Published
in: Columbia Science and Technology Law Review,
1 COLUM.
SCI. & TECH. L. REV. 3 (Sep 28, 2000)
http://www.law.columbia.edu/stlr
I. Introduction
Computer
source code is speech—that is the argument advanced by privacy advocates and
cryptographers, who recently obtained the support of the Ninth Circuit in
Bernstein v. United States. Courts are
in general conflict over the appropriate standard of review to apply to the
government’s regulations regarding the use or export of encryption
products. That notwithstanding, among
the courts that have considered the question, there is remarkable accord
supporting the view that in some respects, computer source code represents the
expression of ideas by those who understand the arcane languages of computer
programming. While the noteworthy
relevance of this conclusion to copyright jurisprudence has not been fully
absorbed by lawyers or the laity, one impact of viewing source code as speech
is certain: it becomes palpably apparent that within the context of copyright
infringement actions, the scope of copyright protection for computer source
code should be thin, indeed.
In its
sum and substance, the law of copyright both advances and encumbers the manner
in which an author may express himself. Copyright is a constitutional promise
granted by the Federal government that must yield, in instances of conflict, to
the First Amendment. To that end,
courts have engrafted onto the law of copyright a presumptively dispositive
test often referred to as the idea/expression dichotomy.
In
applying the idea/expression dichotomy, courts have often struggled to draw
principled distinctions between copyrightable expression and the so-called
basic ideas underlying copyrightable expression, particularly when the
“expression” subject to a court’s analysis is contained in computer
programs. Many commentators have
criticized the analytical limitations of the dichotomy, and others have argued
that courts frequently misunderstand the dichotomy. Perhaps, the long-time survival of the idea/expression dichotomy
as an analytic tool is more due to the general tendency of some ill-fitting
legal doctrine to remain vital as a bewildering type of phantasmagoria—especially
when there is a failure to find a useful substitute—rather than due to a
doctrine’s conceptual vitality.
Whatever
the reason for its survival, the encryption decisionsare compelling indications
that the time has come for courts to put aside and replace the amorphous and
ineffective dichotomy. This is
particularly true in the context of copyright infringement actions involving
computer source code. Since the
proverbial moment the law of copyright first recognized that computer programs
could be subject to copyright protection, courts have struggled with setting
the boundaries of what aspects of a computer program are copyrightable.
Clearly, both the Copyright Act and the First Amendment prohibit the
application of copyright protection to ideas, but applying that constitutional and
statutory doctrine to actual allegations of copyright infringement is neither
simple, nor precise.
Even so,
recent changes in computer software development— largely the result of a
paradigm shift in programming initiated by copyleftists and the open source
code movement in cyberspace—and the recent approval of the argument that the
nature of software development often involves the free expression of ideas
should sufficiently set the groundwork to advance copyright jurisprudence by
freeing courts from reliance on inconsistent and incoherent distinctions
between copyrightable and uncopyrightable aspects of computer programs. Most important, viewing computer source code
as an artifact of the public domain suitably reinforces an important goal of
copyright; namely, that the government grant copyrights in works to
meaningfully motivate the creativity of authors in a manner that ultimately
ensures public access to authors’ products.
In this regard, copyright law should permit the unfettered access to
public domain material by protecting source code authors from copyright
infringement when the elements of a work at issue in an infringement action are
the artifacts of the public domain.
Thus, courts adjudicating copyright infringement actions involving computer
software should undertake a thorough reassessment of the limiting principles of
copyright law, recalibrate the boundaries and the scope of copyright protection
for software, and rarely regard source code as a category of expression created
as a result of independent, and hence, original authorship.
II. Background
Computer
source code[1] is speech[2] -- that is the argument advanced by privacy
advocates and cryptographers, who recently obtained the support of the Ninth
Circuit in Bernstein v. United States.[3] Courts are in general conflict over
the appropriate standard of review to apply to the government’s regulations
regarding the use or export of encryption products. However, among the courts that have considered the question,
there is remarkable accord supporting the view that in some significant
respects, computer source code is speech and, as such, represents the
expression of ideas by those who understand the arcane languages of computer
programming.[4] That source code should
be viewed as a marketplace of scientific and technological ideas is a
remarkable determination.
Notwithstanding that declaring that ‘source code is speech’ is
simplistic in its formulation, the impact of the determination is far reaching
and profound. In light of this recent
formulation, protecting First Amendment values in computer source code requires
a reconsideration of the proper scope of copyright protection in source
code.[5]
In its
sum and substance, the law of copyright[6] both advances and encumbers the manner
in which an author may express himself.[7] Copyright is a constitutional
promise granted by the Federal government
that must yield, in instances of conflict, to the First Amendment. To that end, courts have engrafted onto the
law of copyright a presumptively dispositive test often referred to as the
idea/expression dichotomy.[8]
In
applying the idea/expression dichotomy, courts have often struggled to draw
principled distinctions between copyrightable expression[9] and the so-called
basic ideas[10] underlying copyrightable expression,[11] particularly when the
“expression” subject to a court’s analysis is contained in computer
programs.[12] As a result of
cyberspace-based trends[13] in computer programming[14]
·
including
recent successes by copyleftists[15] and the open source code movement—and
judicial recognition of the communicative dimension of computer source code,
the federal courts’ struggles with the application of the idea/expression
dichotomy could be in decline.[16] Many
commentators have criticized[17] the analytical limitations of the dichotomy,
and others have argued that courts frequently misunderstand the
dichotomy.[18] As noted previously,
perhaps, the survival of the idea/expression dichotomy as an analytic tool is
more due to a failure to find a useful substitute than due to its conceptual
vitality.[19]
Whatever
the reason for the long-time survival of the idea/expression dichotomy,[20] the
encryption decisions[21]should be viewed as compelling indications that the
time has arrived for courts to put aside and replace the amorphous and
ineffective dichotomy;[22] this is particularly true in the context of
copyright infringement actions involving computer source code.[23]
Bernstein
specifically resolves the question whether encryption source code is
speech. Karn v. United States
Department of State and Junger v. Daley avoid resolving this question by
declaring the question presented as one requiring the court to determine
whether the Federal regulation at issue is purposefully directed at speech.[24]
Nonetheless, if the implicit assumptions of the encryption decisions remain the
prevailing view or are upheld by the Supreme Court, their reach will
necessarily extend beyond the debate over the use of encryption software. The
proponents of unregulated use of encryption products have launched a moderately
successful campaign toward protecting source code as an artifact of the First
Amendment. As courts find it persuasive
that some computer source code should be viewed as an expression of ideas, the
protection of source code under the First Amendment may ultimately reshape the
scope of its future protection under copyright.[25]
Viewed
in this light, the idea/expression dichotomy may have no doctrinal application
in the context of computer software copyright infringement litigation. This
article concludes that although under copyright doctrine the boundary between
an idea and an expression remains fuzzy and subject to semantic invention,
viewing computer source code as speech[26] resolves some of the limitations in
applying the idea/expression dichotomy by clearly fixating most of computer
source code in the marketplace of ideas or, in other words, outside the scope
of copyright protection.[27]
At
bottom, a given slice of computer source code cannot be protectable as both
copyrightable expression and as expression belonging to the marketplace of
ideas.[28] Source code should be viewed as a resource for other software
authors to draw upon when writing source code for their own programs. Subsisting within the purposes of copyright
is the purpose to allow the public unfettered access to the uncopyrightable
aspects of a work.[29] The copyright
law supports the progress of science and the useful arts by, among other
things, withholding the grant of copyright, in the context of infringement
actions,[30] from aspects of works that constitute ideas, merge ideas with
expressions, that constitute scenes-a-faire, or singular modes of
expression.[31] In this regard, it
would be consistent with the objectives of copyright that source code be freely
copied, distributed or used in the creation of derivative works.[32] Stated simply, the law of copyright would
provide sufficient incentive[33] for software developers to create works from a
vast public domain; the public domain would provide access to source code for
future authors and, in turn, those authors would create works[34] that could
promote the progress of science, thereby, further enriching the public
domain.[35]
At the
root of nearly every transaction in cyberspace is the transmission of an idea,
and in cyberspace, one cannot not communicate.[36] In the borderless virtual space of cyberspace, the shift from
mere idea to the communication of an idea occurs automatically almost as a
transparent instinctive response.[37] Yet, the conceptual distinction between
ideas and the communication or expression of ideas is fundamental in copyright
doctrine.[38]
The
United States Supreme Court has determined that First Amendment freedoms of
speech include the collective interest in protecting an individual’s right to
freely express almost any idea known to man.[39] Copyright law directly affects the free expression of ideas[40]
because the United States Constitution secures for “limited times” to copyright
holders “the exclusive Right to their respective Writings and
Discoveries.”[41] The copyright statute
gives copyright owners a variety of exclusive rights: the rights to make copies
of their works, to create derivative works, to distribute the works, and to
publicly perform or display them. In
other words, the law of copyright grants to authors the right to control,
restrict, or thwart public access to their expressive product. [42]
Despite
the compelling language of the Constitution’s copyright provision, it is
apparent that the founding fathers only intended to permit Congress to protect
a copyright holder’s right to her original expression.[43] In the clash of
competing constitutional provisions and almost strictly as a conceptual matter,
the First Amendment trumps Article I, Section 8, Clause 8, in its significant
limitation upon the scope and function of the law of copyright.[44]
Recently,
the encryption debates moved from public deliberations in popular media to
significant controversies presented in various legal fora. As proponents of unregulated use of
encryption technologies have presented increasingly sophisticated arguments
supporting their positions, the federal government also has been unrelenting in
its opposition to an entirely unregulated regime of encryption use.[45] At bottom, the encryption debates concern
disagreements between the federal government and various privacy advocates—who
have been joined by a sizeable number of software companies—over whether, and,
if so, to what extent, the government should be permitted to continue its
regulation of the manner in which access to data in any form may be blocked for
all of those except authorized and intended recipients through the use of
digital technology.[46]
Arguing
that encryption technologies may present the most serious challenges to
national security or local and national law enforcement when they are in
digital form, the federal government has not been halting or languid in its
efforts to regulate the actual use of encryption devices and the fruits of
encryption products.[47] In this
regard, the encryption debates have moved toward a wide-ranging area of
disagreements, including the recent dispute concerning whether the very
discussion of encryption technology may, in part, be significantly restricted
or, at least, regulated by the Federal government.
The
arguments on both sides have drawn toward framing one central question in the
debates: whether encryption computer source code is speech and, therefore,
protectable under the First Amendment.
If the ultimate outcome of this dispute leads to protecting encryption
source code as speech, then the federal government’s attempt to regulate the
digital technology of encryption and the transmission or communication of
encryption “speech” will be significantly impaired.
Quite
apart from the impact of the current dispute on the future use of encryption,
the ultimate resolution of the question will have an astonishing level of
influence on the current jurisprudence governing the balance between copyright
and the First Amendment in the context of computer programs. Since both the First Amendment and the law
of copyright protect expressive conduct, a ruling upholding computer source
code, as an essentially expressive artifact would significantly restrict the
degree to which many software copyright owners could successfully challenge
another developer’s use of source code on the basis of copyright
infringement. In other words, viewing
computer source code as speech protectable by the First Amendment underwrites a
new balance between copyright and the First Amendment.[48] In this respect, First Amendment analysis of
encryption source code sharply illuminates the predominant failure of copyright
doctrine—the idea/expression dichotomy—to adequately calibrate the boundaries
of copyright and free speech in the context of digital technologies.
In the
context of computer source code, a re-examination of the relationship between
copyright, which places limits on the accessibility of certain speech, and the
First Amendment, which, generally, is directed toward making speech as open and
accessible as possible, may reveal a balanced, but more relevant, division
between these contextually competing interests than the current murky and
obscure distinctions of copyright doctrine.[49]
Although
the purpose of writing source code is not to draft letters to lovers or
communicate contractual terms that may bind two parties, source code can be
read or understood by computer programmers, computer hobbyists, mathematicians,
scientists, and other professionals who are trained in the particular
programming language in which the source code is written.[50] Notably, it is not necessary for an
individual to have the capacity to read or understand any given source code in
order to compile or execute software that may control the operation of a
computer. Even so, some computer users
or programmers may find it useful, if not necessary, to obtain access to the
underlying computer source code of a given software application to make full
use of the program or extend the program’s utility beyond the program’s
original design.[51]
Part I
of this article sets the technological backdrop for establishing why this is
the proper time to recalibrate the balance between copyright and free
expression for computer source code. Specifically, Part I describes and
examines the goals of copyleftists and the open source code movement and sets
forth the pertinent issues from the encryption debates that have led privacy
advocates to claim source code as subject to the protection of the First
Amendment. These major
technology-driven predicaments undergird the current arguments and court
disputes over whether the elements of expressive content in computer source
code warrant protection under the First Amendment.
Part II
provides an overview of the prevailing copyright law doctrine limiting the
expansion of copyright into First Amendment areas; namely, the idea/expression
dichotomy, and concludes that the doctrine, in general, and its application to
digital artifacts and computer technology, specifically, obfuscates rather than
elucidates the critical First Amendment question.
