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

[Seth David Schoen]

Michael D. Crawford writes:

> 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.

Kaplan ruled that it _was_, or that it could be.

Since ElcomSoft didn't publish source code, we need the stronger
finding that all computer programs, whether in source or object form,
have first amendment protection.

Relevant cases in which source code is at issue are _Bernstein v.
Dept. of Commerce_ and _Junger v. Daley_:

http://www.eff.org/Legal/Cases/Bernstein_v_DoJ/
http://samsara.law.cwru.edu/comp_law/jvc

Object code was at issue to some extent in _Universal v. Reimerdes_:

http://eon.law.harvard.edu/openlaw/DVD/NY/

There is also a case filed by Phil Karn which was less successful.

I feel lazy for not providing cites.  If you write to Congress, please
provide the cites, or ask me to be less lazy.

Peter Junger, of _Junger v. Christopher_/_Junger v. Daley_ fame, has
suggested that we don't necessarily need courts to say that computer
software is "speech", as opposed to that computer software is
information whose publication is protected by the first amendment.
I think that this is an interesting point.  The first amendment
protects the freedom of speech and of the press, and it is rare to see
an argument that information published in books must be expressive.

Professor Junger mentioned on dvd-discuss that some information
published in books is not expressive -- his example was a table of
logarithms, which is produced by a mechanical process and is certainly
factual information -- but it's hard to find a suggestion that this
information does not have first amendment protection.

I think Junger's point is a strong one.  Computer programs, even in
object form, are routinely expressive for human beings -- but even if
they were not, the freedom of the press is still there for them.

People from dvd-discuss, do I misrepresent Junger's point?

-- 
Seth David Schoen <schoen at loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5