Slashdot Mirror
Code As Free Speech -- Pandora's Box?
Blake Watters asks: "Following yesterday's ruling in Federal Court that source code is free speech and thus protected by the Constitution I was at first rather elated, and then a bit edgy. It seems to me that perhaps this ruling could represent a real bombshell. Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry? Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon? Any legal minds out there care to offer some perspective?" In the age of the DMCA and the UCITA, such a ruling is a much needed breath of fresh air.
void main
{
printf("SLASHDOT SUCKS!!!");
printf("I PIMP TACO'S MOM!!!");
printf("SLASHDOT IS FOR COMMIES!!!");
}
This code is licensed under the GPL. Thank you.
Dr Kool
um, Linus -> Linii, Linux -> Liniix?
Yes, you should be able to build it. If, in the process, you kill others, or cause other damage, then you will need to answer for the consequences of your actions.
The test that you suggest, "what is the net effect on society", sounds absolutely horrific to me. One of the principles that the U.S. was founded upon was that individuals have rights. [1] Related to this is the notion that individuals do not exist to serve the whole, but, rather, that the government is established to secure the rights of individuals. The day that we are governed solely by the "net effect on society", without regard to individual rights, is the day that we need a fresh revolution.
[1] Yes, I recognize that many Slashdot readers are not from the U.S. However, I believe that you don't have to be from the U.S. to appreciate and agree with the principles on which the U.S. was founded.
If the First Amendment were to be excised from the Bill of Rights tomorrow, Slashdot would probably be the last group of Americans to give in to the new regime. This courage would be admirable. However, I must ask: what about the motives behind it?
Most of the platitudes I hear quoted by various slashbots about free speech and other such virtues originally came from people such as Ben Franklin, James Madison, and Thomas Jefferson. What I must ask is: how can you claim that free speech is such a noble goal when quoting these people as some of its representative thinkers? Locke, ok. Voltaire, ok. But everyone involved with the American Revolution - all that was was a bunch of angry farmers who didn't want to pay their taxes like they should have! Free speech was catapulted to the top of the political agenda solely because some people were too cheap to pay the government its due.
And really, what other real NEED is there for absolute free speech, in code or otherwise? You elect representatives who you believe to be capable of making good decisions, which should include restricting speech if necessary. Some code-specific examples would be exporting of encryption to dangerous countries (which was only recently unwisely rolled back), malicious code intended to cause damage to property or infrastructure, or code that infringes upon somebody else's intellectual property. Outside of code, there's intolerant speech, speech undesired by most people, and speech inciting others to violence.
I think it's pretty clear that most of those sorts of speech should be restricted. So why are all of you always so keen on promoting an extremely dubious agenda popularized by tax evaders, with no other purpose than to legitimize suspect activity?
http://www.securitygeeks.com is reporting that the MPAA has filed another injunction against 2600 Magazine to stop 2600 from LINKING to DeCSS source code.
No, not any more than you could make an electronic copy of a copyrighted book and post it on your web site.
--
As several posters (gclef among others) have said, it's the use that should determine the legality. This ruling will help enforce that.
The whole problem with the anti-deCSS and CPHack suits is that they are predicated on the assumption that because the code in question could be used to commit illegal acts, it will be. And if you consider software to be a "tool" or a "device" then legally you might get away with that argument. But where does that stop? You can print the code to deCSS on a T-shirt for example. Should that be banned because it constitutes a threat? No! It's speech, just like teaching physics is speech -- are we going to ban that because someone could take the information and make a bomb with it?
To ban code simply because it could be abused is to trample on everyone's rights just to protect a few select interests. We don't allow that in any other arena -- we are allowed to do and have all sorts of dangerous things which could be misused to cause harm. Software, and speech, should not be any different. Punish people for their actions, not their words. If someone writes a virus, that's fine. If someone infects an unwilling person's system with a virus, that is a crime. Until a crime is committed, though, we have a constitutional right to say and do whatever we want. Does that make it tougher for law enforcement? Sure. But does that preserve everyone's rights equally? Yes! And that's why this ruling is good, and important.
The constitution does not protect lies or speech that incites riots. So if you told someone that a virii was a computer game and they played it, then they could still be held accountable. If the virii caused a large number of computers to make a distributed effort to crack something (ala distributed.net) or attack something, then the perp could be legally responsible under the second stipulation.
-[ World domination - rains.net ]-
You put your whole head in.
You put your whole head out.
You put your whole head in,
and you shake it all about.
You do the hokey-pokey and you turn yourself around.
That's what it's all about.
The preceeding was a source-code message from me to you, instructions on what you're to do.
The fact that it's instructions - whether the outcome of those instructions creates an unbreakable encrypted message (well, to the Centauri Ambassador, Londo, it was), or whether it's fun, or whether it induces banned behavior (I'm sure the baptists wouldn't like this sort of flagrant use of human body parts for mere amusement), is immaterial. Speech is speech. It is not good, it is not evil. It does not endanger anyone. The act of one human being hurting another human being has nothing to do with any speech they've heard, it has to do with a conscious act of will. This is what laws ideally need to address. The bad acts. Not the means by which bad acts are executed.
I wish I had a nickel for every time someone said "Information wants to be free".
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
There's nothing to fear but fire itself.
I wish I had a nickel for every time someone said "Information wants to be free".
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
I don't think it does. It seems to me that the word "speech" means whatever form an idea takes when it is outside of someone's head. There can be many forms depending on the media and intended audience involved.
Consider for example, when I want to ask for a waitress for a slice of cherry pie. I first have the idea and then I express it via a modulated air medium in accordance with the English language protocol. The waitress then acts as bridge by transferring the thought from the air media to the paper media of her order pad. I don't know or care if she is using the English protocol, Gregg shorthand, or what (so long as it is a protocol she has in common with the cook!).
Anyway, to cut to the chase, ultimately the idea I had of getting a piece of pie is acted upon. By the time it is acted on my original voice instructions may have been transformed into electrical impulses impinging on the brain of that guy with the artificial eye so he can "see" my order which now happens to be represented as a sequence of photographs of a man sending semaphore.
I am trying to be ridiculous in my example to show that it is the transmission of thought (or perhaps a better word is "will") that needs protection, not what is commonly thought of as "speech". This results in the protection of things like art and protest acts (their example was draft card burning).
-- OpenSourcerers
In the real world, the government uses the Bill of Rights to polish its jackboots on a regular basis. Just because a law exists, and, in some cases, has existed for a long time, does not mean it is in tune with the Constitution. There is a difference between legal realism and constitionality.
So take these two facts together: The U.S. Constitution tells the government what not to do, and sometimes the government tries to get away with it for as long as possible anyway, and you have a proper view of the law. A good example would be how far the Commerce Clause has been stretched to cover federal meddling is areas far outside of ensuring relatively friction-free commerce across state lines. A lot of laws may crumble when that catilever breaks off.
I wrote parts of this stuff
No you can't. The source code of windows is copyrighted.
Well, virus source code is probably still okay. If you recall, the Concept virus was written in Word's macro language just to show that it could be done. It was first written by an acedemic to point out the vulnerability. It was later modified to actually do harm. So, I would say that a virus in and of itself is okay, at least while still in source form. Once you compile it into a binary and spread it, you are definitely in trouble.
Unless they can show that you intended to do harm, spreading the source code to a virus may be okay. It would most likely depend on the context under which it was released. If it was released as code to be studied, it should be okay. If it is realeased with the obvious intent to do harm, then you are in trouble. This makes sense -- it's exactly the same as free speech -- you can't go around yelling fire in crowded theatres or saying things with the intent of harming stock valuations.
Software sucks. Open Source sucks less.
If you spray paint your manifesto all over the walls of someone else's building, it's still graffiti, and it's still vandalism, no matter how insightful or eloquent you may be.
If a virus displays "i am a 31337 hax0r! fsck the mpaa!" in 96 point type while sending your credit card numbers to some Pakistani server, then reformatting your hard drive, it's still theft and destruction of property.
Of course, IANA Supreme Court Justice.
Every day we're standing in a wind tunnel
Facing down the future coming fast - Rush
This sig intentionally left blank.
I think there is a simple solution to Free Speech versus malicious code, and it falls under the same category as yelling 'Fire' in a crouded cinema. Do that and you'll be arrested for disturbing the peace and maybe even inciting a riot. The same thing goes for nefarious code: if you write a virus AND try to distribute it in an executable form (binary, platform specific or scripted) you are doing the same thing as yelling 'Fire' in the movie house. You are disturbing the public safety, and a liable. Free speech does not extend beyond the tip of your nose, so spake the honerable, late, Chief Justice Marshall, and so to your freedom of speech to write code cannot extend beyond its harmless propagation. As soon as it goes from 'speech' to malicious action, the author is liable under the law. Note, the definition of 'malicious' is what is going to tie up the court system for years to come. After all, if you buy MS Windows and it keeps locking up and your important data is consisantly being lost, was that 'bug' in the system 'malicious'? If the company knew about it before selling the product, did they commit willful misrepresentation? Unfortunately, the UCITA laws seem to protect the big Software Houses from these kind of common-sense consumer protections (UCITA allows a 30-day evaluation period, but it is quite possible a product could be used for over 30 days before a specific problem arrises) but at least in theory, that is how free speech in code should work, IMHO. Of course, I'm not Chief Justice William Renquist -- only he and his 8 colleagues can decide what this really means. (Or 2/3 of the Senate and 3/4 of the States...)
P.S. Don't forget, in the U.S. Congress enacts laws, the President can veto, the congress can override with a 2/3 vote, the Supreme Court can rule as unconstitutional, the Senate and the States can amend the Consitution, the President can refuse to enforce the act / amendment and the congress can Impeach and Convict the President with the Chief Justice of the Supreme Court presiding. There is no clause in the Constitution for a National Referendum. Checks and Balances...
Time Lord, Dark Horse: The Techno Mage of Gallifrey
I certainly can see your argument and I know it's hard to justify exactly interpreted languages against it. However it seems by your argument, any time you need some underlying subsystem to execute Source, or to compile it, then it is not dangerous. However, I could argue that a Binary file is equally not dangerous until you execute it. And certainly if you have a Windoze Binary .exe and take it over to an iMac or FreBSD box without an emulator, it's just as dangerous as a piece of lint. In fact, a good block of scripted python or perl is platform-inspecific, and therefore can cause a lot larger swath of damage than a BeOS-specific one. Also, let's not forget it's theoretically possible to build a full C / C++ interpreter -- a nightmare of a job which would serve practically no purpose what-so-ever -- but certainly possible. Equally, Python and Perl code can be compiled. Thus the line between the two is much more blurred than at first look. (I suppose that's a point for you, jd. :) Anyway, it's the execution of code, in an executable or natively interpretable format on an appropriate microprocessor with the correct device connections. (After all, you can hardly re-format the Hard Disk of Dumb Terminal.) Yes, Binary files can serve no other purpose than execution, but as long as they are not executed in the right place at the right time, they are perfectly harmless.
The problem isn't that one has the code or binary, but rather that the binary may be executed with unexpected consequences, i.e. it's gonna format your harddrive. :) This strikes me more as 'False Claims' than free speech. I mean, I may have free speech, but if I make a car that gets 1 km to the litre, and then sell it with a claim of 50 km per l, that's not free speech, that's a false claim ('False Advertising') and this punishable under consumer protection laws. Unfortunately UCITA seems (I haven't finished reading the full text) to take that very right to sue for false claims away from us if they are not discovered within 30 days! but theoretically and hopefully once the Supreme Court clears that up, consumers should have the same protection when software (binary, source or otherwise) is executed under false pretences, and the provider who wilfully knew of the deleterious effects is liable under the consumer protection laws. It shouldn't matter whether money was exchenged for the code -- as long as a service is provided under false pretences, the provider is liable, IMHO.
Please see my other post about 'Public Safety' for another way of viewing this issue.
Time Lord, Dark Horse: The Techno Mage of Gallifrey
I couldn't have said it better myself. After all, the whole 'Fire' analogy is meant to provide 'Public Safety'. But who decides what is 'Safe' for the Public? The Supreme Court could equally rule that all code which implements some function 'foo' which the government finds objectionable could be a 'threat to public safety' and thus ruled illegal! It's a very fine line indeed.
Be Seeing You,
Jeffrey.
Time Lord, Dark Horse: The Techno Mage of Gallifrey
Why should Assembly code, machine code, C code, or LISP be any different in the eyes of the law? If you wrote it, it is speech. It doesn't matter at what level of abstraction you wrote it. IANAL, but I don't think the courts want to get into a game of "assembly is not protected", "C is protected". What would we do with asm("noop"); ? Is it C, is it assembly? If the courts were to make such a distinction, they would be effectively saying one type of language is in some sense "better" than the other. If programmers who write code for a living can't agree on which language is better than another, then the courts certainly can't.
JET Program: see Japan, meet intere
Even that isn't absolute. If someone is selling a mirricle thawing device for $200 a pop and all it is an aluminium tray and I tell people that they ripped me off for $195 and that they people can go to their lumberyard and get a hunk of substantially similar aluminium for $5, I'm not violating the law. My speach may be intended to harm (or actually harm) sales of said $200 device. Yet, it is truthful and accurate for the most part, although I might have to prove that I can get a hunk of Al from for $5.00 and that it too acts in a way substantially similar to the $200 item.
Part of the intent to cause harm must also be coupled with falseness.
Another example. Let us say that I see a politician screwing an intern. Let us further say that I took picutres and that I hate this politician. Let us also assume that this was in a aplace that a court of law would consider to be public, so said photography is legal. If I then release those pictures with the intent to harm that person politically, I'm well within my first amendment rights (assuming the pictures weren't indecent) to do so, even though it is clear that there was intent to harm this person. What saves me here is that I'm speaking truthful speach.
As an analogy, posting the source code to DeCSS would therefore be legal, absent the trade secret agreements and DMCA. It cleraly harms the MPAA, or so they would have you believe. Maybe the person releasing the code may be trying to harm them. Yet it is truthful speach. It is actually how you get around certain protections in the technology. No one can argue with that.
Reading the ruling, and if it is sustained on appeal, the case for overturning this part of the DMCA isn't completely clear. The ruling spells out that the government can regulate speach when there is a clear and present danger. When there is a compelling state interest in so doing. It found that in that case, no such clear and compelling interest was at stake and that the export regulations were overly broad and restrictive. There's a lot of wiggle room there for a clever lawyer to argue "Yes, he did rule it was protect speach, but deeper down in the ruling he ruled this because the government failed to show a compelling need to restrict the speach. In this case, the compelling need is clear...."
My final example is more mondane. Let us say I discover my friend's wife is sleeping around. Let us say that I tell people about this, word gets back to the friend, who is so distraught he commits suiside. Let us say even that I told him directly about this, to make it more interesting. Can the heirs of his estate or the state authorities sue me for causing his death? No, of course not. My speach clearly harmed this person, yet it was truthful, or I believed it to be truthful.
Things generally aren't as simple and clear cut as people are making them sound in many of the postings so far.
WAY off topic about speech, but on target for grammar:
http://pw1.netcom.com/~rlederer/index.htm
There's an interesting rant about language in his "Looking at Language" section.
-=Bob
Pseudo-intellectual? :)
Everyone here is well aware that the success of the computer industry is as great as it is because geeks question old standards, and synthesize new ways of doing things.
Ye Olde Englishe Handbooke was probably written using vi (Vee? Vee-Eye? SIX??) on a couple eunuchs boxes (or is that boxen). Fsck that! You goak?
We make up words daily, to convey the mutant ideas we peddle. Waxing pedantic on this forum will get ears boxed, and maybe a few Karma points from academic groupies.
Virii, viri, viruses... Whatever! If you get the meme (aha! there's a mutant! Kill it, before it breeds!) then just move on with the brain work.
Or get a job in QA.
But hey! Thanks for the history lesson.
-- What you do today will cost you a day of your life.
Thank you for putting it so finely.
Code as speach is better than speach. It's DOING SOMETHING ABOUT IT.
How else can ump-teen lines of code tell the MPAA that we're on to their little scheme of world domination? "Oh and BTW: you can drive a truck through this hole in your encoding."
Code is ACTIVE speach, it's crystaline ideas, not just a bunch of phonemes strung together and shouted from a mountain.
Why, it's, it's almost FORMAL, as in 'mathematical'. E=mc^2 is so succinct, it's immortal.
-- What you do today will cost you a day of your life.
Aw man, I'm sorry.. Nothing personal, and all that.
:) I mean, sheesh!! So my margins are not PRECISELY 0.825"... What are ya gonna do?? ;)
I agree, QA folks keep the rest of us honest, and force a double-take on the ego. That's granted.
But you CAN be the sorriest bunch of nit-picking anal-retentives when you want to.
-- What you do today will cost you a day of your life.
aggressivepedestrian makes a good point though. A device which performs a function is a product of it's 'source code', specifically a blueprint or design specification.
:)
A spec then is a form of speach, and should be afforded the same level of protection. Interestingly though, a spec or print is, technically, a document. Where I work, specs are 'published'. Copyright rears it's ugly head.
Does this suddenly make AutoCAD files the same as paperback novels and the Linux kernel?
If it takes source code (or pseudo code, but that's another battle) to convey an idea, then it can be said that it takes a print or spec to communicate an intention w.r.t. hardware. The compilation of the spec (creation of the physical widget) is no different from making a binary.
-- What you do today will cost you a day of your life.
As I heard countless times as a teenager in school, free speech doesn't mean you have the right to say whatever you want whenever you want. The old "yelling fire in a crowded theatre" addage applies.