Part III
assesses the notion that computer source code should be subject to copyright
protection in light of the encryption cases’ recognition that in some respects,
source code represents the expression of ideas by those who understand the
arcane languages of computer programming.
Part III concludes that if source code remains within the province of
full First Amendment protection, then, consistent with the First Amendment
limitation on copyright and the open source code movement, source code should
be regarded rarely, if ever, as a category of expression created as a result of
independent, and hence, original authorship.
IV. Part I
A Debate And A Movement
A. The Encryption Debates
Encryption
is the process of converting a message from its original form (commonly known
as “plaintext”) into a scrambled form (known as “ciphertext”).[52] Generally, the strength of any encryption
depends on how rapidly it can be decrypted.[53] Most encryption methods rely on
having a reusable “key,” which generates a series of substitutions or
transpositions of the plaintext to create ciphertext.[54] Ciphertext can be
sent to the recipient, who has an identical or complementary key that can be
used to reverse the process (“decrypt”) and produce the original plaintext.[55]
An
individual who intercepts the ciphertext cannot understand it without breaking
the code. One way to do this, assuming one knows the formula used to encrypt,
is to try every possible key combination until one obtains a readable text (a
process called “brute-force” search).[56]
For a sufficiently large key, a brute-force search on even a series of
the most powerful supercomputers working in tandem could take longer than the
life of the universe.[57]
It is in
this regard that the convergence of computers and cryptography is ostensibly
threatening one of the most fundamental tools of the national security and law
enforcement communities: the ability to eavesdrop on private or secret
communication.[58]
Today
almost any computer user through the use of encryption software can encrypt
electronic messages and other forms of digital data. In order for a personal computer to be used to encrypt data, it
must use encryption software that makes the computer’s circuitry carry out the
encoding process.[59]
Under
federal munitions regulations and in the lingo of technologists, with few
exceptions, individuals and American companies can export encryption products
no stronger than 56-bits.[60] Since encryption products are often measured in
terms of key strength,[61] the length of the key—which is actually produced by
a mathematical formula—will predict the ease or difficulty which an individual
trying to crack the encryption by simply trying different key combinations will
encounter before he is able to read the stolen encrypted e-mail message or
discover the details of the hijacked medical records.[62] In other words, a 56-bit key is longer and,
hence, stronger than a 40-bit key primarily because it may take longer to
crack.[63]
Perhaps
enthralled by the Dionysian-like beauty of sophisticated technology, a few
privacy advocates[64] modified the battle for stronger privacy laws to include
political arguments challenging the Federal government’s encryption policy.[65]
These privacy advocates were viewed by some as pushing an ill-fated agenda[66]
by blurring the distinction between the conception of privacy[67] as an aspect
of data protection[68] and the conception of privacy as a fundamental principle
underlying the value for maintaining personal control over when, how and
whether intimate facts or personal secrets should be publicly
revealed.[69] At the heart of the
encryption debate and the federal government’s dramatic concerns over new
technologies is the tension between protecting national security and other
economic interests while also safeguarding basic rights in personal privacy in
the current Information Age.[70]
In
September 1999, the government revised its federal policy on encryption for the
second time in two years. The modified
policy allows American companies to use encryption programs of virtually
unlimited strength when exporting to foreign banks, insurance companies, and
certain health and medical service companies, if the foreign company is located
in a country on an approved list. In
addition, other requirements regarding licensing foreign-bound encryption products
and key recovery plans have been scaled back.[71] There is still an export
limit on the 56-key strength of encryption products for uses not directly
involving financial services or health and medical services.[72] As such, the government’s encryption policy
remains substantially unchanged.[73] The critical point, however, is that the
encryption debate commenced as a disagreement over how to counter-balance the
interests of privacy and security. Now, the debate encompasses First Amendment
freedom of speech concerns and, ultimately, will influence copyright
jurisprudence.
Quite
apart from the impact of the current dispute on the future use of encryption,
the ultimate resolution of the question concerning whether source code is
speech will have an astonishing level of influence on the current jurisprudence
governing the balance between copyright and the First Amendment in the context
of computer programs. Similarly, the
open source code movement represents an affirmative indication that copyright
jurisprudence must be modified.
B. The Open Source Code Movement[74]
The
phrase open[75] source[76] represents a paradigm shift[77] in computer
programming.[78] Generally, the words
refer to the “source code,” or programming, of various pieces of software,
wherein the end user is guaranteed[79] free[80] and open access to the software
code.[81] Many off-the-shelf software developers try to keep their source code
secret, mistakenly assuming that copyright and secrecy were coordinate.[82] But
a growing number of organizations are bucking the trend,[83] especially in
cyberspace.[84] Source code creation is
now, largely, an open and shared process in cyberspace. Programmers engage in code sharing efforts
on web sites, on Internet bulletin boards and newsgroups, and in e-mail
exchanges.[85] In this regard, source
code is similar to the pieces of a jigsaw puzzle; the pieces of any given
puzzle are rather non-unique and available for use by anyone with access to the
puzzle, but, to some, the pieces will remain a puzzlement. They will not be able to put the pieces
together meaningfully. To others, the
pieces will fit neatly together again and again. Even so, jigsaw pieces, like subroutines in a given section of
source code, build upon each other, and are largely worthless outside of their
respective framework.
The open
source movement[86] is an ad hoc, loosely defined, but pervasive, global
community of software authors who create software in cyberspace that provides
software users with greater control over their computing environment than
software developers who produce proprietary source code products.[87]
1. The new trend: reveal the code to the
world.
The new
trend: reveal the code to the world’s programming community,[88] and let
everyone[89] try their hands at improving it.[90] Organizations which follow
this trend are so numerous on the Internet[91] that the open source movement
represents a global movement that is successfully challenging the contemporary
proprietary model of software development with a model in which “openness”[92]
is considered a virtue.[93] The open source model produces a superior
product[94] from input from potentially hundreds of programmers as well as
reinforces market competition by precluding “lock in” to proprietary[95] technology.[96] In other words, open source programming[97]
eschews the use of software development to strategically control markets
without regard to the production of superior software applications.[98]
The most
famous open source project is probably Linux, a version of the Unix operating
system.[99] Its proponents distributed a version the code on the Internet
several years ago, and hundreds of programmers have added their own
refinements.[100] The result is claimed to be a much faster, less crash-prone operating
system than Microsoft’s Windows operating systems.[101]
The link
between open source and public domain should not be overstated. Although open source projects have the attributes of the public
domain, they are not public domain works.
One open source project can rarely begat another. The individual or organization managing the
open source project retains the exclusive copyrights to the works created or
derived from the original code. The
General Public License (GPL), on which open source projects are based, grants
non-exclusive rights to distribute or copy the original source code or to make
derivative works based on the original source code. In this regard, works created from open source do not provide the
same benefit to authors that works created from public domain could
provide. Of course, the point of the
open source movement is that copyright is not necessary to promote the progress
of science—at least, in so far as computer programs are concerned. Authors create works due to reputational
benefits and other economic advantages.
Even so,
the one obvious, practical, and destabilizing effect of an open source project
based on GPLs is the potential for the project to implacably acquire copyright
interests in all the works for which the original source code is
based.[102] (Genuine public domain
projects could not lead to the same result because copyright would not
aggregate in one original “author.”).
In this regard, open source could, ironically, distort the goals or aims
of copyright. Since the GPLs do not
preclude the original copyright owner or the open source code project, itself,
from altering the terms of the GPL at the some later time, the original owner
could attempt to extract royalty fees from all participants who fail to abandon
their “free” efforts.[103] Moreover,
the meaning of “derivative” work may be strained under the terms of the
GPL. Those issues notwithstanding, the
economic model of open source makes available a powerful disincentive to those
who would attempt to distort the goals of the movement. More important, to date, open source has not
been noticeably abused, and it has provided a compelling challenge to the
rarely challenged notion that the grant of copyright is necessary (albeit, not
sufficient) to incent authors to create works that promote the progress of
science and the useful arts.
2. Copyleft: a clear paradigm shift in
programming.
Cyberspace
is the location of the birth of a subset of the open source movement called
Copyleft. In the Copyleft or free software movement, the emphasis is not solely
on increasing the amount of open source code available for general use, but
also includes the objective of
disenabling incentives to copyright software.[104] Software is
distributed freely with a GPL, but the GPL includes a “copyleft” provision
rendering it difficult for individual authors to freely convert open source software into
proprietary programs. Although Copyleft
allows anyone who redistributes the software, with or without changes, to pass
along the freedom to further copy and change the source code, the copyleft
provision requires that distribution terms in the GPL remain unchanged when a
derivative work is distributed,[105] and that all code added to the program or
distributed as part of the program be free(dom) software.
To
copyleft a program, the author first must hold the lawful copyright to the
source code. Then, distribution terms
are attached to the source code, which usually grants anyone the right to use,
modify, and redistribute the program’s code or any program derived from it, but
only if the distribution terms are unchanged. Thus, as noted, the code and the
freedom to decide how one may use the code are viewed as legally inseparable.
In this regard, Copyleftists[106] use copyright to guarantee an author’s
freedom, rather than to limit it.[107] Accordingly, the proponents of the
movement viewed it appropriate to reverse the term “copyright” to
“copyleft.”[108] Licenses that accompany source code and allow for
privatization of publicly developed open source software products are licenses
that permit what open source code programmers call “code-forking.”[109] Code-forking allows a software author to
take publicly available source code, and create a proprietary product out of
the code. Copyleftists attempt to limit
the practice of code-forking, but do not necessarily preclude it
entirely.[110]
The open
source code movement represents a clear paradigm shift in
programming.[111] Traditionally,
computer programming was a solitary task performed by a programmer on a single
machine.[112] Other programmers or other machines could not understand most of
the programmer’s code. The instructions to a computer, or program, must be
given to the computer in the form of ‘machine language’ notation. Machine language is, however, difficult
forhumans to comprehend. Generally,
instead of writing machine language instructions that the processor can execute
directly, programmers write programs in a programming language, which then is
translated mechanically to machine language by a compiler program.[113] Some programmers write in assembly
languages rather than in high-level programming languages.[114] Assembly language is a form of machine code
that humans can read.[115] A programmer
who writes a program in assembly language must approach the problem-solving
task in the same systematic fashion that the computer will use.[116]
A
program written in an Assembly language is converted into machine code by an
assembler program. Assembly language
programs generally run faster than higher-level language programs. Programs written in either high-level
programming language or assembly language are called ‘source code’
programs. Machine-readable object
code, incomprehensible to people, consists of a string of ones and zeros, which
are the only two symbols a digital computer can understand.[117]
In some
sense, software design is a creative process that programmers learn more
through practice than from books, a process that cannot be formulated as a set
of rules. In this respect, the end
product, the program, is generally the result of numerous conscious choices by
the programmer[s].[118]
Microcomputers
significantly changed the task of the programmer. Software engineers designed programming languages that could be
understood by others and run on computers built under specifications.[119] As cyberspace has become an increasingly
useful environment for computer programming, programmers are developing a
reluctance to systematically “hide” their source code from each
other.[120] Instead, programming began
undergoing a paradigm shift[121] away from viewing source code as the province
of secrecy and toward sharing source code in the form of reusable modules or
objects.[122] In an attempt to build
more complex applications that could run on desktop computers and local
networks, programmers routinely share and exchange code that can be used and
re-used for various projects.[123] In
this regard, source code modules are distributed as works in the public domain.[124]
Programmers
write computer code in one of several high level languages, such as Visual
Basic, COBOL, BASIC, FORTRAN, JAVA, C++ or a low level language such as an
ASSEMBLY language.[125] Many software
programs that run on computer networks and on the Internet are actually written
in scripting languages like PERL. Scripting languages blur the traditional
distinctions between source code and object code because most programs written
in scripting languages are executed and compiled at the same time. While this distinction has unclear relevance
to copyright, it very well may be a significant factor in assessing the
government’s regulation of the export of an encryption program.
The most
significant constraint on an open source code project may involve finding
enough programmers available and interested in contributing their time jointly
authoring freely available software projects.[126] In this respect, cyberspace has provided the tools necessary to
bring together enough people to harness the intellectual efforts required to
create serious software programs sufficient to support the paradigm shift in
programming.[127] It is quite possible
that the growth of the Internet will complete the programming paradigm shift
since enough cyberspace-based programmers will be available to make both large
scale projects and small programming alliances viable and routine.[128] Open source code collaborative programming
efforts may become standard.[129] In
this regard, the existence of the open source code movement amply supports a
conception of copyright that provides sufficient incentive for software
developers to create works from a vast public domain; a public domain that
would provide access to source code for authors and, in turn, encourage
software authors to create works that could promote the progress of science,
thereby, further enrich the public domain.
V. Part II
Limiting the Expansion of Copyright
Copyright
law protects original authorship, but sets up a dichotomy between the protected
work and the idea within the work. Any original work of authorship that exists
in tangible form is copyrightable.[130] Copyright protection, however, extends
only to the particular expression of the ideas contained within the work, not
to the ideas themselves.[131] Under the law of copyright, an idea is thought to
ordinarily encompass many means of expression.
