6th Circuit Court: Code Is Speech

The Federal 6th Circuit Court of Appeals ruled on Junger v. Daley Tuesday, finding that source code is expressive speech. PeterD.Junger had sued in 1997 to allow posting of some crypto code on the Internet, on the grounds that it is expressive and not merely functional. The court found in his favor: "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." Read on for an excerpt from the ruling (or go read the whole thing yourself, lazy!).

See also the Wired article. And may I just say how delightful it is that the court compared source code to written music -- and to the works of JacksonPollack!

Excerpt from the court opinion:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. ...

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ... Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programers.

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.

Re:IANAL?

Right on brother.

I think I'm supposed to be a good citizen of slashdot and denounce AC posts that don't toe the slashdot party line, but the more I read slashdot, the more I find myself only reading the troll posts (to see what new stuff they can come up with :) and ignoring the rest of the karma whoring fluff.

Think about it! When was the last time that you saw a high-rated comment that contained an opinion about free software or linux that was shocking or new? Now on the other hand, let's take a look at the trolls. They've given us all kinds of innovations - Natalie Portman, Grits, the flood-posting, OOG the caveman, nickname cloning, smargles, and all kinds of other things. Oh, and reading the flames full of righteous indignation is sometimes just too funny.

Of course I think I used to be someone who took slashdot seriously, but I think that stopped at about the time when it was sold.

expressive means of communication

so if C/C++ could be considered analog to abstract art or jazz music, with a deeper communicative meaning which is not immediately obvious but which holds extremely deep meaning to one who is familiar with it..
then i guess INTERCAL [tuxedo.org] would be that woman who covered herself in chocolate naked, masturbated using a crucifix, and got her National Endowment for the Arts funding revoked..?

at any rate this is probably the most important legal decision that will be made in the next decade and i shouldn't be making jokes about it..
the ruling pertains to encryption, but anyone interested in emulators, portscanners, mp3 distribution programs, programs to break/decrypt copy/playback/usage protection in commercial software, hacking tools, things that haven't been thought of yet, etc-- or anyone who would like to see how one works, or at least anyone who thinks that it should be legal to create such tools even if usage of the tools would in most cases be illegal-- should rejoice. This is what we've been waiting for a court to say for years.

I'd like to hope that we'll see a lot less now of corporations attempting to suppress information in source code form about things they don't want done.. but, of course, most such cases against emulators or programs such as cphack or decss were pretty damn shaky anyway, and were initiated not to be won, but to bankrupt the defendant via legal bills. So the fact that the cases are now even _shakier_ because the source code has First Amendment rights shouldn't cause a huge problem.

On the bright side, this should encourage more emulator makers to go open source :)

-mcc-baka
http://drowed.cx/decss/

Re:IANAL?

IMHO (and IANAL :-) technology can become arbitrarily complexicated, so it really is possible for parts of it to transcend the understanding of the common man, unless he takes the time to study it in detail. OTOH, if human laws ever transcend the common man's understanding, then the law is defective. The very needs and purpose of law requires an upper bound on how hard it is to understand.

Law should be no more complex than ethics (or at least within a constant factor of complexity). I'm not suggesting that law has actually stayed within those bounds. But ideally, it should. It is evil for any law to exist that I am expected to obey, but not able to understand without specialization.

I think it is a good thing that we peons discuss law -- and try our best to sound authoritative about it. It sends a message (though I doubt that it is heard) that it is our law. And remember that we are all the source of the law's power. If a lawyer or judge ever talks down to me on the topic of law, I will consider that to be arrogant. It's arrogant, because it assumes that law is a black art and the knowledge is limited to the elite.

That said, though, I do in fact appeciate seeing lawyers post on Slashdot. My favorite Slashdot poster happens to be one of them.

---

Just an expression...

class Soapbox {

public String[] enemy;

public Soapbox() {
enemy = new String['MPAA','RIAA','Microsoft','NSA'];

public static void Main() {
for (int i=0; i<enemy.length; i++) {
System.out.println("Fuck the evil " + enemy[i] + "!");
}
}

}


Kevin Fox

code was previously exported in book form...

IANAL

from the original doc (Factual Background section):
"Although it found that four programs were subject to the Regulations, the Export Administration found that the first chapter of Junger's textbook, Computers and the Law, was an allowable unlicensed export. Though deciding that the printed book chapter containing encryption code could be exported, the Export Administration stated that export of the book in electronic form would require a license if the text contained 5D002 software."

Despite all the bla bla about sour code being expressive and speech and whatnot bla bla (which i agree with...) it seems an important logical part of the argument is that (if i understand correctly) the same material was legally "exported" in the form of a book, whereas the online version was met with restrictions.