What does that mean? I'm a little shaky on it, and I'm sure someone will correct me soon enough, but I believe it means you can't say or do things which are obviously meant to harm. Yelling "Fire" in the theater will cause a stampede, which is a bad thing if there is no fire. The code to virus may have interesting (and actually usefull) things within it, but when run on unsuspecting victims, it is another bad thing.
Am I on the right track?
I don't think that there can be ambiguities about macros and script viruses. While the form might be the same, a script can be enabled to act or not, depending on how it is attached and quoted.
Thus a macro virus is (IMO, but it makes sense) speech when it is quoted or attached in such a way that makes it inactive, while it its functional "face" prevails when it is put in condition to act, especially when it is encoded in such a way to be hidden from the user.
We may not like or approve of the obviously intended purpose of distributed codes (viruses, cracks), but that gives us no right to prevent people from communicating in that way. This is the point of all this- it's about time code was protected by speech. Plain and simple, code communicates ideas. Like a book on building bombs, having this information may make you resposible for it's proper usage, but you are not a criminal for communicating the information contained within it.
j. scott olsson
I guess you didn't read or understand what I was talking about...
All code isn't protected as free speech, in fact most code isn't. For example, for most company's that I've worked for, an explicit part of the employment agreement is that I do not own what they pay me to create (code), and because I don't, there are contractual restrictions to what I can and cannot do with the code. So I'm not free to share trade secrets, copyrighted coding techniques, etc.
Similarly, I can't claim someone else's work as my own aka plagiarism, which in tech terms is usually copying someone else's code (hint: the nickname CodeShark isn't related to stealing code, it's related to rapidly learning techniques from free code and then integrating the techniques into client company systems), unless I am explicitly licensed (GPL, LGPL, etc.) to do so.
"Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry?" It depends. If I knew the specifics I could try to exercise my free speech by discussing in detail how to build a cheap biological weapon too, but I'd have alot of trouble convincing a judge that it was in society's best interest to let me do so.
See, freedom requires responsibility, responsibilities require remedies, etc. So when I talk about the DCMA, DeCSS, etc., which I am strongly against, I'm not a proponent of anything more than who controls the decision point as to what my freedoms are and my responsibility to exercise those freedoms within the constraints of law.
And I'll be damned or damned trying before I cede control of that decision point to laws like the DCMA and UCITA which are designed from the ground up to favor the damned greedy corporations.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Geez.. I'm really starting to tire of arguing this one...
:)
Use of a language determines the language itself. The language does not determine use. If I want to say virii, then I've just invented a new word. For an example of this, see "robotics". Or "robot" for that matter.
A language is not a static entity, immune from change and redefinition. Language is an evolving, growing thing, that changes depending on what is said. If I want to say a "grabelcrochit" is that little thingie at the end of your shoelaces, then I've just invented a new, valid word for that little thingy at the end of your shoelaces. If I then say that the plural of that is "grabelcrochii", you'd probably argue that too, saying that Latin didn't use plurals for "-it" as "-ii".
In other words, go stuff yourself, moron.
---
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
>Just likeGuns and the 4th Ammendment! Shoot >someone and go to jail...but feel free to own a >gun.
Hmm.. interesting. Are you saying that because the fourth Ammendment protects us from unreasonable search and seizure, we should feel free to own a gun, because the government can't come looking for it?
I'm not sure that's really what the founding fathers had in mind with that one. . .
I disagree with this analogy. If you liken source code to the instructions for bomb making, then the materials are the compiler, operating system and hardware. Admittedly you probably already have these materials, but you also might have the materials to make explosives in your kitchen cupboards.
The free speech analogue for code is strong, I believe. In particular, it draws an obvious connection to the appropriateness of copyright to code and utter inappropriateness of patent law, i.e., you can't patent a sentence (even though that's exactly what Bruce Lehman gave his absurd USPTO rubberstamp to do).
;-).
Copyright w/r/t code also makes clear that plagiarism is illegal (a la copyright infringement) but that isolated authoring of like code is perfectly valid. Who'da thought?
The whole code as patentable is the morass, not code as speech. In some sense, code already is speech (copyrightable). Code as a form of expression seems spot on to me, especially as computer languages become more expressive and high-level (we hope, right
= Joe =
= Joe =
People opposed to copy protected software would protest it by releasing instructions on how to create a device that bypasses "copy protection".
Like instructions to people in countries with monitored/forced-proxied/blocked Internet connections on how to create secured tcp/ip tunnels to proxies on the "open" Internet.
Like teaching a person how to build and use explosives on the Internet. Or armed weapons. Or blue boxes, or 2600 Hz tone generators.
Is a "crack" for bypassing copy protection in a "program" considered equivalent to a "device"? or a "bomb" that is used to "attack" the copy protection, or the "software", or both? Is it illegal to convey these "bombs" over the Internet, or the mail, or your pocket?
I'll be watching this further.
And, what about the act of coding itself? You certainly can't express the same things in code that you can using English--does that mean it's a lesser form of "communicating"?
The reverse is also true - you can't express the same things in English (or other natural language) that you can in code. If you could, we'd all be using English to write programs. So no, it's not a 'lesser' form of communication, it's just different.
I'd suggest not. How many of us have used works like "beautiful" to describe chunk of code or the algorithm that it represents? Those of us who program know that it's a creative process and that it feels more like writing prose than like balancing your checkbook. I think the non-programmers of the world would be surprised by that, but I think it's true.
Absolutely. It's because writing code is writing (a story, for example) and is therefore an act of creation. You take a blank sheet of paper (virtual in our case) and create something where there was nothing before. Not only that, but the *way* you create it can be an art form if a particularly elegant solution is found. I agree with you that the sense of satisfaction I feel when I code up a nice program must be similar to that of a writer (or most any other artist) when he completes a work he is proud of.
dazedNconfused points out that it can only be appreciated by those who are clued in enough to "get it". That's true of any art form, I think. You will only appreciate "David Copperfield" or "A Midsummer Night's Dream" or "La Boheme" if you understand the medium and the context in which the art was created.
Admit nothing, deny everything and make counter-accusations.
I think you misunderstood what I was saying, or I didn't make myself clear. Actually I was trying to make the same point you did - that computer languages are more suited to interpretation by a computer because they're more formalized. Not because of any inability on our part to speak the language properly. That's why I say its just a different means of expressing an idea, but not inferior. If computers *could* understand natural languages, we wouldn't go to the trouble to invent and learn computer languages. Sorry for the confusion, and I hope this clears it up.
Admit nothing, deny everything and make counter-accusations.
I think the key word here is "interpret." Regardless of what's done with the source code, the programmer still expresses something in the source code; whether the source code can be interpretted directly by machine is a red herring. If the code is intended to be human readable, it can still be viewed as expressive in the legal sense. But then again, maybe I'm automatically ruling out write-only languages like perl...:)
-NooM
And unfortunatly one must look no farther then the US (And for a lot of /. readers, their own countries if they live outside the US) to find examples of such tyranny. Right now, for example, I face having to go to jail because my drug of choice happens to be an herb that grows naturally, has no LD50 (The ammount at which 50% of a sample population dies due to the substance) and not seriously harm the user nor cause the user to harm others'. True, no one has (yet) been killed by our government (officially) because they smoked marijuana, but how many otherwise law-abiding citizens have had to face similer situations?
To bring this back somewhat on point, if this ruling had not happened the way it did, there's a good possibility that eventually we'll face a similer situation where otherwise law-abiding citizens would be facing the prospect of going to jail simply because they're curious about encryption, how viruses work, or because they want to learn how to write a program that allows them to watch their DVD's on their computer.
America, land of the pseudo free.....
When I was able to do my own spam-armoring, you got a chance to email me. Now you can only hope I see your reply.
Ah, but simply having the source does not give you the ability to run the program. You must first acquire a compiler, a linker, and a set of libraries. As another poster pointed out, bombs can be made from common household items. Giving someone who has a compiler and linker and the libraries the source for an illegal or restricted program is no different then giving someone instructions on how to make mustard gas by mixing bleach and ammonia. All you've done is provided the instructions, it's up to them to actually follow the instructions.
When I was able to do my own spam-armoring, you got a chance to email me. Now you can only hope I see your reply.
Back in the good ole days I used to code. (not program mind you), but CODE... In HEX. I used to write 6502 ML "demos", and my source code was the actual machine code that executed. The question becomes what is source code??? since I programed the binaries directly are they considered source? If I decompiled the ML to assembly would that be the source, even though I didnt write it in assembly, but in ML????? I coded in HEX, is that source??? If I actually coded in RAW binary would THAT be source??? My binary code could be read by a handfull of people, would that make it source???? WrongWay - from the OLD school
I think this will be overturned because it messes up too mant other legal issues. For example it would have effects on the cryptography restrictions now in place which prevent the linux crypto filesystem from being distributed. It also has security impacts because security exploits cannot be stomped on. If this isn't overturned we may well see a patch .... oops amendment to the constitution, because we know that hackers are more dangerous than murderers and drug dealers.
"Sometimes it's hard to tell the dancer from the dance." --Corwin Of Amber in CoC
As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
Hold on. If you ask Tim Berners-Lee, HTML wasn't meant to be read by humans either. Wouldn't you then jeopardize the protection of HTML with this argument?
The observation that "machine code is not intended to be read by a human" is mainly just an observation based on current conditions. Could a person learn to read source code? Sure they can. I'm not saying its easy, but it's doable.
In early computing, they didn't have compilers to generate machine code for you -- the programmers had to write their programs by hand, in machine code, and enter it instruction by instruction.
So, since they lacked the modern luxury of higher-level computing languages, and modern compilers, does the code they wrote somehow lack the same FA protection that your random Java applet has now?
If I write a book, and then translate it into Sanskrit, or Braille, or some cypher, does it lose its FA protection because it's not readable anymore? Or let's say I write it in disappearing ink. Does its FA protection last only as long as the ink remains black?
Terrorists can attack freedom, but only Congress can destroy it.
As long as a constitutionally-protected right does not come in conflict with another constitutionally-protected right, it is absolute.
IANAL, but i believe the relevant standards in federal court are that regulations of constitutionally-guaranteed rights are permissible if:
Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry?
Think about what you are saying. A newspaper contains protected speech, but that doesn't make it legal for me to roll it up and smack you with it (alas).
Someone who wraps a brick with the the New York Times (free registration notwithstanding) and throws it through someone else's window should not expect to be aquitted on a first amendment defense. Similarly, the source code to a virus may be protected speech, but intentionally spreading the compiled binary without the knowledge or consent of the victim is an action which can be attached to criminal penalties.
Allowing virus code to spread sounds awful. But remember, the point of the First Amendment is not to protect speech that society likes anyway. Rather, it is to protect speech that society would natually want to ban.
"Free Speech" has other limitations as well, the most famous being copyright. If someone else produces a book, you can't copy it, even if you acknowledge the original author. If someone else hires you to produce a book for them, they have the copyright, and you lose your original rights to the work. The same should be true for code. So programmers can continue to work in an age where code is "Free speech."
As with pornography, such uncertainty will lead to "community standards" for source code. For example, in a VB-community, C will be considered too low-level, and thus not protected.
#include < stdio.h >
#include < sys/time.h >
#include < sys/types.h >
#include < unistd.h >
int main(void)
{
fd_set Theater;
struct timeval tv;
int IsCrowded;
FD_ZERO(&Theater);
FD_SET(0, &Theater);
tv.tv_sec = 5;
tv.tv_usec = 0;
IsCrowded = select(1, &Theater, NULL, NULL, &tv);
if (IsCrowded)
printf("FIRE!\n");
exit(0);
}
This is not a new problem, where source code as speech is dangerous in ways that, say, detailed instructions on building a bomb is not.
Source code isn't just instructions on how to make a bomb tho, it's also the materials to make the bomb. This should put it in a completely different (and possibly unique) category.
If I give you a box with the materials to build a bomb with detailed instructions, I should be liable for the effect of you building and using the bomb. If I simply give you the instructions, and you source and assemble the parts, then that's different.
The main problem with total protection of source code as it is, is that there's no way to make specific algorithms illegal like you would specific bomb parts. I can easily change the algorithm enough to aviod the illegal one (if it was done) but changing uranium/plutonium to something else in a nuclear bomb recipe isn't easy.
This makes me really nervous. I hope the Supreme Court takes it time with this one once it's appealed (and it better be).
$.02
Summary of the "Fire!" analysis as it relates to our Declaration of Independance (completely ignoring the constitution and all laws/regs):
Their right to life outweighs your right to the pusuit of happiness, and ends up revoking your right to liberty.
"It's tough to be bilingual when you get hit in the head."
Silly, it's not a "grabelcrochit", it happens to be a "dwunklegleebzit" (or so I'll keep telling myself) 8^)
"It's tough to be bilingual when you get hit in the head."
Unfortunately, too many judges, cops and politicians believe just the opposite. I only hope that use will determing legality in this area and hope that it spreads to other areas, like ending the license restrictions (in some areas) for lockpicks and guns.
Eve Fairbanks says I drive a hybrid!LOL
But this still doesn't, given the US Supreme Court's prior rulings, give us the right to free speech while working at a corporation.
They can still tap my keypresses, scan my email, and check my site log and all TCP/IP packets. And the Supremes think that's ok.
Will in Seattle
First off IANAL but it seems to me your question is more concerned with the use of the code and not the code itself. It would seem to me that distributing the source code for a nasty virus or some "hacker" tool would be considered protected speech, it's the bonehead who compiles it and uses the binaries to cause a little chaos that is in trouble. If the virus writer releases the source and puts the binary into to the wild and starts infecting machines with it then the release of the source is still protected but the release of the binary is not for at least two reasons. First since it's not human readable at that point and only has "practical value" and no "expressive value" without any expressive value it is not considered speech and therefor isn't protected. The second reason I see has to do with message content, assuming that you can argue that even the binary has expressive value when executed, it would still not be considered protected speech because the content is designed for the sole purpose of causing mischief; it's like yelling "fire" in a crowded theater or writing and sending death threats to people, it's considered a malicous(sp?) act and not protected. ;-> )
Of course that's just how I see it and as stated before, IANAL (and proud of it!
"Listen: We are here on Earth to fart around. Don't let anybody tell you any different!" - Kurt Vonnegut
Correct. As Nick Bostrom has pointed out, there are surely more than one in a million insane people in the population, and a nuclear weapon could kill more than a million people (substitute more accurate numbers if you will, but you get the gist). Therefore, everyone possessing a nuclear weapon would lead to human extinction.
And you can't get out of that by saying "don't allow insane people to have one", because psychiatry isn't advanced enough yet to stop killers before they strike.
This is not merely academic - it may become very relevant in the future, when universal nanoassemblers will in principle be able to create biosphere-destroying weapons with relative ease and low cost. That means a ban on individual control over these assemblers, at the very least, is critical for the survival of humanity. Shared control, as happens now in theory with nuclear weapons, is much safer, because individual maniacs can be vetoed.
Perhaps the reason SETI hasn't detected anything yet, is because most civilisations destroy themselves upon reaching our level of technological advancement.
Female Prison Rape in NY
Code is not hardware, but instructions on how to get the hardware to do what you want. It's like teaching someone how to get an airplane to fly.
A computer by itself it simply a tool. Source code is telling the user exactly what to do with the computer in order to get it to do what they want.
--------
"I already have all the latest software."
I've always consider coding very similar to creating art. A good piece of code has the same type of elegance, insightfullness, and form as a good painting, or a good musical composition, or a good poem. DECSS is a prime example of a piece of art illustrating the ruthless IP land grab currently being forced on us by mega-corps. Why shouldn't code be afforded the same protection from censorship that speech, music, and other forms of art have?
The executable/non-executable test is misleading, as it disregards interpreters.
I remember reading about an interpreter for C, and I know there is one for java, and I know I've written a fair number of interpreters for sub-scheme.
Source code is the same as the executable.
So let's gedanken. Most people would claim that a clearly written paper describing an algorithm is free speach. Currently natural language processing isn't up to reading and executing that algorithm, but in a few decades it might very well be. So then the paper becomes an executable as well.
Oh bother.
Is that piece of text legal or illegal?
How does the current legal system differentiate between Shakespeare's Hamlet, and the Anarchist's Cookbook?
Perhaps Steve Wozniak would like to respond if he is listening, since he wrote the original Apple ][ Integer Basic entirely in machine code.
Fine, O.K. but if I find your account on my network to be full of cracking tools and virus building kit, then you'll still lose access till you explain to me why you have it on my machine.
I have to balance your freedom of speech against my other users freedom of speech. and if you don't explain why you have it to a standard that I find acceptable then there is no one who can make me put you back on.
Standing there and saying that I am infringing your freedom of speech will only get you laughed at.
Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry?
Yeah. Both are painful to the ears of any person who does what it's a mockery of for real. Both have the potential to grow into greatness, but not everyone will achieve that. Certainly a virus reaches more people than a crappy poem in the back of a notebook, but a really cleverly written virus could be written by the same person who, when they grow up, writes a major kernel security patch. The problem is, they might NOT grow up. Evidence to the other side of the coin, just listen to the lyrics of any given Smashing Pumpkins song. Put 'em on paper and you'd guess the author was 15.
Bad things often happen to good people,
It is up to them to see that they remain good.
I hereby define "virii" as the plural form of "virus" for the latin language. There, feel free to use it now that it is official.
Inventing words is easy. Please refer to history for many examples.