Consequently, the idea/expression dichotomy, along with other limiting
doctrine, thwarts the unintended effect of copyright to allow an author to gain
control over an idea simply by expressing it in one tangible form. In this respect, the First Amendment should
cut off the implacable drive to diminish, if only “temporarily,”[132] the stock
of raw materials available to other authors.[133]
The
distinction between ideas and expression is supposed to provide a way of
reconciling two competing interests—the interest in rewarding ingenuity and the
interest in allowing the public to benefit from new works by other authors on
the same subject. Since the function of
copyright is to promote creativity so that the public may benefit from the
labor of authors, the Federal government provides authors with an incentive to
create by granting them the exclusive right to profit from and control
specified uses of their works.[134]
As
noted, copyright also has the powerful capacity to diminish the potential for
creativity.[135] The exclusive rights
granted by copyright may hinder the efforts of new authors who seek to build on
the creativity of the past.[136] It is
in this regard that the idea/expressiondichotomy helps copyright strike a
balance between providing incentives to create and maintaining the store of raw
materials needed for new creations.[137] However, under the dichotomy, the
boundary between unprotectable ideas and protectable expression is often
difficult to discern.[138]
Presumably,
when copying is literal, an idea can easily be isolated from its
expression.[139] Perhaps, the most
important part of the public domain constitutes those works comprising copyrighted material and material that
copyright does not protect. In other
words, the public domain includes works that contain both copyrightable and
uncopyrightable aspects. It is in this regard that the highly regarded Judge
Learned Hand noted the conundrum that such works pose for the judge reviewing a
copyright infringement action, in a seminal case involving a play entitled
Abie’s Irish Rose:
“We
assume that the plaintiff’s play is altogether original, even to an extent that
in fact it is hard to believe. We assume further that, sofar as it has been
anticipated by earlier plays of which she knew nothing, that fact is
immaterial. Still, as we have already said, her copyright did not cover
everything that might be drawn from her play; its content went to some extent
into the public domain.”[140]
The
concept that portions of works protected by copyright are owned by no one and
are available for any member of the public to use is such a fundamental one
that it receives attention only when something seems to have gone awry. Although the public domain is implicit in
all commentary on intellectual property, it rarely takes center stage. But a
vigorous public domain is a crucial buttress to the copyright system; without
the public domain, it might be impossible to tolerate copyright at all.
A. The statutory definition of a computer
program.
The
Copyright Act defines a computer program as “a set of statements or
instructions to be used directly or indirectly in a computer in order to bring
about a certain result.”[141] Indeed,
software authors can and do bring copyright infringement suits against other
software authors.[142] In such a case,
the defending author is likely to argue that, if any copying at all occurred,
he took merely unprotected ideas from the other work. Under current copyright
doctrine, a copyright infringement claim involving source code entails an
allegation of literal copying. As such,
a claim by the defendant that he only copied unprotected ideas would require
the reviewing court to either apply the idea/expression dichotomy or to reject
the defense on its face as inconsistent with the evidence of literal
copying. It is in this regard that
courts that apply the dichotomy are required to separate a software program’s
protected expression from its unprotected ideas, including the relevant aspects
of the source code.[143]
Although
the legislative history of the 1976 Copyright Act indicates that Congress
intended for the revised copyright statute to protect computer programs, courts
did not agree on the contours of what constituted a computer program under the
Copyright Act until Congress amended the Copyright Act through its enactment of
the Computer Software Copyright Act of 1980.
This amendment to the 1976 copyright law added the definition of “computer
program”.[144]
B. The Distinction between an Idea and its
Expression.
As an
analytic tool, the idea/expression dichotomy is viewed as a useful way of not
only defining the scope of the plaintiff’s copyright protection, but also as an
aid for the court’s ultimate determination of whether the plaintiff’s case is
missing an essential element of a copyright infringement claim.[145] In
addition, the idea/expression dichotomy may help courts avoid overprotection of
a copyrighted work, while at the same time aid courts in not losing sight of
expression that might be present in a work consisting largely of licensed
and/or unprotectable elements.
The 1879
case of Baker v. Selden laid the foundation for the idea/expression
dichotomy.[146] In Baker, the plaintiff
sought protection for bookkeeping forms contained in a book that explained a
novel method of bookkeeping.[147] The
Supreme Court held in Baker that the copyright on a book does not give the
copyright holder “an exclusive property in the art described
therein.”[148] Furthermore, the Court
ruled, where use of the idea necessarily requires copying of the work itself,
that copying is not infringement.[149] Accordingly, an author may not use the
copyright laws to obtain a monopoly on a system or method.[150] Subsequently, the Court began interpreting
Baker as unequivocally having held that copying an idea without copying the
expression does not constitute infringement.[151] Because copyright does not protect against the taking of ideas,
the substantial similarity that serves as indirect proof of copying must be
expression-level similarity, not merely idea-level similarity.[152]
C. Copyright Protection for Source Code
By 1983
the Copyright Office had issued a circular stating that ‘[c]opyright protection
extends to the literary or textual expression contained in [a] computer
program.’[153] Courts, then, began summarily applying theidea/expression
dichotomy to software programs as a proxy for constitutional analysis of the
inherent First Amendment question implicated by the idea/expression
dichotomy.[154] In courts’ inconsistent
application of the idea/expression dichotomy it becomes palpably apparent that
the broad concept of “expression” used in traditional literary works
infringement cases seems strained when applied to software. This may be particularly true because
computer programs are, in significant respects, artifacts of technology. Within the U.S. regime of intellectual
property, copyright has not been the traditional province of protection for
technological devices; that domain belonged to the law of trade secrets and
patents.
A
seminal software copyright case, Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., extended
copyright protection to the non-literal elements of a computer program
including, inter alia, the program’s structure, sequence, and
organization. At issue was whether the
defendants, in copying file structures, screen outputs, and five subroutines of
a dental office software program, copied unprotected ideas or protected
expression. The court deemed a program’s unprotected ideas to be its purpose or
function along with anything in the program necessary to that purpose.[155]
Although it is apparent that in some sense any aspect of a computer program
could be deemed essential or necessary to its overall purpose,[156] the Whelan
court presumably considered its articulation of the idea/expression dichotomy
meaningful because “[w]here there are various means of achieving the desired
purpose…the particular means chosen is…expression, not idea.”[157]
The
Whelan test is unsatisfying because of its circularity.[158] To say that an idea may be distinguished
from its expression in a software program by isolating the program’s purpose,
in addition to ‘whatever else is necessary to that purpose’, offers little
principled distinction. Instead of
relying upon a lucid application of the dichotomy, the Whelan court recasts the
dichotomy in broad and ambiguous terms as an assessment of purpose(s). It may be that the court had determined
that at a high-level abstraction a typical software application has only one
general purpose.[159] Nonetheless, this determination is hardly persuasive in
the context of today’s increasingly complex software programs that purposefully
serve multiple functions. Indeed, in
light of contemporary programming practices, the Whelan analysis devours the
utility of the idea/expression dichotomy by summarily limiting the conception
of an “idea” and, hence, broadly supporting an expansive scope of copyright
protection for computer programs. Even
if the court’s analysis appropriately applied to present-day programming
practices, it is not apparent why the concept “purpose” is a notable
constitutional substitute for “idea” in drawing the line between the First
Amendment and copyright.[160] a computer program necessarily contains many
ideas that expand far beyond the program’s general purpose. Why should a limiting doctrine, set up to
distinguish between ideas and expressions, by its own terms ignore the majority
of ideas contained in a work before being applied? In this regard, the Whelan court leaves open the question why a
software program’s ideas beyond an assumed singular program purpose cannot be
unprotected ideas.[161]
Broderbund
Software, Inc. v. Unison World, Inc., was decided a few months after Whelan.
The court held that two programs’ sequences and layout of screens, and method
of user feedback were substantially similar.
Accordingly, defendant’s program was found to be infringing.[162] The plaintiff did not claim that the
defendant copied the code or even the structure of its program.[163] Instead, the plaintiff contended that the
overall appearance, structure, and sequence of the computer screen displays of
the defendant’s program infringed the plaintiff’s copyright. The court, following Whelan, identified the
program’s overall function -- to create greeting cards—as the unprotected idea,
and held that other expressions of the function were not only possible, they
were currently available off-the-shelf in stores. The Broderbund court seems to have eviscerated the First
Amendment limitation by abandoning any meaningful attempt to distinguish ideas
from expression.[164] While the issue was not directly before the court, it
would logically follow from the court’s analysis that the court would “protect”
Broderbund’s source code in the same manner it did the nonliteral elements of
the software.[165]
Perhaps
responding to the defects in the Whelan analysis, the Second Circuit adopted
its own idea/expression test for computer programs in Computer Associates
International, Inc. v. Altai, Inc.—the
so-called “abstraction-filtration-comparison” test.[166] The court flatly rejected the Whelan test
and explicitly applied the abstraction test first expounded by Judge Learned
Hand.[167]
The
court first separated the copyright protected computer program into parts of
increasing “abstraction”: source code, parameter lists, services, and
charts. After applying this part of the
test, the court “filtered” the abstracted elements against its idea-expression
distinction, and then applied the limiting doctrine of merger, scenes a faire,
and public domain.[168] This process
resulted in determining which portions of the program were protectable—
specifically, the literal code of the program.[169] To assess infringement, the court “compared” the protected
portions of the computer program to the allegedly infringing program and found
that the two programs were not substantially similar.[170] Although the Altai test does not
characterize “ideas” as broadly as the Whelan test, some literal elements of a
program essentially filter into the comparison simply because they are not
sufficiently abstract to be determined ideas.
In other words, in the context of source code, both the Whelan test and
the Altai test fail to sufficiently distinguish ideas from
expression.[171]
In
applying the idea-expression dichotomy explicitly to source code, the court, in
Autoskill, Inc. v. National Educational Support Sys.,[172] provided copyright
holders with a very broad scope of copyright protection for software, thereby
diminishing the public domain attributes of source code.[173] The plaintiff owned the copyright in a
program called “Autoskill” for testing, diagnosing and training reading skills.
The defendant studied the Autoskill program in detail, and then wrote its own
computer program for reading skills called “NESS.”[174] Each of the programs
was based on the identification of three reading sub-types of students.[175] The programs administered tests to determine
a student’s sub-type by presenting thirteen categories of word form types based
upon different combinations of consonants and vowels, ranging from one letter
to four letters.[176]
The
plaintiff alleged that the defendant’s program infringed the copyright in the
Autoskill program, and sought a preliminary injunction.[177] The plaintiff did
not claim that the defendant’s program copied source code, but argued that the
defendant’s program copied the structure, sequence and organization and “total
concept and feel” of the plaintiff’s program.
The
district court found a number of similarities between the programs that related
more to “the important pedagogical aspects of the reading program” than to “the
logic flow between the display screens.” Based on these findings, the district
court concluded that the plaintiff had established a substantial likelihood of
success on its claim of copyright infringement, and issued a preliminary
injunction.[178]
On
appeal, the Tenth Circuit affirmed.[179] The court noted that the district
court had adopted a three-step filtration analysis for judging substantial
similarity (as part of the access-plus-substantial-similarity test for proving
copying), which was very similar to the Second Circuit’s
abstraction/filtration/comparison analysis in the Altai case.[180]
In the
Tenth Circuit’s view, a substantial similarity analysis must compare “portions
of the alleged infringer’s works with the portions of the complaining party’s
works which are determined to be legally protectable under the Copyright
Act.”[181] The court noted that the district court had used an abstractions
analysis to determine which portions of the plaintiff’s works were
unprotectable ideas, and which were potentially expression that must be
subjected to the filtration analysis.[182]
The
Tenth Circuit rejected the defendant’s argument that the features of the
Autoskill program the plaintiff sought to protect were not
protectable.[183] The court did not,
however, explain why the functional choice of which sub skills to test for
constituted copyrightable expression. As such, the Tenth Circuit’s application
of its test, like the Whelan test, provided copyright holders with a very broad
scope of copyright protection for software.
Although among courts there may be increasing support for the suggestion
that a computer program may contain many “ideas” at many levels of abstraction
(or specificity), the various tests used are too divergent conceptually to
conclude that courts are beginning to appropriately restrict the scope of
copyright protection afforded to computer programs.
Overly
broad copyright protection for computer programs may actually hamper
advancement in the field of computer programming. In addition, excessive grants of copyright protection are not
necessary to promote advancement in the art and science of computer
programming. Allowing a programmer to
obtain copyright protection for elements of the program available in the public
domain and other elements necessitated by industry standards and hardware
compatibility could limit both the ability and the incentive for software
authors to create or market competitive products.[184]
VI. Part III
Protecting Computer Source Code Under the
First
Amendment
A. Posting a computer program on a web site
may require a government-issued license.
