Code As Free Speech -- Pandora's Box? 274
Blake Watters asks: "Following yesterday's ruling in Federal Court that source code is free speech and thus protected by the Constitution I was at first rather elated, and then a bit edgy. It seems to me that perhaps this ruling could represent a real bombshell. Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry? Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon? Any legal minds out there care to offer some perspective?" In the age of the DMCA and the UCITA, such a ruling is a much needed breath of fresh air.
FREE SPEECH!!! DO NOT MODERATE THIS DOWN!!! (Score:1)
{
printf("SLASHDOT SUCKS!!!");
printf("I PIMP TACO'S MOM!!!");
printf("SLASHDOT IS FOR COMMIES!!!");
}
This code is licensed under the GPL. Thank you.
Dr Kool
Re:Your mistake (Score:2)
--
Ski-U-Mah!
Stop the MPAA [opendvd.org]
Re:English 101 (Score:2)
Re:How expressive is it? (Score:2)
*Parsing a sentence of an arbitrary context-free language can be done in O(N^3). Natural language is not context-free. Programming languages are an easier-to-parse subset of context-free languages.
Much the same way that doctors and lawyers use latin words and phrases. The translations to english are no big deal, but when expressed in latin, it is an invocation of perhaps volumes of text without ambiguity.
English typically has multiple meanings even if you discount connotations and willfully stupid interpretations. A few lines of C (or any other computer language) will mean one thing and one thing only. No room to mis-understand.
It IS possable to express any computer program in terms of a Turing machine, which CAN be expressed in english, but the description will be extremely verbose and subject to human mis-reading. The verbosity can be reduced and the readability increased by using simple abbreviations to describe the turing machine's instructions. Further simplification (for the human reader) can be done by abbreviating and defining entire groups of repeated code as a single term. Now it is still completely unambiguous, and is much more human readable. It is also now a computer language ready to compile.
In that context, the computer language is a greater rather than lesser form of communication.
I argue that all speech is both functional and expressive and there can be no division. If the expression performed no function, it probably wouldn't have been expressed. It just happens that in computer languages, the translation is more efficient.
Re:Your mistake (Score:2)
Machine code tells the machine what to do. As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
In some machines and languages, there is no difference. A BASIC interpreter for example. It might (or might not) tokenize the code first, but tokenization is also compression. Nobody argues that a gzipped novel is no longer speech because it was tokenized (with the tokens defined on the fly no less). There have been several hacks to make a CPU where a high level language (especially LISP) IS the machine language. In the Crusoe, the x86 'machine language' ISN'T the machine language.
Everything a compiler can do can be done in hardware on the fly. Note that I make no practicality claims, only possability.
By the same token (no pun intended), some programmers read a hex dump as easily as others read C source.
Re:Your mistake (Score:2)
Using my definition it's pretty clear; any computer language that the computer can't run directly without an interim compilation step
I used to program a TS-1000 by entering machine code directly into REM statements (using the extended ASCII character set). I could also readily read it back. Which would that be?
IMHO, ANYTHING that conveys a concept or idea is speech, no matter the form it takes. Even shooting sombody is speech. Naturally, that sort of speech has consequences that must be addressed seperatly (like yelling FIRE! in a crowded theater).
Re:How about this "use"? (Score:2)
Note: I think the Anarchist's Cookbook has a mostly negative effect, and banning it would _probably_ have a positive net effect (I don't see any convincing reason for it based on "free speech" offhand)]
Many people feel the same way about Howard Stern (and others feel that way about those who want to censor Howard Stern). Until action is taken, it is still speech.
I agree, however, that A line must be drawn somewhere. A functional H-bomb could be a powerful element in an artistic display, but it also creates a clear and present danger to the population. Setting it off could be very powerful in a performance piece, but I don't think anyone could advocate allowing that.
It ios also important to note that some speech can be limited when it presents a clear and present danger. The H-bomb display certainly meets that standard. The crypto keys needed to arm the U.S. nuclear arsenal would qualify for restraint as well. For a crypto program to qualify, the government would need to show that it substantially decreases national security. That would be very hard to do since the whole world already knows about strong crypto of all sorts.
Re:What if? (Score:2)
The Same would apply to a letter someone wrote you or an essay or whatever. Freedom of Speach and the Press does not override copyright etc.
The Cure of the ills of Democracy is more Democracy.
Re:this "virii" is really starting to tick me off. (Score:2)
I wish I had a nickel for every time someone said "Information wants to be free".
Re:This is a strike for common sense (Score:2)
On the other hand, I agree 100% with everything you've said. Especially if you take a look at cross-compilers, bytecode compilers, et al. eg: in the case of Java, you undoubtably are compiling the source code into machine code, but for a machine which does not physically exist.
As for the UCITA, the 30 day limit is hillarious. It means that if Microsoft Windows 2001 "accidently" forwarded all the national secrets to Russia, sank all the "smart" US destroyers, and put porn on the computer screens of the world's religious leaders, they would not be liable if it did so on the 31st day after purchase.
Methinks that if something like that happened, all copies of the UCITA would be burned. Probably with the Microsoft executives piled up on top.
Re:This is a strike for common sense (Score:2)
It can't do the same thing. (Score:2)
Therefore it is impossible to make hardware do the same thing as source code, as source code doesn't (in and of itself) do anything. Well, acutally, I suppose you could. IBM have made hardware for years which did exactly that.
I wish use determines legality (Score:2)
The problem with treating code as if it were "burglarious tools" is that it opens a whole new domain of thought-crime. If I write some "criminal" code, am I now subject to search and/or detention anytime/anyplace because I have demonstrated the ability to embody criminal intent in code? Hey my brain is like a bomb, no?
It is right - it is even crucial - that code in all forms remain legal, otherwise there may be a permanent search warrant out for your thoughts.
clear and present danger (Score:2)
Though, I think it would depend on the context. For instance, distributing ultra-strong encryption to university students as part of a class would certainly be protected. However, selling that same code to a Chinese spy (knowingly, of course) would probably be unprotected. So if a hacker sends the code for a virus to another hacker, for the purpose of analyzing the security risk to a program they are collaborating on, that should be protected. However, if a cracker sends that code to another cracker attached to an e-mail that says "here, I bet this'll take down the IRS", that would probably be unprotected (as much as I'd like the IRS to be taken down
Of course, IANAL, but I truly think that Constitutional Law is much simpler than most lawyers, judges, and politicians make it out to be.
MoNsTeR
Re:How about this "use"? (Score:2)
The source code would be the equivelent of the instructions for making an H-bomb - which I believe are legal and protected under free speech - the compiled binary would be the actualy bomb - and as far as I'm aware, there is no analogous program with the destructive potential of an H-bomb. (ok, none of you wise-asses say anything about certain microsoft products...
Reality (Score:2)
Free speech is free speech. Whether you want to give a speech about free beer, free software, free sex.. racial/hate propaganda or manifestos.. it's all the same. It is communication.
ANY communication should be protected under free speech, whether it's e-mail, source, executable code.. if it can be communicated, it should be protected (if the author wills it). Information NEEDS to be free for a society to survive in the so-called "information age".