--Scott 8-}
--Scott 8-}
The reverse is also true - you can't express the same things in English (or other natural language) that you can in code. If you could, we'd all be using English to write programs. So no, it's not a 'lesser' form of communication, it's just different.
That's just plain not true. The main reason we don't use English to write programmes is because other programmes (compilers and interpreters particularly) can't understand its subtle semantics and complicated syntax very easily/well*, not because we can't speak it very well.
It IS more difficult to express certain concepts succinctly and unambiguously in English. But all non-trivial programming languages are 'equivalent' in computational expressivity to a turing machine, the operations of which can be described in any natural language.
*Parsing a sentence of an arbitrary context-free language can be done in O(N^3). Natural language is not context-free. Programming languages are an easier-to-parse subset of context-free languages.
Trees can't go dancing
So do them a big favor
Pretend dancing stinks!
Likewise, many would argue that the instructions you can find on the net to make bombs, crystal meth or the alt.suicide.holiday FAQs are protected free speech. I'd find far less use for any of those three things than I would with the source code for virusses, which at least present interesting technical reading.
The government is rapidly trying to take away these dangerous free speech rights by attempting to revoke your right to spread drug or explosive manufacturing information or even to "desecrate" a piece a cloth with 50 stars and 13 stripes on it in a certain arrangement and color scheme.
The Methamphetamine Anti-Proliferation Act (S.R. 486), would make it a 10-year felony to "distribute by any means information pertaining to... the manufacture or use of a controlled substance, knowing that such person intends to use the... information... in an activity that constitutes a federal crime."
This, of course, makes perfect sense. According to an October 1999 NPCA Policy Report, the expected punishment for murder is 41 months, and we all know dissemenating drug information is worse than murder. Burglary and assault's expected sentences were less than 20 days each!
Furthermore, an amendment which was tacked onto the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act prohibits teaching or demonstrating how to make explosives with the "intent" that the information will be used to commit a federal crime. This has been a law for quite some time now.
In other words, don't be too sure about your "Constitutionally guaranteed" free speech rights; you might be committing "offsensive" or "dangerous" acts.
--
Steven Engelhardt
sengel@interaccess.com
Steve
I think it is important to make the distinction of intent. An H-bomb has only one purpose, and can only really do ONE thing; that cause mass distruction. Code however is much more like a disarmed and disected bomb, it has be learned from/modified and possible used for good. That should be the distiction between banning DeCSS or not.
please don't feed the monkey
This is a good thing, to be able to write a program to do anything you want, without constraints. With all of the incursions into our rights as of late, especially with all the weirdness with patents of software, etc.. It's refreshing to know we might not have to do things like printing the source code to PGP as a book, to distribute ideas, and advance the state of the art.
Expectations result in disappointment :-)
Question: Is assembler code binary or source?
I assume I do not have to defend assembler code as source. I have seen extremely beautiful assemble: OO assembler layered assembler - sweet stuff.
But I can reverse binary into assembler, so have I magically created 'expression' from 'machine'?
Trying to separate binary as distinct from code is a very arbitrary exercise. It's more a continuum - shades of gray.
I'm hoping that it would be treated the same, or at least very similar. There are definitely parallels between the two (speech and code). To those who would bring up the point that there are limits to free speech, I ask you to examine why they are there. From what I can think of off the top of my head, major examples of the main areas are: screaming "FIRE" in a movie theatre, saying you'll kill the president, and slander/libel. The first two were put in place to prevent physical harm to people. The last was put in place to prevent ruining someone's reputation/career. Now, obviously, there aren't all that many cases where code can kill (BSOD doesn't count), so the relevance is not there. The last bit is a little closer, but still not there. When you slander/libel someone, from what I understand, you actually have to speak an untruth about someone in a manner that damages their livelihood/reputation. Virus coders and crackers and the like may indeed be damaging someone's livelihood, but they are not doing it by speaking an untruth about the victim.
But then, IANAL.
-----------------
"And I thought 'Reverend Billy
I agree. If code is treated as speech, it would still fall under the First Amendment which might make regulation a little more sensible IMHO. Just as you can't yell "fire" in a crowded theater, you wouldn't be able to create a virus and unleash it on hapless AOLers. Something like DeCSS could be protected as a form of peaceful protest while using Trin00 to launch a Denial of Service attack would clearly be form of illegal protest.
Does this
--
Time is Nature's way of keeping everything from happening at once... the bitch.
Another good analogy for posting computer virus code is posting instructions for building bombs. In both cases, you're explaining to somebody how to (most likely illegally) destroy something using tools that are more or less available: fertilizer or floppy disks. There was plenty of discussion about bomb-building intructions after columbine (maybe even on slashdot).. I don't remember the arguments and outcome of that debate, though.
In the malicious-code case, you're also potentially helping to curb violence by informing users and anti-virus companies how to protect themselves. For the explosives, you're more likely to protect people by telling them what chemicals not to mix together without thinking. (My science teacher once allowed paper towels and several chemical components of gunpowder to collect in a trashcan. Someone didn't put a match out completely before throwing it away, and as a result there is a large black circle in the cieling of his old room.)
--
The shareholder is always right.
--
The shareholder is always right.
Not true. It IS just instructions on how to make a bomb.
If you want the materials, you need a computer with a working compiler/assembler/etc.
-steve
--- "We also were guided by the unlikelihood that anyone would face supernatural evil armed only with technology."
Ummm...???
Software doesn't DO anything. It tells a machine to do something.
That's an expression of ideas, to a machine. If I had a machine that responded to voice commands, that would be no different.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
If I make a sculpture that just happens to meet the definition of a supercomputer, can I export it from the US to, say, China? There shouldn't be much of a problem since it is artwork, right?
I mean, how can code possibly be protected speech
Thge same fucking way instructions for using a condom are free speech. Thank you, asshole.
The message on the other side of this sig is false.
"Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry?"
I would say that the source code to virii is more like "shouting fire! in a crowded theater" -- something that goes beyond the definition of free speech as determined by the supreme court.
signature not found
To the best of my knowledge it has never been illegal to write viruses. Nor has it ever been illegal to discuss or share code on how to write a virus.
To use the analogy of somebody else here, it's not illegal to own a car (even if you built it yourself), but it is illegal to use it to kill somebody with it. Similar circumstances follow for a virus. If you intentionally infect a computer or a redistributed file with a virus, then you are violating laws. Simply writing a virus does not make you a criminal.
Unbreakable toys can be used to break other toys.
It seems obvious to me that if you allow programs to be protected under copyright law, which is designed to protect specific forms of speech then it should also be granted the protections of free speech.
Binaries are a less obvious point, should they be protected under copyright law? i.e. you can't copyright a hammer, can you? But they could be patented as a device -- and this would be good because to patent something you need to describe its operation.
--just my 2cents
-------- This space intentionally left blank --------
Your attempt to draw a distinction between source and binary is interesting and on the surface would seem to be valid, but it takes us down some interesting paths:
1. What about programs written in interpreted rather than compiled languages (for example, BASIC, PERL, or - most notably in the virus field - Visual Basic for Applications, the macro language of Micro$oft's applications). Should these be protected free speach?
2. Compiling is in essence just a way of translating or "encoding" the source code. Compiled binaries can (with some effort) be translated back into the original algorithms. If it is compiling that would turn free speach source code into something not free speach, what about encrypting the source code? What about compressing it into a zip archive? It is possible to draw distinctions between these methods of encoding, but the further you go down this path the greyer the boundries get.
3. Along the same lines as item two above, if it is translating the source code into something a machine can understand better than a human that allows us to draw the distinction between free speach and other things what about TDD services where a human calls a machine that then translates the human's speach into something a machine can understand so that that machine can then display charaters to the hearing impared person on the other end of the line? Does what would otherwise be free speach become something else during its translation into that machine?
Just some things to think about.
Mark
people should be free to distribute the source code to anything they want. i don't care if it is a virus. if the virus isn't active (as in, just the source) then why wouldn't it be free speech?
It means that companies will now be forced into even more desparate measures in order to attempt to make a profit...
Not at all. This ruling doesn't say that source must be opened. That remains the author's choice. What it does say is that if an author opens his source, he has First Amendment protections -- and responsibilities -- for it.
I don't subscribe to RMS's GNUtopian vision.
Unless you had permission from the holder of the copyright.
You can't post someone else's protected works without their permission. Posting the source code to Windblows, would be the same as posting the entire text of "Angela's Ashes".
i think what you have to keep in mind with free speech, evan as it applies to code, is that there are limits in some areas. shouting fire in a crowded theater cannot be defended by the ideal of free speech. similarly, i believe that disruptive programming can and will fall into a similar category.
I am a lawyer
The key restraining everyone from building an H bomb is materials. Things like weapons grade plutonium are highly restricted, possesion with out the proper paperwork lands you in jail. Restricting the recipe is pointless.
Anything is possible given time and money.
No. The act of Yelling "Fire! Fire!" in a theater is not a crime. Inciting a riot is.
Anything is possible given time and money.
Ok, this new ruling is great. We can freely distribute and discuss the source code for the Matel CyberPatrol NetNazi (as I wrote this I was dismayed but not surpised to find that netnazi.com has been taken). I cant wait to post my schematics and source code for my thermonuclear device. ;*)
Okay, your "net effect" idea I would argue is already in place, that's what the legislative & judiciary branches are consistently determining. Laws are put into place and the net effect is retroactively assessed to determine whether the balance between individual freedom and governmental intercession on behalf of the masses is consistent with certain ideals that are laid out in US first principles.
The government is thus permitted to intrude on an individuals rights in special cases that are laid out in US code -- so free speech is not the all-encompassing right it seems to be in the discussion here. See for example, Erie v. Pap's A.M., a case recently where a nudity ban is challenged under the first amendment ("freedom of expression"); it is found to be within those "net effect" gray areas where the government is not compelled to leave the individual free. Their term is "prevention of secondary effects", or the limiting of "undesireable elements" from their society. This is normal, and par for the course, but stands as an example that free speech/expression can and will be curbed, and that the "net effect" principle can and usually does defend a certain group's predjudices.
The net effect of the commingling of our political system with this type of "possible barrier" to freedoms is that the curbs on freedoms tend to come from congressional representatives, rather than from the individuals. I think it's difficult from the senate floor to assess the "net effect" on larger society, and I'm not sure most elected officials have individual freedom in mind as much as maintenance of the status quo. There needs to be more review and assessment, a la Supreme Court, rather than political gamesmanship.
IMO, the electoral process is mingled with mass media tends to encourage those politicians who are weathy, dishonest and make promises to the majority audience, regardless of intent to carry them out. Due to their "branding" in the marketing sense, they get "electable" and hence get to choose which freedoms get curbed. Grass roots on the national political scene is practically dead. I don't feel these people accurately represent my people, but I am just one man and ill equipped to "unelect" an entire state and replace my representatives with ones whose moral fiber more suits my idea of who determines "net effects". I haven't the money, I'd be brutally honest about what I intended to do in government, and hence, would likely not get elected.
So you end up with ugly US code changes like Terry vs. Ohio, basically giving a policeman the right to initially search you if he can articulate a reason for his having a suspicion that you might be thinking about committing a crime. This, to me and many that I have talked with about it, is clearly in violation of the fourth amendment, but to the Court, seems to be within the acceptable boundary. Net effect? More victims of unreasonable searches are convicted in the short term, and perhaps a downturn in the crime rate.
However, one can fairly easily extrapolate what an unscrupulous government could do with that sort of law. But even not taking it that far, if the policeman responsible for executing the law is biased or predjudiced, then it's a larger/lesser effect on the biased/predjudiced population, and the indicted stand a lesser chance of a fair trial (fourteenth amendment, iirc) than they would were Terry not in place. Essentially, the "net effect" answer is not an answer, but an apology for the status quo.
How can code be free speech? If I make a piece of hardware do exactly the same thing as a piece of software, does the piece of hardware become "speech"?
I would say probably not. The ruling linked to in the article above says that code is an expressive means of transmitting ideas about computer programming, essentially the algorithms. This means that compiled binaries, which are the end product and are not an expressive means of transmitting these ideas, are not protected under free speech. Similarly, hardware, which is not an expression of it's own design, will not be protected, though the plans and schema may be.
I would assume that binaries are also protected as an *expression* of an idea. The constitutional purpose of copyright is to encourage individuals to *express* ideas so that the arts and sciences may advance. To encourage this, the constitution grants specific rights to the creator; so that the marketplace can determine how to best encourage the creator. If it is held that a binary is not not an expression of an idea and thus protected under free speech... then I question its ability to be copyrighted. I think that these two aspects of constitutional law may be tightly intertwined. Also, I personall believe that you should be able to copyright a binary... as long as the source code is published (to advance the arts and sciences). The copyright/patent mini-blurb in the constitution is about a *trade* -- the creator gives their *ideas* (in the form of a copyrightable expression or in the form of a patent application) to the public in exchange for the rights granted. To summarize:If it is not *good-enough* to protect as free speech, then it is not *good-enough* to be copyrighted.
BTW, visit www.distributedcopyright.org for some older ideas about copyright and software...
This might seem weird to you, but the examples you give are not very compelling -- in fact, I think both should definitely be protected.
If I want to write a virus to show faults in some piece of software, I should definitely be allowed to, and allowed to publish my results. Actually using the virus to damage systems should of course be illegal.
If I want to modify my own software so I don't have to put the CD rom in the drive every time I want to use it, and perhaps share that ability with others who also legally own the software, I should be allowed to do this too. Using the same software to pirate software not licensed to me might be illegal. *
Code being protected as free speech is wonderful news!
* of course, some people (including me) would argue that the idea of piracy is nonsense, anyway... but that's not important to this argument.
A CPU still "interprets" a binary executable.
So, what about the implications of:
1. Distributing a binary C/C++ interpreter with the source
2. Distributing a binary C/C++ compiler with the source
We aren't communicating a "banned tool" - just the instructions and raw materials to make one. You're no longer "trafficking in" potentially illegal tools, everyone just makes their own.
A technical distinction perhaps, but the response only matches the unreasonable cause.
An object should not be inherently illegal. Only the illegal act should be illegal.
sig fault
int main(int argc, char *argv[])
:-)
{
printf(
#include "mymanifsto.h"
);
CrackCSS(argc, argv);
}
That's how much.
sig fault
Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry? Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon?
Not being a legal expert, I would say that what the court means is that, yes, even though you are free to express yourself and your beliefs, through, print, speech, and now code (just not nudity), the same laws and boundaries laid out over the past two centuries apply. The first amendment gives us the right to say what we want, as log as it does not step on someone else's privacy or civil rights. Even now you can't harass someone through a speech or publication because of their color, sex or whatever, and the court is saying that this is going to apply to a software program or web site as well.
While a youth can write all the angry, adolescent poetry he/she wishes, (First Amendment right) he/she better be careful they are not violating any hate crimes or carrying any threats of violence to any individuals or corporations. The same thing goes for writing a virus program. You certainly can write a destructive piece of code, but you'd have a hard time proving that you had no criminal intent, and if you released it, fugeddaboutit. That's a criminal act equivalent to smashing a computer.
--- RFC 1149 Compliant.
The speech isn't in what the program does, its in the source code (not the binary, I assume) of the program. The source really isn't the program, its just some instructions (schematics, if you will) that tell the compiler what to build. Of course, an interesting question in that case is this:
What if I (being some kind of evil genius) write my entire program in binary? The code I write is the code I run. Of course, this is hypothetical, but being that this code is speech and action rolled into one, is it protected or not?
Gah
This is a matter of communication of designs, verses distribution of implementation. If I write some source code and post it to a newsgroup as a demonstration of an idea, or as a point for discussion, then I am communicating an idea to other people, in an expressive language.
A piece of hardware would have been designed, and those designs could be counted as free speech as well. A program source code is a design that we have automated construction mechanisms for (compilers).
This is the difference between patents and trade secrets, a patent protects published design from beeing implemented without permission. The design can be distributed, you just can't legally implement that design, build the mashine, or, I would assume, compile patent protected source code. A compiled program can be analogous to a complex mashine, with a design protected by obscurity, and analogous to a trade secret.
It would be interesting to compare the laws on reproduction of copy right protected literature. What is fair use? Can you recite a poem in public? What about the performance of a musical piece? How does this compare with what we would expect / hope the law would be on source code? Is it fair? I hope these questions will prompt discussion... :)
PS: Having re-read this, I have decided that the key issue is the automated construction bit. This is what muddies the waters, and makes life difficult for those that make the laws, as it makes the implemntation of a protected design trivial for an individual. Its all about empowering the people. Its a good thing, but I'd nead to organise my ideas before attempting to write about it, that what makes slashdot difficult, once youve spent the time considering and idea, you might be to late. Cute that in the time its taken me to write this, the message I'm repling to has gone from (Score:1) to (Score:4) so this might get read...
Thad
Thad
I trust that most people will walk on the good side of that line. Therefore, I oppose all censorship.
I too can't see any reason why someone would need to possess their own nuclear device, but is that ownership not protected by the 2nd Amendment?
I admit, it's a ridiculous question.
Are you honestly going to tell me that you would want a situation where every nut in every city has the power to kill millions of people?
We already have a situation where every nut in every city has the power to kill a dozen or more people.
Is there a defined limit to personal destructive power?
I'll let you know when the time is right.
Interesting point. Perhaps this ambiguity will ultimately lead to a Supreme Court decision mirroring that on pornography, saying "I don't know how to define source code, but I know it when I see it."
What an incredibly great idea. I'm sure it will keep the lawyers employed for years to come.