In
November 1996, President Clinton issued an Executive Order and Presidential
memorandum transferring regulatory authority over the export of most encryption
products from the Department of State to the Department of Commerce, which is
now responsible for administering the EAR.[185] In December 1996, the Department of Commerce amended the EAR to
include the encryption items transferred by the President from the regulatory
jurisdiction of the Department of State.[186] In his Executive Order and
memorandum, the President prescribed the basic policies governing the EAR’s
export controls on encryption items. The President determined that
“[e]ncryption products, when used outside the United States, can jeopardize our
foreign policy and national security interests” and can “threaten the safety of
U.S. citizens here and abroad.”[187] The President therefore directed that
applications for licenses to export encryption products be reviewed by the Department
of Commerce, in conjunction with other
agencies, “to ensure that export would
be consistent with U.S. foreign policy and national security
interests.”[188]
A
license is required to export encryption items subject to the EAR to all
foreign destinations other than Canada.
Certain encryption items whose export poses fewer risks to national
security and foreign policy are eligible for liberalized licensing
requirements.[189]
Peter
Junger, a law professor, who teaches a course titled “Computers and the Law” at
Case Western Reserve University Law School in Cleveland, Ohio,[190] maintains a
website on the World Wide Web that contains information about courses that he
teaches, including a computers and law course.[191] Professor Junger wanted to
post to his web site various encryption programs that he has written to show
how computers work. The U.S. Department
of Commerce determined that such a posting is an export[192] under the Export Administration Regulations
(“EAR”).[193]
On June
12, 1997, Professor Junger submitted three applications to the Commerce
Department requesting determination of commodity classifications for encryption
software programs and other items. With these applications, Professor Junger
sought a Commerce Department determination whether the agency restricted the
materials from export.[194]
On July
4, 1997, the Commerce Department’s Bureau of Export Administration told
Professor Junger that Export Classification Control Number 5D002 covered four
of the five software programs he had submitted, therefore making them subject
to the EAR.[195] The Commerce
Department found that the first chapter of Professor Junger ’s textbook,
Computers and the Law, was an allowed unlicensed export,[196] but that export
of his software programs would require a license. After receiving the classification determination, Professor
Junger did not apply for a license to export his classified encryption
software.[197]
In
filing his lawsuit, Professor Junger claimed the EAR[198] violate rights
protected by the First Amendment.[199] According to Professor Junger, the
Export Regulations engage in unconstitutional content discrimination by
subjecting certain types of encryption software to more stringent export
regulations than other types of software.[200]
In addressing
these claims, the court recognized that it needed to decide whether encryption
source code is sufficiently expressive to merit heightened First Amendment
protection.[201] In doing so, the court
examined whether the Export Regulations are a prior restraint on speech subject
to greater First Amendment scrutiny.
The court determined that the Export Regulations are constitutional
because encryption source code is inherently functional, because the Export
Regulations are not directed at source code’s expressive elements,[202] and
because the Export Regulations do not reach academic discussions of software,
or software in print form.[203]
The
Junger court concluded that in the overwhelming majority of circumstances,
encryption source code is exported to transfer functions, not to communicate
ideas.[204] In exporting functioning capability, encryption source code is like
other encryption devices. In the court’s view, for the broad majority of
persons receiving such source code, the value comes from the function the
source code does. The court criticized the district court’s analysis in
Bernstein by noting that the Bernstein court’s interpretation of Texas v.
Johnson[205] was misguided. Johnson does not “strongly imply” that the First
Amendment extends to anything written in language regardless of its
expressiveness.[206] Rather, in the
Junger court’s view, it simply observes that the First Amendment’s “protection
does not end at the spoken or written word.”[207]
Finally,
the Junger court determined that the district court in Bernstein misunderstood
the significance of source code’s functionality. As Junger explained, source
code is “purely functional” in a way that the Bernstein court’s examples of
instructions, manuals, and recipes are not.[208]
In this
regard, Junger upheld the government’s position that exporting source code is
conduct that can occasionally have communicative elements, but that First
Amendment protection is not necessarily warranted merely because conduct is
occasionally expressive.[209] In other
words, the court felt it evident that exporting encryption source code is not
sufficiently communicative.[210] Apparently, the court was unconvinced that the
licensing scheme used by the EAR had a close enough nexus to speech or that the
export of encryption source code was conduct sufficiently associated with
expression to pose an unconstitutional threat of censorship.
Notably,
Junger did not specifically disregard the practical reality that source code
may be used as speech or to speak.
Rather, the court determined that notwithstanding the expressive
elements of some forms of source code, whether a regulation that burdens a
programmer’s use of source code is subject to the First Amendment’s highest
level of scrutiny depends upon more than summarily ascribing the qualities of a
human language to a programmer’s notations. Since source code is a set of
instructions to a computer that is commonly distributed for the primary
non-expressive purpose of controlling a computer’s operation, Junger determined
that the prior restraint doctrine is not implicated. In the court’s view, simply because an activity may have an
expressive element is not sufficient to transform an otherwise functional
activity into something of constitutional significance. As such, the Court rejected Professor
Junger’s facial challenge to the Export Regulations’ licensing scheme. Professor Junger’s overbreadth challenge was
rejected as well.[211]
B. Using an encryption program to teach on
the Net.
In
Daniel J. Bernstein v. United States Department of State, a former graduate
student claimed that the government violated his right to free speech by
restricting his right to post an encryption program on the Internet.[212] The district court ruled that encryption
source code specifically, and computer programming languages generally,
constitute speech.[213] As such,
according to the court, the First Amendment protects communications in computer
languages, like communications in other forms of language.[214] In her ruling, Judge Patel pointed out that
the court could, “find no meaningful difference between computer
languages...and German or French. All participate in a complex system of
understood meanings within specific communities.”[215]
The
court began by stating what its view of source code is; namely, that source
code is the text of a program written in a “high-level” programming language,
such as “PASCAL” or “C.”[216] A
critical factual determination by the panel decision included that a
distinguishing feature of source code is that it is “meant to be read and
understood by humans and that it can be used to express an idea or a
method.”[217]
The
court recognized that since source code is destined for the “maw of an
automated, ruthlessly literal translator”— the compiler—a programmer must
follow stringent grammatical, syntactical, formatting, and punctuation
conventions. As a result, only those trained in programming can easily
understand source code.[218] For
example, the following is an excerpt from Bernstein’s Snuffle source code
written in the programming language C:[219]
for (;
;)
(
uch =
gtchr();
if (!(n
& 31))
(
for (i =
0; i64; i++)
l [
ctr[i] = k[i] + h[n - 64 + i]
Hash512
(wm, wl, level, 8);
)
The
court also noted that since the chief task for cryptographers is the
development of secure methods of encryption, the expression of algorithmic
ideas with precision and methodological rigor in source code has the added benefit of facilitating peer
review. In this regard, by compiling
the source code, a cryptographer can create a working model subject to rigorous
security tests.[220] According to the court, cryptographers use source code to
express their scientific ideas in much the same way that mathematicians use
equations or economists use graphs. Of course, both mathematical equations and
graphs are used in other fields for many purposes, not all of which are
expressive.[221] But mathematicians and
economists have adopted these modes of expression in order to facilitate the precise
and rigorous expression of complex scientific ideas.[222]
The
court also determined that Snuffle was intended, in part, as political
expression.[223] Bernstein discovered that the ITAR regulations controlled
encryption exports, but not one-way hash functions.[224] Since Bernstein believed
that an encryption system could easily be fashioned from any of a number of
publicly available one-way hash functions, he viewed the distinction made by
the ITAR regulations as absurd.[225]
The
panel decision flatly rejected what it termed the government’s argument
“distilled to its essence”—that even one drop of “direct functionality”
overwhelms any constitutional protections that expression might otherwise
enjoy.[226] In the court’s view, the
government’s argument proved too much in the era of rapidly evolving computer
capabilities, wherein computers will soon be able to respond directly to spoken
commands.[227] In this regard, the
court noted that to confer upon the government the unfettered power to impose
prior restraints on speech in an effort to control the “functional” aspects of a communications
technology.[228]
In the
Ninth Circuit’s view, the challenged regulations allowed the government to
restrain speech indefinitely with no clear criteria for review.[229] As a
result, Bernstein and other scientists were effectively chilled from engaging
in valuable scientific expression.[230] Bernstein’s experience, itself,
demonstrates the enormous uncertainty that exists over the scope of the
regulations and their chilling potential.[231]
The
court’s holding was narrow; it did not hold that all software is expressive,
but recognized that much software is not.[232]
Nor did the court assess whether the challenged regulations constitute
content-based restrictions, subject to the strictest constitutional scrutiny,
or whether they are, instead, content-neutral restrictions meriting less
exacting scrutiny.[233] Instead, the holding was limited to the determination
that because the prepublication licensing regime applies directly to scientific
expression, vests boundless discretion in government officials, and lacks
adequate procedural safeguards, it constitutes an impermissible prior restraint
on speech.[234]
Despite
the professed narrowness of its holding, the Ninth Circuit opined that insofar
as the EAR were intended to slow the spread of secure encryption methods to
foreign nations, the government’s policy was intentionally retarding the
progress of the “flourishing science of cryptography.” Additionally, the court
found that the EAR had not sufficiently countenanced the growing importance of
the need to protect personal privacy in the digital age. In the court’s opinion, the pervasive use of
digital technology has resulted in a dramatic diminution of our ability to communicate
privately.[235] However, in view of the court’s dicta, it is difficult to
estimate how much the privacy considerations really played a role in the
court’s rejection of the regulations. [236]
One
troubling aspect of the Bernstein analysis is that the court erroneously
focuses too narrowly on the putatively communicative nature of source code.
Generally, the First Amendment protection ofspeech attaches to activities where
the free exchange of information or content is principally at issue, but
Bernstein stretches its analysis of the communicative qualities of source code
by distorting the task of the computer programmer.[237] In the court’s view, programmers do not just
program technological devices; rather, they write code that expresses ideas
about technology.[238] In this light, one could hardly logically disagree that
the First Amendment should protect the programmer’s task.[239] Even so, attributes of source code are
analytically distinct from the programmer’s task, and the Court’s analysis may have
fallen short of recognizing the distinction.
C. Computer diskettes are munitions.
The Karn
case arose out of the Federal government’s designation of Philip Karn’s
computer diskette as a “defense article” pursuant to the Arms Export Control
Act (AECA), 22 U.S.C. § § 2751-2796d,
and the International Traffic in Arms Regulations (ITAR), 22 C.F.R. § § 120-130.[240]
Karn
alleged that the government’s designation of a diskette containing source codes
for cryptographic algorithms as a defense article subject to the export
controls set forth in the ITAR, when the defendant deemed a book containing the
same source codes not subject to said export controls, is arbitrary and
capricious and an abuse of discretion in violation of the Administrative
Procedure Act (APA), 5 U.S.C. §
706(2)(a).[241] Karn also alleged that the regulation of the diskette
violated his First Amendment right to freedom of speech and arbitrarily treated
the diskette differently than the book in violation of the plaintiff’s Fifth
Amendment right to substantive due process.[242]
On
February 12, 1994, Karn submitted to the Department of State a commodity
jurisdiction request for the book Applied Cryptography, by Bruce Schneier.[243]
The book, Applied Cryptography, provides, among other things, information on
cryptographic protocols, cryptographic techniques, cryptographic algorithms,
the history of cryptography, and the politics of cryptography. Part Five of
Applied Cryptography contains source code for a number of cryptographic
algorithms.[244]
On March
9, 1994, Karn submitted a commodity jurisdiction request for a diskette
containing the source code printed in Part Five of the book, Applied
Cryptography.[245] The request stated
that “the diskette contains source code for encryption software that provides
data confidentiality” and that “the software on this diskette is provided for
those who wish to incorporate encryption into their applications.”[246]
Karn
contended that pursuant to sections 125.1 and 120.11, the diskette is in the
“public domain” and therefore is not subject to the ITAR. The government
contended that the diskette does not fall within the “public domain” exemption
because said exemption only applies to “technical data” which, according to the
defendants, does not include cryptographic software.[247] In this regard, the government’s position
was consistent with the positions in Junger and Bernstein. The Court determined
that Karn’s interpretation of the regulations at issue was “strained and
unreasonable.”[248]
In the
Court’s view, it is far more reasonable to read § 2778(a)(1) and (h) to
preclude judicial review for the designation of items as defense articles
pursuant to the language of the munitions list and the procedures provided for
interpreting the list, all set forth in the ITAR—in other words, if the defendants
follow the procedures set forth in the ITAR and authorized by the AECA for
designating an item as a defense article, such item is a part of the munitions
list. As such, the Court concluded that
the legislative scheme supported its view that Congress had precluded judicial
review of the commodity jurisdiction procedure.
According
to the Court, judicial non-reviewability of the defendants’ commodity control
decision was consistent with the structure of the United State’s export control
scheme.[249]
Likewise,
the Court found the regulation of Karn’s diskette as cryptographic software is
rational, even when considered in conjunction with the government’s decision
not to subject the book Applied Cryptography to the ITAR. Karn conceded that using the source code in
Part Five of Applied Cryptography to encode material takes greater effort and
time than using the Karn diskette. In this respect, the Court concluded that
treating the book and diskette differently is not in violation of the
plaintiff’s substantive due process rights.[250]
Despite
their inconsistent outcomes, the encryption cases do agree on a few significant
and relevant concerns. They all agree that books, academic writings, and papers
can be exported without a government license, because they are “protected
speech” under the First Amendment. Karn
and Bernstein agreed that although the AECA and the EAA/ EAR bar judicial
review of the designation of encryption items as defense items, they do not bar
constitutional claims regarding the regulations themselves. More important, all three cases have
maintained the view that source code contains some expressive qualities that
warrant government restrictions affecting source code being subject to
intermediate level scrutiny by courts.
