that
1 - Spam should be outlawed, while source code is speech.
2 - Music is just bits, and should not afforded any protection, yet again, source code is a constitutional right.
As long as the mentality is so lopsided like that, anyone who looks in to the community will think that everyone is utterly confused.
I can rewrite the quote as, ... even on t-shirts and hidden in image files - all of these would have to be banned because the pictures are so easily retrievable from all of them."
"Someone [said] if the calvin & Hobbes comics were banned, the only way to prevent that knowledge from being transmitted would be to ban it in all its forms
But what if you had Mssr. Watersons (IIRC) permission? Then why would a 3rd party be allowed to ban it? DeCSS is not copyrighted by the MPAA, but they are trying to control distribution of it.
There are cases where this is allowed:
1) Copyright infringement. But only a copyright holder can prosecute this (IANAL)
2) Obscenity. Um... this stuff turns you on???
BTW: I'm mostly paraphrasing from other posts. I have no thoughts of my own...
-- IANAEG - I am not an elder god.
If it is decided that mere source code is illegal, then its propogation via T-shirt print is, sadly, as illegal. There's nothing special about T-Shirts, they're merely another medium.
/. anyway) can identify with. Suddenly it's not "This piece of software is breaking our copyprotection, and is illegal", it's "This T-shirt is breaking our copyprotection, and is therefore illegal". This latter arguement sounds considerably more ludicrous, don't you think? Most people will, and if the judge supports the MPAA on this one, he's going to sound the same, to say nothing of the Congressmen who continue to support this law. And (hopefully) the voters might pay attention, and pick some less ludicrous people in the future... or at least that's what we want the politicians to think, so that they STOP the MPAA.
I'm not sure if you simply missed the point, or if you're attempting to show that T-shirts are no different than electrons on a screen. In either case: the principal difference is that a T-shirt is something this judge (and ALL the American people, excluding the Amish, who probably don't frequent
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.
What if you wore a jumper over the t-shirt? Is that a form of steganography? Or would that just be considered smuggling? :)
hmmmm .... I wonder where I'll put it ..... is the judge a prude?
"Exhibit A, your honour!"
Should garner even more press coverage...
Strong data typing is for those with weak minds.
Strong data typing is for those with weak minds.
There is a difference between a subpoena and a summons, the former being what compels testimony from a witness, the latter being what brings a person into a lawsuit as a party.
If we're talking about the New York DeCSS case, which just was tried, then it makes no sense that a new entity could be brought in as a defendant, after trial, especially since the issues surrounding distribution of printed source are quite different than those surrouning compiled object.
On the other hand, this could refer to one of the two other DeCSS cases, the ones in California and Connecticut, respectively, but the article gives no indication.
If anyone does know whether it is a subpoena or a summons, and in which case, please do post, because as a lawyer who has been following the cases, I am having trouble making any logical sense of this.
Also, for what it's worth, export regs on crypto have now significantly been loosened, and it is now legally possible to export "machine readable" crypto code without an explicit license.
There is nothing illegal about writing a free public, source code on T-shirts. Should I be arrested for putting the source code of Quicksort on a T-Shirt. Yes, Quicksort was discovered by C.A.R. Hoare. But by publishing it, Hoare has "given" that knowledge to the public. Just like DeCSS, which as effectively the same status.
This isn't even about their damned DVD's anymore, it's about control. Who the heck is going to buy a T-Shirt just so they can copy the source code into their computer. You can download it for free off the net. People who are buying the t-shirt are making a statement. Either these people want to completely stamp out any thought that they could ever be beaten, or they want to stamp out EVERY COPY EVERYWHERE. Why worry about a freaking t-shirt when you can get it all over the net? These people are really, litterally, making a federal case over their ability to stamp out independant thought.
Eh...
Not mentioned in the story: who is issuing the subpoena, the defense or the prosecution? And exactly what is being subpoened. The shirt? Sales records (in which case will the MPAA SS be kicking in the doors of anyone who bought one)?
Let's say for the sake of argument that the code itself could be banned. How about a program that generated the code (for example a perl script that output the C source when invoked)? How about a program that generated that program? How about a story containing sentences whose first letters contain the source code? I can't conceive of a way that the judge could possibly ban all of the ways in which this knowledge could be represented. The MPAA is trying to command the tides to recede.
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