Given a recent controversy on another thread, it's obvious I'm not a lawyer.. I will go out on a limb though and state that if the law is not in accord with the will of the people.. it should be altered or abolished. Geeks are people too. We have rights. I think we ought to use them - if the DMCA is getting in the way of us expressing ourselves, I say we sidestep it, ignore it, practice civil disobedience, or overturn it. IANAL but I AM pissed.
Re:On the contrary... (Score:2)
I think it is imporant, even crucial, that the source code for any kind of program, especially malignant, down right evil, wrong programs, be considered protected speech.
Evil DOES NOT go away when you slap it with a gag order. It merely becomes quieter, and thus more pervasive.
Consider the licensing agreement from, was it Symantec? That offered severe penalties for reporting faults in their software. How is viral or otherwise exploitave source code different?
"Malignant" software relies on the shortcomings of other software. Without the protected right to communicate these faults, people will foolishly believe vounerable systems to be invounerable, and faults will exist that will allow anyone with enough anger or boredom to abuse those systems, and thus abuse you.
The utopian view that if nobody was able to tell anyone about security faults then security wouldn't ever be breached is flat out stupid.
Someone will figure it out. Someone will use that knowledge to serve their own purposes. Their purposes may include abuse of your rights, your property, or your livelihood.
THINK for once.
Re:How about this "use"? (Score:2)
That being said, to illustrate, in the case of publishing the source to exploits, I would actually argue for it based on its "net effect." Although some may argue that publishing exploits hurts society by allowing script kiddies to flourish, it is too superficial and short sited in my opinion. I believe the stronger society/economy, is one where the computer systems and software is relatively hardened to attack. Banning the publication of exploits would have the effect of keeping the knowledge of security problems out of the hands of system admins and "security experts" (thus removing significant pressure on the software vendors to produce patches and more secure software), while not stopping the more criminally determined individuals. It could ultimately cause catastrophic damages if, say, organized crime (as opposed to script kiddies) creates and executes their own exploits en masse against a slew of soft targets. Better many small disorganized attack now, than one or two huge attacks in the future.
Perhaps, but that is not is not strictly the debat (Score:2)
Need I say more? He drew an analogy to physical things. I think it IS appropriate, but his conclusions are wrong. I attacked him for it.
Perhaps not, but the analogy is still an appropriate one for demonstration. In the case of an H-bomb, few will disagree that the net effect is negative, and cannot be ignored. Thus, if you admit of such an exception, where you analyze the net effect, not the use in and of itself, you must also be willing to consider the net effect of other things (atleast if you wish to remain consistent).
For instance, what if I were to publish how to create a lethal biological virus, such that any person could create it in their spare time? Would you still consider this free speech? Is the fact that my personal "use" is positive, sufficient? This is strictly information, just like your "code", my "use" is positive. I've met all the apparent criterion of the slashdot jrs. But few are still going to hold the same argument.
How about this "use"? (Score:2)
The tough part, with all of these things, is how do you weigh the outcomes. For instance, lets look at guns. If we assume that guns provide real and substancial enjoyment for millions of people in our country, might we be able to argue that 10 or 20 deaths a year is an acceptable trade off? Is a zero fatality rate realistic? After all, cars, alchohol, tobacco, etc. take far many more "innocent" lives each year, yet we allow them. Many of you may attack one or two, but not all (e.g., cars).
While I grant you that the legal system may not always make sense and/or is too complex, much of it is of necessity. In other words, it is an oversimplification to say, that because a things proposed use is "harmless", or even positive, it should be allowed. Other factors must be considered.
Are you honestly going to tell me... (Score:2)
PS: A properly designed H-bomb (e.g., fusion) could completely flatten any large metro area in the US. Perhaps you are thinking about the Atom bomb (e.g., fission)? In either case, the argument is academic. If properly placed, either would take millions of lives. It's hard to argue whatever benefits are obtained through allowing it over the potential (and I would argue inevitable, if weapons grade fissionable materials were available) catastrophe.
Uhhh, Math anyone? (Score:2)
For something like rifles you may be able to accept it, but "most" is not good enough here. Ok, let us suppose that only one person in a million is looney enough to want to kill millions of people in a given year (never mind accidents). Unlike with rifles though, that one person can kill EVERYONE in the city. Hmmm, you want to live in such a city? Your position is ludicrous. You are either highly naive, or you're bullshitting me, or both. Normally I don't like getting personal, but come on, it's just a ludicrous position...
The second ammendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed"
a) Personal Nukes ain't a well regulated militia, nor are they a component of one.
b) Clearly the intent here is the "security" of the people. Nuclear bombs don't secure it. In fact, giving the people bombs is a bigger threat to their security than any foreign power today.
anyhow, i'm tired and getting cranky, good night.
Re:But they are not incompatible. (Score:2)
Yes, I agree the "net effect" is essentially how the law works today. Despite its imperfections though, there really isn't a better standard. Think about it for a minute, EVERY law imposes its will on the individual to some degree. That means that every law must weigh the benefits versus the costs. If you irrationally clamor for never intruding on individual rights, you'll simply never see a meaningfull law (e.g., anything which says anything is illegal).
However, law is an essential part of any modern society. Modern society simply can't operate efficiently, or even survive, without it, despite the claims of libertarians who essentially claim otherwise. Anyone who has a decent grasp on history should understand this. I think this is very clear in the case of personal weapons of mass destruction (e.g., nukes, chemical weapons, etc.) Thus, since we are left with the determination that some laws need to be promulgated, we need a standard for creating them. And no matter what that standard is (no, saying "individual rights" must always be protected is not acceptable--because its meaningless), it is up to humans. Because humans determine the "weight", the "measuring", etc., you will see laws you disagree with. You will see mistakes. You can't legislate away human fallability. You can't setup a system where laws can be created, but mistakes in law cannot be made.
The bottom line is that I'm not apologizing for it. I'm stating its a fact of life. I fully and soberly realize that I must give up some personal liberties in order for a better world for everyone, including me. I can't drive 100mph through school zones. I can't break contracts. I can't burn crosses on people's lawns. I certainly can't own a nuke. I basically can't do whatever I might will (legally). And you know what? I wouldn't have it any other way. [This is not to say I agree with all laws, or that there should be no barriers or limitations...]
Re:How about this "use"? (Score:2)
I've read the Anarchist's cookbook, but I can't claim I have all the statistics. I can't say with any real certainty if many (or any) lives have been lost as a result, but I certainly don't see any legimate need for it. It's just a little too much of a grey area to waste time on on this forum...
I brought up the H-bomb, because I, like most other reasonable people, would absolutely ban individual posession of nuclear bombs if given the choice. If you accept this, then you admit of an exception to the original comment, which was my primary intention.
What if? (Score:2)
Could I then post it on my web page and call it freedom of speech?
LK
Re:What if? (Score:2)
If someone publishes a book, you can buy that book and see for yourself that it's been ripped off if I scan it and post it on my web page.
