Seth David Schoen wrote:
Unfortunately, courts already seem to have a hard enough time believing that electronic publication of free/open source software is protected by the first amendment.
While this is true, there's a very deep issue in the definition of "protected". The problem is better rendered that the courts have taken the view that the protection of (intellectual) *property rights* trumps the free-speech concerns here. There's a very revealing paragraph in the DeCSS decision concerning this: "Thus, even if one accepted defendants' argument that the anti-trafficking prohibition of the DMCA is content based because it regulates only code that "expresses" the programmer's "ideas" for circumventing access control measures, the question would remain whether such code--code designed to circumvent measures controlling access to private or legally protected data--nevertheless could be regulated on the basis of that content. For the reasons set forth in the text, the Court concludes that it may. Alternatively, even if such a categorical or definitional approach were eschewed, the Court would uphold the application of the DMCA now before it on the ground that this record establishes an imminent threat of danger flowing from ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ dissemination of DeCSS that far outweighs the need for unfettered ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ communication of that program. See Landmark Communications, ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Inc. v. Virginia, 435 U.S. 829, 842-43 (1978)." -- Seth Finkelstein Consulting Programmer sethf@sethf.com http://sethf.com http://www10.nytimes.com/2001/07/19/technology/circuits/19HACK.html