Most
notably, the courts disagreed over the outcome of whether the government
regulations constituted valid restrictions upon the plaintiffs’ First Amendment
rights and whether the exports of encryption were expressive or functional.
Karn found that the ITAR regulations were content neutral and justifiable
restrictions under the O’Brien test and that it did not have to decide whether
the regulations constituted a prior restraint on the First Amendment. Likewise, Junger found that encryption
exports were only occasionally expressive and therefore not protected by the
First Amendment and also that the regulations themselves were content neutral
and satisfied the O’Brien test.
Bernstein however, decided that even if the regulations were content
neutral, the encryption system was pure speech that could not be limited by a
prior restraint without establishing sufficient safeguards.[251]
Although
the encryption cases leave important questions unresolved, they support the
narrowing of the scope of copyright protection for computer source code. The
cases reinforce this conclusion at a time when it is becoming more apparent
than ever that the idea/expression dichotomy of copyright law has failed to
provide adequate protection to free expression and the public domain in the
context of digital technologies like computer software. The idea/expression dichotomy neither serves
as a proper limiting doctrine for source code nor fulfills the overriding
objective of copyright to promote broad public availability of computer
software by encouraging and rewarding creativity and innovation.[252]
Despite
its deficiencies, the idea-expression distinction has been particularly popular
as a judicial tool for alleviating perceived tension betweenfirst amendment
andcopyright interests. As noted supra, many courts have used the distinction
to denyfirst amendment claims by simply stating the proposition that ideas are
notcopyrightable and summarily dismissing the apparentconflict without
elaboration.
Nonetheless,
judicial analysis has often failed to acknowledge that idea and expression
often merge, becoming virtually indistinguishable. This problem is particularly
acute in the area of graphic works, where the visual impact of a photograph,
for example, may be inseparable from the idea.
More
important, both case and comment have ignored the situation in which no degree
of creativity or effort can substitute for the duplication of the particular
expression of another. Of course, the first amendment has not been construed as
absolute. However, the idea of a
government sanctioning burdensomelicensing regime on free speech is repugnant
to the very notions of lively and robust debate, which underlie the first
amendment. Information is not a
commodity for ransom, but a resource for societal progress and personal
edification. Viewed in this light, compulsory licensing is objectionable when
the full weight of the licensing scheme is directed toward an artifact of free
speech, and has the effect of becoming so onerous that it prevents a speaker
from communicating with an audience.
Courts
can no longer rely on a variety of flawed exceptions to copyright law to ensure
the free flow of information in today’s technologically-oriented
world.[253] By granting authors the
exclusive right to reproduce and distribute their original expression, the
Copyright Act allows some authors and copyright holders to use copyright as a
means to suppress facts as well as expression.[254] The limiting doctrines of copyright should not be distorted to
permit government-issued monopolies on what is supposed to be original
expression to implacably continue to define out of or remove from the public
domain and marketplace of ideas common methods of expressing computer
instructions in source code.
VII. CONCLUSION
A. Courts should be freed from reliance on
incoherent distinctions between copyrightable and uncopyrightable aspects of
computer programs.
Courts
apply the so-called “idea/expression dichotomy” to limit the expansion of
copyright from crossing into the province of the First Amendment. In doing so, courts have used the test to
deny awarding damages in copyright infringement actions when the elements of
the disputed work constitute ideas, not expression. In applying the dichotomy,
courts have often struggled to draw principled distinctions between
copyrightable expression and the so-called basic ideas underlying copyrightable
expression, particularly when the “expression” subject to a court’s analysis is
contained in computer programs. The
analytic limitations of the idea/expression dichotomy are considerable and
courts frequently misunderstand how to apply its various manifestations.
Whatever
the reasons for the prior reliance on the dichotomy, the encryption
decisionsare compelling indications that the time has come for courts to put
aside and replace the amorphous and ineffective dichotomy; this is particularly
true in the context of copyright infringement actions involving computer source
code.
B. Open source code is an artifact of the public
domain
The
open source code movement represents a global movement that is successfully
challenging the contemporary proprietary model of software development with a
model in which “openness” is considered a virtue in software development.
Open
source code programming both may produce superior products (as a result of
input from potentially hundreds of programmers) as well as reinforce market
competition by precluding “lock in” to proprietary technology. In this respect, open source programming
eschews the development of proprietary source code products in favor of
software products that contain freely available source code. Software development is becoming, largely,
an open and shared process in Cyberspace.
This
new programming paradigm acknowledges that: good programmers know what to
write, and great programmers know what to rewrite (or reuse). Open source code programmers are more likely
to efficiently and openly reuse code than traditional programmers, not simply
because they are always guaranteed access to the entire source code, but also
because they need not waste resources keeping their code secret either to
protect an intellectual property interest or, worse, to avoid apparent notice
that their software creation efforts violate the intellectual property interests
of others. As such, source code is
suitably recognized as an artifact of
the public domain.
C. Source code rarely should be regarded as a
category of expression created as a result of independent, and hence, original
authorship
The
digital age has brought along a notably critical challenge for copyright: how
to continue the vitality of copyright protection in an environment where
violations of copyright are not only rampant and disgorging, but also
undermining of the very basis of the copyright regime. To date, the short answer to this perplexing
question has been the support of an implacably expanding reach of
copyright.[255] Like a nine-headed
Hydra, the reach of copyright is growing in parallel to the presumed threat
that digital technologies and Cyberspace seem to place upon the legal
regime. Since digital works must be
copied to be used, these technologies will inevitably require courts and
Congress to confront the conflict between copyright and the First Amendment in
a straightforward manner. To date, no
clearer example of this confrontation has arisen than in the context of the
encryption debates.
Viewing
computer source code as an artifact of the public domain suitably reinforces an
important goal of copyright; namely, that the government grant copyrights in
works to meaningfully motivate the creative activity of authors in a manner
that ultimately ensures public access to the products of an author’s
creativity. In this regard, copyright law should permit the unfettered access
to public domain material by protecting source code authors from copyright
infringement when the elements of a work at issue in an infringement action are
the artifacts of the public domain.
Thus, courts adjudicating copyright infringement actions involving
computer software should undertake a thoroughgoing reassessment of the limiting
principles of copyright law, recalibrate the boundaries and the scope of
copyright protection for software, and rarely regard source code as a category
of expression created as a result of independent, and hence, original
authorship.
·
Cite
as “Rod Dixon, When Efforts to Conceal May Actually Reveal: Whether First
Amendment Protection Of Encryption Source Code and the Open Source Movement
Support Re-Drawing The Constitutional Line Between the First Amendment and
Copyright, 1 Colum. Sci. & Tech. L. Rev. 3, (Sep 28, 2000) <http://www.stlr.org/cite.cgi?volume=1&article=3>.”
** Rod
Dixon, Senior Attorney, U.S. Department of Education and Visiting Assistant
Professor of Law, Rutgers University School of Law - Camden (LL.M. 1998
Georgetown University Law Center, J.D. 1992 George Washington University Law
School, M.A. 1986 University of
Pittsburgh, B.A. 1984 University of Pittsburgh). I am thankful for the helpful assistance provided by the editors
and staff of the Columbia Science and Technology Law Review. In addition, I am indebted to Richard Stallman
for providing thoughtful comments during the development of this article.
[1]
Source code is a set of symbols governed by lexical rules that computer
programmers use to instruct computers to perform certain actions. Joseph Weber, Using Java 1.1, Third Edition,
at 74 (1997).
[2] This
is not a trivial statement; its fulcra turn on the many approaches to
determinations of what it means to say that a given form of communication or
communicative event has constitutional value.
See, e.g., Roth v. United States, 354 U.S. 476, 484, reh’g. denied, 355
U.S. 852 (1957) (essentially declaring that obscenity is a form of speech that
lacks constitutional value). Although
this article takes as its starting point the conclusion that source code is
speech, the conflicting legal opinions in the encryption cases amply support
that the question of what degree of constitutional value source code properly
warrants contains nuances of complexity.
Nonetheless, the focus, here, is in the context of copyright
jurisprudence, where the application of copyright protection to expressions,
but not to ideas, operates to limit the reach of copyright at the
constitutional line of the First Amendment.
[3] A
panel of the Ninth Circuit upheld the district court’s finding that computer
source code is speech protected by the First Amendment. Although the Ninth Circuit granted the
Federal government’s request for a rehearing en banc and subsequently withdrew
the panel’s opinion, the view that computer source code may represent the
expression of ideas by those who can read and understand the language of computer
programming remains the law of this case as well as the law of the only other
two cases to have considered the question.
Cf. Junger v. Daley, 8 F.Supp.2d 708 (N.D.OH. 1998) (acknowledging expressive elements in source code) and Karn
v. U.S. Dep’t of State, 925 F. Supp. 1,
9 (D. D.C. 1996) (assuming that
computer source code is protected by the First Amendment) with Bernstein v. U.
S. Dep’t of State, 922 F. Supp. 1426,
1436 (N.D. Cal. 1996) (holding that source code is speech).
[4] A
computer language is a systematized formation of signs and symbols used to
construct a computer program that can send instructions to a machine. A
computer program is a set of instructions to a computer. See generally, M.
Keplinger, Computer Software—Its Nature and its Protection, 30 Emory L.J. 483,
484-85 (1984) (source code is “a set of statements or instructions to be used
directly or indirectly in a computer in order to bring about a certain
result”). Source code ultimately controls
the software and hardware that taken together function as computers. Computers
are digital technologies, and, as such, can be used to efficiently express
vastly different forms of information - such as factual databases, audio
recordings, or electronic mail messages -
using bits of data in the form of computer 0s and 1s. Bits (or binary
digits) are essentially the smallest and most fundamental units of digital
technology data; each bit has a value of 0 or 1. The bits 0 and 1 represent off
and on switches, which measure the presence or absence of electrical voltage in
any given memory register of the computer. Since binary digits enable fairly
easy digital expression and digital technology significantly expands the amount
of data that can be processed on a single silicon chip, computers have become
the format of choice in electronics.
Rod Dixon, Profits in Cyberspace: Should Newspaper and Magazine
Publishers Pay Freelance Writers for Digital Content? -- Tasini v. New York
Times, 4 Mich. Telecomm. & Tech. L.
Rev. 127 (1998).
[5] This
is not to say that a Writing may not be subject to First Amendment and
Copyright protection. Rather, the point
is that the limiting doctrines of
copyright circumscribe the conditions under which a work or aspects of a work
may be protectable speech, but not (or no longer) copyrightable. See, e.g., Bridge Publications, Inc., v.
F.A.C.C.T. Net, Inc., 183 F.R.D. 254, 262 (D.Colo. 1998) (once a work is
injected into the public domain, it remains there); Dow Jones & Co. v. Bd.
Of Trade of City of Chicago, 546 F.Supp.
113, 116 n.5 (S.D.N.Y. 1982) (once a work enters the public domain, all
of its copyright protection is lost permanently). More important, to say that
source code is speech is to say that
source code essentially is a caldron of ideas.
In this respect, it is apparent why protecting source code under
copyright intrudes upon First Amendment interests.
[6]
Congress enacted the first federal copyright statute in 1790. Act of May 31,
1790, §§ 1 and 3, 1 Stat. 124-125. Of course, the source of the law of copyright
is Art. I, § 8, cl. 8 of the U.S. Constitution.
[7]
Although courts and even many commentators are often apt to repeat the Supreme
Court’s epigrammatic jingle that “copyright is the engine of free expression,”
in practical use, copyright is both a shield and sword. It limits and enhances free expression.
Copyright is used to temporarily protect an author’s expression from use by
others – and, thus, disrupt the
expressive efforts of others – through the
granting to copyright owners of a government-protected monopoly on
words, images, sounds, and similar modes of communications.
[8]
Apparently, courts were convinced, without the guidance of Congress, that
copyright protection extended to a computer program’s source and object codes.
See, e.g., Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 n. 3 (2d
Cir.1982) (noting prior protections of source code). In step with the lead of courts, Congress amended the Copyright
Act in 1976 to include, inter alia, the
First Amendment test limiting the reach of copyright to expressions, not
ideas. 17 U.S.C. § 102(b). Section 102(b) provides: “[i]n no case does
copyright protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery,
regardless of form in which it is described, explained, illustrated, or
embodied in such work”. This provision is generally considered Congress’
expression of its desire to codify the idea/expression dichotomy. See also, Computer Associates Int’l v.
Altai, Inc., 982 F.2d 693, 703 (2d Cir.
1992). Despite occasional evidence of the contrary,
the
idea/expression
dichotomy – in name – is only a shorthand
reference
and should not be understood literally as
extending
copyright solely to expressions that are either devoid of content or that lack
ideas.
