Code as speech: A discussion of Bernstein v. USDOJ, Karn v. USDOS, and Junger v. Daley in light of the U.S. Supreme Court's recent shift to Federalism |
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Authors: | Jean Camp K Lewis |
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Institution: | (1) Kennedy School of Government, Harvard University, Cambridge, MA, 02138;(2) Graduate School of Industrial Administration, Carnegie Mellon University, Pittsburgh, PA, 15213 |
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Abstract: | The purpose of this paper is to address the question of whethercomputer source code is speech protected by the First Amendmentto the United States Constitution or whether it is merelyfunctional, a ``machine', designed to fulfill a set task andtherefore bereft of protection. The answer to this question is acomplex one. Unlike all other forms of ``speech' computer sourcecode holds a unique place in the law: it can be copyrighted, likea book and it can be patented like a machine or process.Case law, intellectual property law and encryption exportregulations all reflect this contradictory dichotomy. |
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Keywords: | artistic license BSD code cryptography policy democracy encryption free software governance GPL intellectual property law liability open source source code speech UCITA |
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