Re: Software and the First Amendment

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From: Antoun Nabhan (
Date: Mon Jul 31 2000 - 08:00:48 PDT

Be careful, you may get what you wish for. The law actually has a concept
which can accomodate, called "speech as action." It's what prevents you
from threatening people and calling it protected speech ("fighting words")
or yelling fire in a crowded theatre. Beware, though: it's also the germ of
legalisms like "hate speech" that begin to seriously encroach on what a
freedom-lover would think of as "free speech." And I suspect it's the
handiest tool with which the lawyers and judges and other suits of the
world would begin to address the nuanced difference between "code" and
"traditional speech."

Sure seems to me like code is speech, but there's a key difference: code is
*action*, or more precisely, code creates action in machine-agents which we
do not hold morally culpable. So, it's okay if I tell someone on my staff,
"you know, we should just have that vendor taken out back and shot." I say
it frequently, in fact. But no harm is done, because 1) whoever I'm talking
to is always savvy enough to understand that I'm KIDDING, and 2) even if I
were serious, nobody would actually get shot because nobody I'm talking to
is willing to take my instruction in the face of the various social
constraints against vendor-icide. (In fact, I usually get ignored no matter
how mild the suggestion. :-) )

But computers generally aren't savvy enough enough to know when the
software engineer is kidding ("You can't *seriously* mean wipe out this
whole hard drive without notifying the user, right?") and computers aren't
culpable for their action; I can't put in jail for
sending me the ILoveYou virus. Wouldn't mean anything to me or to the
agglomeration of HW and SW known as So when you write
code, you're not really describing action to other, morally culpable
agents, you're actually acting. The computer is just a long, strong arm.

IANAL, but I play one on the Net,

At 10:26 AM 7/31/00 -0400, Lucas Gonze wrote:

>printf("%c",' ');
>printf("%c",' ');
>just says that Nixon is a crook, which is protected speech. And speech
>recognition would just make the code == speech idea more explicit. But
>applying the rules of speech to machines (which is what software is for)
>would be a low level change in the legal system.
>IANAL, but I think it is possible that this concept really wasn't
>addressed in the constitution. Which means that our current generation of
>politicians and judges will have to step up and create a new body of law.
>And given that they can barely fix a parking ticket, that's pretty scary.
>- Lucas
>On Mon, 31 Jul 2000, DaveNet email wrote:
> > DaveNet essay, "Software and the First Amendment", released on
> 7/30/2000; 10:03:20 PM Pacific.
> >
> --------------------------------------------------------------------------
> ---------------------------
> >
> > ***Stop everything and read this NY Times piece
> >
> > "It was perhaps the most arcane statement in all the hours of
> acronym-filled testimony, one that came on the last day of the six-day
> trial. But it may have been a turning point in an important battle over
> the limits of a new copyright law, a potential landmark case that ended
> its trial phase last week in Manhattan and now awaits a verdict by the judge.
> >
> > "More news coverage may have been devoted to the recent legal
> wranglings over Napster, the Web service that the recording industry has
> accused of abetting widespread music piracy. But the Manhattan case,
> involving the copying of DVD movie disks, may have more far-reaching
> effects -- both on the way cultural products are consumed and on whether
> computer code is deemed to be speech deserving of First Amendment protection."
> >
> >
> >
> > I've been saying this for years, to lawyers, to experts on patents
> including Lawrence Lessig, and everyone tells me I'm out of my mind, but
> I know it's right.
> >
> > There is no difference between code and writing. I think I can prove
> it. Manila, the content management system that I use, supports macros.
> When you put text in curly braces, as the page is rendered, the macro is
> evaluated. Such macros can be embedded in protected speech, ie prose.
> What goes inside the curly braces is program logic. So if I want First
> Amendment protection for my code all I have to do is embed it in a Web page.
> >
> > Further, the artistic choices one makes when writing code, even when
> it's not embedded in a Web page, are exactly like those made when writing
> prose. I may be one of a very small number of people who write both ways,
> so I get it in a way others possibly can't. If lawyers will just listen
> and take this idea seriously, we can route around all kinds of insidious
> (and unconstitutional) limits on what software writers can write about.
> >
> > In "Do You Know Stephen King?", 7/24/00: "To put it in analogous terms
> for writers, imagine if you couldn't write a story because Dean Koontz
> had already written it. What if the idea were as basic as Boy Meets Girl?
> That's what's going on in another creative space, software."
> >
> > Bet on this changing, if this case goes through, as the Times says, it
> will have far-reaching effects. Software patents won't be worth the paper
> they're printed on, once again software writers will be free.
> >
> > Dave Winer
> >
> >
> >
> >
> --------------------------------------------------------------------------
> ---------------------------
> > (c) Copyright 1994-2000, Dave Winer.
> > "It's even worse than it appears."
> >
> >

Antoun Nabhan

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