Windows source code is not available to the public. How could M$ prove that the source code is theirs unless they were to make it available?
Without their code for comparison, I could claim that "The author of this code, who wishes to remain anonymous, has given me permission to post it."
In the real world I know that 10000 lawyers
LK
Wrong. (Score:2)
I sure as hell don't want to have another law stripping us of another right to life, freedom, and the pursuit of happiness.
Those liberties exist. What do not exist in this circumstance is the right to intimidate, threaten or harm in any way whatsoever. Life liberty and happiness fall short if your happiness is dependent on building something with the intent to harm.
I'm not saying that I feel virii source code should be banned, rather that I feel that the execution should be banned. Of course when you write destructive source code and distribute it to the world, you're basically giving your enemy the means to cause harm to your society.
Re:Are you honestly going to tell me... (Score:2)
Re:Hardly (Score:2)
Re:Uhhh, Math anyone? (Score:2)
And forget about the line drawing crap. Nothing in life is black or white, so thats a very lame argument.
As for the security of the nation vs. the security of the individual: this country is founded specificly around upholding the rights of the individual. So when one person gets shot by a psycho (or 500, 5000 people, etc.), its a threat to national security. There really is no difference.
Orpheus's Free Speech Analogy #0: Introduction (Score:2)
I have many distinct analogies to present, and each will undoubtedly interest different people and warrants separate discussion,(besides, by the time I get a chance to write them all up, the article will be archived -- I do have other work to do, after all.) so I'm posting each separately in this thread. for your reading and/or ignoring convenience
Sometimes this works on
__________
Analogy #3: Billboards and mass mailings (Score:2)
This post will cite a few of the Supreme Court precedents (and my idiosyncratic comments) on billboards/mailings -- as an analogy to the Internet IANAL/IALANAL (I Am Not A Lawyer, however I Am a Little ANAL)
PLEASE NOTE: These are federal laws/rulings. the states actually have much more leeway in what they can legislate, and 'regulations' of Federal agencies often survive scrutiny under the thinnest of pretexts. (e.g. the FCC in my post on broadcasting as a legal analogy for Internet) Therefore such 'free Speech niceties' as public access channels on cable TV can vanish at will. They are not First Amendment.
In the interests of laziness, I'll let The Court cite a list of cases for further study, and I'll describe some of these cases below. [from Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)]:
This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e.g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 [billing envelope inserts]; Carey v. Brown, 447 U.S. 455 [picketing in residential areas]; Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 [door-to-door and on-street solicitation]; Greer v. Spock, 424 U.S. 828 [Army bases]; Erznoznik v. City of Jacksonville, 422 U.S. 205 [outdoor movie theaters]; Lehman v. City of Shaker Heights, 418 U.S. 298 [advertising space within city-owned transit system]. Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests.
These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97 (1949): Each method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method. We deal here with the law of billboards.
And now for the rest of the cases:
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)] is most significant because it explicitly made a distinction between commercial and non-commercial speech (which was a very tenuous reach, IMHO). Fortunately, in Metromedia, the decision was that commercial speech could be denied access in some situations where non-commercial speech could not. Alas, in cases like Lehman (below), the finding was the opposite: political speech was denied access, while commercial speech wasn't.
Lehman v. City of Shaker Heights, 418 U.S. 298 Lehman wanted to buy placard space on the public transit for simple signs with his picture and the words Harry J. Lehman is old fashioned about Honesty, Integrity and Good Government. The Sc ruled that the Transit Authority could refuse to sell because the 'audience was captive' and 'forced to use the public transit' to go to work, home, etc. and therefore not 'free' to avoid the message. Of course, they were also not free to avoid the ads for liquor, cigarettes, automobiles, churches, retail stores, commercial services, and public service organizations (all of which the Transit Authority routinely sold placard space to -- they were the reason placard space was available! Indeed, the Transit Authority argues (and the Court agreed) that selling political space might offend their regular customers, who might lose ad space during the election season!
In a dissent, Judge Brennan pointed out the real rights of the captives: "Commercial and public service advertisements are routinely accepted for display, while political messages are absolutely prohibited. Few examples are required to illustrate the scope of the city's policy and practice. For instance, a commercial advertisement peddling snowmobiles would be accepted, while a counter-advertisement calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles would be rejected. Alternatively, a public service ad by the League of Women Voters would be permitted, advertising the existence of an upcoming election and imploring citizens to vote, but a candidate, such as Lehman, would be barred from informing the public about his candidacy, qualifications for office, or position on particular issues."
This is "impermissible", according to Brennan (but remember, he is the dissenting opinion -- the Court as a whole considered and rejected these arguments!): These, and other examples, make perfectly clear that the selective exclusion of political advertising is not the product of evenhanded application of neutral 'time, place, and manner' regulations. Rather, the operative - and constitutionally impermissible - distinction is the message on the sign.
A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program.
This is a troubling ruling, for those of us who hoped to use the Internet to extend our right of free expression. For the kicker, however, see the next case!
Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 was an interesting case, because the Court ruled that the PSC could not stop ConEd from placing circulars touting the benefits of nuclear energy in customer bills (printed and mailed at customer expense, through the electricity rates) 'in the public interest' (of saving money). The courts ruled that the US mail wasn't a public forum and didn't warrant 'protection' like the public transit in Lehman vs. Shaker Heights, but dismissed the argument that a) the customer was charged against his/her will; b) the bills were actually read in homes and businesses, not at the USPO, which should be protected (we are a 'captive audience', even more 'forced' to read our bills for important announcements than we are 'forced' to read streetcar placards.);
c) the customer should therefore have the right to block such messages from entering their home if they wished, and certainly to avoid paying for them. This case may have interesting implications for spam. You see how oddly inconsistent this case is with other rulings. The only consistent theme is "political speech is dirty" [I guess 'appointed Justices' are above all that] while 'commerce is pure and unobjectionable'.
Carey v. Brown, 447 U.S. 455 and Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 basically upheld peaceful picketing and pamphleteering as high hallowed pillars of our democracy. The major stipulation has been that the picketing be 'peaceful' -- The 'Skokie' cases (right of neoNazis to march in a suburb with a high percentage of concentration camp survivors) and Brandenburg v. Ohio (KKK preaching expulsion of Jews from the US, with thinly veiled suggestions for violence0 were both upheld because the 'violent speech' test is very rigorous.
Contrast this attitude towards old-tech (person/print) political speech with the attitude taken with newer tech (e.g. broadcast, in my posting: Analogy 2) where the stance has been consistently "the public must be protected from fusillades of crackpots" and "the government knows what is reasonable, and will make sure the (licensed) broadcasters adhere to that standard" Near-incitement to violence (but not actual incitement or "fighting words") with old tech is acceptable, and even desirable under Justice Holmes' doctrine of "competition in the marketplace of ideas" -- But words alone, in new-tech, are not protected, in the sense that the court has ruled there is no First Amendment right of public access. Alas, Internet is 'newest tech', and is going to experience even more hysterical fear and efforts at regulation.