So it seems that this ruling might be more of a 'the internet is not to be subject to stupid restrictions that would not be placed on, say, books' then a 'code is free speech' type response.

dunno, anyone got any opinions on this? is there a lawyer in the house?

/IANAL

adrien

adrien cater
boring.ch [boring.ch]

Huzzah!

Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.


Another judge with a clue.

Maybe there ought to be some kind of prize to recognize jurists who demonstrate real insight into computer technology.

LAWYER - Re:Read closer - this is not a victory...

Being a lawyer, i must disagree:

Although there are still a few more proceedings to go through, this is good.

First off, its a step in the right direction. Open source wins once again.

Second off, although the court hearing was done within the barriers of the constitution, the opposing sides of case have been known to dissent in as well.

Third and firstmost, you are correct about the TOOL part, yet incorrect about compiling and using.

Fourth and thirdmost, the reason that you're incorrect about the compilation and using is because it will be legal to execute the written code if it is a legal amount of code in the firstplace, meaning that it does not make its writer liable for anything, or cause a national security, or harm anyone in a significant/reasonable way.

Fifth, this goes along well with the possibility of having Microsoft having to release some of its source code. Now the courts can have a writ of mandamis that it be handed over now that the actuall open source IS legal. Before this, all of that banter would have been ILLEGAL!

Sixth, my fifth reason leads me into my next part: Open source dominates because there is nothing more to hand over. DRI may be a problem, however.

Seventh, you can't triple stamp a double stamp, like in "Dumb and Dumber"

Mike Roberto ([e-mail] [mailto]) - AOL IM: MicroBerto

Interesting Apparent Contradiction

Patents cover machines and processes.

Copyrights cover particular expressions.

The two domains do not overlap.

Therefore, if code is protected for First Amendment reasons, then patents on code cannot be enforced; code is expression, not a machine. Copyright can protect a particular expression, but cannot prevent somebody from using something. (In fact, a little-known part of copyright law is that if you independently come up with something that is copyrighted by something else, you will both have a copyright. As long as you don't look at someone's implementation of something, you cannot be prosecuted (successfully) for copyright infringement.)

Contradiction: Under the conceptions of current law, there should not be anything protectable by both patent law and copyright law; however, the judge in this opinion is implying that code is an expression, thus under copyright law, and the Patent office is quite clearly granting patents based on things (like RSA) that are nothing but code.

Something has to break. This doesn't prove anything, except that current law is incapable of handling "code"... but this proves that quite handily IMHO.

Re:Hrm...

> However, this does very little, if anything, for DeCSS.

True. At least not directly. What it does do is establish that one of our most fundamental rights applies on the internet. Without that, all the other battles are lost before they start.

--

Re:IANAL?

Somebody, please, either put the final crushing blow to my silly thought that slashdot isn't just full of arrogant posturing fools, or tell me what it is about unsolicited and totally uninformed legal advice that gives everybody here such a stiffy.

Wow, I thought this was just a conversation about a legal ruling. I didn't realize people came to /. for legal advice.

Welcome to BenchDot:

News for Lawyers, Stuff that Sues

(arrogant posturing fool #30840, reporting for duty, SIR!)
--

welcome back

I agree. But the important thing is that the source would be legal under this interpretation. It bothers me much less that the compiled version could still be illegal...No, not because I'm a Linux zealot used to compiling code, but because SOURCE CODE IS EXPRESSION.

Even a mediocre programmer can see the beauty of a well written program, and gain enlightenment through it. This judge does seem to understand that aspect of it.

While the legality of using the resulting compilation may still be in doubt to some, at least the judge understands the most important part--that source is expression. Binaries may be just a tool easily constructed by the instructions the source code provides and that leaves the use of DeCSS in question--but that's another battle.

If the DeCSS source is illegal then we can not use it to build the tools we need to use the new wave of physically distributed media (DVD) to it's fullest potential. If the binary of DeCSS is illegal while the source is not then it only makes it slightly harder to produce those tools--it will just mean that we have to compile it into a bigger program which will play it or analyze it or whatever. I realize that this hinders the modularity required to make DeCSS utilize DVD in the most efficient manner but at least it doesn't make it impossible. Like I said, that's another battle.

numb

the law is not just for lawyers

I live in the society determined by US law. I have an interest in whether that law is reasonable and serves me, or whether that law is unreasonable and serves some special interest at the expense of private citizens. Democracy is based on the idea that the views of some idiot on the street are relevant to running government.

So, I comment on law, I argue about it. I'm not necessarily correct as to the "who'll win the superbowl" type arguing about what the outcome of a court case will be, but I am entitled to my opinion as to what the outcome of a court case should be. And since this is a democracy, it's in my interests to spread my opinions, in the hope that someone else will see how reasonable they are, and keep them in mind next election day.