"Community Standards" What a joke. Just because they all agree doesn't make them right.
[Note: I think the Anarchist's Cookbook has a mostly negative effect, and banning it would _probably_ have a positive net effect (I don't see any convincing reason for it based on "free speech" offhand)]
Where do you draw the line? Physical harm? Mental anquish?
I would rather have it all, the good and the potentially bad than have someone or some group dictate what should and should not be allowed.
I did not state my position WRT the right to bear arms. I asked an admittedly ridiculous question.
It's a constitutionally protected right to possess the capability to kill a dozen or so people, but being able to kill millions is right out. Where's the line drawn? When does one stop being a threat to other individuals and start being a threat to the security of the nation?
It's not an argument at all. It's a question.
I'm not looking for necessarily for a black and white answer but there's a pretty large gray area between an M16 rifle and a nuclear bomb. Just trying to narrow it down.
The fact that you see no difference between a whacko on a killing spree and a whacko with a nuke means that you and I are are probably on the same side of this discussion. I'm not a big fan of guns, but if one can argue that the 2nd Amendment is the right for people to hava an Army, one can also argue that the 2nd Amendment is the right of people to own large scale weapons. One of the chief arguments for the 2nd Amendment is for protection against internal threats such as our own government. Our government owns nukes.
I don't necessarily agree. I'm just trying to explore where the typical 2nd Amendment argument starts to break down under the enormity of human loss.
There's also not a single sane and mentally proficient person that will contest that giving a handgun to a nut would be beneficial.
In any case, you missed my point. Owning a semi-automatic weapon is okay. Owning a nuke is not. There's a rather large gray area in-between.
I'm a ham as well, I don't see how there is any comparison to the internet. Ham radio is regulated because it is aloted a very small portion of the radio spectrum. If there were not controls it would be just like CB.
If there were only a "Most interesting rant of the week" category.
The district court found that encryption source code is not sufficiently expressive to be protected by the First Amendment, that the Export Administration Regulations are permissible content-neutral restrictions, and that the Regulations are not subject to a facial challenge as a prior restraint on speech.
The appellate court spoke only to the first finding, and directed the trial court to reconsider its opinion accordingly. It may well be the case that the code in question still may not be published, eg, for national security reasons.
Point being...
Virus code = ok by freedom of speech
Using virus code destructively = Crime not protected by free speech.
Owning a gun = ok by 4th Ammendment
Killing someone with your gun = Crime not protected under 4th Ammendment
Same concept different applications.
Soap box
{
Dr. Junger's case on crypto is no where near an art display of naked children or the propogation of Melissa to destroy our computers. Freedom of Speech is the law of the land. Anyone and now nearly anything can hide behind this right of us US citizens. The real question is does this catch all doctorine now allow people to misuse this wonderful right?
The idea that software code is written word is something I've always thought should be the case. I've met Dr. Junger, he seems to be a die hard Linux/FreeBSD user and dedicated to the Open Source movement. Why should he not be able to publish his crypto teachings?...because of some government law which says the crypto the US has is above and beyond any other country's and should be classified as a military weapon? I think NOT!
This case should now open the door to publishing the Source for DeCSS...not the binaries, but the source...as it is the only item covered under the freedom of speech. The law may very well state that the DeCSS code is covered under the freedom of speech, but it's usage is criminal. Just like Guns and the 4th Ammendment! Shoot someone and go to jail...but feel free to own a gun.
}
xob paoS
that's a really good link
.oO0Oo.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
comments are stripped
.c file from a.out but they would be able to see the algorithm used.
.oO0Oo.
pre-processing can change the resulting binary
The compilation of say C source code to binary is one way and it's also possibly a many-to-one transformation. Even an expert in assembler would be lucky to reproduce the
Releasing binary only closed software is security through obscurity.
Which makes me think - if I claim that I took the binary of GPL'd software and hand coded changes to it in assembler (using a hex editor) the binary would be the source!
It's all a good reminder that the source code *IS* the documentation.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
well kinda,
.oO0Oo.
but there are no hard and fast rules
grammar records not dictates
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
You guys are familiar with diassmblers right? You know, those tools that convert executable binaries to assmbly language code. Do you think this type of source code can be protected by your First Ammendment thinggy? (I'm not a US citizen nor am I in the US. i'm free to encrypt. ;) )
Take-off every
I'm sorry, but I just can't accept the idea that code is speech. Courts have also ruled that giving money to political causes == free speech, and look what that has done to our political system (where do you think UCITA would be without that ruling).
Speech is expression, and while good arguments can be made to this point, code is essentially not expression. If source code and money == free speech, then we have started down a slippery slope where almost anything a person does could be classified as free speech.
(From the Jargon File)
/k/ alone are sometimes treated this way; e.g., `soxen' for a bunch of socks. Other funny plurals are `frobbotzim' for the plural of `frobbozz' (see frobnitz) and `Unices' and `Twenices' (rather than `Unixes' and `Twenexes'; see Unix, TWENEX in main text). But note that `Unixen' and `Twenexen' are never used; it has been suggested that this is because `-ix' and `-ex' are Latin singular endings that attract a Latinate plural. Finally, it has been suggested to general approval that the plural of `mongoose' ought to be `polygoose'.
Further, note the prevalence of certain kinds of nonstandard plural forms. Some of these go back quite a ways; the TMRC Dictionary includes an entry which implies that the plural of `mouse' is meeces, and notes that the defined plural of `caboose' is `cabeese'. This latter has apparently been standard (or at least a standard joke) among railfans (railroad enthusiasts) for many years.
On a similarly Anglo-Saxon note, almost anything ending in `x' may form plurals in `-xen' (see VAXen and boxen in the main text). Even words ending in phonetic
The pattern here, as with other hackish grammatical quirks, is generalization of an inflectional rule that in English is either an import or a fossil (such as the Hebrew plural ending `-im', or the Anglo-Saxon plural suffix `-en') to cases where it isn't normally considered to apply.
This is not `poor grammar', as hackers are generally quite well aware of what they are doing when they distort the language. It is grammatical creativity, a form of playfulness. It is done not to impress but to amuse, and never at the expense of clarity.
-----
Sure, if you think that the plural of 'virus' is 'virii' you're just as much of weirdo as if you think the plural of 'Unix' is 'Unices.'
But most people just do it for fun. Don't be silly.
Dlugar
Computer Go: Writing Software to Play the Ancient Game of Go
Writing a virus might be free speech, but unleashing that virus (which can cause damage) is still an act of vandalism. I imagine it's the same as the difference between free speech vs. libellous (sp?) comments.
"I have never let my schooling interfere with my education." - Mark Twain
First off, what does this do to copyrights? If the backstreet boys release a song, and I modify the song and sell it, as long as i can prove that I'm not hurting their sales, then I'm pretty sure I can continue to sell my squeaky little voice on CD. What about VHDL? I can describe hardware with a computer language. So if I design a VLIW processor that uses "Code Morphing Technology" will Linus come knocking on my door, asking for money? Now if president Bill Clinton gives a graduation speech at Georgetown, and I get paid to give the same speech, word for word, the next day at the Illinois Institute of Technology, what can he do? So can I now implement one-click shopping on my website without fear of Amazon? If I post a website about making a bomb and some litle kiddie blows up his house, am I responsible? (Responsible under the law, not in a moral context.) So if i make a program that facilitates the trading of music, licensed or otherwise, can the MPAA touch me? Maybe I'm way off track here, (probably) but I've not had any sleep in a while so be gentle w/ your replies...
"I threw up my hands in disgust and wondered if it had been such a good idea to have eaten my hands in the first place."
Whatever happened to Article One of our Bill of Rights?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
When did NO LAWS mean SOME LAWS?
Once you start saying "Well, let's make the exception for that...", then when do you stop? The answer, as the RIAA is valiantly trying to demonstrate to us, is never.
I think the founding fathers knew what they were saying, and they probably thought that NO LAWS was a pretty clear statement. Ah, what a few centuries can do to bend things around.
You should never, never doubt what nobody is sure about.
You quitting proves that the karma kap worked. The most annoying of the whores shut up. --CmdrTaco
An H-Bomb would not even take out an entire metro area. Assuming you weren't dumb enough to flip the switch on the bomb itself, there would be plenty of maximum security prisons for you to visit.
We are both saying the same thing, however. We have the right to create/write/say whatever we please. The USE of that thing upon other people (Saying slanderous remarks TO anyone, executing harmful code AGAINST a machine) is what you can already be prosecuted (persecuted?) for.
There are plenty of cases where distributing the source code for something harmful is beneficial. Take the Internet Worm of the 80's, for example, where colleges were trying to reverse-engineer it, and sending the source code to each other to figure out how to stop it.
You should never, never doubt what nobody is sure about.
You quitting proves that the karma kap worked. The most annoying of the whores shut up. --CmdrTaco
I would argue that, yes, you have every right to build it. If you use it, obviously you are going to jail. If you even threaten to use it, you become a threat and should go to jail (something along the lines of Assault--the threat of harm).
I sure as hell don't want to have another law stripping us of another right to life, freedom, and the pursuit of happiness.
You should never, never doubt what nobody is sure about.
You quitting proves that the karma kap worked. The most annoying of the whores shut up. --CmdrTaco
ERROR: Undeclared identifier Pants.
My other
What do we do about proprietary, closed source, binary only computer programmes running on our machines that we have no access to the source?
Do we trust the suppliers of these software products to not do unrepairable damage to our computers? Do you feel comfortable running other people's software on your machine without the knowledge of what it's doing?
Windows owners do. I persoanlly don't. Except for Corel's WordPerfect, I have no closed source software on my Linux box at home.
To me, by allowing software to run on my computer without the knowledge that I can inspect the source code to find out what it's really doing is like inviting a stranger into my house and then giving him free reign to it without supervision. Would you do that?
Do we need civil rights protection to enable us to view the source code for these binary only, proprietary programmes for our own protection?
Questions, questions, nothing but questions.
Actually, IAAL. Code is speech, and speech is protected by the first amendment. Action, for the most part, isn't. So you can write viruses all you want. When you distribute them to destroy systems, that's action and they can send you to jail. Seems reasonable.
InstaPundit! Ahead of the Curve Since 30 Minutes Ago
Ahhh...Now there's a Pandora's box. What is source code? How about scripting? Macros? Malformed http requests?
There is more than one way to skin a cat, er, instruct a computer...
BRENT ROCKWOOD, EST'd 1975
In other words, you can say all you want. You can swing your arms around all you want, but as soon as you hit somebody, you've got to pay the price.
Viri and cracks hit someone everytime they're run.
tcd004
LostBrain
Source code is only the step by step instructions for how to do something, in a special format granted, but still just instructions. Instructions on how to do something are legally protected speech. This includes instructions on how to break the law (such as DeCSS Source).
The binaries are compiled into object code they become a device capable of doing something. It is at this point that DeCSS is a device which violates the copyright laws.
Scripts would be protected instructions. Since they are not object code until they are interpretted they are protected speech, though running them is not.
"[Y]our wise men don't know how it feels to be thick as a brick." -- Ian Anderson
The idea has been presented before: lobby your congressperson to go before congress and read the DeCSS source into the Congressional Record. We all know it's speech. This just seals the deal. (Anyone know if citizens can get in on their own to read something like this?)
--
He lives in a world where those who do not run the client software of the omnipresent meme are unacceptable.
child -> children, gold -> goldren
I don't think so.mouse -> mice, house -> hice
The english language is full of inconsistent rules for making words plural.
It also depends on what you are discussing since the plural of mouse in the computer world is mouses.
Brought to you by: "Al"toids - the curiously weird mint.
but you could read the source code, understand it (theoretically), and then re-write it as your own source code, so long as you didn't copy any of the original source.
Jeff
stty erase ^H
"A programmer is not really a programmer if he not some time or another thought of his program as an estetic object"
I hope the quote is correct since it is from memory. Its from a book called "The psychology of computer programming" and where written in 1971 by Gerald Weinberg.
So yes - code can be art. I personally think it is essential för programmers who love their work.
Just saying it like it are.
Normal 'speech' = Person Vs. Person. Code 'speech' = Person Vs. Computer. Code IS a lingual thing. But the algorithm is TOTALLY different thing. It is kind of difficult to separate 'code' and 'algorithm'.
First, the comparison is not between hardware and software, but between hardware and source code. The specific issue is not about posting binary executables on the Internet, but rather addresses posting source code (which can, admittedly, be used to create binary executables).
Secondly, assuming that you meant source code as opposed to software. You are correct that the functional characteristics of source code and hardware are remarkably similar. The difference lies in the the expressive nature of the two media.
Source code (especially in second or third generation languages) is by defenition an abstraction above the hardware level. The programming language in effect allows the user to both write and understand the program from an abstract level. In otherwords, the source code is expressive enough to communicate more to another programmer than would a series of ones and zeros or a series of or and and gates.
"I'm on my way to the freedom land..."
Liberty and creative freedom are side effects of the First Amendment, IMO. The real purpose of the 1st is to enable citizens to speak out against laws and against the government.
I really don't think we will have to worry about any script kiddies getting off scott free by claiming they wrote an exploit (*laughs*) and that their use of said expoit is now protected by the First Amendment.
cat
This kind of alarmist crap is unbecoming, Slashfolk. Try to keep things in perspective and not blow things out of proportion, please. IANAL, but I have some common sense...
1: The ruling has limited effect, since it's just a circuit court.
2: Source code is protected as speech, but binaries may not be (though I for one would not necessarily complain if binaries were protected as well).
3: Possessing source code and using it are two different things. It may be legal to have the code or maybe even binaries for that WWW-killing virus, but actually using it is still a crime.
4: Constitutional protection or not, speech can be and often is criminalized. See hate speech laws, libel and fraud laws, etc., all of which can apply to the internet and to software.
5: Whatever Joe Evil Hacker has, trust me, the NSA has something better.
So maybe virus code is treated the same as bad poetry. So what. If you use the poetry to destroy property, it's a crime. Damn, I was sounding sane for a while there
Thank you, and calm down.
---
Of course virii are coverd. There is no such thing as "limited free speach."
This is a good thing, and as Ben Franklin noted, ( not getting the quote perfect, so don't blast me on this one), "Those who would trade freedom for security deserve neither."
Take care of yourself. The plus side is that virii are free speach for *everybody, including those seeking to neutralize them. To do otherwise would smack of security through obscurity, would it not? With responsibility comes power, to turn the old catch phrase on its head.
Look, a hammer is "free tool", as it were, it is also a deadly blunt instrument actually used in hand to hand combat. Having a hammer isn't a crime, ( well, my wife just convicted a man of possessing a pair of pliers, but we won't get into that sore point), *using* the hammer for ill ends is.
A law that serves no purpose other than to make criminal what would otherwise be no crime in the mistaken attempt to prevent the possibility of a crime taking place is itself criminal and has no place in a free and just society of law.
For instance, possession of a slim pointy object should not make you a criminal. Picking a lock or stabbing someone with said object does. Prosecute the criminal for overt criminal acts. Not the innocent for theoretically being cabable of such an act.
Down that road we are *all* guilty as we stand.
Does anyone know what biology people use. After they have been using virus as an english for more than 50 years. The grammar is generally based on precident. We should probably use what ever they;ve been using for the last 50 years.
source code should be protected by all the rules pertaining to free speech, just like any other written form of communication. as to those who are saying that virii, cracks, and that sort of thing should remain verbotten, i'd submit texts like the anarchist's cookbook (or menn kampf, or whatever ticks you off)... it is the application of knowledge that can be ruled against, not the possession or propagation. it's the old 'your rights end where my nose begins' concept. and for those concerned about how this sort of ruling affects copyright laws, recall that although stephen king is allowed to write anything he wants, you are not allowed to freely copy and distribute it. free speech means you are free to express yourself, not that you have free access to anyone else's expressions...
(email addr is at acm, not mca)
We are Number One. All others are Number Two, or lower.
--The Sphinx
wrapping a letter in an envelope provides the same security as wrapping a file in encryption-- encryption prevents unauthorized access as the post office tampering laws do (I know this is different, but they engender the same level of protection).
Ok now an example without a prior idea of how this thought will turn out: a picture is art. a photo of that picture contains much of the same information as the original piece (i am assuming public domain art, or art you are authorized to have, such as purchasing the artwork and then releasing the photos of it), but the photo is smaller maybe more consise and yet can still impart much the same information...
source code is art. compiled source code is legally in question...
your program, ran by the person you have communicated your art to, will perform your set of functions and create something that is rendered by your instructions that the end user can see and interact with.
*sheet music vs the performance
*source vs the program
*a book on how to write vs a written work (i think im reaching here)
I guess what I am getting at is the idea of what the first amendment is about: the right to communicate your ideas in such a manner that those who choose to can hear your communications. This fits the actuallity of when it is legal and not legal to yell fire in the theatre, so it works for me.
my point is, when does the source stop being protected if both the source and the final program can communicate to the end user information? The ruling seems to imply that the binary may not be protected.
It is legal to reverse engineer a book (it's called critism, and not the 'I didn't like it because sort of critism, but the 'according to jungian analysis this work represents the authors...") ie the subtle difference between critisizing and actually using tools (ex. deconstrutionist critism) to critisize. The same would hold true of 'cybersitter is blocking access to these sites 'cause i can't get there etc... and using a tool to find out what is blocked.
how does this ramble fit together? When does art end? Is an image of the mona lisa art? If it is not art, then does it violate a copywrite?
