From: Dave Winer (dave@userland.com)
Date: Mon Jul 31 2000 - 07:56:25 PDT
I think the same rules should apply to software as applies to other forms of
protected speech. The classic example of yelling Fire! in a crowded movie
theater must also apply to software. Dave
----- Original Message -----
From: "Antoun Nabhan" <antoun@arrayex.com>
To: <dave@scripting.com>
Cc: <FoRK@xent.ICS.UCI.EDU>; <wendy@seltzer.com>
Sent: Monday, July 31, 2000 8:00 AM
Subject: Re: Software and the First Amendment
> Be careful, you may get what you wish for. The law actually has a concept
> which can accomodate, called "speech as action." It's what prevents you
> from threatening people and calling it protected speech ("fighting words")
> or yelling fire in a crowded theatre. Beware, though: it's also the germ
of
> legalisms like "hate speech" that begin to seriously encroach on what a
> freedom-lover would think of as "free speech." And I suspect it's the
> handiest tool with which the lawyers and judges and other suits of the
> world would begin to address the nuanced difference between "code" and
> "traditional speech."
>
> Sure seems to me like code is speech, but there's a key difference: code
is
> *action*, or more precisely, code creates action in machine-agents which
we
> do not hold morally culpable. So, it's okay if I tell someone on my staff,
> "you know, we should just have that vendor taken out back and shot." I say
> it frequently, in fact. But no harm is done, because 1) whoever I'm
talking
> to is always savvy enough to understand that I'm KIDDING, and 2) even if I
> were serious, nobody would actually get shot because nobody I'm talking to
> is willing to take my instruction in the face of the various social
> constraints against vendor-icide. (In fact, I usually get ignored no
matter
> how mild the suggestion. :-) )
>
> But computers generally aren't savvy enough enough to know when the
> software engineer is kidding ("You can't *seriously* mean wipe out this
> whole hard drive without notifying the user, right?") and computers aren't
> culpable for their action; I can't put smtp-relay.ahnet.net in jail for
> sending me the ILoveYou virus. Wouldn't mean anything to me or to the
> agglomeration of HW and SW known as smtp-relay.ahnet.net. So when you
write
> code, you're not really describing action to other, morally culpable
> agents, you're actually acting. The computer is just a long, strong arm.
>
> IANAL, but I play one on the Net,
> --A.
>
> At 10:26 AM 7/31/00 -0400, Lucas Gonze wrote:
>
> >printf("%c",'N');
> >printf("%c",'i');
> >printf("%c",'x');
> >printf("%c",'o');
> >printf("%c",'n');
> >printf("%c",' ');
> >printf("%c",'i');
> >printf("%c",'s');
> >printf("%c",' ');
> >printf("%c",'a');
> >printf("%c",'');
> >printf("%c",'c');
> >printf("%c",'r');
> >printf("%c",'o');
> >printf("%c",'o');
> >printf("%c",'k');
> >printf("%c",'\n');
> >
> >just says that Nixon is a crook, which is protected speech. And speech
> >recognition would just make the code == speech idea more explicit. But
> >applying the rules of speech to machines (which is what software is for)
> >would be a low level change in the legal system.
> >
> >IANAL, but I think it is possible that this concept really wasn't
> >addressed in the constitution. Which means that our current generation
of
> >politicians and judges will have to step up and create a new body of law.
> >And given that they can barely fix a parking ticket, that's pretty scary.
> >
> >- Lucas
> >
> >On Mon, 31 Jul 2000, DaveNet email wrote:
> >
> > > DaveNet essay, "Software and the First Amendment", released on
> > 7/30/2000; 10:03:20 PM Pacific.
> > >
>
> --------------------------------------------------------------------------
> > ---------------------------
> > >
> > > ***Stop everything and read this NY Times piece
> > >
> > > "It was perhaps the most arcane statement in all the hours of
> > acronym-filled testimony, one that came on the last day of the six-day
> > trial. But it may have been a turning point in an important battle over
> > the limits of a new copyright law, a potential landmark case that ended
> > its trial phase last week in Manhattan and now awaits a verdict by the
judge.
> > >
> > > "More news coverage may have been devoted to the recent legal
> > wranglings over Napster, the Web service that the recording industry has
> > accused of abetting widespread music piracy. But the Manhattan case,
> > involving the copying of DVD movie disks, may have more far-reaching
> > effects -- both on the way cultural products are consumed and on whether
> > computer code is deemed to be speech deserving of First Amendment
protection."
> > >
> > > http://www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html
> > >
> > > I've been saying this for years, to lawyers, to experts on patents
> > including Lawrence Lessig, and everyone tells me I'm out of my mind, but
> > I know it's right.
> > >
> > > There is no difference between code and writing. I think I can prove
> > it. Manila, the content management system that I use, supports macros.
> > When you put text in curly braces, as the page is rendered, the macro is
> > evaluated. Such macros can be embedded in protected speech, ie prose.
> > What goes inside the curly braces is program logic. So if I want First
> > Amendment protection for my code all I have to do is embed it in a Web
page.
> > >
> > > Further, the artistic choices one makes when writing code, even when
> > it's not embedded in a Web page, are exactly like those made when
writing
> > prose. I may be one of a very small number of people who write both
ways,
> > so I get it in a way others possibly can't. If lawyers will just listen
> > and take this idea seriously, we can route around all kinds of insidious
> > (and unconstitutional) limits on what software writers can write about.
> > >
> > > In "Do You Know Stephen King?", 7/24/00: "To put it in analogous terms
> > for writers, imagine if you couldn't write a story because Dean Koontz
> > had already written it. What if the idea were as basic as Boy Meets
Girl?
> > That's what's going on in another creative space, software."
> > >
> > > Bet on this changing, if this case goes through, as the Times says, it
> > will have far-reaching effects. Software patents won't be worth the
paper
> > they're printed on, once again software writers will be free.
> > >
> > > Dave Winer
> > >
> > >
> > >
> > >
>
> --------------------------------------------------------------------------
> > ---------------------------
> > > (c) Copyright 1994-2000, Dave Winer. http://davenet.userland.com/.
> > > "It's even worse than it appears."
> > >
> > >
>
> Antoun Nabhan
> 617.901.8871
>
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