There's a lot more, but that's enough (rather, way too much) for now
I think I'll leave you with a Supreme Court ruling that will disturb your sleep: it is very possible that, if the USPS decides to start delivering e-mail, it will become illegal for anyone to send you mail except through them. The precedent is this: it is actually illegal (punishable by $300/count). In other words, if you want to designate the mailbox you've paid for (that is, your private property) to act as a receptacle to receive messages directly from a group... well, sorry you can't
In this case, the Court holds constitutional 18 U.S.C. 1725 which provides: "Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." The italicized examples [my emphasis] in the statute pertain to commercial speech, but the abstraction refers to "any" mailable matter. They just didn't happen to cite non-commercial examples [Per U.S. Postal Service v. Council of Greenburgh, 453 U.S. 114 (1981): "We reject appellees' additional assertion raised below that 18 U.S.C. ? cannot be applied to them because it was intended to bar the deposit of commercial materials only. The statute on its face bars the deposit of "any mailable matter" without proper postage, and
Am I exaggerating? Well, let's hear what Justice Marshal said (in a dissenting opinion):
"I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier - and then the doorway, or even the room inside could fall within Postal Service control.
So if the USPS ever delivers e-mail, better not send any e-mail directly until the Supreme Court clarifies. Surely going a few months or years without e-mail is a small hardship... right?
Well, why do you think those 'discount circular companies' started hanging their circulars in plastic bags from your mailbox, instead of stuffing them inside? Nonetheless, if they ever start enforceing this law, it'll be a real cash cow at $300/pop. I see it broken almost every day.
So many more examples.. but it's late
__________
Binaries (Score:2)
--The knowledge that you are an idiot, is what distinguishes you from one.
Code is expression but not necessarily protected (Score:2)
Code is expression, but that doesn't mean all code is protected by the first amendment. It is likely that more destructive and anti-social forms of code will be declared illegal regardless of their status as a form of expression.
---
Compiled binaries are a translation (Score:2)
Compiled binaries can be looked at as a translation of the original work. In this light they could be protected as free speach. This would also protect code from a code generator. The input code is free speach, so the output code would also be.
Think about it. (Score:2)
In the US we have a freedom to own weapons. Specifically guns. But if mob boss Bubba takes a gun off of his wall and gives it to a crazy little kid and that kid puts bullets in it and shoots someone... well, wouldn't mob boss Bubba be in a pickle.
Maybe we're taking this whole ruling out of context. Or maybe this ruling is one of the stupidest things to come out of the legal system in a while. Imagine the MS employee deciding that his work on windows95 was just speech and posting all the code he has ever written into his public diary
We'll see the extent of this ruling the next time someone gets sued over their source code.
Has anyone thought of how this might apply to DECSS!? That program was just speech =)
-S
P.S. Please don't compile the above "conversation source code", it might prove dangerous or lethal depending on your choice of compile tools.
P.P.S. Wait until we have to put EULA's on source code that we don't really care about.
P.P.P.S. We should have a contest on slashdot to see who can create the coolest looking thing out of the allowed html tags. No graphics allowed.
Scott Ruttencutter
On the contrary... (Score:2)
Re:Heh-heh... (Score:2)
Hey! I take great offense at that! Most times, the QA engineer has a lot more common sense than the software engineer does.
"I found this bug"
"It's not a bug, I challenge it"
"But it crashes the system"
"Not crashing wasn't spec'd"
Or another...
"I found this bug"
"Not a bug, it's user error"
"What?! It's a standard function for the system"
"They didn't do step 47.5b first"
An a final one...
"My group has no bugs"
"But those groups that use your code have the highest number of bugs"
"They're bad programmers, we're not"
"I have here a list of 58 bugs you assigned to out of your group and into their group"
"We don't have any bugs, so they must be theirs"
How about "reasonable layer of abstraction" (Score:2)
I think issues about pornography (rape, kiddie porn, etc.), violence (no "Mewtwo guns down his classmates" Pokemon episode), drug use, etc. in speech fall back to this. You have unlimited freedom in speech, as long as it's sufficiently distanced from the real world.
This is the rule of thumb implied by "source code as free speech." Of course there's really no such thing as "source code", but perhaps the idea is that some layer of abstraction (even if it is recursively enumerable) be put between the average computer user and the average computer.
-------
"Source code" is undefinable (Score:2)
All sufficently general formal languages are identical in power. Whether a formal statement is written in binary boolean calculus, or that same boolean statement in an electrical diagram, or that same statement sculpted out of transistors, is irrelevant.
-------
Re:Thank you. (Score:2)
I remember discussing public key encryption in a second year algebra course (which is pretty standard). The prof mentioned the RSA patent and how silly it was... "They've basically just patented Euler's Theorem. That's all it is." (I think it's Euler's theorem. It's bee a few years.)
Apparently formallity doesn't guarantee any kind of freedom from IP restrictions.
Greg
Re:Shouting FIRE in a crowded theater (Score:2)
Re:Chilling quote (Score:2)
No, you are not the only one. I thought that the regular work of the government was to PROTECT THE RIGHTS OF CITIZENS. It's complete nonsense to argue that the government comes FIRST -- in fact, the founding fathers tried to set up a system where the government was LIMITED.
Here's another case where Lord Acton spoke correctly: "Power corrupts -- absolute power corrupts absolutely." Judges should never have been given absolute power; I can think of a dozen cases where the power to Cite for Contempt has been used to silence dissidence.
Re:"Source code" is undefinable (Score:2)
These are people who make their living exploiting the ambiguity of natural language. They believe rhetoric is an art form, and that the worthiness of an argument is dependant on its expression as much, if not more, than the facts behind it. To them, logic is a technique of layering and connecting metaphores, not of derivation as in formal systems.
Re:No Right is Absolute (Score:2)
To execute a program is to order a non-human subordinate to do something. Before computers, the only non-human subordinates we really had were animals. Thus, running a program is functionally equivalent to giving a trained pet an order.
I can own a German Shepherd (IMHO, a dangerous/deadly weapon), and I can even train it to attack people on command. If the dog gets loose and starts attacking people on command, I am at least civilly responsible for the damages and could face criminal charges based on harboring a dangerous animal.
If, OTOH, I see you on the street, drop the leash and say "Sic 'em!", I have committed assault on you. I am criminally liable for the assault/murder the dog performs.
I can own a program that does damage, possibly even fatal damage (perhaps a virus that infects hospital ICU systems or passenger liner avionics suites--not suggesting that it's technologically feasible). That's free speech. Running it, unleashing it, with full knowledge of the likely consequences, is criminally equivalent to doing the same damage with my own hands.
Yelling "fire!" in a crowded theatre is a bit of a different situation. We are not allowed to do that because even our constitutionally protected rights are not absolute. They can't be absolute because two peoples' rights often conflict with each other. The rest of the theatre patrons have a fundamental right to live that overwhelms your right to yell "Fire!" and cause a deadly stampede.
Re:Freedom of speech doesn't mean unlimited speech (Score:2)
In other words, the government can't say the owners of the National Enquirer cannot print their paper because they'll probably print a pack of lies; however the government can punish them for printing libel.
