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More On Encryption Source Code Appeal
ill-logic writes "Here's an article at News.com that gives some more detailed info on the appeals court ruling overturning a case involving a programmer posting source code for his crypto program on the net. The judge ruled that his code is protected under the first amendment. At least there is one non-programmer out there that knows there are benefits in programmers swapping code. "
First, this is the Federal Court of Appeals, not the Supreme Court. The government doesn't always listen to the Court of Appeals.
Second, this ruling only protects the transmission of encryption source code, not binaries. Any restrictions on binaries are just as much in force today as they were before the ruling. It does, however, mean you can put source code up on your web or FTP site and expect not to be hassled for it. If you are hassled for it, you can expect to have an easier legal battle with this precident in hand.
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Open mind, insert foot.
No decision was overturned, it was upheld. That is, Bernstein had won a previous case and the court upheld that ruling in the 9th district court. Professor Junger is the one who lost his case here in the 6th district (http://samsara.law.cwru.edu).
The difference is fairly important because 2 courts making the same ruling adds some credence. This will surely go to the Supreme Court next, where I believe Bernstein will win again.
** Martin
Gah. After several attempts to get the user login to work in lynx, I have given up.
Anyway, I wanted to respond to the questions people have been posting as to whether source code ought to be considered protected, expressive speech.
In short, yes. If you read the opinion, or even the first paragraph of it, you'll see that the primary point it makes is that the export restrictions constitute a prior restraint on scientific expression. This is a crucial point, that not many people seem to have remarked on, and I'm very happy that the court saw how important it is. I've been involved in the scientific community most of my life (my parents are both marine biologists at a major oceanographic research institution), so I have a particular interest in this aspect. Free exchange of scientific ideas is, as anyone who understands the issues will tell you, absolutely essential to scientific progress. We like to talk about how wonderful our culture of openness and sharing of source code and ideas is, and I'm not saying it isn't, but you know what? We didn't come up with it. We borrowed it from the tradition, which has existed as long as anyone has done scientific or mathematical research, of publishing one's results in peer-reviewed journals, of sharing one's information, and of helping other people doing similar projects. Collaboration and sharing of knowledge is one of the most important principles of scientific research, just as it is of the free software community.
Scott Madin, cookieless.
http://www.student.carleton.edu/M/madins/
Pancakes is the better part of valor.
While many are celebrating this ruling due to the crypto export implications, I think real victory is for the deeper issue: is source code speech? While the fight's not over, I'm very encouraged that the appelate court reaffirmed that source code is expressive and is a form of speech (at least within the narrow context of this case).
The Junger case was similar. It involved a law professor who wanted to post crypto source code for his "Computers and the Law" class. A lower court (going against the ruling of the lower court in this case), sided with the government and dismissed the expressive nature of source code due to its functional aspect. They basically said source code wasn't speech. This was, IMHO, a bad bad ruling. I really find it offensive that the court would assert that a language such as C that I spend a large portion of my time reading and writing (often just for fun), isn't speech. I use computer languages to communicate ideas. That's speech. The judge (Gwinn) in the Junger case just didn't "get it." I've read this ruling, and it's obvious that at least some of the judges (or more likely, their aids) do "get it."
Let's just hope that if this goes to the Supreme Court, they're as enlightened.