What am I purchasing when I buy a music cd: a copywritted performance of a copywritten source on a distribution media. If the distributor says that I am not allowed to view the art that I purchased other than in a prescribed manner, they may not be obviously restricting the first amendment rights of the artists, but they are restricting the method of communication and the rights of the purchaser. Maybe the RIAA et al would prefer that the market move to a pay-per-view system like going to a museum and paying an entrance fee, but if they previously released other exact copies (unnumbered prints) and I purchase the print do I have the right to scan the print enlarge it by many order's of magnitide, use that to determine what tools the artist used to create it, and use that as a lesson on how to paint? Or to publish on the web my extreme closeups of brush strokes that an artist did, saying hey this is what I figured out, you can use this hack utility called mspaint.exe to do it yourself (ok, not paint, that would be just plain silly to even try)? What if i publish what color's of paint that Andy used on the cambells soup can so everyone can make their own?
If the painting is purchased inside a locked case and I am given the key to open the case (and am not told that the key will not work in Japan or Europe), am I legally required by the DMCA to not disable the lock and make the art more accessable. Am I legally only able to view my print through the special window in the locked case?
What if I just don't like using the key everytime I want to view the art? What if I just don't like waiting for the DVD splash screen etc and want to go directly to the movie? A book doesn't require me to wait till the copywrite page scrolls past on its own.
(case in point: a tiny bit of grime on my dvd caused the entire picture to scramble up blocks of the image like one of those old grid/slide the block puzzles. I put forth that if I had a version without the encryption, the grime ould have had a marginal barely noticeable effect-- that the encryption algorithim multiplies the error)
is it legal for a publisher to inhibit my access to the artwork becuase the artists signed away his soul to get published? If I pay the publisher's distribution fee (of which the artists gets a tiny cut per the contract) can I make a tape and play it? then go down to the park and play if for free to an audience?
It seems to me that the important factor of fair use is that if I make a profit from someone elses work, they should get a cut.
on a side note, that valencia guy said in the 2600 article that they must stop the spread of decss 'cause it affects a 2.5 billion dollar industry. In a free-market economy is it the role of government to step in and say that a better distribution method must be stopped because it hurts an entrenched industry that is refusing to update itself? I mean, if I managed to invent a food replicator, could the American Farmer Content Controll Association block its distrubition because it will put them all out of business (ala napster)?
oh well, end rant.
---
Small, but extremely important legal difference.
-Earthling
-Earthling
"I'm sorry, I had to; the irony was just too thick."
The thing is, code isn't considered free speech because of what it does. It is considered free speech because of how it is written to do what it does. Anyone who has coded anything knows that there are about 10^6786 different ways to write a particular program. These differences are what the judge acknowledged by declaring code to be free speech.
==
==
I don't know exactly what that means, but I'm sure it means something....
Depends on who's listening.
I'm not kidding. That's the crux of the issue. Those who "get it" will appreciate the expression; those who don't won't. DeCSS speaks volumes about excessive control of speech...if you "get it".
Speech in any form is irrelevant until there is a consequence. People must be held accountable for the consequences of their speech; punishing speech because there might be consequences is absurd. Yelling "fire" in a crowded theater is fine if there's a fire or if the occupants understand that there is no need to panic (as Penn Jillette demonstrates when starting a fire on stage).
Can we get a "-1 Wrong" moderation option?
Do not limit the rights themselves.
Make people responsible & liable for the consequences of exercising their rights.
Can we get a "-1 Wrong" moderation option?
Software is goberned by Coptright, hardware by Patent. Your nifty adding software would be copyrightable. Your nifty mechanical adding machine would qualify for a patent.
(IANAL) But patents can't be used to protect trade (or any other) secrets, because they have to be available to the public. - Otherwise how could anyone know that there even is such a patent?
Opinions uttered in this comment may not be mine when I'm sober.
That's not entirely true; it was written in 6502 assembly language on paper (actually, I think it was a port of an Integer BASIC he had written for a different architecture, but never assembled or even tested...), but assembled by hand, since the only 6502 assembler Apple had access to at that time was an expensive cross-assembler they had to rent by the hour.
The code itself is communication; you can compile the code and still not be doing anything wrong; but if you decide to use the code, THEN you are doing something wrong. This doesn't bode well for Police and FBI; this means that every person on the planet has a right to have potentially damaging code on their computer, which would mean that someone knowing you have such code would no longer be sufficient reason for them to investigate your computer. A compiled program, however, might still be enough.
To be honest, I think I can be as expressive in source code as I can in English,
Take this bit of expressive C++ for example:
// I disapprove of the DMCA
// I think it is unconstitutional
Martin
ø`ø,,ø`ø,,ø`ø,,ø`ø,,ø`ø,,ø`ø,ø`ø
All true, and good points about Free Speech in general. But if your points have any great meaning, it is that laws regarding Free Speech are applied ad hoc, depending on the instance and the industry.
The concern in the case of source code runs contrary to the obvious (and yes, frightening) abridgement illustrated in the CBS case. The concern with source code was over the real possibility of protection when malicious code (e.g. viruses) is employed in directed and collateral damage.
I personally am an effectivist (not a fanatic) about Free Speech, believing it should end where harm is done to individuals, and yes, evil instruments of capitalism! Such as in the cases you point out, it will take a few test cases to see where this goes, for better or for worse.
In any case, this is not about people commenting "Screw President Nixon" in their code, but is basically a protection intended to apply in commercial applications.
-L
This is a great ruling in principal - I think everyone agrees that the basic principal of being free to view or write code, regardless of purpose is a healthy idea - provided you make fair use of that code.
But I think classifying source as "speech" is the wrong way to go about securing that right. Its going to lead to all sorts of redicilious things like source code falling under libel laws,etc.
New World Order, black helicopters, United" Nations Socialist "government in waiting, get down on their knees, ancestors from the Mayflower
u really need to get a grip
title this (?...code)
.model small
.stack 100h
.data
message db "I've been saying Hello for years. Finally someone responded!",0dh,0ah,'$'
.code
main proc
mov ax,@data
mov ds,ax
mov ah,9
mov dx,offset message
int 21h
mov ax,4C00h
int 21h
main endp
end main
Hardware is physical(tangible)
"One of the advantages of being disorderly is that one is constantly making exciting discoveries." (A. A. Milne)
No! By that definition, Nazism is a good truth, because it got accepted by all of Germany very swiftly. Whereas "democracy" took thousands of years to reach prominence.
Indeed, but only if I am the leader. Since it is impossible for everyone to lead, that idea cannot be implemented. (Well, it can, but you'd end up with a society as stable as Windows.)
For those who haven't met memetics: a "meme" is analogous to a gene, and "memetics" is analogous to genetics. However, memes and memetics involves ideas and their propogation through minds, rather than species and their propogation through environments. Nazism happens to be a much more appealing meme than democracy, so will stick in many more minds unless fought. Critical thought will usually reveal the best meme. I am against Nazism primarily because it is an underlying cause of a world war.
~~~LXT~~~
Life is like a computer program: anything that can't happen, will.
DeCSS speaks volumes about excessive control of speech...if you "get it".
I'm not sure... I tend to take my code at face value. Unless it has comments speaking these volumes, DeCSS cannot say much about excessive control of speech. It can only say, "Here's how to dodge a lawful CSS license."
Speech in any form is irrelevant until there is a consequence. People must be held accountable for the consequences of their speech...
So it's perfectly acceptable to yell "FIRE", as long as the perpetrator is punished, right? Which is more acceptable, banning significant-risk actions, or catching the wily evildoer that yelled it, slipped out among the first few, and acted like a panicked theatergoer?
IANAL, all opinions limited by knowledge, mere possession of power is not justification for its use, etc....
~~~LXT~~~
Life is like a computer program: anything that can't happen, will.
The concept of beautiful code is analogous to the concept of good writing, and will rise to the top of visibility based on this virtue. Much like good books rise to the top of the NY Times bestseller list. But no system is moron-proof, so sometimes bad books or code will get to the top. Yet you will (probably) never see Melissa or the Anarchist's Cookbook at the top of that list/website.
If you can make something legitimate, someone else can make it underground. To stop virus writers, we must take down the Internet and put away our CD burners and floppy drives so that the virii can't spread. Then we can only install trusted software, like MS Office, from a CD-ROM.
You disagree? Then we must tolerate the evil to the extent that it can spread capability; action must be stopped. Everybody can kill someone with a car, but we only punish the one who does. Also, law must be based on effect rather than intent. I can see "educational purposes" construed as learning credit card numbers to get educated on using them. Don't worry----your $60,000 was spent for my "educational purposes."
IANAL, all opinions limited by knowledge, mere possession of power is not justification for its use, I do not advocate carrying out any plans discussed, etc....
~~~LXT~~~
Life is like a computer program: anything that can't happen, will.
I can see the blonde, surgically enhanced groupies hanging from Larry Wall's akimbo elbows now... =)
--
The gravitational constant of protein has been changed[...] Also, rabbit carcasses no longer weigh as much a
Hmmmmm. Smells like a Troll, but I'll bite. . Whoa there big fella. Just because code=free speech does not mean you can not copyright it...or copyleft it. All this means is that code/speech is expression and is protected by the first ammendment. Like Music. Like Books. Like Speeches. All the above can be protected under IP laws. But the gov't can not take away your right to express yourself in song, writing or speaking in public.
Reality does not happen until you analyze the dots. -Don DeLillo (Underworld)
Oh fuck me red, how wonderful, a defender of free speech with nothing to say. Have you ever considered exercising the Constitutional right to fucken silence, if this ungrammatical, politically naive shit is the best that you can come up with? The "right to free speech" should be retitled the "right to free expression". People with nothing to express should be encouraged to shut the fuck up.
Obviously you will respond "who is to decide who has something to express". Which is fair enough, and that's why we have to compromise and accept "free speech" for all, no matter how stupid, instead of free ideas for those capable of having them, which is what we want. You can't jail someone who appears to be an idiot, because they might actually be a genius.
However, while it's true that they all laughed at Christopher Columbus, when he said the world was round, they also laughed at Reuben Tines, when he said that he could remove the wrinkles from prunes by injecting them with high-pressure steam. And they were right to. The fucking idiot was fatally burned when the boiler on his prune-smoothening machine exploded. There are far more Tines in the world than fucken Columbi. And the Columbuses tend to win through no matter what.
So I guess that laughter is a failry safe and democratic social sanciton to use against those who have nothign to say, but persist in abusing their right to free speech. And so it is I say to you, my fellow Americans: The Anonymous Coward. What a fucken dumbass.
John Montoya, elitist and proud to be so.
-- the most controversial site on the Web
moose --> meese... who gives a rats ass, or ratsis asis? what is your point in reference to free speeches?
flinging poop since 1969
In the USA, you don't have full protection of Free Speech, Religion or Press as per the First Admendment. So many people confuse Free Speech/Press/Religion with almost total anarchist control of things.
You can't practice a religion in which harm is done to animal or human, period. Human sacrifices are out, even if they are part of your religion. The same with animals. If you had Freedom of Religion as most people feel it is, then this should be legal, as protected. It isn't.
The same with Press. You can't just burst into anyone's home and photograph their items, write up a story, steal diaries and print all of them, that's quite a few violations there. But I've heard many people claim that there's a Freedom of Press to allow Press to get a story. Only if the rights of others aren't infringed upon, they may.
And now to Speech. You don't have the right to say anything you want. You can't threaten someone's life and make them in fear of their lives constantly. You can't harass them constantly. You can't shout out "BOMB" or "FIRE" in a public place. All of these are speech, but they're illegal due to the possiblity of harm to others.
So, to my point on this long rant, Virii and Illegal Devices cannot be protected by free speech, because they can cause irrepairable harm to humans and machines. Virii are intended to do some kind of unwanted action on a computer, which leads to harm of the machine or the user. Illegal, even under the First Admendment. You can't tell people how to kill Claudia Schiffer when she's driving through Beverly Hills in exact detail, because the implications could result in her death.
However, fictitious depictions of death or destruction ARE protected, because they don't implicate any specific person, and as such cannot be construed to harm anyone.
I hope this helps clarify some things. IANAL, but there are some part of common sense to the ruling. You can code something and have it protected by free speech as long as it doesn't do anything illegal to people's machines or people themselves (can't make a software that will send out a person's personal data, you know?).
Dragon Magic
Human nature is the same everywhere; the modes only are different. -- Earl of Chesterfield
This is an oversimplification. As far as I'm aware, there are no cases where "intent to cause harm" is the one and only test for legality of speech.
Libel and fraud aren't really good analogies for source code, anyway. I can imagine libelous comments and strings in source code, and libelous output from compiled source code, but an inherently libelous algorithm is tough to imagine.
At any rate, the most relevant sort of unprotected speech is speech that advocates lawless action. (Not specifically harmful, mind you, but lawless.) To be prohibited, this speech must not only be intended to cause the lawless action, but it must be likely to cause imminent lawless action.
I think that it's the "imminent" there that makes or breaks virus source code. Normally, I'm not prohibited from saying "bring me the head of Ed Begley, Jr." unless I'm speaking to someone who has the power to immediately go kill Ed Begley, Jr. and bring me his head.
Source code is interesting, however, in that it can transform itself into something that can perform the lawless act it's "advocating." That's something that even the Anarchist's Cookbook can't do. In a manner of speaking, it's like a gun with "bring me the head of Ed Begley, Jr." written on it. Or a copy of the Anarchist's Cookbook packaged with the chemicals needed to make a powerful explosive. (At the same time, however, it's very different. That's what makes it so interesting.)
At any rate, I'm not going to do anything potentially useful here like predicting what's going to happen with cases like these. The question is too new and the cases too few to generalize. But I just wanted to clear up the "intent to harm" thing.
If you don't want my koalas, baby, don't shake my eucalyptus tree.
Does this mean that US citizens can mirror/distribute programs like deccs and cphack now?
/ The Arrow
/ The Arrow
/ The Arrow
"How lovely you are. So lovely in my straightjacket..." - Nny
While I understand your point and wish that it were true that "posessing" a virus or some other piece of code would be or become legal I don't think the precedents will support it. After all, regardless of what you want to do with them, it illegal to posess biohazards such as bacteria or virus strains without gobs of approval, etc. I think the same standard will apply to code and we won't really get anything out of it... software can still be labelled "too dangerous for general consumption" while the big research labs still get to pick it all apart and make that determination.
Yes, but instructions on how to do illegal things are not illegal. For example: Instructions for killing a person-- Several methods can be used to terminate a human life: several methods of varying levels of difficulty, effectiveness and messiness are listed below: Disclaimer: Do not use any of these methods unless you are legally authorized to terminate a human life. 1. Cut off the head with a sharpened plastic spork. 2. Create a large hole in the body with a chemically propelled lead pellet. 3. Shove a stick of dynamite up their butt and light the fuse. Now if you were to implement this plan you would clearly be criminally liable, and not me for telling you how. There can, however, be a legitimate use for this information, such as self defense or military training. Granted, the methods listed are probably not terribly practical for this purpose, but that's beside the point. (yes, your honor, I had to use the dynamite in self-defense. :-) ) --Don Rowe
Well, then, where does code stop being speech? Assembler code is source code, as companies have written code in assembler for ages. The next step down is microcode -- certainly, it's very difficult for most people to read, but it is not indecipherable (get a book with the instruction set or get a disassembler).
--
Ski-U-Mah!
Stop the MPAA
*Parsing a sentence of an arbitrary context-free language can be done in O(N^3). Natural language is not context-free. Programming languages are an easier-to-parse subset of context-free languages.
Much the same way that doctors and lawyers use latin words and phrases. The translations to english are no big deal, but when expressed in latin, it is an invocation of perhaps volumes of text without ambiguity.
English typically has multiple meanings even if you discount connotations and willfully stupid interpretations. A few lines of C (or any other computer language) will mean one thing and one thing only. No room to mis-understand.
It IS possable to express any computer program in terms of a Turing machine, which CAN be expressed in english, but the description will be extremely verbose and subject to human mis-reading. The verbosity can be reduced and the readability increased by using simple abbreviations to describe the turing machine's instructions. Further simplification (for the human reader) can be done by abbreviating and defining entire groups of repeated code as a single term. Now it is still completely unambiguous, and is much more human readable. It is also now a computer language ready to compile.
In that context, the computer language is a greater rather than lesser form of communication.
I argue that all speech is both functional and expressive and there can be no division. If the expression performed no function, it probably wouldn't have been expressed. It just happens that in computer languages, the translation is more efficient.
Machine code tells the machine what to do. As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
In some machines and languages, there is no difference. A BASIC interpreter for example. It might (or might not) tokenize the code first, but tokenization is also compression. Nobody argues that a gzipped novel is no longer speech because it was tokenized (with the tokens defined on the fly no less). There have been several hacks to make a CPU where a high level language (especially LISP) IS the machine language. In the Crusoe, the x86 'machine language' ISN'T the machine language.
Everything a compiler can do can be done in hardware on the fly. Note that I make no practicality claims, only possability.
By the same token (no pun intended), some programmers read a hex dump as easily as others read C source.
Using my definition it's pretty clear; any computer language that the computer can't run directly without an interim compilation step
I used to program a TS-1000 by entering machine code directly into REM statements (using the extended ASCII character set). I could also readily read it back. Which would that be?
IMHO, ANYTHING that conveys a concept or idea is speech, no matter the form it takes. Even shooting sombody is speech. Naturally, that sort of speech has consequences that must be addressed seperatly (like yelling FIRE! in a crowded theater).