To some degree, this belongs under the heading of "the right to swing my arm ends where my fist meets your nose." That is to say, in the real world, to give absolute precedence to one right is to the detriment of other rights. My right to say what I please ends where it unreasonably abuses your right to your own hard earned reputation. Where this kind of thing happens, all kinds of finely tuned tests come into play to allow the widest scope of the excercise of one right while minimizing the impact on the other. How these tests are constructed are critical. For example in libel in the US, is the statement true? If not does it show a reckless and malicious disregard for the truth? However, my understanding is that in the UK, truth is not a sufficient defence against libel.
None of this kind of precanned reasoning exists yet for software as speech, so my conclusion stands -- nobody really knows what this means yet. We'll find out when the courts start weighing first amendment coding rights against other priorities. I suspect that cryptography limitations are out the window, but that the DeCSS and Cybepatrol cases could break other ways because they bear on the rights of copyright holders.
All the more important then to watch these cases because they may be precedent setting.
Re:This is a strike for common sense (Score:2)
As an interpreter is someone/something that translates, it is arguable that the source code is still not executable, unless combined with such a translator.
Sure, but isnt this exactly what CPU's do? They translate instructions in machine language (yet another language, low level and obscure, but still a language) and execute them, in essence translating them on the fly. I mean, you can't run an executable by itself, you need a CPU.
-- iCEBaLM
Re:This is a strike for common sense (Score:2)
-- iCEBaLM
Re:This is a strike for common sense (Score:2)
That is, until we get into interpretive languages like perl, python, php, javascript, etc, in which the source isn't compiled but is the actual final executable.
-- iCEBaLM
Re:FREE SPEECH!!! DO NOT MODERATE THIS DOWN!!! (Score:2)
-----------
"You can't shake the Devil's hand and say you're only kidding."
Re:This is a strike for common sense (Score:2)
Computers, as we use them today, are simply machines that read in data representing a list of instructions (i.e. "notepad.exe"), and take action based on those instructions. The data doesn't do anything at all, it's just a blueprint.
The only difference between source code and machine code is that source code is intended to be read by humans (but can be read by a computer, with some difficulty), whereas machine code is intended to be read by computers (but can be read by humans, with some difficulty.) In my opinion, they're both speech... although I'd defend the right to free source code more vigorously that the right to free binaries.
I think 90% of the confusion about computers that one finds among the general public (including the less academic techies, like IT people) is due to the misconception that software actually does something. That needs to be fixed.
Closer to poetry than prose ! (Score:2)
Prose can be written in many ways, ideas presented in many orders, and even gramattical mistakes made without it losing it's message.
Poetry is much more exacting. The wrong syllable and the effect is ruined. Even bad code has to work, even though it might look like doggerel.
Great code is a thing of beauty, to be admired by those who can appreciate it.
Social Commentary (Score:2)
Maybe I'm too optimistic this morning..
//Phizzy
Freedom != Liberty (Score:2)
Here's hoping I don't get marked down as redundant -- 336 posts at the moment and I'm browsing in Lynx, so I don't have time at the moment to see if anyone mentioned this already, but...
There is a difference between freedom and liberty. Freedom is the absolute right to do something or to not be compelled to do something. Liberty, rather than an absolute right, is the granted right to do or not do something.
There are very many liberties in the USA, but few if any freedoms.
Speech is one of them. It's actually a slight misnomer to claim that we have free speech here. We do not. What we have is the liberty of free speech, in that we are protected in what we say, within certain parameters, but there are limits to that right.
For example, in the classic case, it is illegal to yell "Fire!" in a crowded theatre, as it would cause the audience undue duress. Likewise, there are slanders and libels, the main difference (if I remember right) being that one is verbal and the other written. The defense to accusations of libel is the truth: if you say something bad about somone but can prove it, you're okay; otherwise it is libel and you can be prosecuted and sentenced accordingly.
I'm not sure what the exact infringement here would be, but I can almost guarantee that writing malicious code like a virus would be unprotected speech. It causes undue duress to third parties, like yelling "Fire", so it might be handled that way -- but IANAL, just a student & speculator.
I'd be curious to learn what areas of the law protect people who's work causes indirect harm, e.g. gunmakers. If someone were to shoot me, I could go after the shooter but not the gun company, though obviously they must have known their product could be used in this way. This sounds really familiar and I'm almost positive there's a term for it; in any event, any legal clauses such as this may also come into play here, as the virus writer could arguably be making a weapon, even is s/he were not necessarily the one that deployed or used it against someone.
Anyway, the point is that while the constitution guarantees speech rights, it's generally dealing more with liberties from persecution and protection of creative expression, but not that which would cause proximate harm to another person such as "Fire" in the theatre or slandering someone's reputation -- or in this case, screwing up somebody else's computer. The law may be insane, but it's not stupid. Usually. Er, no further comment.
Re:this "virii" is really starting to tick me off. (Score:2)
You'd sound fairly silly (or like you couldn't type right) if you pluralized "Unix" as "Uniices", with two i's. So why stick a superfluous "i" on "viri", which is what you get from applying the us-i rule? That's how you pronounce it anyway - people talk about "vie-rye", not "vie-ree-eye".
--
No more e-mail address game - see my user info. Time for revenge.
Re:FREE SPEECH!!! DO NOT MODERATE THIS DOWN!!! (Score:2)
#include
using std::cout;
int main()
{
cout }
I would also like to take this opportunity to childishly taunt you:
Neer, ner!
Important to programs like DeCSS (Score:2)
Of course, there's always the old "shouting fire in a crowded theater" argument, but that probably wouldn't apply here, because the sources present no immediate danger or limit to another's rights in and of themselves.
This is a subtle but important distinction. It may be illegal to compile those sources and use the result, but it will not be illegal to distribute the source. That makes it very difficult for people like MPIA or RIAA to attack the open source community.
Re:Use determines legality (Score:2)
On the other hand, it scares me a little that such a big line is drawn at the compiler. Compiling (but not linking) Trin00 in such a scenario for the express purpose of rerolling some of the messy C stuff into tighter assembler for re-integration with the source is way out in the gray. Heck, passing it through to check for those instances of 'WTF?!?! GCC allows THAT?!?!' is gray. I rue the day that compilers make you 'click-thru' a license to compile.
Re:Of course "dangerous" speech is legal (Score:2)
Teaching people how to make bombs is legal. Inciting them to do so is not (or should not be) even if you don't provide the parts.
--
Re:Speech? or Machine? (Score:2)
You can make schematics ("source code") of your hardware, and that would be speech, too.
--
Re:Your mistake (Score:2)
The latter would probably not be a bad definition for the court to take up, though the protection of languages such as C++ or Intercal would then become more dubious...
Re:Copyright supersedes free speech (More or Less) (Score:2)
Re:FIRE! (Score:2)
Actually, this "you can't yell fire in a crowded thater" metaphor was used as a way to make the government suppression of anti-war protests sound reasonable...
