Kuro5hin.org: technology and culture, from the trenches
create account | help/FAQ | contact | links | search | IRC | site news
[ Everything | Diaries | Technology | Science | Culture | Politics | Media | News | Internet | Op-Ed | Fiction | Meta | MLP ]
We need your support: buy an ad | premium membership

[P]
Code, speech, and an aching foot

By japhar81 in Technology
Fri Nov 10, 2000 at 12:12:27 PM EST
Tags: Software (all tags)
Software

A long long time ago, all software was closed. Now, we have OSS under the GPL, LGPL, Mozilla, SCL, etc. I was recently reminded of an old article at that other site, which got me thinking. Are we, as programmers, shooting ourselves in the foot by using any license?


The /. blurb reads:
The Federal 6th Circuit Court of Appeals ruled on Junger v. Daley Tuesday, finding that source code is expressive speech. Peter D. Junger had sued in 1997 to allow posting of some crypto code on the Internet, on the grounds that it is expressive and not merely functional. The court found in his favor: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment."
From the opinion of the 6th District Court:
The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. ...

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ... Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programers.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.
Here's my thought on this. If code is considered free speech, are we in fact limiting ourselves by licensing it? I don't release each sentence that comes out of my mouth under the GPL, the LGPL, or any other license, so why should I do so with every line of code that comes out of my brain, through my fingers, onto the keyboard (you get the idea). If code is, in fact, free speech protected under the first ammendment, there is no reason to license it, ownership by the original author of the code becomes implied and inherent, why do we bother to re-affirm it? As far as using a license to transfer ownership, if code is, in fact, free speech, we can't transfer ownership, just like we can't transfer ownership of that interesting conversation about the effectiveness of widgets as an educational tool that I had last night. So my question to you all is, are we shooting ourselves in the foot by licensing code, and, is it even legal under the first ammendment assuming that the district court isn't overturned on appeal?

Sponsors

Voxel dot net
o Managed Hosting
o VoxCAST Content Delivery
o Raw Infrastructure

Login

Related Links
o old article
o other site
o Also by japhar81


Display: Sort:
Code, speech, and an aching foot | 20 comments (20 topical, editorial, 0 hidden)
You're forgetting something. (4.50 / 4) (#1)
by ksandstr on Fri Nov 10, 2000 at 08:34:52 AM EST

A long, long, long time ago, all software was free because software didn't have protection under the copyright laws.



Fin.
Gotta love the endless circle that is history, eh? (3.00 / 1) (#2)
by japhar81 on Fri Nov 10, 2000 at 09:06:36 AM EST

Yes, you're right in the beginning, it was totally free, unlicensed, it was speech. I'm wondering though, is that where we're headed now?

<H6>Rome is always burning, and the younger generation never respects its elders. The time of your second coming, japhar81, is no exception. -- Aphasia</H6&gt
[ Parent ]
Yep. (none / 0) (#20)
by ksandstr on Sun Nov 19, 2000 at 09:23:48 AM EST

Dunno, but I sure hope that'd be the case. I'll settle for an everything-is-GPL world too though :-)



Fin.
[ Parent ]
Definition of "license" (4.50 / 6) (#3)
by Demona on Fri Nov 10, 2000 at 09:15:56 AM EST

A grant of permission from a controlling authority, which allows the licensee to do something which they would OTHERWISE NOT LAWFULLY BE ABLE TO DO. I leave it up to the individual readers to determine for themselves if they may lawfully speak, write, associate, &c, without the permission of another.

-dj

Make no laws whatever concerning speech, and speech will be free; so soon as you make a declaration on paper that speech shall be free, you will have a hundred lawyers proving that "freedom does not mean abuse, nor liberty license"; and they will define and define freedom out of existence.

- Voltarine de Cleyre



Hmm (2.50 / 2) (#4)
by japhar81 on Fri Nov 10, 2000 at 09:34:51 AM EST

Well put, but it goes back to the question of which way is better? Do we want to give people the right to do things they normally couldnt with our source code? Realizing that every case is different, I would think that for the most part, code should be protected in the same way that speech is. I.E. yelling fire in a theater is illegal, and writing malicious virus code should be as well IMNSHO, but expressing your ideas, be it in English, French, or Haskell, should be protected.