--Kevin

Hrm...

Seems like people are getting excited for the wrong reasons (most of the posts at this point seem to be "Horay! DeCSS is legal now!").

Note that I haven't read the full ruling. But from the except given, it seems the judge is saying that computer source code (including cryptographic source code) is protected by free speech (and thus crypto export restrictions in the US are unconstitutional). Other judges have said the same thing, and I say the more the better. For the most part, you can export any kind of crypto you want now anyway, but I'd prefer that there were no restrictions of any sort, which this helps pave the way for.

However, this does very little, if anything, for DeCSS. First off, there are the issues of reverse engineering, trade secrets, etc (these points are still wrong, but they were wrong with the RIAA and MPAA brought them up in the fist place so they're probably not going away now). And anyway AFACT the ruling has nothing to do with these issues. Secondly, there is the little matter of... da-dum... DMCA. I'm pretty sure it makes DeCSS illegal, and unless/until it is shown to be unconstitutional and thrown out, DeCSS will still be an "illegal piracy tool" or something stupid like that, even though source code in general is protected (this is similiar to: photographs are protected by the 1st ammendment, but photos of nude 7 year old girls are illegal).

IANAL and any corrections/clarifications would be appreciated.

Free Speech, not Free Beer

Maybe, but it can still be regulated.

The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of

permitted government regulation.

Emphasis added.

Besides, the 6th Circuit Court (not the Supreme Court, we still have to see what they will say; it ain't over yet, flyboy) said that code is FREE AS IN SPEECH, NOT Free As In Beer. The DMCA might still be interpreted as making the code property (you can exercise free speech in an interview with the local TeleVision station, but they own the tape of the interview). Don't ask me how that might happen, I thought that DMCA-type laws would be thrown out by the second or third judge.

So now the First Amendment applies. But, the first amendment doesn't give us carte blanche to just say whatever we want, there are certain limitations. (Too many limitations, IMO, but I just want to know what this means in practical terms for DMCA, UCITA, and MPAA & RIAA, et al.) I cannot say untrue things about a public figure if I know them to be untrue, that is libelous (slander?). I can't yell "Fire" in a theater, but I can yell it in my home. There are many common-sense limitations to the First Amendment, and many silly/stupid/~evil limitations too, so we must not take this as a signal to "Copy, Distribute, and Be Merry." It's a good win, but the war isn't over, and we cannot afford to look like outlaws or script kiddies or crackers or any other stereotype. If we look even remotely like a stereotype, those who don't know us will assume that the media and the government are right about us, and we will lose support.

/Begin Rant

And it's about time that non-tech-heads realized this basic truth: geeks and nerds comunicate in ways different from most of "mainstream society", and many of these methods are hard/impossible for a layman to understand. I'm graduating with my degree in Mechanical Engineering this year, and I speak 2 languages fluently: american English, and Math. Example: business types describe the Gini Coefficient (an economic measurement) as a ratio of areas involving two curves; I think of it as G = 1-(2*Integral[f(x),x,0,1)])/(x*h) and that tells me exactly what I need to know, with no ambiguities. Just because what I 'say' isn't in English (or German, or Russian, or American Sign Language), doesn't mean that it isn't 'speech'. The expression of an idea in Code or Math is very dependant upon the author (especialy for large and/or complicated matters). I've been moved more by Shakespeare than by 'speech' in Math, but it's close; I've seen some beautiful Math. It is much like marveling at a particularly ingenious hack; it is so elegant, so efficient, so novel that the experience is emotional.

/End Rant

Louis Wu


Louis Wu

Thinking is one of hardest types of work.

attn thought police: free speech inside

#include
/*
Fuck the thought police
Fuck Bill clinton
Fuck the DMCA
Fuck moderators
*/
main()
{
printf("Have a nice day\n");
return0;
}

IANAL?

This is not specific to you, Signal 11, since I don't know you, and because I'm guilty of what you're doing, but...

Why is it, that practically everybody on slashdot (I've done it too) always puts 'IANAL' in their posts, ... and then proceeds to give legal advice or analysis? As far as I know, the real spirit of 'IANAL' is that since the person isn't a professional, their words should be taken with a grain of salt, and might even be total crap.

So we get a situation where the reader has been fully warned that the post may be full of crap, yet still we read it? And the output of unsolicited legal advice on slashdot is not only used and condoned, but promoted through moderation?