[9] 17
U.S.C. § 102(a)(1) extends copyright protection to “literary works,” and
computer programs are classified as literary works for the purposes of
copyright. See H.R.Rep.
No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.Code
Cong. & Ad.News 5659, 5667. Of
course, copyright in a work can be
infringed, without reference to the idea/expression dichotomy, when there is
substantial similarity between two works’ literal elements. One can also violate the copyright of a play
or book by copying its plot or plot devices.
See, e.g., Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327,
1329 (9th Cir.1983) (plot similarities between Battlestar Galactica
and Star Wars may be basis for a finding of copyright violation).
[10] To
some degree, the idea/expression dichotomy is a doctrine that merely creates a
definitional landscape by artificially drawing a curtain over “ideas” in order
to maintain “expression” as the province of copyright. As such, the question of how to distinguish
an idea from an expression often is not satisfactorily answered; instead, the
question is recast as having to do with traditional notions or definitions of
expressive output.
[11] 17
U.S.C. § 201(a) (1988 & Supp. IV 1993).
A “work” is fixed “in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the author,
is sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of more than transitory duration.” 17
U.S.C. § 101 (1996). Copyright does
not extend to any “idea, procedure,
process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or
embodied in such work.” 17 U.S.C. §
102(b) (1996).
[12] The
idea/expression dichotomy is by no means troublesome only in the context of
software. More than just a few commentators have found the notion that an idea
and its expression may be parsed with the precision required by the
jurisprudence of copyright to be sophistic, at best, and, perhaps, more
appropriately, intellectually objectionable.
Perhaps, the better argument is that the meaning or idea conveyed by an
expression may be rooted in a combination of linguistic and interpretative
phenomena, including analytical pragmatics, semantics, and syntax, as well as
other structural, contextual, and logical interpretative considerations. The intricacy in which meaning is tied to
language renders the task of separating an idea from its expression a highly
dubious endeavor. See, e.g., Neil Smith and Dierdre Wilson, Modern Linguistics:
The Results of Chomsky’s Revolution, 170-171 (1980). No less an authority on legal doctrine than Judge Learned Hand is
said to have concluded that a court’s distinction between an idea and its
expression will “inevitably be ad hoc.”
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir.1960). Thus, the doctrine may have no principled basis.
[13]
Commentary on the impact of Cyberspace on speech rights and intellectual
property interests is now abundant. See, e.g., Douglas J. Masson, Comment,
Fixation On Fixation: Why Imposing Old Copyright Law On New Technology Will Not
Work, 71 Ind. L.J. 1049, 1052 (1996); Niva Elkin-Koren, Copyright Law and
Social Dialogue on the Information Superhighway: The Case Against Copyright
Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345
(1995); Jane C.
Ginsburg,
Putting Cars on the “Information Superhighway”:
Authors,
Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995); I. Trotter Hardy, The Proper Legal Regime
for “Cyberspace,” 55 U. Pitt. L. Rev. 993 (1994);
Pamela
Samuelson, Legally Speaking:
Copyright’s Fair Use Doctrine and Digital Data, Comm. ACM 37: 21 (Jan.
1994);
Raymond
T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information
Superhighway: Requiem for a Middleweight, 6 Stan. L. & Pol’y Rev. 25
(1994); Information Infrastructure Task Force, Intellectual Property And The
National Information Infrastructure: A Report Of The Working Group On
Intellectual Property Rights,
<http://www.uspto.gov/web/offices/com/doc/ipnii/index.html >(visited Apr.
25, 1995) (in the world of intellectual property, this document is commonly
referred to as The Green Paper).
[14] As
noted more fully below, many of the recent changes in computer software
development support the conclusion that courts need not rely upon inconsistent
and incoherent distinctions between copyrightable and uncopyrightable aspects
of computer programs in adjudicating copyright infringement actions. In this
respect, viewing computer source code as an artifact of the public domain
suitably reinforces an important goal of copyright; namely, the motivation of
the creative activity of authors – through which public access to the products
of an author’s creativity may be assured by advancing public access to works
and supporting the continued vitality of the public domain.
[15]
“Copyleftist” is a short hand reference to the members of the faction of the
open source code movement whose participants do not oppose proprietary use of
open source code projects as long as the software applications are
copylefted. As noted more fully below,
copylefting a software application involves distributing source code with a
so-called public license that essentially dislodges the exclusive rights
granted to a work by copyright. The
terms of the public license prematurely pushes the source code into a public
commons. In other words, copyright is
turned on its head, hence, the term, copyleft.
[16]
Although the formulation of the idea/expression dichotomy is largely inadequate
for the purpose for which it is directed, the principles upon which the
dichotomy is based are not only consistent with recognizing a First Amendment
limitation on the scope of copyright, but also consistent with the goals of
copyright, itself. In this regard, it
is noteworthy that a basic purpose underlying the idea/expression distinction –
as it applies to software – is to allow copyright protection beyond the literal
computer code, and provide the proper incentive for programmers by protecting
their most valuable efforts, while not giving the copyright holder a
stranglehold over the development of similar software programs that accomplish
the same end. See, e.g., Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d
738, 742 (9th Cir. 1971) (The idea of a jeweled bee pin was held to
be inseparable from the expression of the idea and thus this ‘stranglehold’ by copyright
was held invalid). Moreover, while the
idea/expression dichotomy in its actual application is of dubious use as a
proxy for First Amendment analysis of the scope of copyright protection for
computer source code, its value in other contexts is less open to doubt.
[17]
See e.g., Alfred C. Yen, A First
Amendment Perspective On The Idea/Expression Dichotomy And Copyright In A
Work’s “Total Concept And Feel,” 38 Emory L.J. 393 (1989) (reliance on the
idea/expression dichotomy to reconcile copyright with the First Amendment is
unjustified).
[18]
Related to the idea/expression dichotomy is the scenes a faire doctrine. Scenes
a faire are incidents, characters or settings, which are as a practical matter
indispensable in the treatment of a given topic. Atari, Inc. v. North American
Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir.), cert.
denied, 459 U.S. 880 (1982). The scenes
a faire doctrine, like the idea/expression dichotomy, is a limiting doctrine
that essentially permits the artifacts protected by the doctrine to be freely
used by an author. Scenes a faire are
afforded no copyright protection.
Id. (citing Reyher v. Children’s
Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976), cert. denied, 429 U.S.
980 (1976).
[19]
Indeed, the notion that a court (or anyone else, for that matter) can separate
an idea from its expression seems to beg for judicial invention. It is a fundamental linguistic principle
that we grasp ideas through expression; an idea cannot exist apart from
expression. Although, in some
metaphysical sense, expressions refer to ideas outside themselves, there is an
intimate tie between expressions and ideas that the act of untying
substantially disturbs. In other words,
expressions are coefficients of ideas that are not easily subjected to the
anachronistic tools of the idea/expression dichotomy. See, e.g., Georges Gusdorf, Northwestern University Studies in
Phenomenology and Existential Philosophy, Speaking (La Parole), (1965) (for an
interesting view on how existential phenomenologists consider the conjunction
of expressions and ideas as a constitutive element of human reality that cannot
be meaningfully separated in the context of the human experience).
[20]
Under the dichotomy, copyrightability is considered in the context of an
infringement action. Apple Computer,
Inc. v. Franklin Computer Corp., 714
F.2d 1240, 1253 (3d Cir. 1983) (by
excluding copyright expression in computer code dictated by the external
factors of computer hardware from protection against infringement, copyright
law secures for public use those elements of computer code incidental of ideas
underlying the software).
[21]
This is a shorthand reference to the Bernstein, Karn, and Junger
decisions. As noted infra, these
decisions are not in agreement over the degree of First Amendment protection to
extend to computer source code, nor do they agree as to the appropriate
standard of review to apply to the Federal government’s regulation of
encryption source code. Each court’s
determination remarkably exposed that the source code of a computer programmer
has a communicative dimension. Notably, although the Junger and Karn courts
suggest that some uses of source code may override the communicative dimension
of source code—such as when encryption source code is exported in digital form
or as digital media -- those uses are
not relevant in the adjudication of copyright infringement. Instead, the relevant inquiry, under
copyright, is, initially, whether there are aspects of the plaintiff’s source
code that must be filtered out of the litigation because they are First
Amendment ideas (not expressions) or artifacts of the public domain. In this regard, the encryption cases are
instructive; these cases support the view that source code contains a great
deal of stock ideas, perhaps far more than had been previously considered by
courts adjudicating copyright claims and, as such, entirely or predominately
consist of uncopyrightable expression.
This follows, not just from the fact that source code largely contains
uncopyrightable methods and procedures, but also from the fact that these
procedures and methods are arranged by pre-established programming conventions.
[22]
Although, conceptually, the application of the dichotomy to source code is
suspect for reasons already noted, it is its use by courts that has been most
troublesome. The idea/expression
dichotomy, along with its distinct subsisting tests – such as the
abstraction-filtration-comparison test, is a tool that courts once called upon
to assist them to identify protectable copyright expression, but have since
become beholden to as a proxy for the constitutional analysis. See
Mitel, Inc. v. Iqtel, Inc., 896 F. Supp. 1050, 1055 (D.Colo. 1995).
[23] The
Federal government sought and obtained a rehearing en banc of Bernstein before
the Ninth Circuit. In addition, in
September 1999, the Clinton administration announced that its policy toward
restricting the export of encryption technologies will be “substantially relax[ed]”
when the Department of Commerce issues new export regulations. Curbs on Export
of Secrecy Codes Ending, Wash. Post, September 17, 1999, at A1. It may be that the Federal government is
determined to achieve its objectives regarding the regulation of encryption
products through the enactment of new legislation (the Department of Justice is
supporting the proposed Cyberspace Electronic Security Act of 1999). Id. Notwithstanding these recent developments,
the government continues to regulate encryption technologies, and it does so in
a manner that formed the basis of Bernstein’s complaint. More important, the question addressed,
here, arises more directly from the assumptions by all of the encryption cases;
namely, that source code creation is the result of mathematicians, software
engineers, and computer programmers culling together from the public domain
various functions, subroutines, algorithms, and statements in accordance with
the syntactic rules of a given programming language. In this regard, the proper
level of First Amendment protection that is accorded source code is not
directly implicated by the focus of this article. Even so, whatever the outcome
of the Bernstein litigation, it is doubtful that the Ninth Circuit will have
the final say on this matter. Many
commentators have opined that given the importance of the First Amendment
question in Bernstein as well as the fact the Sixth Circuit and the D.C.
Circuit will soon weigh in on the same issue, it is quite likely that the issue
will come before the U.S. Supreme Court shortly.
[24] As
pointed out infra, whether the Junger and Karn courts relied upon a sleight of
hand to side-step the admittedly complex constitutional question concerning the
First Amendment status of computer source code is subject to dispute;
undoubtedly, focusing a court’s attention on whether the government may
regulate the export of encryption source code rather than upon whether the
regulation of encryption source code through a federal licensing scheme
violates the First Amendment could lead to distinct results in a court’s
analysis of what is at issue. Though finding, as in Bernstein, that encryption
source code is speech, the court, in Karn, rejected Karn’s claims and upheld
the constitutionality of the AECA and ITAR on the grounds that they furthered
an important or substantial governmental interest. In addition, the court rejected his argument that the ITAR
constituted a prior restraint on free speech since the regulations were
content-neutral. At odds with Bernstein, Junger granted summary judgment in
favor of the government, holding that the First Amendment did not protect the
export of encryption source code on the Internet.
[25]
Interestingly enough, the question of whether the source code is expressive or
merely functional is reminiscent of the debate concerning whether source code
is copyrightable. See generally, Raymond T. Nimmer, The Law of Computer
Technology 1.0 (rev. ed. 1992).
[26] All
of the encryption decisions, of course embrace this conclusion, but do so with
differing levels of enthusiasm.
[27]
This is consistent with the Supreme Court’s analysis in Feist Publications
Inc., v. Rural Tel. Serv. Co., where the Court required “some minimal degree of
creativity,” or a “minimal creative spark” before finding copyrightability in a
compilation of a telephone book’s white pages.
499 U.S. at 362, 363 (1991).
[28]
Notably, excluding copyright protection in source code is not tantamount to
eliminating software programs from the scope of copyright protection. Computer
software, like a book or a screenplay, may contain both copyrightable and
uncopyrightable aspects. A computer program’s screen output may be
copyrightable, although the source code would not be. See, e.g., Gates Rubber Co., v. Bando Chem. Indus., Ltd., 9 F.3d
823 (10th Cir. 1993).
[29]
This article does not address object code – except to say, as developed more
fully below, for some computer languages, the presence of object code is a
trivial or inconsequential matter; admittedly, object code may present its own
set of uniquely difficult questions for copyright. 17 U.S.C. § 102(b).
[30]
Section 102(b) of the Copyright Act also specifies limitations of the scope of copyright, however, due to the
complexity of contemporary infringement actions, courts often must apply
judicially crafted limiting doctrine, rather than rely upon the plain language
of the statute.
[31] A
singular mode of expression means there is one precise way to say something.
Not surprisingly, as identified more fully, below, the need to be precise in
the use of computer languages limits creative expression in source code; there
may be only a singular precise way to code a given scientific expression.