<H6>Rome is always burning, and the younger generation never respects its elders. The time of your second coming, japhar81, is no exception. -- Aphasia</H6&gt
[ Parent ]
copyright? (4.75 / 4) (#8)
by rusty on Fri Nov 10, 2000 at 10:40:32 AM EST

My speech is protected by copyright law, isn't it? Outside the bounds of fair use, you can't take what I say and use it as your own, right? So code is automatically covered under copyright. Now, beyond that, a license grants the licensee to use the code in some way not covered under fair use-- in the case of the GPL, it allows you to modify the code, and pass it on to others. That's why we use licenses: if we didn't, legally it falls back on copyright, and a license s a way for me to waive some of my rights under copyright law. When you buy a book, you're agreeing to a license (albeit one that has fewer explicit rights than a software license). The reason licensing hasn't been such a huge issue with books is that it is hard, if not impossible, to make an infinite number of perfect copies of a book. So nature protects books more strongly than it protects code, hence licenses.

I.E. yelling fire in a theater is illegal, and writing malicious virus code should be as well IMNSHO

Nitpick, but a crucial one: writing virus code shouldn't be illegal. Using it should be. What's illegal about yelling fire in a theatre is the practice of using "FIRE!!" as a means of disrupting and potentially causing harm to others. Writing "I walked into the crowded theatre and yelled FIRE at the top of my lungs" isn't illegal, because it is a description of an act, not the act itself. In the same way, writing virus code is a "description" of what you could do to an ill-protected system. Using it is the action that could be illegal.

____
Not the real rusty
[ Parent ]

the American way (4.00 / 1) (#14)
by madams on Fri Nov 10, 2000 at 04:54:10 PM EST

because it is a description of an act, not the act itself.

You are correct. The precedent of "freedom of speech" means that, in America, you will be held accountable for your actions, not your thoughts and ideas. This is why hate-speech legislation is unconstitutional in America.

Hate-speech is illegal in many countries (take Germany, for example). I find the idea of baning hate speech intolerable, and wholly un-American. The best way to fight hate-speech is to ignore it.

--
Mark Adams
"But pay no attention to anonymous charges, for they are a bad precedent and are not worthy of our age." - Trajan's reply to Pliny the Younger, 112 A.D.
[ Parent ]

OT: *S* (5.00 / 1) (#17)
by Dacta on Sun Nov 12, 2000 at 07:10:58 PM EST

intolerable, and wholly un-American.

Isn't that a contradiction? (sorry.. I couldn't resist)



[ Parent ]
Voltarine de Cleyre? (4.00 / 2) (#11)
by HypoLuxa on Fri Nov 10, 2000 at 11:30:25 AM EST

You are my hero. Who else could quote a 19th Century French anarchist in the middle of a discussion about software copyright and licensinge and have it make sense?

Bravo!

--
I'm guided by the beauty of our weapons.
- Leonard Cohen
[ Parent ]

Free as in speech (1.71 / 7) (#5)
by retinaburn on Fri Nov 10, 2000 at 09:40:05 AM EST

I don't think code should be free as in speech. If you are trying to make a living writing code to support yourself and you family, and then someone hacks into your box, steals the code you were working on, and makes a million bucks off of it then you would be pissed. You invested time and money into developing a product that someone stole. It would be similar to someone copying down a motivational speakers speech, I imagine you could be successfully sued for doing this, despite the fact its free speech you can't steal it.

Although I agree that code can be as beautiful and expressive as the greatest works of art, I'd love to be able to give my gf a beautiful algorithm rather than a ring for xmas...its something from the heart right :)

I think that we are a young species that often fucks with things we don't know how to unfuck. -- Tycho


stealing code (4.00 / 1) (#6)
by boxed on Fri Nov 10, 2000 at 09:53:21 AM EST

How can someone make millions of dollars off code when it's free as in speech? I think your argument is very faulty.

