[free-sklyarov] legal precedent for code as free speech?

[James S. Tyre]

Actually, Judge Kaplan did say in the 2600 case that code is speech, but he 
found that restrictions on it are subject only to what is called 
intermediate scrutiny, rather than strict scrutiny, and that the functional 
aspects of DeCSS outweighed the speech aspects.

The other case you're thinking of is Junger v. Daley, which is similar to 
Bernstein, but in a different Circuit.  It's actually the only appellate 
opinion on point, since the Ninth Circuit Opinion in Bernstein was vacated 
after the gov't meaningfully changed the crypto export regs.  (In theory, 
one isn't supposed to cite to a vacated Opinion, but in the 2600 case, 
everyone, including Judge Kaplan, did it anyway.)

EFF has all of the various Bernstein decisions archived, probably Junger 
also, but if not, EPIC should have Junger.

You might also wish to read the appellate briefs in the 2600 case, which 
EFF has, and my amicus brief in that case, since it focuses only on the 
single issue of code as speech.  Obviously I wrote it as an advocate, not 
as a neutral, but it will help point you to what you want.
http://www.eff.org/IP/DMCA/MPAA_DVD_cases/20010126_ny_progacad_amicus.html

At 02:06 PM 07/21/2001 -0400, Michael D. Crawford wrote:
>I believe there have been a couple of court judgements which ruled that 
>computer
>program source code is free speech.  This has not yet been tested in the 
>supreme
>court, and of course Judge Kaplan ruled that it wasn't in the DeCSS case.
>
>Can anyone tell me where I can find the specific legal opinions about this on
>the web?  I'm going to write to my congressional representatives and want to
>cite these cases as background.  I think it is helpful to give specific, legal
>information a congressperson can work with, as they're probably going to 
>find a
>letter about freeing russian programmers kind of out of the blue.
>
>One of the cases is the Daniel Bernstein case on encryption export.  I believe
>the appeals court found that source code was free speech, although I'm not 
>sure
>they said that directly - I do know they found his free speech rights were
>infringed.
>
>I'm pretty sure there has been one other case, although I don't know if it has
>made it to the appellate level.  But it's been a while and I don't remember
>which case this was.
>
>When I write the letters I will post one on my web page someone and send 
>the URL
>here so you can use them to write your own representatives if you like.
>
>Mike
>--
>Michael D. Crawford
>GoingWare Inc. - Expert Software Development and Consulting
>http://www.goingware.com
>crawford at goingware.com
>
>   Tilting at Windmills for a Better Tomorrow.
>
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James S. Tyre                               mailto:jstyre at jstyre.com
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