What I'm trying to get at is that many of the programmers on slashdot (if there are any left) are generally the type that really hate listening to a newbie spout off about technology and computing when the person has no idea of what they are talking about. (Case in point - I was outside the computer lab at my school the other day, and I heard somebody talking about XML capable talkback widgets - if that's not total bullshit I don't know what is). So where's the difference between the clueless newbie dropping buzzwords about a topic he doesn't understand and one of the slashdot elite dropping legalese and telling people how the MS appeal is *really* going to go, or what's *really* going to happen with DeCSS?

Somebody, please, either put the final crushing blow to my silly thought that slashdot isn't just full of arrogant posturing fools, or tell me what it is about unsolicited and totally uninformed legal advice that gives everybody here such a stiffy.

DeCSS

Before everyone shouts "wuzzah! DeCSS is free" I'd like to remind you the judge considered DeCSS a mechanism for piracy.. not a tool to promote interoperability.

What this means is that while code is speech.. the compiled product is still a tool. If I quote you on something, that's fair use. How many people would like to explain that I just "quoted" half the windows source for, uhh, demonstrative purposes?

Since the compiled product is a TOOL and not a vehicle for free speech, the judge can still keep DeCSS illegal. HOWEVER, I'd be willing to bet that distribution of the SOURCE is now legal.. but compiling it and using it is NOT.

However, IANAL, I just play one on slashdot. ;)

Re:Interesting Apparent Contradiction

BZZZZZZZZTT
WRONG

"Patents cover machines and processes.
Copyrights cover particular expressions."

A piece of source code is almost always an implementation of some process.

"things (like RSA) that are nothing but code."

Since when is RSA nothing but code? RSA is an encryption algorithm. The source code is an implementation of that algorithm (a.k.a. process). RSA can be described without a scrap of source code. It is a mathematical algorithm.
-Matt

Protected machine code

Some of can write and have written programs directly in machine code, by toggling switches, or punching in hex, etc..

The end result is that the "source code" is no different that the executable machine code. Why shouldn't that also be protected speech?

I have to write in a high-level language to have protected speech?

Actually..

Actually it has quite a bit to do with DeCSS.

One of the reasons that the MPAA received the preliminary injunction against 2600 was that the judge didn't consider source code to be expression.

Since the final word now is that source code is a constitutionally protected form of expression, it's going to be easier for the DeCSS guys to fight the DMCA; the DMCA says that anything that circumvents copy control is illegal - but now the DeCSS guys can argue that this directly infringes on their First Amendment rights (because it makes their expression illegal.)

Just because source code counts as free speech does not mean that any source code you publish is protected.

This is true, but you miss the point that any source code you have rights to is protected.

DeCSS was released under an open license, which grants anybody the right to copy and distribute it - so your analogy falls pretty flat; what if you do have the authors permission?

Get a Grip, Folks.

All this decision does is clear up a single point of law. The district court issued a summary judgement stating that there was no need to consider the First Amendment claim, because it felt that the source code was too functional and not sufficiently expressive to warrent First Amendment protection.

The appellate court corrected this misconception and instructed the lower court to consider the case again. The lower court could still consider the First Amendment claim and decide that the government's interrest is overriding, but before this ruling, the lower court didn't feel that it had to consider a First Amendment claim at all.

This ruling is a step in the right direction, but it is far from a (correct IMO) ruling in Junger's favor. It does not make DeCSS legal, it does not shoot down the ridiculous ITAR/BXA restrictions, it does not war obsolete, etc..

This ruling does, perhaps, cast a slightly better light on the position of the good guys in many of these encryption related cases. It is good news, but please, folks, get a grip!

Adrian

PS: IANAL
PPS: I am not a witless idiot, either. 8-)

Read closer - this is not a victory...

This case has simply been remanded for further proceedings. While you might like the idea that the court has declared that code can be speech, and that does have far-reaching ramifications, the critical issues have been returned to the lower court, which has been instructed in exactly how to rule for the government under current 1st amendment law:

"We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether the exercise of presidential power in furtherance of national security interests should overrule the interests in allowing the free exchange of encryption source code."

It is a very high standard - but the national security exception to the 1st amendment is used as an example of limits in every 1stA. case - usually referring to the unlawful publication of troop movements in wartime. The government need not change their argument to shove this puppy way up into the dark, sticky recesses of national security.

This is not a victory... except it is

Quoth the poster:

It is a very high standard - but the national security exception to the 1st amendment is used as an example of limits in every 1stA. case - usually referring to the unlawful publication of troop movements in wartime. The government need not change their argument to shove this puppy way up into the dark, sticky recesses of national security.

But there's still a world of difference between "This is speech that can be regulated for national security" and "This isn't speech and can be regulated on a whim". It's not the end, it's not the beginning of the end ... but maybe it's the end of the beginning.

I am continually more impressed with the intellegience of the federal judiciary. Out of all the Powers that Be, they seem to be way the most clued-in.