[ Parent ]
true, but.. (2.00 / 1) (#7)
by japhar81 on Fri Nov 10, 2000 at 09:58:56 AM EST

Very true, the argument is slightly flawed, but, wouldnt you love to be able to give your loved one a new crypto algorithm for x-mas?

<H6>Rome is always burning, and the younger generation never respects its elders. The time of your second coming, japhar81, is no exception. -- Aphasia</H6&gt
[ Parent ]
haha (2.00 / 1) (#12)
by boxed on Fri Nov 10, 2000 at 12:07:17 PM EST

no I don't think so

[ Parent ]
I DO release each sentence under license. (4.00 / 3) (#9)
by error 404 on Fri Nov 10, 2000 at 11:25:42 AM EST

The GPL and similar are formalizations of a widely shared ethic that applies to communication in general.

Sometimes, people ask if they can quote something I said or wrote - that acknowledges that they feel I have some ownership of those words.

Some people quote me without asking. I recently found a sentence I wrote to a mailing list in several lists of inspirational quotes. (Kind of distressing to a gloomy cynic such as myself.) Those people saw fit to keep my name with the quote, which I appreciate. That indicates that they either think my name adds value to the quote (unlikely - I am far from famous) or respect my limited ownership of the quote. This is a GPL-type use of my words. I think that if the editors of those lists tried to prevent some third party from using my quote, some people would call foul. I know I'd object.

It isn't a formal license, but there are social rules (some of which can sometimes spill inot law) regarding what you can and can't do with things other people say. And to some extent, those rules are echoed in the GPL.

A license does not transfer ownership. It transfers certain rights. And free speech is a completely seperate, almost completely unrelated issue. Free speech is a restriction of authority, not a matter of ownership. Free speech does not mean that you can't sell a publisher the right to make copies of a book you wrote. It doesn't even mean that you can't meake a deal with the publisher that says you won't ever make another copy of the book - despite the fact that the last agreement means that it would be illegal for you to write a particular thing (the exact contents of that book) ever again.

The same goes for software. The first ammendment (if that decision holds) restricts the govornment from doing certain things. It doesn't restrict what you can license.

..................................
Electrical banana is bound to be the very next phase
- Donovan

your .sig (none / 0) (#18)
by ethereal on Mon Nov 13, 2000 at 02:04:36 PM EST

Some people quote me without asking. I recently found a sentence I wrote to a mailing list in several lists of inspirational quotes. (Kind of distressing to a gloomy cynic such as myself.) Those people saw fit to keep my name with the quote, which I appreciate. That indicates that they either think my name adds value to the quote (unlikely - I am far from famous) or respect my limited ownership of the quote. This is a GPL-type use of my words. I think that if the editors of those lists tried to prevent some third party from using my quote, some people would call foul. I know I'd object.

...

Windows is only free if neither your time nor your money has value.

This is kind of ironic, since I've often seen your .sig (somewhat reworded) attributed to Jamie Zawinski.

--

Stand up for your right to not believe: Americans United for Separation of Church and State
[ Parent ]

Hmmm, I guess it could be considered that... (none / 0) (#19)
by error 404 on Wed Nov 15, 2000 at 03:43:37 PM EST

My sig is an answer to that other one.

In any case, I just changed mine, and the new one credits the author.

..................................
Electrical banana is bound to be the very next phase
- Donovan

[ Parent ]
Muddled Definitions (4.50 / 6) (#10)
by HypoLuxa on Fri Nov 10, 2000 at 11:25:49 AM EST

I think there is a misunderstanding as to what the court means when it says "free speech." The court is saying that code is speech that cannot be limited by the government or courts because it is expressive. It is "free" in the same way that the text of a book is free; meaning that the right to publish, discuss, or distribute it cannot be infringed upon by the state.

That's all this addresses. There is no "implied and inherent" ownership. All of that falls under the domain of copyright/trademark/property law. I am reminded of an English professor in school who gave us tips on submitting writing to publishers for consideration. One of the things she addresses was the importance of copyrighting your works, so they couldn't be published without your permission.