[32]
Since courts have long held that software programs contain both literal and
nonliteral elements subject to copyright protection, it is highly doubtful that
removing source code from the copyrightable aspect of a computer program would
have a perceptible adverse impact on Congress’ ability to promote the progress
of computer science, should such congressional action be considered necessary.
[33]
Some have argued that the incentives the law of copyright provides are solely
those of the author, not the public.
See generally Mitel, Inc. v.
Iqtel, Inc., 896 F. Supp. 1050 (D.
Colo. 1995). Nonetheless, there are more than sufficient instances
demonstrating that in the context of technology, and perhaps beyond, authors
would create works without the protection of copyright. Indeed, scientific works, although subject
to patent protection, may be outside the scope of copyright entirely. Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948)
(copyright law recognizes no claims for scientific inventions). Perhaps the best proof lies within the
Copyright Act, itself, wherein it excludes expression such as business forms
and type fonts from copyrightability, yet, authors continue to create such
works for compensation.
[34] At
first blush, some may find this conception of copyright to embrace a perverse
notion of incentive. Why would an
author, one might say, create a work without compensation for each copy? The short answer is that authors create such
works frequently; notably, employees, under the work-for-hire doctrine, do not
retain copyright interests in the works they create. In addition, the open source code movement challenges prior
assumptions as to what establishes sufficient incentive for authors to create
works. More directly, software programs
contain other aspects that may be suitable to copyright protection, including
output, screen interface, program design, and graphical images.
[35] See
e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in
Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970).
[36] It
is not surprising that many disputes in Cyberspace involve claims arising from
or in defense of freedom of speech.
This article examines one aspect of the freedom of expression debate
arising, in part, in Cyberspace; namely, whether the extension of First
Amendment protection for source code will leave any challenge to the notion
that future copyright protection of computer source code is largely in doubt.
Perhaps, running contra to this position is a frequently mentioned and
increasingly popular rationale for copyright: the property right rationale. It
is based on the following assumptions: (1) granting property rights in a work
will allow the author to earn a profit, (2) the ability to earn a profit will
provide the author with an incentive to create, and (3) the more works that are
created, the greater the benefit to the public. See, e.g., Julie Cohen, A Right to Read Anonymously: A Closer
Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996)
(noting some of the implications of these assumptions). As noted in Part II.A., infra, the open
source code movement represents a frontal attack upon the continuing vitality
of those assumptions.
[37]See
1 Paul Goldstein, Copyright § 4.4.1.2 (1989); 3 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright 10.02, at 10-22 to 10-35 (1997).
[38]
Principled and conceptually based distinctions in the law of copyright are not
without their apparent contradictions and compromises. Any complete commentary on contemporary
trends in the law of copyright must recognize that some doctrinal difficulty is
due to political compromise. It is
unremarkable to acknowledge that as a result of the growing demand for digital
content, copyright owners are in a race to try and get Congress to pass laws
that benefit one group over another. See, e.g., David Landis, Catching Some
Entertainment, in Bits and Pieces, USA Today, Aug. 25, 1994, at 8D (quoting Jay
Berman, President of the Recording Industry Association of America).
[39]
This fundamental right, like all rights, is not without its exception or
counter-balancing interests.
Nonetheless, the free expression of ideas is a First Amendment precept.
[40]
Often, when copyright infringement is alleged, courts must balance the
constitutionally competing aims of promoting human creativity and original
expression through the strict enforcement of the copyright law with ensuring
that broad copyright protections do not unfairly or unnecessarily prevent the
development of our knowledge base -- particularly, the nation’s development of
practical uses of information. See,
e.g., Rod Dixon, Profits in Cyberspace: Should Newspaper and Magazine
Publishers Pay Freelance Writers for Digital Content? -- Tasini v. New York
Times, 4 Mich. Telecomm. & Tech. L. Rev. 127, 140 (1998).
[41]
U.S. Const. art I. § 8, cl. 8.
[42] The
paradox is that the public can only benefit if it has access to a work. Access
is restricted, at least for a limited time, by granting the author property
rights in her work, for only by restricting access can the author charge users
and earn a profit. See generally Jessica Litman, The Public Domain, 39 Emory
L.J. 965 (1990). The artifacts of
Cyberspace are largely intellectual property, and the owners of the
intellectual property have a right to control how their property is
communicated. In this respect, despite
the open and public nature of Cyberspace,
it is the province of an inherent and basic tension flowing from the
goal of access to information between those that communicate and those that own
the artifacts of communication. Of
course, reliance on copyright law is not the only manner an author may reliably
restrict access to his work. She may, for instance, license use of her computer
software. Or, she may rely upon technological barriers—often referred to as
digital copyright management systems—to prevent unfettered access to her works.
Notably, some authors use a variety of factors to restrict public access to a
given work, but as noted in Part II.C., infra, the open source code movement is
forestalling this previous trend.
[43] To
be an author under the law of copyright, an artist or software developer must supply more than mere direction or
ideas; he must ‘translate an idea into a fixed tangible expression entitled to
copyright protection.’ Community for
Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
[44]
“Original,” is a term of art in copyright; it means only that the work was
independently created by the author (as opposed to copied from other works),
and that it possesses at least some minimal degree of creativity. 1 M.
Nimmer & D. Nimmer, Copyright § §
2.01[A], [B] (1990). Originality
does not signify novelty; a work may be original even though it closely
resembles other works so long as the similarity is fortuitous, not the result
of copying. See Sheldon v.
Metro-Goldwyn Pictures Corp., 81 F. 2d 49, 54 (2d Cir. 1936). Originality is a constitutional
requirement. The source of Congress’
power to enact copyright laws is Article I, §
8, cl. 8, of the Constitution, which authorizes Congress to “secure for
limited Times to Authors ... the exclusive Right to their respective Writings.”
In this regard, it is thought that the Constitution mandates some – albeit minimal – degree of creativity; an
author who claims copyright
infringement, therefore, must prove the existence of independent intellectual
conception.
[45]
Once almost the exclusive province of military and governmental bodies,
cryptography is now increasingly available to businesses and private
individuals wishing to keep their communications confidential. See Bernstein v. United States Dep’t of State, 974 F. Supp. 1288, 1292 (N.D.
Cal.
1997).
[46] To
keep their communications confidential, users encrypt and decrypt
communications, records and other data.
Through encryption, users seek to prevent the unauthorized interception,
viewing, tampering, and forging of such data.
Without encryption, those other than the intended recipient may view a
sender’s private or personal messages.
Through encryption human-readable text of a message or document (also
known as “plaintext”) is transformed into a text (known as “ciphertext”) that
the sender and recipient intend third parties not to understand. “Decryption,”
simply stated, is the reverse process of transforming the ciphertext message or
document into the original plaintext.
[47]
Encryption software carries out a cryptographic algorithm, along with other
computations, that directs computer hardware to encrypt plaintext into an
encoded ciphertext. Mathematical functions or equations usually make up the
source code.
[48]
Despite many significant efforts by Congress and the courts, copyright doctrine
has never been suitably revised to faithfully accommodate the competing
interests and the complex questions raised by allowing authors to claim
copyright in digital technologies. See, e.g., Arthur R. Miller, Copyright Protection for Computer
Programs, Databases, and Computer-Generated Works: Is Anything New Since
CONTU?, 106 Harv. L. Rev. 977 (1993).
[49]
See, e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d
Cir. 1992) (holding that in a suit for copyright infringement, the plaintiff
must establish its ownership of a valid copyright, and prove that the defendant
copied the copyrighted work). In this case, the court had to decide what
non-literal elements of computer programs were eligible for copyright
protection and whether the scenes a faire doctrine protected the elements
copied by the defendant.
[50] A
notable exception to many general statements on source code would apply to
source code written in the various versions of Assembly computer language. Assembly is actually a rather powerful, but
cryptic, computer language that may be used to send terse instructions directly
to the computer’s hardware. An
unskillful Assembly language programmer could do a great deal of damage to a
computer because Assembly source code can execute instructions directly
affecting the hardware of a computer, which are not easily available to
programmers using high-level languages.
Most important, unlike source code written in high-level languages,
Assembly language source code closely approximates machine language and is
low-level. A program written in an Assembly language may be written so tightly
that it may run on only the machine the program was developed on. In this regard, the expressive qualities of
any source code necessarily should be considered dubious, when the computer
language used to write the source code closely approximates machine language.
See Peter Norton, Peter Norton’s Inside
the PC (6th ed. 1995) (machine language is binary).
[51]
Indeed, adding to the functionality of computer software by end users has
become so common that software developers encourage this practice through the
use of macros or programming interfaces like Microsoft’s Visual Basic for
Applications (VBA), which permits computer users to freely extend the
functionality of Microsoft’s desktop applications by altering the program’s
source code without the risk of infringing Microsoft’s copyright interests. See
generally Scott, Shannon, Font, Hatfield, et al., Visual Basic 4 Unleashed, at
20–21 (SAMS Publishing, 1995).
[52] See
Stimson Garfinkle & Gene Spafford, Web Security and Commerce 187-208
(1997).
[53]
There are two basic and widely available types of encryption systems: private
key – or secret key or symmetric key –
and public key (or asymmetric key) encryption. In a private key encryption
system, the key used to encode the
information that is sent to the recipient, is the same key used to decode the
encrypted message. The principal drawback to a private key encryption is the
risk incurred in sending the key to the intended recipient. Key management is
essential; the sender and recipient must use another, secure channel, or
protocol, to agree on and exchange a common key. Id. In a public key encryption system, there are two mathematically related keys: a private key and a
public key. Using a private key, one can encode a message that can only be
decrypted with that person’s public key. Alternatively, the person can use the
recipient’s public key to encrypt a message, which can only be decoded with the
recipient’s private key and no other. The risk to key security is thereby
reduced.
[54]
Simon Singh, The Code Book: The Evolution of Secrecy from Mary, Queen of Scots
to Quantum Cryptography, 10-11(1999).
[55]
Wayne Madsen, et al., Cryptography and Liberty: An International Survey of
Encryption Policy, 16 J. Marshall J.
Computer & Info. L. 475 (1998).
[56]
Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in
C 151 (1996) (Brute-force attacks usually require knowledge or access to
comparative samples of ciphertext and plaintext).
[57] See
generally Kenneth W. Dam, The Cryptography Wars, Wash. Post, July 23, 1996, at
A17.
[58]
Horst Feistel, Cryptography and Computer Privacy, Sci. Am., May 1973, at 15. Computer cryptography is treated as a
dual-use technology. Dual-use technologies are those that have both military
and civilian use. Many encryption technologies were once defined as “munitions”
and their export prohibited, but in 1996, encryption technologies were
transferred from the Munitions List of the AECA to the Commerce Control List
under the EAA. See Exec. Order No.
13,026, 61 Fed. Reg. 58,767, 68,572 (1996). Presently, the Commerce Department regulates all encryption technologies,
except those developed exclusively for the use of the military.
[59] Singh,
supra note 54,at 272–79.
[60]
Although recently subject to change, the current maximum penalties for
violating export licensing requirements for encryption source code range from a
one-million dollar criminal penalty and ten years in prison to a five-hundred
thousand dollar civil penalty and a three year export ban. See Steve Higgins,
Breaking U.S. Encryption Statute Could Be Costly, PC Wk., Feb. 8, 1993, at 1;
see also 22 U.S.C. 2778 ©(1988); 50 U.S.C. 2410 ©(1988).
[61] A
key system may be public or private.
Public key algorithms are designed to enhance the difficulty of deducing
the secret key from the public key and in deducing the plaintext from the
ciphertext. Although not a likely
concern for most individuals, one relative weakness in public key cryptosystems
is the potential that a private key may be derived by a cryptanalyst, who has
studied your ciphertext and has successfully implemented a ciphertext attack on
your messages. In such a scenario, your
messages will not only be able to be read at will, but the attacker can use the
generated private key to take on your identity and issue messages or engage in
other nefarious activities on your behalf.
[62] See
Rod Dixon, The Feds Should Act to Ensure Our Privacy Online, Computer World,
April 5, 1999. One troublesome aspect of the government’s encryption policy is
that it may be easily vitiated because of the borderless nature of cyberspace. A foreign company may purchase American-
produced 56-bit encryption technology off the Internet and then upgrade it in
their own country to 128-bit technology.
[63]
Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in
C, (1996). Key lengths in modern
encryption algorithms range in size from 40 to 128 bits. The approximate
difficulty of breaking an encrypted message by “guessing” the right key is
proportional to the number of possible key values. If the key is 8-bits long,
there are 256 possible keys. Therefore, it will take 256 attempts to find the
correct key, with an expected number of attempts of 128. If the key is 40-bits
long, the total number of keys is very large. Schneier estimates that a network
of 400 computers with fast commercially available chips, each capable of
performing 32,000 encryptions per second, can complete a “brute force” attack
against a 40-bit key in a single day. By comparison a 56-bit key provides
65,636 times as many possible key values as a 40-bit key. See Schneier, at 129-138.