It's supposed to mean that you can't use 'free speech' to cause public safety hazards (like people trampling each other to get to the exits) and expect not to be punished.
However, as Howard Zinn pointed out in A People's History of the United States, the metaphor as used didn't really relate to the issue of anti-war protests, and a better metaphor would have been that you have no right to tell people going into a theater that there's a fire inside, even if there really is one... which, strikingly enough, also sounds appropriate for things like the Mattel case and others where companies attempt to prevent critical commentary on their products.
I'm not sure that meant to harm is part of the definition; you could mean something as a harmless prank but if it goes wrong you'd still be in legal trouble (i.e. if you yelled 'Fire!' as a joke, meaning no harm, that wouldn't be a defense). I think it's more likely to be something that will obviously cause harm. Of course, there's a lot of room for maneuver there.
It's important to remember that the "you don't have the right to say whatever you want whenever you want" interpretation of free speech is the current US legal definition, and does not necessarily apply to the principle or ideal of free speech. And while some people would probably agree that in certain circumstances free speech needs to be restricted in some way (many would disagree with that, too), there's a big difference between that and giving an organization the power to decide which speech is harmful - obviously any such organization will tend to be protective of its own interests.
Re:What if? (Score:2)
I suppose a closed court hearing would sort that out faster than a first poster
No, no, no (Score:2)
Suppose source code IS protected like speech. That still does not mean that you can legally code (and certainly not run) a program to do illegal stuff.
Freedom of speech is not absolute, it comes with some restrictions (or rather some responsabilities) This is is how a libel suit works, that is how copyright infringement works.
Writing code for virii should not be illegal. (free "speech")
Telling someone how to make virii (best explained with source) should not be illegal (albeit irresponsible)
Launching a virus attack on a network IS illegal. That has nothing to do with free speech.
If I know company trade secrets, but am bound by a NDA, I cannot tell you about those secrets and claim "Free speech". English, Swedish, pictures, mathematical algorithms or C++ source - They are all languages that I may use to communicate my ideas. Sometimes an application of those ideas is illegal, sometimes the communication itself is hurting someone else so bad that there is an exception from the "Free speech" default, but the point is: Free speech is not (should not be) a question of which language I choose.
Soapbox.dismount
Re:Use determines legality (Score:2)
In the same way, I expect that things like Viruses and cracks are legal, in and of themselves, but that certain USES of them would be just as illegal as causing a riot by yelling "Fire! Fire!" (IANAL)
x86 mnemonics are speech too (Score:2)
binary code is an expression of souce code
like translating english into mandarin
anyone can say how to build a car
anyone can own a car
not everyone can drive the car on the highway
Re:Virii and stuff legality (Score:2)
While I am actually not supportive of the pure "code = speach" motif, there is a hole in your analogy. You can't possess biohazards because regardless of your good will, an average untrained citizen, his refridgerator and a glass jar do not a protected storage facility make. (note that I did not claim gov or private labs are 100% safe, simply that they have efforts at protection and security that cannot be expected from the average joe or jane.)
However, horrible science fiction aside, a piece of code that you have stored as a text document is not going to suddenly "wake up", compile itself and run through your ethernet cable to launch its world conquest. Thus the issue boils down purely to intent and the intent of those who you might pass it to.
-Kahuna Burger
Of course "dangerous" speech is legal (Score:2)
Free SPEECH (Score:2)
Even fair use don't help. (Score:2)
A company will spend lots on a lawyer, then even if you win, you still may have lost.
What you said is true, in the case of a sequel. Unless you make brief mention of these characters. Like Star Trek, and Star Trek TNG. Excepting Star Fleet. If you have characters that make "cameo" appearances. But, then is it really a sequel?
Re:Copyright supersedes free speech (More or Less) (Score:2)
But the amount of information copied has to be small compared to the amount of comment.
You can't copy a book and then claim that you are commenting on it, because you write "this sucks" on the cover.
There is a difference...but that's not it. (Score:2)
Now posting code so that is can be human readible (as in a book), if different from putting it into a spreadsheet macro.
Libel is a completely different animal. Libel is making statements of fact, that is false. Either with negligence, recklessness, or with malice. The level depends on how much of a public figure that the person is. You can read the summary judgment filings on my site for the requirements of libel.
Has anyone actually read the whole ruling? (Score:2)
Re:Use determines legality (Score:2)
ya, right (Score:2)
That'll happen right after M$ goes Open Source...
And the MPAA gives away CSS for free...
And the censorware companies publish the sites that they block...
And "geeks" become more popular than boy bands...
sfc
standing on the shoulders of giants,leaves me cold
Speech? or Machine? (Score:2)
Re:Shouting FIRE in a crowded theater (Score:2)
Sure it can...if there is a fire.
Do not limit the rights themselves.
Make people responsible & liable for the consequences of exercising their rights.
This is a strike for common sense (Score:3)
That, to me, makes no sense. If I were to write out the ingredients for gunpowder, will your monitor explode if you shake it? Probably not. But if you were to actually "compile" those ingredients by linking in "libraries" containing the described components, and THEN place it next to the monitor, it wouldn't take much for you to redecorate the room with plastic, wiring and some glass.
Why should it be any different with code? The source code for te most deadly computer virus is utterly inert, when in C, or even assembly. The deadliness comes not from someone writing main(), but from feeding that code into a compiler and running the binary, much as was the case with the gunpowder example.
I very much agree with the title of the Ask Slashdot. This IS Pandora's Box. But, then, I know the rest of the story, and what was left in that box, when everything else had left. Hope.
Re:This is a strike for common sense (Score:3)
As an interpreter is someone/something that translates, it is arguable that the source code is still not executable, unless combined with such a translator.
Re:Use determines legality (Score:3)
Basically, the judgement had nothing to do with wether USING code was free speech. Just that code can be a form of free speech.
Bad Mojo
Source code as speech - not binaries as speech (Score:3)
I wrote a couple pieces in high school describing violent acts. (Don't think I'd try it in today's climate). This is different from carrying out those acts. Displaying source code for a virus could be considered an act of speech, but spreading the virus itself (the binary, not the source) is likely criminal.
Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon?
Civil disobedience is illegal and always has been; that's sort of the point. You break the law to demonstrate that the law is wrong, or unjust, or that the punishment does not fit the "crime." During the 1960's, blacks were arrested for sitting where they weren't supposed to, in violation of the law. As any D&D player any D&D player can attest, there's a difference between "lawful" and "good." As the nation saw the unlawful good blacks set upon by the lawful evil authorities, they realized the need for change.
So if you want to write software cracks, go write ahead. Distributing the binaries might get you arrested, fined, and jailed, but maybe that will prove your point. Keep in mind that there is tension between copyright law and free speech, as the Lawrence Lessig article linked to yesterday pointed out, so just because you have the freedom to write cracks doesn't mean that the creators of the cracked software won't sue you.
Any legal minds out there care to offer some perspective?
I'm no lawyer (I hate that little acronym that suggests that I'm anal), but I think we need to distinguish between speech (source code) and action (binaries).
