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NY Times: Free Speech Rights for Computer Code?

Jul 31, 2000, 19:51 (0 Talkback[s])

"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...."

"I see this as having a chilling effect on my ability as a computer scientist to express myself," Professor Touretzky said. He was referring to the court's preliminary injunction that barred a Web site from posting the underlying, or source, code for the cracking program. "If the court upholds this injunction, what would happen is that certain uses of computer language -- my preferred means of expression -- would be illegal."

"Until that moment in the trial, United States District Judge Lewis A. Kaplan had appeared to have little doubt about the copyright law's constitutionality. In ordering the injunction, he had noted that the First Amendment does not shield copyright infringement, and that computer code was essentially "no more expressive than an automobile ignition key."

"But in light of the professor's testimony, Judge Kaplan said, he would reconsider his constitutional analysis. It would be hard to make a case "that computer code of any kind has no expressive content," the judge said. "Which then gets you to the question of how then do you deal with it under the First Amendment?"

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