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Code as Speech

19 Pages Posted: 23 Jul 2001  

L. Jean Camp

Indiana University Bloomington - School of Informatics and Computing

Kenneth Lewis

affiliation not provided to SSRN

Date Written: February 2001

Abstract

The purpose of this paper is to address the question of whether computer source code is speech protected by the First Amendment to the United States Constitution or whether it is merely functional, a "machine," designed to fulfill a set task and therefore bereft of protection. The answer to this question is a complex one. Unlike all other forms of "speech," computer source code holds a unique place in the law: it can be copyrighted, like a book, and it can be patented, like a machine or process. Case law, intellectual property law and encryption export regulations all reflect this contradictory dichotomy. There are currently three cases before three separate federal courts that address as their core issue whether code is speech. The three cases are Bernstein v. US Dept. of Justice, Junger v. Daley and Karn v. US Dept. of State. Both a Federal District court and a Federal Appeals court have heard each of the three cases. To date the courts have been split, with Bernstein having initially won First Amendment protection for his code in the Ninth Circuit Court of Appeals before being remanded for an en banc rehearing; Junger having won First Amendment protection for his code and been granted a remand back to the lower court for rehearing after winning his appeal before the Sixth Circuit Court of Appeals; and Karn having been remanded back to the lower court for rehearing due to a change in the law.

Keywords: Business and Government Policy, Information Technology

Suggested Citation

Camp, L. Jean and Lewis, Kenneth, Code as Speech (February 2001). KSG Working Paper No. 01-007. Available at SSRN: https://ssrn.com/abstract=277354 or http://dx.doi.org/10.2139/ssrn.277354

L. Jean Camp (Contact Author)

Indiana University Bloomington - School of Informatics and Computing ( email )

901 E 10th St
Bloomington, IN 47401
United States

Kenneth D. Lewis

affiliation not provided to SSRN

No Address Available

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