Is computer code a form of expression
July 26, 2000 9:57 AM   Subscribe

Is computer code a form of expression and therefore protected by the First Amendment? That's something being considered in the MPAA's case against Eric Corley and DeCSS.
posted by scottandrew (6 comments total)
OK, I admit it's not entirely clear to me from the article whether the code is question is simply the HTML used to link to and distribute DeCSS, or whether the program itself is included. But it seems to me that any decision like this is a decision not to be taken lightly. There should be a distinction between code written for disemminating information (BBS, HTML links) and code written for other functionality (DeCSS, Windows NT, the Melissa virus, et al.) One may fall under the First Amendment, the other probably shouldn't. I don't know if I trust a judge to make that decision based on the input of one expert. Lean too far one way, and the simple act of linking could be a criminal act; too far the other way, and virus authors may someday use, "hey, I was just expressing myself, y'know?" as a legal defense.
posted by scottandrew at 10:20 AM on July 26, 2000

Touretzky's testimony concerns the source code for DeCSS itself; it starts around page 1061 of yesterday's trial transcript. The exhibits they refer to are from his gallery of DeCSS descramblers at CMU. His argument is a fairly clever way of going about it, I think.
posted by tingley at 10:39 AM on July 26, 2000

I thought a federal judge had already ruled that computer code was a form of speech in that case where the math professor wanted to post some encryption code on his website, but the feds wouldn't let him because of export restrictions and such. Maybe I'm wrong. In any case, computer code should be considered speech and should be able to be distributed as easily as English text can.

too far the other way, and virus authors may someday use, "hey, I was just expressing myself, y'know?" as a legal defense.

I don't think this would work. There is a big difference between writing how to do something (which is pretty much what programming code is) and actually doing it (say, releasing the virus). Surely it's okay to write a document containing methods for breaking into people's houses, or how best to kill a man with one gunshot, but if someone does those things, that's a different story.
posted by daveadams at 10:40 AM on July 26, 2000

Ah, here's the case I mentioned (from the gallery tingley linked to, thanks!):

Junger v. United States
posted by daveadams at 10:43 AM on July 26, 2000

There are quite a few sites out there that store and disseminate virus code as well as discuss it, all perfectly legal. That's expression. If I print out any of the text of those viruses and show it around, nobody's at risk of anything but a paper cut. And it's unquestionably covered by the First Amendment. There's never been a case where US courts have ruledtextual literature as not being free expression. So computer code can and will always be available as long as the author grants distribution rights, even if some court does eventually rule that some code can't be stored online in a way where it could be easily compiled and run.

And thus, there's no way to ever stop something like DeCSS. At worst, you'd just have to get a printout and type the code in yourself, heh.
posted by aaron at 8:35 PM on July 26, 2000

Is computer code a form of expression?

My O'Reilly JavaScript guide has an entire chapter about Expressions. Q.E.D.
posted by mikewas at 11:37 AM on July 27, 2000

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