The New Software Jurisprudence and the Faltering First Amendment

Abstract

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression.

This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law.

As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.