[CYBERIA] 1st amendment protection of software

Peter D. Junger junger at SAMSARA.LAW.CWRU.EDU
Fri May 21 08:07:06 PDT 2004

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 at samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
     NOTE: junger at 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

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--- end forwarded text

R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
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experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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