<http://samsara.law.cwru.edu/blog/archive3/Is_Source_Code_Is_Like_Mach.html> Next: August 2, 2004 Up: August 6, 2004 Previous: August 6, 2004 Contents Is Source Code Is Like a Machine Gun? Eugene Volokh has posted a message on the Cyberprof email list seeking comments on a thought experiment as to whether the same scope of first amendment protection should be accorded to a sculpture which happens also to be a working automatic weapon as to the ``source code'' of a computer program that can be used for illegal activities.1 That inspired the following response on my part: Date: Thu, 05 Aug 2004 14:19:49 EDT To: CyberProf List . . . From: "Peter D. Junger" <junger@samsara.law.cwru.edu> Subject: Re: Source code distribution restrictions as speech restrictions I will try to respond without quoting at length from Eugene's message since I think that the basic difference that we have has to do with our differing understandings of the nature of computer programs, including source code and that it is probably easier to address that difference directly. In the first place I cannot see how source code differs significantly from any other computer program or, for that matter, from any other data stored or transmitted as text, including as a string or stream of binary digits. Something very important seems to be missing from Eugene's thought experiment: any reference to a computer. Yet it is a computer, and not a computer program, that corresponds to Eugene's machine gun. The computer and the machine gun are both tangible objects that persist for a period of time in three dimensional space. Source code or any other data that is processable by a computer is, on the other hand, pure information--nothing more or less than a pattern or a number--and though a representation of that information can be stored in, or on, some tangible medium like a compact disk or a piece of paper, that compact disk or piece of paper is not the source code or other data. (This is, I believe, equivalent to the fact that in the law of copyright a copy of a work fixed in a tangible medium of expression is not the intangible work itself.) Come to think of it, one can merge the machine gun and the source code by etching the source code on the side of the machine gun, just as runes used to be etched on sword blades or the words ``drink me'' were affixed to the bottle that Alice came across at the bottom of the rabbit hole. Frankly I don't see how that could somehow make it unconstitutional for the state to outlaw the possession of the sword or the machine gun or the pure food and drug people to outlaw the sale and distribution of the liquid contents of Alice's bottle. But I would rather focus on the computer, rather than on the example of the compact disk, because a compact disk just sits there and doesn't do anything by itself whereas the computer --like the machine gun--actually does something and so is functional in the way that a machine gun is functional and source code, whether or not fixed in a tangible medium, isn't. There is, of course, an important distinction between the functionality of a machine gun and that of a computer. The function of a machine gun is to kill. The function of a computer, on the other hand, is to compute, and to compute is to process information. Computers, by the way, used to be people, who came equipped with ten digits. Modern computers, on the other hand, are machines that are wired (or otherwise structured) to process information represented as binary digits. Now, since the computer has to a large extent replaced printing presses and linotype machines, I find it difficult to believe that the freedom of the press protected by the first amendment would permit the outlawing of computers even though the need for a well regulated militia protected by the second amendment does not forbid the outlawing of machine guns. But Eugene's thought experiment does not deal with computers so I do not need to pursue the question of whether computers can be outlawed constitutionally. All that a computer does is process information. Data encoded in the form of binary digits--which can be called ``source code''--is fed into a computer which then processes that data in accordance with way in which it is wired and outputs other data encoded in the form of binary digits--which can, if one wishes, be called ``object code.'' Now rewiring a computer is called programming a computer, and that object code can--if it satisfies various syntactical requirements--be fed into the computer in a way that causes the computer to be reprogrammed, that is, to be rewired. But the program does not do anything and it certainly does not rewire the computer. To run the program someone must, directly or indirectly, flick a switch that causes the computer to rewire itself in accordance with the specifications (the ``instructions'' or the ``description'') contained in the program. And it is the computer that, like the machine gun, has the moving parts and thus does the functioning. Another way to put it is that all that a computer does is to manipulate text. The input is text, the program is text, and the output is text. And all that source code, or any other code, is is text. Now, of course, the protections of the first amendment are not absolute, so the writing and publication of source code, like any other text, can be forbidden if there is a strong enough justification. But, since code in no way resembles a machine gun, its resemblance to a machine gun cannot be that justification. And by the way, the fact that some text may be too ``functional'' to be copyrighted in no way suggests that it is not protected by the first amendment. If a text is useless there is, in fact, little reason to give it first amendment protection. This was written in considerable haste and undoubtedly contains large gaps in its reasoning. I have, however, some other work to do, and so I will end it here. After I posted that response to the Cyberprof list, I received the following inquiry off list: Just out of curiosity, would you liken software to the thought processes that are used to control the computer (and the machine gun)? If so, would restrictions on source code be more akin to thought control, rather then restrictions on devices? Here is my response to that question: [T]he quick answer is that I think of computers properly programmed as prosthetics that help us think (and perceive) like glasses and hearing aids and paper and pencils (and the invention of the alphabet and of mathematical notations) and so I do think that restrictions of software and also on computers amount to thought control. Consider the fact that there is hardly anyone left in the world who can calculate square roots now that it is so easy to do the calculation using a calculator. I consider doing arithmetical and logical calculations to be a (very small) part of what is involved in thought, but they definitely are thought processes. (I wouldn't say though that the thought processes are programs if one considers a program to be text. Programs are not processes, they are descriptions of or instructions for implementing a process.)2 For discussions of related issues see the entries on Expression Has Nothing to Do with It, Publishing Bombmaking Information and the First Amendment, and Copyright and the Confusion of ``Software''. Next: August 2, 2004 Up: August 6, 2004 Previous: August 6, 2004 Contents Peter D. Junger 2004-08-07 -- ----------------- R. A. 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