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