To: jvd-announce@samsara.law.cwru.edu
Subject: Press Release: Judge holds software is not protected speech
Date: Wed, 08 Jul 1998 09:39:36 -0300
From: "Junger v. Daley Announcements"
Federal District Court Holds That
Software Publishers Are Not Protected by the First Amendment
Government Wins Summary Judgment in Junger v. Daley
Judge Gwin's Opinion Is Available on Line
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Cleveland, Ohio, Wednesday, July 8, 1998
For Immediate Release
For More Information Contact:
Peter D. Junger (216) 368-2535
Raymond Vasvari (216) 662-1780
Or see URL: http://samsara.law.cwru.edu/comp_law/jvd/
To be added to, or removed from, the list of those who were sent this
press release, please send e-mail to .
_________________________________________________________________
Cleveland, Ohio, July 8 --
On July 3, 1998 Judge Gwin of the United States District Court of the
Northern District of Ohio held that computer programs are not writings
protected by the constitution because they are ``inherently
functional'' and granted summary judgment dismissing a suit
challenging regulations that forbid the publication of encryption
programs on the Internet or the World Wide Web.
The suit was brought by Peter Junger, a law professor at Case Western
Reserve University in Cleveland, to enjoin the enforcement of export
regulations on encryption software that prevent him from publishing
his class materials and articles for his course in Computing and the
Law on the Internet because they contain some encryption programs.
Junger claimed in his suit that those encryption programs were
writings that were entitled to the full protection of the First
Amendment. ``Of course they are writings,'' Junger says, ``I know
because I wrote some of them. And I need to be able to publish them
if I am ever going to be able to explain to lawyers and law students
how computers work and how the law should be applied to computing.''
The government, on the other hand, argued that its export regulations,
which require that one obtain a license from the Commerce Department
before publishing materials containing encryption software on the
Internet or the World Wide Web, seek only to restrict the distribution
of encryption software itself, not ideas on encryption. And Judge
Gwin agreed with the government, finding that: ``the Export
Regulations are constitutional because encryption source code is
inherently functional, because the Export Regulations are not directed
at source code's expressive elements, and because the Export
Regulations do not reach academic discussions of software, or software
in print form.''
In a related case in California brought by mathematics professor
Daniel Bernstein, Federal District Court Judge Patel held that
computer programs are speech that is protected by the First Amendment,
but Judge Gwin rejected that argument, saying: ``The Bernstein court's
assertion that `language equals protected speech' is unsound. `Speech'
is not protected simply because we write it in a language.'' It is
Judge Gwin's position that computer source code is a purely functional
device: ``The court in Bernstein misunderstood the significance of
source code's functionality. Source code is `purely functional,' in a
way that the Bernstein Court's examples of 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.''
There is thus a clear split between the two courts: Judge Patel
holding that computer software is protected by the First Amendment and
Judge Gwin holding that it isn't. The Bernstein case is on appeal and
Professor Junger says that he intends to appeal Judge Gwin's decision:
``We have had almost no financial support for this case, but the issue
of whether encryption software and software in general is protected
like other writings under the First Amendment, or whether it is to be
treated as a special exception like obscenity and fighting words as Judge
Gwin held, is so important that we will have to scrape up the
resources somehow to bring an appeal.''
Judge Gwin's opinion is now available at http://jya.com/pdj11.htm
and is mirrored at http://samsara.law.cwru.edu/comp_law/jvd/pdj11.html.
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