I have started a weblog, which is at <http://sasmara.law.cwru.edu/blog/>. One of the entries, which I enclose, about first amendment protection of software may be of interest to some members of this list. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists --Begin Enclosure Expression Has Nothing to Do with It If one is concerned, as I am, with extending the First Amendment's protection of free speech and of the press to the writings of computer programmers and to the publication of information in digital form, one needs to find some way not to couch one's arguments in terms of ``freedom of expression.'' Burning a flag to protest a war is protected by the First Amendment, even though flag-burning is not literally speech, because flag-burning is ``expressive.'' That extension of the First Amendment beyond its literal scope does not, however, in any way imply that the speaking or publishing of materials that are not expressive are not acts entitled to First Amendment protection. Saying that ``one and one is two'' is not, I submit, expressive in the sense that burning a flag is expressive. That, however, does not give the government absolute authority under the First Amendment to forbid saying ``one and one is two,'' even though saying that might endanger the success of the government's fiscal policies or its conduct of the war in Iraq. Random numbers are not expressive in any sense at all, yet that does not mean that the publication of a table of random numbers would not be protected by the First Amendment. That might seem obvious, but when some years ago I challenged the constitutionality of the government's export regulations that forbade the publication of computer programs in digital form, the Government's response was to argue that computer programs are ``functional'' and therefore not ``expressive'' and that the publication of computer programs is thus not protected by the First Amendment. Put that way, the government's argument may not seem very persuasive. The trouble was, however, that there are no judicial precedents holding, or even saying, that non-expressive (or functional) speaking and publication are activities protected by the First Amendment--a point that is so obvious that it never has been litigated--and there are lots of precedents saying that one can only obtain a copyright on expressive writings and that functional writings are not copyrightable. Of course, the issue of whether a computer program is copyrightable has no bearing on whether it is entitled to First Amendment protection, but this apparently is not easy to see if one does not have the slightest idea as to what a computer program actually is. How difficult it is for courts, and lawyers, to understand that computer programs are simply writings like the recipes in a recipe book or the mathematical tables in an engineering handbook, is illustrated by the holding of the Federal District Court judge in my case, Junger v. Daley: Source code is ``purely functional,'' in a way that . . . instructions, manuals, and recipes are not. Unlike instructions, a manual, or a recipe, source code actually performs the function it describes. While a recipe provides instructions to a cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption. At that point my long-suffering lawyers had little choice but to adopt the government's interpretation of the First Amendment and argue that computer programs--or at least their source code--are protected by the First Amendment because they are ``expressive.'' And that argument prevailed. The Court of Appeals held in my case that Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment. That was a great victory. Junger v. Daley is now the leading case holding that computer programs, or at least their source code, are protected by the First Amendment. The fact remains, however, that there is a much simpler reason for holding that the publication of computer programs--and not just source code--is protected by the First Amendment. To publish a computer program is to publish information and it is the publication of information that is protected by the freedom of the press. It's that simple. Expression has nothing to do with it --End Enclosure ********************************************************************** For Listserv Instructions, see http://www.lawlists.net/cyberia Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot Need more help? Send mail to: Cyberia-L-Request@listserv.aol.com ********************************************************************** --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'