Has DVD Case Made a T-Shirt Illegal?

The maxim that no good deed goes unpunished must seem charged with prescient wisdom to Steve Blood [cq], the founder of Copyleft.net.

Founded in 1998, Copyleft sells a wide variety of material designed for and inspired by the open-source software movement, which holds that the source code for software should be freely available so that anyone can modify and improve it, free of charge. Through its Web site Copyleft sells software, books, and clothing.

It was an article of clothing -- a T-shirt -- first made in January 2000, that has landed Copyleft in the middle of a lawsuit brought by the DVD Copy Control Authority (DVD CCA) for misappropriation of trade secrets.

The Open DVD T-shirt, as it is known, was intended to be a fundraising tool used to generate money to help the Electronic Frontier Foundation (EFF) represent the defendants in the Motion Picture Association of America's (MPAA) lawsuit over DeCSS (the De-Content Scrambling System), according to Blood. Copyleft has donated more than US$16,000 to the EFF from sales of the shirt.

Designed by Dominic Dellizzi, a programmer at Copyleft, the back of the shirt bears the source code to DeCSS, a program that decrypts DVD (digital video disc, or digital versatile disc in MPAA parlance).

As a decision loomed in the MPAA lawsuit, which the MPAA won, [see Judge Rules Links Illegal, Code Not Free Speech, Aug. 17], Copyleft ran into trouble. In early August, the DVD CCA added Copyleft to a lawsuit that already included more than 500 defendants. DVD CCA contends that Copyleft misappropriated trade secrets by printing the code on the T-shirt.

But Blood doesn't see himself as a criminal.

"This is not about breaking the law. I wouldn't do a Napster shirt. Napster is a public forum for doing something illegal," he said, referring to the music swapping service that has been under legal fire.

The T-shirt was intended as an "easy way to show support, (to) get people talking."

"Copyleft is infringing trade secrets that the DVD CCA licenses, in the same way that someone who posts it or prints it in a newspaper is," said Robert Sugarman, an attorney with Weil, Gotschal & Manges, the firm representing the DVD CCA. "As a result, the DVD CCA has no choice but to seek relief, just as with those who post (DeCSS)."

That a company could be sued for selling a T-shirt might provoke surprise. But it shouldn't, according to Douglas Lichtman, an assistant professor of law at the University of Chicago.

"While it is true that the First Amendment severely restricts the government's ability to make speech illegal, it is also true that copyright and trade secret law do, in essence, make certain types of speech illegal," he said in an e-mail interview.

Rulings are made in an attempt to maintain a balance between freedom of speech and the harm that will be done by that speech, Lichtman said.

"In trade secret law ... parties are still allowed to come up with their own speech and disseminate it at will. What they cannot do is gather information in what (is) deemed to be an illegal fashion."

Whatever the outcome of the case, Steve Blood doesn't think there is any going back. The authorities can stop linking to DeCSS sites, but that won't stop its dissemination through print media, he said.

Making something illegal will only increase interest in it, he added, citing the sharp upswing in traffic on the Napster Web site after a judge ordered that service be shut down. (Blood strenuously asserted that the Napster technology is not akin to DeCSS) The DVD CCA's Sugarman is not so sure that interest will surge because of the DeCSS ruling.

After the preliminary injunction in the MPAA suit was issued in January, virtually all sites the DVD CCA knew of took DeCSS down, according to Sugarman.

"We have to believe people will comply with the courts and stop the dissemination of DeCSS," he said. Sugarman said that the DVD CCA will pursue a permanent injunction against posting DeCSS and a prohibition against linking similar to that handed down in the New York State case.

Both groups, the DVD CCA and DeCSS advocates, seem entrenched in their positions and not likely to come to an understanding any time soon.

The gulf between them widened when a DVD CCA brief was released that discussed "the 'so-called' open source movement" and said it was "dedicated to the proposition that material, copyrighted or not, should be made available over the Internet for free." The brief's content led to a flurry of angry online postings.

On the topic of DeCSS, the DVD CCA and MPAA are "like post-Civil War Southerners talking about blacks," said Steve Blood.

The DVD CCA's Sugarman said the distance between the groups isn't so wide because his organization is "very supportive" of the open-source movement.

"The DVD CCA objects to the perversion of the open-source movement by people who don't respect copyright," he said.

Regardless of the DVD CCA's feelings towards the open-source movement, Blood doesn't think the DVD CCA and MPAA will ever convince the public they are right.

"Public sentiment is going to fall on the side of the consumer," he said. "Not a lot of people are feeling sorry for the (content companies)."

For more information, contact Copyleft.net in Hawthorne, New Jersey at +1-201-444-8710 or http://www.copyleft.net. The DVD CCA can be reached at http://www.dvdcca.org.