From: Dave Winer (dave@userland.com)
Date: Mon Jul 31 2000 - 08:07:32 PDT
Well, that's clearly a bug, and like all bugs that we love, it must be
fixed. Dave
----- Original Message -----
From: "Antoun Nabhan" <antoun@arrayex.com>
To: "Dave Winer" <dave@userland.com>; <dave@scripting.com>
Cc: <FoRK@xent.ICS.UCI.EDU>; <wendy@seltzer.com>
Sent: Monday, July 31, 2000 8:09 AM
Subject: Re: Software and the First Amendment
> But then you can say that writing crypto code, which the goverment says is
> primarily of use to drug traffickers and traitors, is the kind of software
> that you "should know" will be used nefariously. You're a criminal in the
> same way that someone who carries a stranger's package, of undescribed
> contents, into an airport "should know" that what they're carrying is
> probably contraband.
>
> There's not a 1:1 mapping between cyberspace and meatspace.
>
> --A.
>
> At 07:56 AM 7/31/00 -0700, Dave Winer wrote:
> >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
> > >
> > > This electronic transmission (and any attached document) is for the
sole
> > > use of the individual or entity to whom it is addressed. Any further
> > > distribution or copying of this message is strictly prohibited. If you
> > > receive this message in error, please notify me, and destroy the
attached
> > > message (and all attached documents) immediately.
> > >
>
> Antoun Nabhan
> 617.901.8871
>
> This electronic transmission (and any attached document) is for the sole
> use of the individual or entity to whom it is addressed. Any further
> distribution or copying of this message is strictly prohibited. If you
> receive this message in error, please notify me, and destroy the attached
> message (and all attached documents) immediately.
>
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