Re:Use determines legality (Score:3)
Of course, a lot of laws don't follow legal principles. It is entirely possible to have a law that is against the law, and this has happened all too often. That's why you have appeals, higher courts and constitutions.
Freedom of speech doesn't mean unlimited speech. (Score:3)
For example, you cannot libel people. You cannot incite people to riot.
What the first amendment clearly prevents prior restraint of speech -- by prior review by censors or government licensing.
In 1907 Justice Holmes observed: the main purpose of such constitutional provisions is `to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false.
Some of the founders, notably Madison and Jefferson, had considerably broader interpretation of this amendment than the mere exclusion of prior restraint. This position was not univerally held among the founders (thus the Alien and Sedition Act).
Since WWI, increasingly the position of both the court and society at large has been that many if not most classes of speech are protected absolutely, both from prior restarint and subsequent punishment. There is generally a strong sentiment against punishing speech, but this is by no means absolute.
Thus, the ruling that code is speech does not necessarily exempt people publishing DeCSS from punishment. As justice Holmes remarked elsewhere, The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. If the principle of code as speech stands, it means that nobody really knows the extent of protection source code enjoys until it has been tested in court.
Restricted forms of speech (Score:3)
BTW, I am SO not a lawyer...
(hope netscape 6 doesn't munge this)
Re:"Source code" is undefinable (Score:3)
--
Copyright supersedes free speech (More or Less) (Score:3)
The GPL provides those licenses under a very specific set of circumstances; if you refuse to accept the provisions, the standard copyright laws take effect -- you can use the copy you have for personal use however you want, but you can not distribute it or any changes you make to it. I don't know how distributing only patches would work, I'll have to check it out.
There is one area where you can get around copyright a bit and that's if you're distributing a parody. The Dragonriders of Perl might be a big hit. I would be interested to see a parody of... well... ls perhaps...
I am not a lawyer, but I play one on TV.
Yes, They Are The Same (Score:4)
It seems to me that source code to viruses and other less-than-savoury speech should be just as protected as people that say things that we don't like. However, we have laws in place to prevent people from actually using those viruses. And we have anti-piracy laws (and open-source!) to take care of software cracks.
Speech is protected, as it should be. What you do with it is what counts.
-Waldo
Analogy 2: (Internet?) Broadcast and free speech (Score:4)
IANAL, and this is not intended to be a full discussion of the topic. It is only a mild 'eye-opener' (I could have used more shocking examples). The broadcast media of the past is a warning to the Internet of today
This post covers CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973). In 1970, the Business Executives' Move for Vietnam Peace (BEM) complained to the FCC that radio station WTOP (Wash,DC) refused to sell it airtime for a series of one-minute spots expressing BEM's views on Vietnam. Four months later, the DNC wanted to buy airtime to express the Democratic patrty's views on Vietnam. Both parties lost. The Supreme Court ruled that no individual or organization had a "right" to express "editorial" views on the public airwaves.
In a famous ruling, they found that the Communications Act of 1934 abridged such right of free speech by giving preferential treatment in the form of broadcast licenses and simultaneously rejecting the "common carrier" model. If you read this ruling, you'll find that much of what you thought you knew about free Speech and public media is very possibly wrong.
Am I the only one who finds the following quote chilling: Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The [First] Amendment should be interpreted so as not to cripple the regular work of the government... Although free speech should weigh heavily in the scale in the event of conflict, still the Commission[the FCC] should be given ample scope to do its job. In other words, "this would be too much work for the FCC (and might reverse some of its policies). Rather than adjust the FCC, we will curtail First Amendment rights
I can only agree with Justice brennan's dissent: "[W]e have consistently held that 'when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." and "the Government has selected the persons who will be permitted to operate a broadcast station, extensively regulates those broadcasters, and has specifically approved the challenged broadcaster policy. . . . the Government 'has so far insinuated itself into a
position' of participation in the challenged policy as to make the Government itself responsible for its effects."
In other words, the FCC (as noted in the 1973 ruling) has a deliberate, mandated right and interest in making sure that the station's broadcast content is "accountable". The majority decision complained "No such accountability can be attached to an individual, whose only qualifications [to have an 'editorial opinion' aired] is sufficient funds [to buy a 60-second spot] and a point of view" Those unaccountable animals! who knows what they might say!
Please note, that no one ever said radio stations had to accept all comers (or we'd have 24 hour crackpot radio). The DNC/BEM only argued that all comers should have equal access to purchasing radio time. In other words, that stations should not be allowed to refuse to sell a given advertising minute to a 'editorial' if they'd happily sell that same minute to GE to sell lightbulbs.
As Justice Brennan said:
[A]s the system now operates, any person wishing to market a particular brand of beer, soap, toothpaste, or deodorant has direct, personal, and instantaneous access to the electronic media. He can present his own message, in his own words, in any format he selects, and at a time of his own choosing. Yet a similar individual seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is compelled to rely on the beneficence of a corporate 'trustee' appointed by the Government to argue his case for him.
[1]
This footnote deleted for space, but damn! it was a good one[3]
[2]
Damn! This one too!
[3]
Okay, one snippet of [1]:
The ruling notes that "...47 U.S.C. 202 provides that: '(a) It shall be unlawful for any common carrier to... make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.' In rejecting the common carrier model, Congress rejected a sanction that could have been used against any government-licensed broadcaster who did give an "undue" or "unreasonable" preference or advantage to a particular class of persons. The rejection of the common carrier model allowed, therefore, not only censoring of speech, but unreasonable censoring of speech."
__________
Expression of Programming Ideas (Score:4)
How can code be free speech? If I make a piece of hardware do exactly the same thing as a piece of software, does the piece of hardware become "speech"?
I would say probably not. The ruling linked to in the article above says that code is an expressive means of transmitting ideas about computer programming, essentially the algorithms. This means that compiled binaries, which are the end product and are not an expressive means of transmitting these ideas, are not protected under free speech. Similarly, hardware, which is not an expression of it's own design, will not be protected, though the plans and schema may be.
As a result, your average Windows virus is not protected, but there may be concern over macro and script viruses. In the end, though, virus source code may be treated like the infamous "Anarchist's Cookbook." The text is protected, but the use of many of the ideas and techniques within the book is still criminal.
On the other hand, does this mean that the GPL now has teeth, since derivative versions may not be stopped by the owner of the original version? Perhaps Mattel will have no recourse against CPHack since it has been spread across the community.
Re:FREE SPEECH!!! DO NOT MODERATE THIS DOWN!!! (Score:4)
You forgot the \n 's at the end of your printf's, as well as the ()'s for main...
Still, in the interests of open source, here is the reworked source...
void main (void)
{
printf("SLASHDOT SUCKS!!!\n");
printf("I PIMP TACO'S MOM!!!\n");
printf("SLASHDOT IS FOR COMMIES!!!\n");
}
Due to the viral nature of GPL, this is also GPL code. Although I dub it the "7337 h4xx0r d00d" release, which I believe is my right (if not I'm sure some
Thank _you_, AC Dr Kool. Glad to see your coding is as good as your spelling...