Note: I think the Anarchist's Cookbook has a mostly negative effect, and banning it would _probably_ have a positive net effect (I don't see any convincing reason for it based on "free speech" offhand)]
Many people feel the same way about Howard Stern (and others feel that way about those who want to censor Howard Stern). Until action is taken, it is still speech.
I agree, however, that A line must be drawn somewhere. A functional H-bomb could be a powerful element in an artistic display, but it also creates a clear and present danger to the population. Setting it off could be very powerful in a performance piece, but I don't think anyone could advocate allowing that.
It ios also important to note that some speech can be limited when it presents a clear and present danger. The H-bomb display certainly meets that standard. The crypto keys needed to arm the U.S. nuclear arsenal would qualify for restraint as well. For a crypto program to qualify, the government would need to show that it substantially decreases national security. That would be very hard to do since the whole world already knows about strong crypto of all sorts.
The Same would apply to a letter someone wrote you or an essay or whatever. Freedom of Speach and the Press does not override copyright etc.
The Cure of the ills of Democracy is more Democracy.
Erlang Developer and podcaster
Why isn't this information in the FAQ? I'm getting pretty sick of seeing this topic (and resulting flame wars) come up over and over in /. threads. I'm not coming down on mr. AC here for posting the correct information, but the people who still use "virii", and the ones who flamed him in response (and the moderators who let those flames stay at score >=2).
I wish I had a nickel for every time someone said "Information wants to be free".
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
On the other hand, I agree 100% with everything you've said. Especially if you take a look at cross-compilers, bytecode compilers, et al. eg: in the case of Java, you undoubtably are compiling the source code into machine code, but for a machine which does not physically exist.
As for the UCITA, the 30 day limit is hillarious. It means that if Microsoft Windows 2001 "accidently" forwarded all the national secrets to Russia, sank all the "smart" US destroyers, and put porn on the computer screens of the world's religious leaders, they would not be liable if it did so on the 31st day after purchase.
Methinks that if something like that happened, all copies of the UCITA would be burned. Probably with the Microsoft executives piled up on top.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
If you write a crack tool in pure hex, octal or binary, you should either be given a total amnesty on account of bravery beyond the call of duty, or locked up in a mental hospital for the next 10 years.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Therefore it is impossible to make hardware do the same thing as source code, as source code doesn't (in and of itself) do anything. Well, acutally, I suppose you could. IBM have made hardware for years which did exactly that.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
The problem with treating code as if it were "burglarious tools" is that it opens a whole new domain of thought-crime. If I write some "criminal" code, am I now subject to search and/or detention anytime/anyplace because I have demonstrated the ability to embody criminal intent in code? Hey my brain is like a bomb, no?
It is right - it is even crucial - that code in all forms remain legal, otherwise there may be a permanent search warrant out for your thoughts.
I wrote parts of this stuff
It seems to me that the source code to a virus or worm would most likely fall under the "clear and present danger" category of unprotected speech, much the same as yelling FIRE! in a crowded theater (as goes the classic example).
;).
Though, I think it would depend on the context. For instance, distributing ultra-strong encryption to university students as part of a class would certainly be protected. However, selling that same code to a Chinese spy (knowingly, of course) would probably be unprotected. So if a hacker sends the code for a virus to another hacker, for the purpose of analyzing the security risk to a program they are collaborating on, that should be protected. However, if a cracker sends that code to another cracker attached to an e-mail that says "here, I bet this'll take down the IRS", that would probably be unprotected (as much as I'd like the IRS to be taken down
Of course, IANAL, but I truly think that Constitutional Law is much simpler than most lawyers, judges, and politicians make it out to be.
MoNsTeR
> build an H-bomb, because I like to look at it. My use may be purely for aesthetic and educational" uses, but that does not mean society should allow this. The better test is, what is the net effect on society? If it is overall positive, then it should be allowed. If it is negative, then it should not.
;-))
The source code would be the equivelent of the instructions for making an H-bomb - which I believe are legal and protected under free speech - the compiled binary would be the actualy bomb - and as far as I'm aware, there is no analogous program with the destructive potential of an H-bomb. (ok, none of you wise-asses say anything about certain microsoft products...
Free speech is free speech. Whether you want to give a speech about free beer, free software, free sex.. racial/hate propaganda or manifestos.. it's all the same. It is communication.
ANY communication should be protected under free speech, whether it's e-mail, source, executable code.. if it can be communicated, it should be protected (if the author wills it). Information NEEDS to be free for a society to survive in the so-called "information age".
Given a recent controversy on another thread, it's obvious I'm not a lawyer.. I will go out on a limb though and state that if the law is not in accord with the will of the people.. it should be altered or abolished. Geeks are people too. We have rights. I think we ought to use them - if the DMCA is getting in the way of us expressing ourselves, I say we sidestep it, ignore it, practice civil disobedience, or overturn it. IANAL but I AM pissed.
I disagree.
I think it is imporant, even crucial, that the source code for any kind of program, especially malignant, down right evil, wrong programs, be considered protected speech.
Evil DOES NOT go away when you slap it with a gag order. It merely becomes quieter, and thus more pervasive.
Consider the licensing agreement from, was it Symantec? That offered severe penalties for reporting faults in their software. How is viral or otherwise exploitave source code different?
"Malignant" software relies on the shortcomings of other software. Without the protected right to communicate these faults, people will foolishly believe vounerable systems to be invounerable, and faults will exist that will allow anyone with enough anger or boredom to abuse those systems, and thus abuse you.
The utopian view that if nobody was able to tell anyone about security faults then security wouldn't ever be breached is flat out stupid.
Someone will figure it out. Someone will use that knowledge to serve their own purposes. Their purposes may include abuse of your rights, your property, or your livelihood.
THINK for once.
This is just like television, only you can see much further.
The author of the previous post was talking about "uses", not strictly source code as speech. I was appropriately addressing the "use" argument. Furthermore, even if the subject were strictly source code, there is a world of difference between an abstract and poorly authored recipe for destructive devices [Note: I think the Anarchist's Cookbook has a mostly negative effect, and banning it would _probably_ have a positive net effect (I don't see any convincing reason for it based on "free speech" offhand)] and source code. Source code IS essentially a device (especially with interpreted languages, e.g., perl, java), where, just like the H-bomb, it is just a matter of using it--there are few barriers to entry--a significant issue in analyzing the effects.
That being said, to illustrate, in the case of publishing the source to exploits, I would actually argue for it based on its "net effect." Although some may argue that publishing exploits hurts society by allowing script kiddies to flourish, it is too superficial and short sited in my opinion. I believe the stronger society/economy, is one where the computer systems and software is relatively hardened to attack. Banning the publication of exploits would have the effect of keeping the knowledge of security problems out of the hands of system admins and "security experts" (thus removing significant pressure on the software vendors to produce patches and more secure software), while not stopping the more criminally determined individuals. It could ultimately cause catastrophic damages if, say, organized crime (as opposed to script kiddies) creates and executes their own exploits en masse against a slew of soft targets. Better many small disorganized attack now, than one or two huge attacks in the future.
Need I say more? He drew an analogy to physical things. I think it IS appropriate, but his conclusions are wrong. I attacked him for it.
Perhaps not, but the analogy is still an appropriate one for demonstration. In the case of an H-bomb, few will disagree that the net effect is negative, and cannot be ignored. Thus, if you admit of such an exception, where you analyze the net effect, not the use in and of itself, you must also be willing to consider the net effect of other things (atleast if you wish to remain consistent).
For instance, what if I were to publish how to create a lethal biological virus, such that any person could create it in their spare time? Would you still consider this free speech? Is the fact that my personal "use" is positive, sufficient? This is strictly information, just like your "code", my "use" is positive. I've met all the apparent criterion of the slashdot jrs. But few are still going to hold the same argument.
I build an H-bomb, because I like to look at it. My use may be purely for aesthetic and "educational" uses, but that does not mean society should allow this. The better test is, what is the net effect on society? If it is overall positive, then it should be allowed. If it is negative, then it should not.
The tough part, with all of these things, is how do you weigh the outcomes. For instance, lets look at guns. If we assume that guns provide real and substancial enjoyment for millions of people in our country, might we be able to argue that 10 or 20 deaths a year is an acceptable trade off? Is a zero fatality rate realistic? After all, cars, alchohol, tobacco, etc. take far many more "innocent" lives each year, yet we allow them. Many of you may attack one or two, but not all (e.g., cars).
While I grant you that the legal system may not always make sense and/or is too complex, much of it is of necessity. In other words, it is an oversimplification to say, that because a things proposed use is "harmless", or even positive, it should be allowed. Other factors must be considered.
Are you honestly going to tell me that you would want a situation where every nut in every city has the power to kill millions of people? It is is fine and good to say that you'll lock them up if they use it (assuming they even care or are still alive), but that does not somehow cancel out the effects on society, it would not stop these nuts from killing. I'm not necessarily for censorship, but I can concieve of many cases where it is appropriate. In these cases, I would refer you to the net effect test. I do, for your information, argue through net effect for allowance (but that does not mean I morally support every instance of actually publishing) of the publication of exploits.
PS: A properly designed H-bomb (e.g., fusion) could completely flatten any large metro area in the US. Perhaps you are thinking about the Atom bomb (e.g., fission)? In either case, the argument is academic. If properly placed, either would take millions of lives. It's hard to argue whatever benefits are obtained through allowing it over the potential (and I would argue inevitable, if weapons grade fissionable materials were available) catastrophe.
For something like rifles you may be able to accept it, but "most" is not good enough here. Ok, let us suppose that only one person in a million is looney enough to want to kill millions of people in a given year (never mind accidents). Unlike with rifles though, that one person can kill EVERYONE in the city. Hmmm, you want to live in such a city? Your position is ludicrous. You are either highly naive, or you're bullshitting me, or both. Normally I don't like getting personal, but come on, it's just a ludicrous position...
The second ammendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed"
a) Personal Nukes ain't a well regulated militia, nor are they a component of one.
b) Clearly the intent here is the "security" of the people. Nuclear bombs don't secure it. In fact, giving the people bombs is a bigger threat to their security than any foreign power today.
anyhow, i'm tired and getting cranky, good night.
Disclaimer: I don't have much time right now, but let me make a couple quick points.
Yes, I agree the "net effect" is essentially how the law works today. Despite its imperfections though, there really isn't a better standard. Think about it for a minute, EVERY law imposes its will on the individual to some degree. That means that every law must weigh the benefits versus the costs. If you irrationally clamor for never intruding on individual rights, you'll simply never see a meaningfull law (e.g., anything which says anything is illegal).
However, law is an essential part of any modern society. Modern society simply can't operate efficiently, or even survive, without it, despite the claims of libertarians who essentially claim otherwise. Anyone who has a decent grasp on history should understand this. I think this is very clear in the case of personal weapons of mass destruction (e.g., nukes, chemical weapons, etc.) Thus, since we are left with the determination that some laws need to be promulgated, we need a standard for creating them. And no matter what that standard is (no, saying "individual rights" must always be protected is not acceptable--because its meaningless), it is up to humans. Because humans determine the "weight", the "measuring", etc., you will see laws you disagree with. You will see mistakes. You can't legislate away human fallability. You can't setup a system where laws can be created, but mistakes in law cannot be made.
The bottom line is that I'm not apologizing for it. I'm stating its a fact of life. I fully and soberly realize that I must give up some personal liberties in order for a better world for everyone, including me. I can't drive 100mph through school zones. I can't break contracts. I can't burn crosses on people's lawns. I certainly can't own a nuke. I basically can't do whatever I might will (legally). And you know what? I wouldn't have it any other way. [This is not to say I agree with all laws, or that there should be no barriers or limitations...]
The source code to windows 2000 were to be leaked?
Could I then post it on my web page and call it freedom of speech?
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
If you use it, there will be no jail for you to go to.
I sure as hell don't want to have another law stripping us of another right to life, freedom, and the pursuit of happiness.
Those liberties exist. What do not exist in this circumstance is the right to intimidate, threaten or harm in any way whatsoever. Life liberty and happiness fall short if your happiness is dependent on building something with the intent to harm.
I'm not saying that I feel virii source code should be banned, rather that I feel that the execution should be banned. Of course when you write destructive source code and distribute it to the world, you're basically giving your enemy the means to cause harm to your society.
I have many distinct analogies to present, and each will undoubtedly interest different people and warrants separate discussion,(besides, by the time I get a chance to write them all up, the article will be archived -- I do have other work to do, after all.) so I'm posting each separately in this thread. for your reading and/or ignoring convenience
Sometimes this works on
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
This post will cite a few of the Supreme Court precedents (and my idiosyncratic comments) on billboards/mailings -- as an analogy to the Internet IANAL/IALANAL (I Am Not A Lawyer, however I Am a Little ANAL)
PLEASE NOTE: These are federal laws/rulings. the states actually have much more leeway in what they can legislate, and 'regulations' of Federal agencies often survive scrutiny under the thinnest of pretexts. (e.g. the FCC in my post on broadcasting as a legal analogy for Internet) Therefore such 'free Speech niceties' as public access channels on cable TV can vanish at will. They are not First Amendment.
In the interests of laziness, I'll let The Court cite a list of cases for further study, and I'll describe some of these cases below. [from Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)]:
This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e.g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 [billing envelope inserts]; Carey v. Brown, 447 U.S. 455 [picketing in residential areas]; Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 [door-to-door and on-street solicitation]; Greer v. Spock, 424 U.S. 828 [Army bases]; Erznoznik v. City of Jacksonville, 422 U.S. 205 [outdoor movie theaters]; Lehman v. City of Shaker Heights, 418 U.S. 298 [advertising space within city-owned transit system]. Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests.
These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97 (1949): Each method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method. We deal here with the law of billboards.
And now for the rest of the cases:
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)] is most significant because it explicitly made a distinction between commercial and non-commercial speech (which was a very tenuous reach, IMHO). Fortunately, in Metromedia, the decision was that commercial speech could be denied access in some situations where non-commercial speech could not. Alas, in cases like Lehman (below), the finding was the opposite: political speech was denied access, while commercial speech wasn't.
Lehman v. City of Shaker Heights, 418 U.S. 298 Lehman wanted to buy placard space on the public transit for simple signs with his picture and the words Harry J. Lehman is old fashioned about Honesty, Integrity and Good Government. The Sc ruled that the Transit Authority could refuse to sell because the 'audience was captive' and 'forced to use the public transit' to go to work, home, etc. and therefore not 'free' to avoid the message. Of course, they were also not free to avoid the ads for liquor, cigarettes, automobiles, churches, retail stores, commercial services, and public service organizations (all of which the Transit Authority routinely sold placard space to -- they were the reason placard space was available! Indeed, the Transit Authority argues (and the Court agreed) that selling political space might offend their regular customers, who might lose ad space during the election season!
In a dissent, Judge Brennan pointed out the real rights of the captives: "Commercial and public service advertisements are routinely accepted for display, while political messages are absolutely prohibited. Few examples are required to illustrate the scope of the city's policy and practice. For instance, a commercial advertisement peddling snowmobiles would be accepted, while a counter-advertisement calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles would be rejected. Alternatively, a public service ad by the League of Women Voters would be permitted, advertising the existence of an upcoming election and imploring citizens to vote, but a candidate, such as Lehman, would be barred from informing the public about his candidacy, qualifications for office, or position on particular issues."
This is "impermissible", according to Brennan (but remember, he is the dissenting opinion -- the Court as a whole considered and rejected these arguments!): These, and other examples, make perfectly clear that the selective exclusion of political advertising is not the product of evenhanded application of neutral 'time, place, and manner' regulations. Rather, the operative - and constitutionally impermissible - distinction is the message on the sign.
A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program.
This is a troubling ruling, for those of us who hoped to use the Internet to extend our right of free expression. For the kicker, however, see the next case!
Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 was an interesting case, because the Court ruled that the PSC could not stop ConEd from placing circulars touting the benefits of nuclear energy in customer bills (printed and mailed at customer expense, through the electricity rates) 'in the public interest' (of saving money). The courts ruled that the US mail wasn't a public forum and didn't warrant 'protection' like the public transit in Lehman vs. Shaker Heights, but dismissed the argument that a) the customer was charged against his/her will; b) the bills were actually read in homes and businesses, not at the USPO, which should be protected (we are a 'captive audience', even more 'forced' to read our bills for important announcements than we are 'forced' to read streetcar placards.);
c) the customer should therefore have the right to block such messages from entering their home if they wished, and certainly to avoid paying for them. This case may have interesting implications for spam. You see how oddly inconsistent this case is with other rulings. The only consistent theme is "political speech is dirty" [I guess 'appointed Justices' are above all that] while 'commerce is pure and unobjectionable'.
Carey v. Brown, 447 U.S. 455 and Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 basically upheld peaceful picketing and pamphleteering as high hallowed pillars of our democracy. The major stipulation has been that the picketing be 'peaceful' -- The 'Skokie' cases (right of neoNazis to march in a suburb with a high percentage of concentration camp survivors) and Brandenburg v. Ohio (KKK preaching expulsion of Jews from the US, with thinly veiled suggestions for violence0 were both upheld because the 'violent speech' test is very rigorous.
Contrast this attitude towards old-tech (person/print) political speech with the attitude taken with newer tech (e.g. broadcast, in my posting: Analogy 2) where the stance has been consistently "the public must be protected from fusillades of crackpots" and "the government knows what is reasonable, and will make sure the (licensed) broadcasters adhere to that standard" Near-incitement to violence (but not actual incitement or "fighting words") with old tech is acceptable, and even desirable under Justice Holmes' doctrine of "competition in the marketplace of ideas" -- But words alone, in new-tech, are not protected, in the sense that the court has ruled there is no First Amendment right of public access. Alas, Internet is 'newest tech', and is going to experience even more hysterical fear and efforts at regulation.
