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.

Comments

IANAL?

[Uruk]

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

[Signal 11]

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

[TheMeld]

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

[ryanr]

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..

[schon]

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.

[AdrianG]

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...

[jjsaul]

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

[gilroy]

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.