8 July 1998
See related files at Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/
Documents of the suit: http://jya.com/pdj.htm
To: jvd-announce@samsara.law.cwru.edu Subject: Press Release: Judge holds software is not protected speech Date: Wed, 08 Jul 1998 09:39:36 -0300 From: "Junger v. Daley Announcements" <jvd@samsara.law.cwru.edu> Federal District Court Holds That Software Publishers Are Not Protected by the First Amendment Government Wins Summary Judgment in Junger v. Daley Judge Gwin's Opinion Is Available on Line ---------------------------------------------------------------- Cleveland, Ohio, Wednesday, July 8, 1998 For Immediate Release For More Information Contact: Peter D. Junger (216) 368-2535 <junger@samsara.law.cwru.edu> Raymond Vasvari (216) 662-1780 <freespeech@mail.multiverse.com> Or see URL: http://samsara.law.cwru.edu/comp_law/jvd/ To be added to, or removed from, the list of those who were sent this press release, please send e-mail to <lawsuit@upaya.multiverse.com>. _________________________________________________________________ Cleveland, Ohio, July 8 -- On July 3, 1998 Judge Gwin of the United States District Court of the Northern District of Ohio held that computer programs are not writings protected by the constitution because they are ``inherently functional'' and granted summary judgment dismissing a suit challenging regulations that forbid the publication of encryption programs on the Internet or the World Wide Web. The suit was brought by Peter Junger, a law professor at Case Western Reserve University in Cleveland, to enjoin the enforcement of export regulations on encryption software that prevent him from publishing his class materials and articles for his course in Computing and the Law on the Internet because they contain some encryption programs. Junger claimed in his suit that those encryption programs were writings that were entitled to the full protection of the First Amendment. ``Of course they are writings,'' Junger says, ``I know because I wrote some of them. And I need to be able to publish them if I am ever going to be able to explain to lawyers and law students how computers work and how the law should be applied to computing.'' The government, on the other hand, argued that its export regulations, which require that one obtain a license from the Commerce Department before publishing materials containing encryption software on the Internet or the World Wide Web, seek only to restrict the distribution of encryption software itself, not ideas on encryption. And Judge Gwin agreed with the government, finding that: ``the Export Regulations are constitutional because encryption source code is inherently functional, because the Export Regulations are not directed at source code's expressive elements, and because the Export Regulations do not reach academic discussions of software, or software in print form.'' In a related case in California brought by mathematics professor Daniel Bernstein, Federal District Court Judge Patel held that computer programs are speech that is protected by the First Amendment, but Judge Gwin rejected that argument, saying: ``The Bernstein court's assertion that `language equals protected speech' is unsound. `Speech' is not protected simply because we write it in a language.'' It is Judge Gwin's position that computer source code is a purely functional device: ``The court in Bernstein misunderstood the significance of source code's functionality. Source code is `purely functional,' in a way that the Bernstein Court's examples of instructions, manuals, and recipes are not. Unlike instructions, a manual, or a recipe, source code actually performs the function it describes. While a recipe provides instructions to a cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption.'' There is thus a clear split between the two courts: Judge Patel holding that computer software is protected by the First Amendment and Judge Gwin holding that it isn't. The Bernstein case is on appeal and Professor Junger says that he intends to appeal Judge Gwin's decision: ``We have had almost no financial support for this case, but the issue of whether encryption software and software in general is protected like other writings under the First Amendment, or whether it is to be treated as a special exception like obscenity and fighting words as Judge Gwin held, is so important that we will have to scrape up the resources somehow to bring an appeal.'' Judge Gwin's opinion is now available at <http://jya.com/pdj11.htm> and is mirrored at <http://samsara.law.cwru.edu/comp_law/jvd/pdj11.html>. -30-