There's a lot more, but that's enough (rather, way too much) for now
I think I'll leave you with a Supreme Court ruling that will disturb your sleep: it is very possible that, if the USPS decides to start delivering e-mail, it will become illegal for anyone to send you mail except through them. The precedent is this: it is actually illegal (punishable by $300/count). In other words, if you want to designate the mailbox you've paid for (that is, your private property) to act as a receptacle to receive messages directly from a group... well, sorry you can't
In this case, the Court holds constitutional 18 U.S.C. 1725 which provides: "Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." The italicized examples [my emphasis] in the statute pertain to commercial speech, but the abstraction refers to "any" mailable matter. They just didn't happen to cite non-commercial examples [Per U.S. Postal Service v. Council of Greenburgh, 453 U.S. 114 (1981): "We reject appellees' additional assertion raised below that 18 U.S.C. ? cannot be applied to them because it was intended to bar the deposit of commercial materials only. The statute on its face bars the deposit of "any mailable matter" without proper postage, and
Am I exaggerating? Well, let's hear what Justice Marshal said (in a dissenting opinion):
"I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier - and then the doorway, or even the room inside could fall within Postal Service control.
So if the USPS ever delivers e-mail, better not send any e-mail directly until the Supreme Court clarifies. Surely going a few months or years without e-mail is a small hardship... right?
Well, why do you think those 'discount circular companies' started hanging their circulars in plastic bags from your mailbox, instead of stuffing them inside? Nonetheless, if they ever start enforceing this law, it'll be a real cash cow at $300/pop. I see it broken almost every day.
So many more examples.. but it's late
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
The ruling only says that source is speach. Thus, the source to the virus is legal. It is legal to study virus sources, to protect you frem them, and to learn. Compiling it and spreading it to someone's computer, however, is illegal, as it should be. To me, the only problem with this ruling may be that I may (but probably will never) write a program directly bit-for-bit by punching it into punch-cards, or switching micro-switches...
--The knowledge that you are an idiot, is what distinguishes you from one.
--The knowledge that you are an idiot, is what distinguishes you from one.
Code is expression, but that doesn't mean all code is protected by the first amendment. It is likely that more destructive and anti-social forms of code will be declared illegal regardless of their status as a form of expression.
---
This sig has been temporarily disconnected or is no longer in service
Compiled binaries can be looked at as a translation of the original work. In this light they could be protected as free speach. This would also protect code from a code generator. The input code is free speach, so the output code would also be.
Ok, say I write a virus. That source code is my speech, I guess. So if I distribute the source to 1000 of my skript kiddie buddies, and they compile it, distribute it and take down millions of machines worldwide. Is it my fault? Can A virus be classified as a weapon?
;-) Wouldn't that be neat.
In the US we have a freedom to own weapons. Specifically guns. But if mob boss Bubba takes a gun off of his wall and gives it to a crazy little kid and that kid puts bullets in it and shoots someone... well, wouldn't mob boss Bubba be in a pickle.
Maybe we're taking this whole ruling out of context. Or maybe this ruling is one of the stupidest things to come out of the legal system in a while. Imagine the MS employee deciding that his work on windows95 was just speech and posting all the code he has ever written into his public diary
We'll see the extent of this ruling the next time someone gets sued over their source code.
Has anyone thought of how this might apply to DECSS!? That program was just speech =)
-S
P.S. Please don't compile the above "conversation source code", it might prove dangerous or lethal depending on your choice of compile tools.
P.P.S. Wait until we have to put EULA's on source code that we don't really care about.
P.P.P.S. We should have a contest on slashdot to see who can create the coolest looking thing out of the allowed html tags. No graphics allowed.
Scott Ruttencutter
We Apprentice Developers and Designers
Although this is a landmark case, it's not going to have results such as making virii and cracks legal. Although the software itself would be legal, it's how you use it that makes it illegal. Using cracks is still a violation of copyrights, and infecting someone else's computer with a virus is still illegal. The difference is that the actual code behind it isn't illegal to posess. This would also apply to DeCSS, having the program isn't illegal, nor is viewing DVDs which you have rented or own, however using it to illegally copy DVDs is still illegal. It's all about how you use it.
Your point about bank robbery was interesting -- how does one distinguish performance art from crime? The key factor is that "speech" (the subset of all actions) exists on an abstract level; speech is the manipulation of an abstract world sandboxed from the "real world." So we have can have crime in speech (pretending to kill someone) until it affects things in life (actually killing someone, and filming it).
I think issues about pornography (rape, kiddie porn, etc.), violence (no "Mewtwo guns down his classmates" Pokemon episode), drug use, etc. in speech fall back to this. You have unlimited freedom in speech, as long as it's sufficiently distanced from the real world.
This is the rule of thumb implied by "source code as free speech." Of course there's really no such thing as "source code", but perhaps the idea is that some layer of abstraction (even if it is recursively enumerable) be put between the average computer user and the average computer.
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"Whatever happened to fair use?"
-- Duff-Man
The whole idea of "source code" is an historical accident, stemming from the way Von Neumann architectures are built. For example, some folks have built LISP machines -- chips that execute LISP code directly in hardware. Is this compiled code, or source code? I could take that same LISP code and compile it to x86 machine language. What is that LISP code now? Is it source code, or compiled code?
All sufficently general formal languages are identical in power. Whether a formal statement is written in binary boolean calculus, or that same boolean statement in an electrical diagram, or that same statement sculpted out of transistors, is irrelevant.
-------
"Whatever happened to fair use?"
-- Duff-Man
No, you are not the only one. I thought that the regular work of the government was to PROTECT THE RIGHTS OF CITIZENS. It's complete nonsense to argue that the government comes FIRST -- in fact, the founding fathers tried to set up a system where the government was LIMITED.
Here's another case where Lord Acton spoke correctly: "Power corrupts -- absolute power corrupts absolutely." Judges should never have been given absolute power; I can think of a dozen cases where the power to Cite for Contempt has been used to silence dissidence.
DNA is a Turing machine. You, however, being dynamic and emergent, are not.
It's a definition issue. What consititues "freedom of speech" and "freedom of the press". It was most widely understood by the founders within a common law context in which it referred to freedom from prior restraint. In addition, it means something more to most people, including some of the founders, but it has never meant the freedom to say anything you please with impunity.
In other words, the government can't say the owners of the National Enquirer cannot print their paper because they'll probably print a pack of lies; however the government can punish them for printing libel.
To some degree, this belongs under the heading of "the right to swing my arm ends where my fist meets your nose." That is to say, in the real world, to give absolute precedence to one right is to the detriment of other rights. My right to say what I please ends where it unreasonably abuses your right to your own hard earned reputation. Where this kind of thing happens, all kinds of finely tuned tests come into play to allow the widest scope of the excercise of one right while minimizing the impact on the other. How these tests are constructed are critical. For example in libel in the US, is the statement true? If not does it show a reckless and malicious disregard for the truth? However, my understanding is that in the UK, truth is not a sufficient defence against libel.
None of this kind of precanned reasoning exists yet for software as speech, so my conclusion stands -- nobody really knows what this means yet. We'll find out when the courts start weighing first amendment coding rights against other priorities. I suspect that cryptography limitations are out the window, but that the DeCSS and Cybepatrol cases could break other ways because they bear on the rights of copyright holders.
All the more important then to watch these cases because they may be precedent setting.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
I had a hard think about that one, but could only really come up with one answer. Interpretive languages are still not the "final executable", or you wouldn't need an interpreter.
As an interpreter is someone/something that translates, it is arguable that the source code is still not executable, unless combined with such a translator.
Sure, but isnt this exactly what CPU's do? They translate instructions in machine language (yet another language, low level and obscure, but still a language) and execute them, in essence translating them on the fly. I mean, you can't run an executable by itself, you need a CPU.
-- iCEBaLM
Ok, What if I, say, coded cphack.exe in straight binary machine language, no high level source, just a binary file editor and a LOT of time on my hands. Would this be considered speech too? If not why? I mean, machine language is a programming language also.. Just its "source code" happens to be executable.
-- iCEBaLM
IMHO, SOURCE code is not executable. It can do nothing. It is merely an abstract description of what it is you want done. Why on earth should abstract descriptions be treated the same as actual, operational devices?
That is, until we get into interpretive languages like perl, python, php, javascript, etc, in which the source isn't compiled but is the actual final executable.
-- iCEBaLM
Computers, as we use them today, are simply machines that read in data representing a list of instructions (i.e. "notepad.exe"), and take action based on those instructions. The data doesn't do anything at all, it's just a blueprint.
The only difference between source code and machine code is that source code is intended to be read by humans (but can be read by a computer, with some difficulty), whereas machine code is intended to be read by computers (but can be read by humans, with some difficulty.) In my opinion, they're both speech... although I'd defend the right to free source code more vigorously that the right to free binaries.
I think 90% of the confusion about computers that one finds among the general public (including the less academic techies, like IT people) is due to the misconception that software actually does something. That needs to be fixed.
MSK
I program alot too, mostly in asm. And I would argue that the structure of any programming language, and perfecting it's lines is much closer to writing poetry than prose.
Prose can be written in many ways, ideas presented in many orders, and even gramattical mistakes made without it losing it's message.
Poetry is much more exacting. The wrong syllable and the effect is ruined. Even bad code has to work, even though it might look like doggerel.
Great code is a thing of beauty, to be admired by those who can appreciate it.
If code replaces/takes some of the burden of laws in the near future as computer integration becomes more common, won't cracks/hacks such as deCSS, etc serve the purpose of a Social Commentary? They already do serve as an abstracted social commentary to people like us as we understand their implications, but I can envision the kind of hacking that is now considered criminal and mischeivous being viewed as constructive criticisms in the future, much in the way criticism of the government was at one time punishable by treason, and has now become the norm for any modern government.
Maybe I'm too optimistic this morning..
//Phizzy
"Most European technology just isn't worth our stealing," -- Former CIA chief James Woolsey, referring to Echelon
Here's hoping I don't get marked down as redundant -- 336 posts at the moment and I'm browsing in Lynx, so I don't have time at the moment to see if anyone mentioned this already, but...
There is a difference between freedom and liberty. Freedom is the absolute right to do something or to not be compelled to do something. Liberty, rather than an absolute right, is the granted right to do or not do something.
There are very many liberties in the USA, but few if any freedoms.
Speech is one of them. It's actually a slight misnomer to claim that we have free speech here. We do not. What we have is the liberty of free speech, in that we are protected in what we say, within certain parameters, but there are limits to that right.
For example, in the classic case, it is illegal to yell "Fire!" in a crowded theatre, as it would cause the audience undue duress. Likewise, there are slanders and libels, the main difference (if I remember right) being that one is verbal and the other written. The defense to accusations of libel is the truth: if you say something bad about somone but can prove it, you're okay; otherwise it is libel and you can be prosecuted and sentenced accordingly.
I'm not sure what the exact infringement here would be, but I can almost guarantee that writing malicious code like a virus would be unprotected speech. It causes undue duress to third parties, like yelling "Fire", so it might be handled that way -- but IANAL, just a student & speculator.
I'd be curious to learn what areas of the law protect people who's work causes indirect harm, e.g. gunmakers. If someone were to shoot me, I could go after the shooter but not the gun company, though obviously they must have known their product could be used in this way. This sounds really familiar and I'm almost positive there's a term for it; in any event, any legal clauses such as this may also come into play here, as the virus writer could arguably be making a weapon, even is s/he were not necessarily the one that deployed or used it against someone.
Anyway, the point is that while the constitution guarantees speech rights, it's generally dealing more with liberties from persecution and protection of creative expression, but not that which would cause proximate harm to another person such as "Fire" in the theatre or slandering someone's reputation -- or in this case, screwing up somebody else's computer. The law may be insane, but it's not stupid. Usually. Er, no further comment.
DO NOT LEAVE IT IS NOT REAL
Yes, but these nonstandard plurals generally come from applying an existing rule in an unexpected place.
You'd sound fairly silly (or like you couldn't type right) if you pluralized "Unix" as "Uniices", with two i's. So why stick a superfluous "i" on "viri", which is what you get from applying the us-i rule? That's how you pronounce it anyway - people talk about "vie-rye", not "vie-ree-eye".
--
No more e-mail address game - see my user info. Time for revenge.
Win dain a lotica, en vai tu ri silota
This is excellent news. It would appear to set precedents which cast doubt on the constitutionality of the way some companies have been trying to construe DMCA. If source is protected speech, then laws cannot be used limit the exchange of sources, only the use of the programs derived from those sources.
Of course, there's always the old "shouting fire in a crowded theater" argument, but that probably wouldn't apply here, because the sources present no immediate danger or limit to another's rights in and of themselves.
This is a subtle but important distinction. It may be illegal to compile those sources and use the result, but it will not be illegal to distribute the source. That makes it very difficult for people like MPIA or RIAA to attack the open source community.
This isn't exactly a tool/use issue. In fact, it isn't even close. This is the issue of information. I can read about biological weapons; Use studies, collateral damage effects, detailed description of how the weapons are made and even the genetic 'source code' to the bio-weapon's key organism. Reading the source to Trin00 or to someone's RSA implementation should be (and is, according to the court) no different. I can read, and others can publish, books with titles like 'LSD; Five easy steps!' and 'Brewing your own nitrostarch'. Possessing either without special dispensation is a no-no. So even if Trin00 were to be declared patently illegal to posess or use, I could still read the source at my leisure without fear of Mr. FBI Agent knocking on/down my door.
On the other hand, it scares me a little that such a big line is drawn at the compiler. Compiling (but not linking) Trin00 in such a scenario for the express purpose of rerolling some of the messy C stuff into tighter assembler for re-integration with the source is way out in the gray. Heck, passing it through to check for those instances of 'WTF?!?! GCC allows THAT?!?!' is gray. I rue the day that compilers make you 'click-thru' a license to compile.
.sig: Now legally binding!
Teaching people how to make bombs is legal. Inciting them to do so is not (or should not be) even if you don't provide the parts.
--
Industrial space for lease in Flatlandia.
You can make schematics ("source code") of your hardware, and that would be speech, too.
--
Industrial space for lease in Flatlandia.
The latter would probably not be a bad definition for the court to take up, though the protection of languages such as C++ or Intercal would then become more dubious...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Right. Fair use and all. But I could not, for instance, write a "Dragonriders of Pern" sequil (Without McCaffery's permission) and distribute it lest I be sued for creating a derivative work to something I don't own the copyright to. Neither crying fair use nor first ammendment would save me from said suit.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Suppose source code IS protected like speech. That still does not mean that you can legally code (and certainly not run) a program to do illegal stuff.
Freedom of speech is not absolute, it comes with some restrictions (or rather some responsabilities) This is is how a libel suit works, that is how copyright infringement works.
Writing code for virii should not be illegal. (free "speech")
Telling someone how to make virii (best explained with source) should not be illegal (albeit irresponsible)
Launching a virus attack on a network IS illegal. That has nothing to do with free speech.
If I know company trade secrets, but am bound by a NDA, I cannot tell you about those secrets and claim "Free speech". English, Swedish, pictures, mathematical algorithms or C++ source - They are all languages that I may use to communicate my ideas. Sometimes an application of those ideas is illegal, sometimes the communication itself is hurting someone else so bad that there is an exception from the "Free speech" default, but the point is: Free speech is not (should not be) a question of which language I choose.
Soapbox.dismount
All opinions are my own - until criticized
In the same way, I expect that things like Viruses and cracks are legal, in and of themselves, but that certain USES of them would be just as illegal as causing a riot by yelling "Fire! Fire!" (IANAL)
don't forget some of us can read assembler too.
.oO0Oo.
binary code is an expression of souce code
like translating english into mandarin
anyone can say how to build a car
anyone can own a car
not everyone can drive the car on the highway
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
While I am actually not supportive of the pure "code = speach" motif, there is a hole in your analogy. You can't possess biohazards because regardless of your good will, an average untrained citizen, his refridgerator and a glass jar do not a protected storage facility make. (note that I did not claim gov or private labs are 100% safe, simply that they have efforts at protection and security that cannot be expected from the average joe or jane.)
However, horrible science fiction aside, a piece of code that you have stored as a text document is not going to suddenly "wake up", compile itself and run through your ethernet cable to launch its world conquest. Thus the issue boils down purely to intent and the intent of those who you might pass it to.
-Kahuna Burger
...will work for Chick tracts...
That's the whole point of free speech. So, yes, as speech publishing the source to a virus would be protected, just as publishing a call to overthrow the US Government and establish (insert the form of government of your choice here) is. Actually unleashing a virus based on that source code would continue to be illegal, just as incitement to riot is. This is not a new problem, where source code as speech is dangerous in ways that, say, detailed instructions on building a bomb is not.
Free speech covers music, as musicians use it communicate. Not everyone can read music, but it's still free speech. Why should code be any different? I can, and do use code to express myself to those of my friends who are geeky enough to understand.
"Never let your schooling interfere with your education" -Samuel Clemens
A company will spend lots on a lawyer, then even if you win, you still may have lost.
What you said is true, in the case of a sequel. Unless you make brief mention of these characters. Like Star Trek, and Star Trek TNG. Excepting Star Fleet. If you have characters that make "cameo" appearances. But, then is it really a sequel?