This article equates the courts mandate of "free speach" to public domain, which is not what the court says. This ruling simply says that source code is both practical and expressive, meaning that it is and must be protected by the same laws as all other speach (which is a victory for the coding community in and of itself), not that exists ownerless in the public domain as soon as it is created.

--
I'm guided by the beauty of our weapons.
- Leonard Cohen

Speech is licensed too! (4.60 / 5) (#13)
by fluffy grue on Fri Nov 10, 2000 at 12:49:59 PM EST

Speech (which includes written and printed words) is licensed as well. I can't legally post Dr. Seuss books or Metallica MP3s online without permission; likewise, it has been established in court that university professors own their performance (i.e. lectures), and thus selling lecture notes without their permission is a violation of copyright law.

Saying that we're shooting ourselves in the foot by putting code under a free(speech) license is like saying we're shooting ourselves in the foot by putting speech under a free(speech) license. That is, it makes no sense - the reason for putting code under a license to begin with is the same reason there's a copyright statement on the inner jacket of a textbook; you're specifying what can and cannot be done with your publication.


--
"Is not a quine" is not a quine.
I have a master's degree in science!

[ Hug Your Trikuare ]

Well, That's Because... (4.00 / 2) (#15)
by Matrix on Sat Nov 11, 2000 at 08:45:58 AM EST

...Each sentance that comes out of your mouth is, by default, under copyright. Or, since we're comparing it to code, it might as well be. And that means that copyright law, by default, places limitations on what other people can do with that. All the GPL/LGPL does is say that you can do some extra stuff normally not allowed by copyright law, but if you do, then these other terms apply. Unlike closed-software licenses, the GPL doesn't take away anything, so its legality is slightly more certant.

Books, plays, and music are also protected under the American First Amendment, but they're also covered by copyright law. Software's in a similar situation.


Matrix
"...Pulling together is the aim of despotism and tyranny. Free men pull in all kinds of directions. It's the only way to make progress."
- Lord Vetinari, pg 312 of the Truth, a Discworld novel by Terry Pratchett

And now, this just in from the real world (5.00 / 2) (#16)
by Gameboy70 on Sat Nov 11, 2000 at 05:55:37 PM EST

A long long time ago, all software was closed.

Actually, in the ARPANET days, you typically downloaded the source, not the binaries, and did a build on the client side. As companies started to realize that they could leverage code as trade secrets to maximize profits, the idea of distributing the source code was discouraged. One notable example of the cultural shift was 19-year-old Bill Gates' open letter to the Homebrew Computer Club, in which he flamed them for sharing tapes of MicroSoft BASIC, which at the time wasn't considered criminal or unethical.

Now, we have OSS under the GPL, LGPL, Mozilla, SCL, etc.

Yes, too bad IP law makes licenses necessary, both to protect intellectual property and intellectual freedom.

So my question to you all is, are we shooting ourselves in the foot by licensing code, and, is it even legal under the first ammendment assuming that the district court isn't overturned on appeal?

Personally, I don't think it's likely that someone will take my code, copyright it, and then turn around and sue me for infringement. But as 1-Click ordering and other patent fiascos demostrate, lawyers (and people, too) will do whatever they can get away with as long as there's a nickle to be made. So it's better to be safe then sorry. If your code is of any importance at all -- to yourself or to the public -- not securing a license of some kind is shooting yourself in the foot.

Code, speech, and an aching foot | 20 comments (20 topical, 0 editorial, 0 hidden)
Display: Sort:

kuro5hin.org

[XML]
All trademarks and copyrights on this page are owned by their respective companies. The Rest 2000 - Present Kuro5hin.org Inc.
See our legalese page for copyright policies. Please also read our Privacy Policy.
Kuro5hin.org is powered by Free Software, including Apache, Perl, and Linux, The Scoop Engine that runs this site is freely available, under the terms of the GPL.
Need some help? Email help@kuro5hin.org.
My heart's the long stairs.

Powered by Scoop create account | help/FAQ | mission | links | search | IRC | YOU choose the stories!