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Software and the First Amendment

Sunday, July 30, 2000 by Dave Winer.

Stop everything and read this NY Times piece Permalink to 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."


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

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