Fight Spammers!
But the amount of information copied has to be small compared to the amount of comment.
You can't copy a book and then claim that you are commenting on it, because you write "this sucks" on the cover.
Fight Spammers!
Now posting code so that is can be human readible (as in a book), if different from putting it into a spreadsheet macro.
Libel is a completely different animal. Libel is making statements of fact, that is false. Either with negligence, recklessness, or with malice. The level depends on how much of a public figure that the person is. You can read the summary judgment filings on my site for the requirements of libel.
Fight Spammers!
The judge returned the case to the district court for review because the US now allows export of strong encryption. The only reason this case was ruled as it was is because what he did is no longer illegal. This does not challenge the constitutionality of the DMCA circumvention clauses and (unfortunately) will quite probably not affect other source code suits in progress.
Sticks and stones may break my bones, but
While I would be the first person to defend the possetion/use of L0phtcrack, what of objects whose explicit purpose is distruction, or something equally malicious? For example, it is not legal for the average person to possess biological weapons, but certain responsible agencies can handle them for research. This is because there is no reason for people who don't understand the distruction they can cause to have them. The intended uses of the "tool", as well as the context must be looked at. Certain apps, and by that I mean the code that created them, have no real practical purpose than distruction/spying/creating havoc. These apps need to be kept out of the hands of people who have no idea how to responsibly use their power.
Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era
That'll happen right after M$ goes Open Source...
And the MPAA gives away CSS for free...
And the censorware companies publish the sites that they block...
And "geeks" become more popular than boy bands...
sfc
standing on the shoulders of giants,leaves me cold
sfc
standing on the shoulders of giants,leaves me cold
Go to
How can code be free speech? If I make a piece of hardware do exactly the same thing as a piece of software, does the piece of hardware become "speech"?
That, to me, makes no sense. If I were to write out the ingredients for gunpowder, will your monitor explode if you shake it? Probably not. But if you were to actually "compile" those ingredients by linking in "libraries" containing the described components, and THEN place it next to the monitor, it wouldn't take much for you to redecorate the room with plastic, wiring and some glass.
Why should it be any different with code? The source code for te most deadly computer virus is utterly inert, when in C, or even assembly. The deadliness comes not from someone writing main(), but from feeding that code into a compiler and running the binary, much as was the case with the gunpowder example.
I very much agree with the title of the Ask Slashdot. This IS Pandora's Box. But, then, I know the rest of the story, and what was left in that box, when everything else had left. Hope.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Just because something (code) CAN be free speech, doesn't mean it always is. In the US, people can not run around publishing and saying whatever they want. You can't rob a bank and say it's free speech. You can't slander someone and call it free speech. And I think it's safe to say that you can't crack someone's box and say it's free speech. I can burn a copy of MS Office and THAT may be free speech. But stealing MS Office (like stealing a US flag from a store) is still illegal.
Basically, the judgement had nothing to do with wether USING code was free speech. Just that code can be a form of free speech.
Bad Mojo
Bad Mojo
"If you can't win by reason, go for volume." -- Calvin
Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry?
I wrote a couple pieces in high school describing violent acts. (Don't think I'd try it in today's climate). This is different from carrying out those acts. Displaying source code for a virus could be considered an act of speech, but spreading the virus itself (the binary, not the source) is likely criminal.
Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon?
Civil disobedience is illegal and always has been; that's sort of the point. You break the law to demonstrate that the law is wrong, or unjust, or that the punishment does not fit the "crime." During the 1960's, blacks were arrested for sitting where they weren't supposed to, in violation of the law. As any D&D player any D&D player can attest, there's a difference between "lawful" and "good." As the nation saw the unlawful good blacks set upon by the lawful evil authorities, they realized the need for change.
So if you want to write software cracks, go write ahead. Distributing the binaries might get you arrested, fined, and jailed, but maybe that will prove your point. Keep in mind that there is tension between copyright law and free speech, as the Lawrence Lessig article linked to yesterday pointed out, so just because you have the freedom to write cracks doesn't mean that the creators of the cracked software won't sue you.
Any legal minds out there care to offer some perspective?
I'm no lawyer (I hate that little acronym that suggests that I'm anal), but I think we need to distinguish between speech (source code) and action (binaries).
Wrong! Killing someone with your car does not make the car illegal. Only actions are illegal (objects can only be banned). The *act* of killing someone with your car is the crime, not the car itself. The *act* of cracking into a corporate network is the crime, not the possession of LOphtcrack itself (see next para).
Of course, a lot of laws don't follow legal principles. It is entirely possible to have a law that is against the law, and this has happened all too often. That's why you have appeals, higher courts and constitutions.
A Government Is a Body of People, Usually Notably Ungoverned
For example, you cannot libel people. You cannot incite people to riot.
What the first amendment clearly prevents prior restraint of speech -- by prior review by censors or government licensing.
In 1907 Justice Holmes observed: the main purpose of such constitutional provisions is `to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false.
Some of the founders, notably Madison and Jefferson, had considerably broader interpretation of this amendment than the mere exclusion of prior restraint. This position was not univerally held among the founders (thus the Alien and Sedition Act).
Since WWI, increasingly the position of both the court and society at large has been that many if not most classes of speech are protected absolutely, both from prior restarint and subsequent punishment. There is generally a strong sentiment against punishing speech, but this is by no means absolute.
Thus, the ruling that code is speech does not necessarily exempt people publishing DeCSS from punishment. As justice Holmes remarked elsewhere, The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. If the principle of code as speech stands, it means that nobody really knows the extent of protection source code enjoys until it has been tested in court.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Well, as speech, code is still under some restrictions. I.e., code can still be restricted to the "national security" clause. Also, if you sign a non-disclosure, saying that you cannot confer any knowledge, I assume that will apply to all forms of speech, including code.
BTW, I am SO not a lawyer...
(hope netscape 6 doesn't munge this)
It's 10 PM. Do you know if you're un-American?
The GPL provides those licenses under a very specific set of circumstances; if you refuse to accept the provisions, the standard copyright laws take effect -- you can use the copy you have for personal use however you want, but you can not distribute it or any changes you make to it. I don't know how distributing only patches would work, I'll have to check it out.
There is one area where you can get around copyright a bit and that's if you're distributing a parody. The Dragonriders of Perl might be a big hit. I would be interested to see a parody of... well... ls perhaps...
I am not a lawyer, but I play one on TV.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
IANAL.
It seems to me that source code to viruses and other less-than-savoury speech should be just as protected as people that say things that we don't like. However, we have laws in place to prevent people from actually using those viruses. And we have anti-piracy laws (and open-source!) to take care of software cracks.
Speech is protected, as it should be. What you do with it is what counts.
-Waldo
IANAL, and this is not intended to be a full discussion of the topic. It is only a mild 'eye-opener' (I could have used more shocking examples). The broadcast media of the past is a warning to the Internet of today
This post covers CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973). In 1970, the Business Executives' Move for Vietnam Peace (BEM) complained to the FCC that radio station WTOP (Wash,DC) refused to sell it airtime for a series of one-minute spots expressing BEM's views on Vietnam. Four months later, the DNC wanted to buy airtime to express the Democratic patrty's views on Vietnam. Both parties lost. The Supreme Court ruled that no individual or organization had a "right" to express "editorial" views on the public airwaves.
In a famous ruling, they found that the Communications Act of 1934 abridged such right of free speech by giving preferential treatment in the form of broadcast licenses and simultaneously rejecting the "common carrier" model. If you read this ruling, you'll find that much of what you thought you knew about free Speech and public media is very possibly wrong.
Am I the only one who finds the following quote chilling: Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The [First] Amendment should be interpreted so as not to cripple the regular work of the government... Although free speech should weigh heavily in the scale in the event of conflict, still the Commission[the FCC] should be given ample scope to do its job. In other words, "this would be too much work for the FCC (and might reverse some of its policies). Rather than adjust the FCC, we will curtail First Amendment rights
I can only agree with Justice brennan's dissent: "[W]e have consistently held that 'when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." and "the Government has selected the persons who will be permitted to operate a broadcast station, extensively regulates those broadcasters, and has specifically approved the challenged broadcaster policy. . . . the Government 'has so far insinuated itself into a
position' of participation in the challenged policy as to make the Government itself responsible for its effects."
In other words, the FCC (as noted in the 1973 ruling) has a deliberate, mandated right and interest in making sure that the station's broadcast content is "accountable". The majority decision complained "No such accountability can be attached to an individual, whose only qualifications [to have an 'editorial opinion' aired] is sufficient funds [to buy a 60-second spot] and a point of view" Those unaccountable animals! who knows what they might say!
Please note, that no one ever said radio stations had to accept all comers (or we'd have 24 hour crackpot radio). The DNC/BEM only argued that all comers should have equal access to purchasing radio time. In other words, that stations should not be allowed to refuse to sell a given advertising minute to a 'editorial' if they'd happily sell that same minute to GE to sell lightbulbs.
As Justice Brennan said:
[A]s the system now operates, any person wishing to market a particular brand of beer, soap, toothpaste, or deodorant has direct, personal, and instantaneous access to the electronic media. He can present his own message, in his own words, in any format he selects, and at a time of his own choosing. Yet a similar individual seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is compelled to rely on the beneficence of a corporate 'trustee' appointed by the Government to argue his case for him.
[1]
This footnote deleted for space, but damn! it was a good one[3]
[2]
Damn! This one too!
[3]
Okay, one snippet of [1]:
The ruling notes that "...47 U.S.C. 202 provides that: '(a) It shall be unlawful for any common carrier to... make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.' In rejecting the common carrier model, Congress rejected a sanction that could have been used against any government-licensed broadcaster who did give an "undue" or "unreasonable" preference or advantage to a particular class of persons. The rejection of the common carrier model allowed, therefore, not only censoring of speech, but unreasonable censoring of speech."
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
How can code be free speech? If I make a piece of hardware do exactly the same thing as a piece of software, does the piece of hardware become "speech"?
I would say probably not. The ruling linked to in the article above says that code is an expressive means of transmitting ideas about computer programming, essentially the algorithms. This means that compiled binaries, which are the end product and are not an expressive means of transmitting these ideas, are not protected under free speech. Similarly, hardware, which is not an expression of it's own design, will not be protected, though the plans and schema may be.
As a result, your average Windows virus is not protected, but there may be concern over macro and script viruses. In the end, though, virus source code may be treated like the infamous "Anarchist's Cookbook." The text is protected, but the use of many of the ideas and techniques within the book is still criminal.
On the other hand, does this mean that the GPL now has teeth, since derivative versions may not be stopped by the owner of the original version? Perhaps Mattel will have no recourse against CPHack since it has been spread across the community.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
The court ruled in the specific instance of encryption, where the code was being distributed in order to facilitate understanding by other humans. The court's reasoning was along the lines of "you can't talk about an algorithm without supplying code." It's unlikely this would apply to, for example, a program to convert Paint Shop Pro to the registered version -- you aren't trying to communicate to another person how the protection method works in PSP, you're just distributing a program to defeat it.
DeCSS is a much stronger candidate, but that's a trade secret issue, not really a free speech issue (at least according to the courts so far). Which is the screwed up thing, because the whole idea of trade secrets is that if you fail to protect it, it's no longer a trade secret -- that's what patents are for.
--Kevin
A short examination of the law should ease your fears. The US Courts have generally held that there is no protection for speech that is intended to cause harm. You can point to both the Constitution, Supreme Court rulings, and many laws that illustrate this. Key examples are:
- Fraud. False speech intended to cause harm can be criminal. This extends into things like false advertising, etc.
- Libel and Slander, where again false speech intended to cause harm can be cause for civil actions.
The legal grey zones tend to be those where intent or harm is unclear, and those where intent may include political purposes. But even with political speech, the free speech protections are quite limited when harm is involved. The grey zones are in things like signs and sound trucks, where the harm is visual and aural pollution. When the harm reaches the level of property destruction or personal injury, the free speech protections are not exemptions from civil actions and criminal prosecution.
Stop with the pseudo-intellectual "virii" already. The plural of "virus" is "viruses" -- at least in English. Latin itself had NO (known) plural for virus; "virus" itself is one of a few odd nouns which were neuter second declension nouns with nominatives ending in -us. The only noun out of those with a plural was "pelagus" (sea), whose (nominative) plural was "pelage." Since Latin didn't have a plural for "virus" (since in Latin it was a mass noun meaning "sludge" or "poison") the proper thing to do is to form the English plural.
You said:
I could take this view if you could build a bomb in a vacuum, such that nothing you do affects anyone else. But this is not the case. The government punishing wackos after they destroyed a million+ lives is not going to be an effective means of deterrence. The benefits we recieve from allowing individuals (e.g., a few geeks may get some satisfaction) to own such destructive devices are far far outweighed by the risks and the costs on society. In other words, the net effect is drastically negative.
My "net effect" and and "individual rights" are not necessarily incompatible, in fact, they are normally one in the same. What the masses (or the "government") may want in the short run, is not necessarily a positive net effect, even if it outweighs the objections to it (in terms of severity x number of objections). In other words, the "net effect" takes individual rights into heavy consideration. It is important to note though, that amongst our "rights" is the right to live. If the mere act of punishing pyschos is insufficient to protect the sudden and drastic loss of millions of lives, then it is prudent to deny all the H-bomb, even those who intend no evil.
To clarify, I would never argue that because 90% (or any other number) of the US (e.g., Christians) feel the Jewish religion is offensive, all Jewish people must worship in private. This would set a bad precendent, and put everyone's rights at risk, and thus would be a negative net effect. The same argument simply can not be made with any real credibility for the existence of the H-bomb in society.
For your information even pure speech is not an absolute right in the US. You can you held responsible for libel. Commercial speech is regulated all the time. You can't yell fire in a crowded theater. You can't phone in bomb threats. etc. etc. etc. These all exist for good reasons. I'd rather they exist than not, no matter who I am, or what my: race, religion, creed, size, etc. are
[Schenck v. United States, 249 U.S. 47 (1919) ]
Most people would think this would merely cover viruses and other malicious code. However, the truth of this ruling is much darker and it's implications deeper
Interestingly, Schenk was an espionage case! [Espionage Act of 1917, a Federal law which, among other things, made it a crime to obstruct government draft recruiting and enlistment efforts]
Okay, so espionage is not free speech.
However, Schenck printed leaflets, mostly mailed to draftees. The front side contained the text of Section I of the Thirteenth Amendment to the Constitution, and the back side contained a text including passages like: "Do not submit to intimidation", "Assert your Rights", "your right to assert your opposition to the draft", and "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."
Schenck was convicted (and the conviction upheld) informing fellow citizens of their constitutional rights!
Further, as Justice Holmes wrote in the Supreme Court Decision: "The defendants were found guilty on all counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and
Many argue that "fire in a crowded theater may have been a common sense dictum, but it was written to support and perpetuate horrible miscarriages. For example, there was no finding that Schenk wrote anything false.
Justice Holmes crafted one of the most brilliant and memorable analogies in Supreme court history, then used it to justify one of the worst black moments in First Amendment History. [A week later, the Supreme court used this ruling to uphold the Espionage Act itself in Frohwerk v. United States, 249 U.S. 204 (1919), stating that the "First Amendment had been disposed of". The Law of the Land can change lickety split.] Of course, most people who have even heard of the later Alien and Sedition Act (of the following year) know what a terrible abuse it was.
Please propagate this information whenever you see the "fire in a crowded theatre" analogy used improperly. (which is most of the time) We geeks need to understand and explore the ramifications of the analogy, or it'll come back to bite us. The First Amendment is not the holy raiment some of us seem to think
Further, the First Amendment specifically addresses Congress and Federal Law. States have at various times argued (sometimes successfully) that they have deeper rights (under the reserved rights clause) to control free speech than the Feds do. I am sure that fact brings endless cheer to geeks in, say, Alabama [Hey, I was born in Georgia]
Finally, I close with more of Holmes words from the Schenk Decision:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. But when men have realized that time hasupset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
Consider the way people express their political views with DeCSS and the Mattel crack. That's at least as much a political statement as wandering around with a plackard. We protect that.
And, what about the act of coding itself? You certainly can't express the same things in code that you can using English--does that mean it's a lesser form of "communicating"?
I'd suggest not. How many of us have used works like "beautiful" to describe chunk of code or the algorithm that it represents? Those of us who program know that it's a creative process and that it feels more like writing prose than like balancing your checkbook. I think the non-programmers of the world would be surprised by that, but I think it's true.
So, I guess my answer to the question is "yes." If it looks like a duck, and acts like a duck...
Greg
Uncompiled source code is obviously speech. It is a means by which programmers communicate with other programmers. The whole reason high level languages evolved was so that other programmers could take over a project when the original ones left. There was a day when programmers wrote in machine code. That day didn't last long.
Machine code tells the machine what to do. As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
A virus in source code form is a handy tool to see how they're written and to write programs to detect them. In this form they're completely safe. A compiled virus is another beast entirely.
Likewise, many would argue that the instructions you can find on the net to make bombs, crystal meth or the alt.suicide.holiday FAQs are protected free speech. I'd find far less use for any of those three things than I would with the source code for virusses, which at least present interesting technical reading.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
IANAL (you're gonna see that a lot in this one, I think), but I would like to see code be treated similar to various other tools, where use determines whether it's legal or not. Having a car is, for instance, legal. Killing someone with it isn't. Having L0phtcrack is legal, writing L0phtcrack is legal. Using it to break into a corporate office network isn't. That would make sense to me. (of course, why should the legal system make sense?)