Strong data typing is for those with weak minds.
Re:Shouting FIRE in a crowded theater (Score:4)
Just because Congress cannot pass a law abridging certain forms of speech does not mean the speech is protected from the courts. Congress != Courts.
If you yell FIRE! in a crowded place, you are willfully creating a public hazard; people will panic, people will rush around disorientedly, people will get hurt. By doing such a thing, you are acting against other peoples' rights, and are thus open to civil and criminal misconduct charges.
The speech is only one component of the act. The use of the speech for effect is still open for prosecution.
Saying "Here is an encryption algorithm, expressed in English, Sanskrit and Java" is protected. Saying "Here is a method to decimate people's hard drives with a virus, expressed in English, Sanskrit and Java" is protected.
Using either algorithm, or employing a computer to use the algorithm, to damage other people's property or to circumvent other standing laws, is not protected by the Constitution, and is therefore open game for any legislation enacted by Congress, Statute or Code; and to any civil damage arguments as well.
Not all code is necessarily free speech (Score:4)
DeCSS is a much stronger candidate, but that's a trade secret issue, not really a free speech issue (at least according to the courts so far). Which is the screwed up thing, because the whole idea of trade secrets is that if you fail to protect it, it's no longer a trade secret -- that's what patents are for.
--Kevin
Free Speech is not Unrestricted Speech (Score:4)
- Fraud. False speech intended to cause harm can be criminal. This extends into things like false advertising, etc.
- Libel and Slander, where again false speech intended to cause harm can be cause for civil actions.
The legal grey zones tend to be those where intent or harm is unclear, and those where intent may include political purposes. But even with political speech, the free speech protections are quite limited when harm is involved. The grey zones are in things like signs and sound trucks, where the harm is visual and aural pollution. When the harm reaches the level of property destruction or personal injury, the free speech protections are not exemptions from civil actions and criminal prosecution.
this "virii" is really starting to tick me off.. (Score:5)
But they are not incompatible. (Score:5)
You said:
I could take this view if you could build a bomb in a vacuum, such that nothing you do affects anyone else. But this is not the case. The government punishing wackos after they destroyed a million+ lives is not going to be an effective means of deterrence. The benefits we recieve from allowing individuals (e.g., a few geeks may get some satisfaction) to own such destructive devices are far far outweighed by the risks and the costs on society. In other words, the net effect is drastically negative.
My "net effect" and and "individual rights" are not necessarily incompatible, in fact, they are normally one in the same. What the masses (or the "government") may want in the short run, is not necessarily a positive net effect, even if it outweighs the objections to it (in terms of severity x number of objections). In other words, the "net effect" takes individual rights into heavy consideration. It is important to note though, that amongst our "rights" is the right to live. If the mere act of punishing pyschos is insufficient to protect the sudden and drastic loss of millions of lives, then it is prudent to deny all the H-bomb, even those who intend no evil.
To clarify, I would never argue that because 90% (or any other number) of the US (e.g., Christians) feel the Jewish religion is offensive, all Jewish people must worship in private. This would set a bad precendent, and put everyone's rights at risk, and thus would be a negative net effect. The same argument simply can not be made with any real credibility for the existence of the H-bomb in society.
For your information even pure speech is not an absolute right in the US. You can you held responsible for libel. Commercial speech is regulated all the time. You can't yell fire in a crowded theater. You can't phone in bomb threats. etc. etc. etc. These all exist for good reasons. I'd rather they exist than not, no matter who I am, or what my: race, religion, creed, size, etc. are
Analogy #1: Yelling "Fire" (a shocker!) (Score:5)
[Schenck v. United States, 249 U.S. 47 (1919) ]
Most people would think this would merely cover viruses and other malicious code. However, the truth of this ruling is much darker and it's implications deeper
Interestingly, Schenk was an espionage case! [Espionage Act of 1917, a Federal law which, among other things, made it a crime to obstruct government draft recruiting and enlistment efforts]
Okay, so espionage is not free speech.
However, Schenck printed leaflets, mostly mailed to draftees. The front side contained the text of Section I of the Thirteenth Amendment to the Constitution, and the back side contained a text including passages like: "Do not submit to intimidation", "Assert your Rights", "your right to assert your opposition to the draft", and "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."
Schenck was convicted (and the conviction upheld) informing fellow citizens of their constitutional rights!
Further, as Justice Holmes wrote in the Supreme Court Decision: "The defendants were found guilty on all counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and
Many argue that "fire in a crowded theater may have been a common sense dictum, but it was written to support and perpetuate horrible miscarriages. For example, there was no finding that Schenk wrote anything false.
Justice Holmes crafted one of the most brilliant and memorable analogies in Supreme court history, then used it to justify one of the worst black moments in First Amendment History. [A week later, the Supreme court used this ruling to uphold the Espionage Act itself in Frohwerk v. United States, 249 U.S. 204 (1919), stating that the "First Amendment had been disposed of". The Law of the Land can change lickety split.] Of course, most people who have even heard of the later Alien and Sedition Act (of the following year) know what a terrible abuse it was.
Please propagate this information whenever you see the "fire in a crowded theatre" analogy used improperly. (which is most of the time) We geeks need to understand and explore the ramifications of the analogy, or it'll come back to bite us. The First Amendment is not the holy raiment some of us seem to think
Further, the First Amendment specifically addresses Congress and Federal Law. States have at various times argued (sometimes successfully) that they have deeper rights (under the reserved rights clause) to control free speech than the Feds do. I am sure that fact brings endless cheer to geeks in, say, Alabama [Hey, I was born in Georgia]
Finally, I close with more of Holmes words from the Schenk Decision:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. But when men have realized that time hasupset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
__________
How expressive is it? (Score:5)
Consider the way people express their political views with DeCSS and the Mattel crack. That's at least as much a political statement as wandering around with a plackard. We protect that.
And, what about the act of coding itself? You certainly can't express the same things in code that you can using English--does that mean it's a lesser form of "communicating"?
I'd suggest not. How many of us have used works like "beautiful" to describe chunk of code or the algorithm that it represents? Those of us who program know that it's a creative process and that it feels more like writing prose than like balancing your checkbook. I think the non-programmers of the world would be surprised by that, but I think it's true.
So, I guess my answer to the question is "yes." If it looks like a duck, and acts like a duck...
Greg
Your mistake (Score:5)
Uncompiled source code is obviously speech. It is a means by which programmers communicate with other programmers. The whole reason high level languages evolved was so that other programmers could take over a project when the original ones left. There was a day when programmers wrote in machine code. That day didn't last long.
Machine code tells the machine what to do. As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
A virus in source code form is a handy tool to see how they're written and to write programs to detect them. In this form they're completely safe. A compiled virus is another beast entirely.
Likewise, many would argue that the instructions you can find on the net to make bombs, crystal meth or the alt.suicide.holiday FAQs are protected free speech. I'd find far less use for any of those three things than I would with the source code for virusses, which at least present interesting technical reading.
Use determines legality (Score:5)