[64]
Organizations in support of electronic communications privacy issues include,
but are not limited to, the American Civil Liberties Union, the Electronic
Frontier Foundation, the Privacy Coalition, the Electronic Privacy Information
Center, the Privacy Clearing House, Human Rights Watch, as well as numerous
encryption scientists. See also Anne Meredith Fulton, Cyberspace and the
Internet: Who Will be the Privacy Police?, 3 Comm. L. Conspectus 63 (1995).
[65] As
noted earlier, although the federal government’s encryption policy is
presumably based on the government’s interest in keeping the most powerful
data-scrambling, or encryption, software out of the hands of foreign criminals
or terrorists by setting low limits on the strength of encryption software that
can be licensed for export by software companies subject to U.S. laws, the
policy seems rather incoherent since more powerful encryption technology is
readily available from foreign software companies. See Jeri Clausing, Online
Groups Mount an Effort to Fight Clinton on Encryption, Ny Times, January 14,
1999, (discussing the battle over the effects of encryption technology) but
cf., Dan Lehrer, Clipper Chips and Cypherpunks, 259 Nation 376, 376 (1994)
(describing the use of a popular encryption program by an alleged child
pornographer to encrypt potential evidence of traffic in child pornography).
[66]
Many privacy advocates have attacked the administration’s encryption policy as
harmful to U.S. software companies and
in contravention of basic principles of personal privacy. While these points do not seem to be
misdirected, generally, privacy advocates have devoted a deal energy and
resources to thwarting the administration’s encryption policy. See Jeri
Clausing, F.B.I., Security Chiefs Ask Senate for all Keys to all Encrypted Data
(visited July 10, 1997) <http:// www.nytimes.com/library/cyber/week/071097encrypt.ht>
(stating that the director of the FBI, Louis B. Freeh, argued before the Senate
in support of a Clinton Administration plan for regulation of encryption by a
“key recovery” system or “trap door” mechanism to alleviate virtually
uncrackable codes for law enforcement in its effort to protect the nation from
“terrorism and organized crime in the next century”). Cf., Jeri Clausing,
U.S. Official Says Clinton Wants
Market-Driven Encryption Policy (visited Oct. 9, 1997) <http:// www.nytimes.com/books/sea...yberlib+17609+8+
wAAA+market-driv> (stating that the Administration’s key escrow plan is
calling for a key recovery mechanism to be built into government used
software).
[67] In
a poll of one thousand Americans, two-thirds found it more important to protect
the privacy of phone calls than to preserve the ability of police to conduct
wiretaps. When informed about the Clipper Chip, 80 percent said they opposed
it. See Philip Elmer-Dewitt, Who Should Keep the Keys?, Time, Mar. 14, 1994, at
90; John Mintz & John Schwartz, Chipping Away at Privacy?, Wash. Post, May
30, 1993, at H1 (describing the Administration’s contingency plan to ban
unescrowed encryption).
[68] See
John Markoff, Electronics Plan Aims to Balance Government Access with Privacy,
N.Y. Times, Apr. 16, 1993, at A1, A18.
[69] This point often is lost in the vituperative
debates on encryption. See Rod Dixon, The Feds Should Act to Ensure Our Privacy
Online, Computer World, April 5, 1999; Jed Rubenfeld, The Right of Privacy, 102
Harv. L. Rev. 737, (1989) (urging that privacy is a fundamental right limiting
the power of government).
[70] Law
enforcement agencies argue that unregulated encryption hinders their ability to
prevent crime. See Jill M. Ryan, Freedom to Speak Unintelligibly: The First
Amendment Implications of Government Controlled Encryption, 4 Wm. & Mary
Bill Rts. J. 1165 (1996). But, note that these concerns are not new and,
instead, represent a long-held position by the Federal government, which
significantly predates contemporary Cyberspace-based security issues. See,
e.g., Cryptographic Algorithms for Protection of Computer Data During
Transmission and Dormant Storage, 38 Fed. Reg.
12,763 (1973) (“The increasing volume, value and confidentiality of
these records regularly transmitted and stored by commercial and government
agencies has led to heightened recognition and concern over their exposure to
unauthorized access and use”).
[71]On
Jan. 14, 2000 the Federal Register published EAR amendments that implement the
White House’s Sep. 16, 1999 announcement on encryption; although any encryption
commodity or software, including components, of any key length can now be
exported under a license exception, a
technical review is still required for any non-government end-user in any country
except for the seven state supporters of terrorism. See 65 Fed. Reg. 2492 (Jan. 14, 2000). The new rules simplify U.S. encryption export rules.
[72] See
Evan R. Berlack & Cecil Hunt, Overview of U.S. Export Controls, in Coping with U.S. Export Controls 1994, at 11,
26 (PLI Com. Law & Practice Course Handbook Series No. A-705, 1994)
(arguing that the technically complex applications, and the many layers of the
federal bureaucracy that controls national encryption export policy, properly
characterizes the licensing scheme currently relied upon to manage the export
of encryption products). The export of
articles or services on the U.S. Munitions List is regulated by the DTC under
the ITAR. See 22 C.F.R. § 120.5
(1994). The DTC settles disputes regarding
whether an item is on the U.S. Munitions List according to the commodity
jurisdiction procedure, which determines whether the ITAR or the EAR will
apply. See 22 C.F.R. § 120.4 (1994).
[73]
More importantly, the Clinton Administration still strongly favors an escrow
public key-based encryption standard. Escrowed Encryption Standard (EES), which
theoretically will make it easier for the NSA to monitor Internet
communications as well as access computer stored information, involves three
keys: the session key, the chip key, and the family key. A. Michael Froomkin, The Metaphor is the
Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev.
709 (1995). If an individual
communicates by the Internet with another individual with corresponding
equipment, both individuals select a session key. The session key is then transmitted by sending a data stream
known as a Law Enforcement Access Field (LEAF). See Approval of Federal Information Processing Standards
Publication 185, Escrowed Encryption Standard (EES), 59 Fed. Reg. 5997 (Nat’l
Inst. of Standards & Tech. 1994);
See also Dorothy E. Denning & Miles Smid, Key Escrowing Today, IEEE
Comm., Sept. 1994, at 58.
[74] As
noted below, the movement includes a range of viewpoints and alternative
labels. The label “open source”
accurately captures the salient conceptual basis of the movement without
risking unnecessary confusion presented by the use of other terms.
[75]
Some adherents to the open source movement discourage the use of “open” as the
appropriate label to describe the goals and purposes of the movement. For some, the significance of using the
term “open” rather than “free” or perhaps “free(dom)” highlights two diverging
views of what open source is really about.
There is no dispute that open source challenges the proprietary
framework of software development and asserts that the current intellectual
property regime is misapplied with regard to software; those conjoining goals
notwithstanding, some open source supporters prefer to emphasize their
objective of developing software that grants users and other developers freedom
to use the works as they wish. These
views are most commonly associated with the Free Software Foundation, which is
managed by Richard Stallman. To some
extent, the free software movement,
unlike the open source movement, is attempting to do more than shift the
economic model of proprietary software development toward a more open
framework. According to Stallman, the
concept of “copyleft” grew out of the Free Software Movement. See E-mail correspondence between Rod Dixon
and Richard Stallman, (Feb. 4-8, 2000)
(on file with author). The distinction
is important because “Free Software is a political stand; Open Source is a
development methodology. That gives a
clear idea of the difference.” Id. Even so, the movement’s factionalism
represents differences of degree, rather than kind. Semantics aside, although Stallman’s group rightly emphasizes
that the new software paradigm is about a great deal more than deconstructing
inaccurate and archaic views on software development, no one in the movement
would suggest that software should be free, not sold. In this respect, it does seem more useful to label the movement
as an open source movement rather than a “free(dom)” software movement.
[76]
Open source software has essentially three important features distinguishing it
from other forms of software distribution like shareware, freeware, shrink-wrap
or general-off-the-shelf consumer software.
Open source software is distributed with the source code open to the
public for free use and carries a so-called public license precluding a
potential software developer from capturing the source code by “closing” the
source code. The general public
license (known as a “GPL”) allows users to sell, copy, and change “copylefted”
software programs - which can also be copyright protected - but the author must
pass along the same freedom to sell or copy her modifications and change them
further. The author must also make the source code of her modifications freely
available. In other words, open source software removes the usual restrictions
on what a user may do with the program imposed by copyright by (1) requiring
that the products developed as open source code software be distributed with a
GPL, (2) requiring that derivative or any product developed by modifiying the
original software product be distributed with access to the source code, hence,
open source, and (3) requiring that the derived program be distributed with a provision
in the GPL offering some degree of copyleft protection. To date, the GPL is not
known to have been subject to legal challenge.
[77] In
some ways, this paradigm shift could be predicated on the last shift; namely,
the adoption of object-oriented programming (OOP) re-oriented programming away
from procedures and toward objects. OOP
saved programmers time by increasing a programmer’s ability to create multiple
uses of pre-written code. See, e.g.,
Joseph Weber, Using Java 1.1 at 74 (3d ed. 1997). Regardless of a software author’s programming philosophy, the
interplay among economic, cultural, and technological forces of Cyberspace is
reshaping the course of how one does computer programming.
[78]
Some examples of successfully launched open source software include
well-regarded applications used in Cyberspace such as: Sendmail, the program
that routes over 80% of all email on the Internet; Perl, the programming
language that is used to write most of the common gateway interfaces (also
called “cgi”) or applications that enable most electronic commerce features on
many web sites; Apache, the most popular web server software run on web servers
connected to the Internet; BIND (or “Berkeley Internet Name Daemon”), the de facto software used to run the entire
DNS (the “Domain Name System”) server on the Internet; and perhaps the most
popular, Mozilla, the open code software used in the well known and widely used
Netscape browser. See generally Eric S. Raymond, The Cathedral & the
Bazaar:
Musings
on Linux and Open Source by an Accidental Revolutionary at 21-24 (O’Reilly ed.
1999). Although all of the
aforementioned programs are examples of open source projects, there is
considerable debate as to which programs are in substantial compliance with the
terms of the GNU GPL, which could be described as the constitution of open
source. The greater a program’s public
license departs from the terms of the GNU GPL, the more likely that the
program’s license will restrict rather than broaden the freedoms associated
with open source code distribution and copyleft.
[79]
This “guarantee” is supported by the use of a license. The license is called a general public
license or GPL, and it binds anyone who consents to its provisions by
downloading or purchasing an open source program. GPLs vary widely, but most have their genesis in the GNU GPL
drafted by the Free Software Foundation, which, in many respects, is notably at
the forefront of the open source
movement. Generally, a GPL achieves
three goals: it designates ownership of copyright in the open source project;
it grants everyone the right to modify, copy, and distribute the source code
and the derivative program; and it sets distribution terms. The distribution terms require software
developers, who produce programs using the original source code, to
re-distribute all source code along with the GPL, and to distribute the source
code in a form that is open to others or made available to others. In this regard, the phrase “open source
code” is an appropriate reference to the GPL.
[80]
“Free” is not a reference to the cost of the software. Instead, it refers to the free(dom) to
change the source code and re-distribute it as a derivative program. It is
entirely permissible to charge a price for use of software produced by the open
source movement. See Berkman Center for
Internet and Society, The Power of Openness: Why Citizens, Education,
Government and Business Should Care About the Coming Revolution in Open Source
Code Software (A Critique and a Proposal for the H2O Project), 1999 <http://opencode.org/h2o/> (visited Feb.
8, 2000). Since free software may cost money, it is confusing to use the label
“free software movement” to denote what is going on. Hence, “open source movement” is preferred.
[81] See
David Betz and Jon Edwards, Richard Stallman discusses his public-domain
UNIX-compatible software system, BYTE Magazine, July 1986; John Perry Barlow,
The Economy of Ideas: A Framework for Rethinking Patents and Copyright in the
Digital Age, Wired 2.03, Mar. 1994, at 85. [82] Although one could argue that
some software authors keep their source code secret because they view the
source code as a trade secret, the principle argument, here, is that this too
is a mistaken notion, if not a dubious proposition. As explained infra, most source code contains freely expressed
public domain material or basic ideas.
Keeping these ideas secret or hidden under the guise of copyright may
lead to devastating results far afield from the objectives of copyright; to use
a well-worn example, Microsoft may have used its copyright interests in its
operating systems software as a devastating corporate armamentarium to suppress
the progress of science by anyone but, itself.
See also Charles C. Mann, Who will Own Your Next Good Idea?, Atlantic
Unbound, (Roundtable: Life, Liberty and the Pursuit of Copyright) September 10,
1998.
[83] An
influential paper subsequently published as a book by an open source software
advocate—Eric Raymond—was first published in May 1997. The Cathedral and the
Bazaar, <http://www.tuxedo.org/~esr/writings/cathedral-bazaar/>
(visited November 13, 1999). Raymond’s
paper was reportedly expressly cited by Netscape management as a motivation for
their decision to release browser source code. The new programming paradigm
acknowledges that “good programmers know what to write, and great programmers
know what to rewrite” (and reuse).
Id. In this regard, open source code
programmers are more likely to efficiently and openly reuse code than
traditional programmers not simply because they are always guaranteed access to
the entire source code, but also because they need not waste resources keeping
their code secret to either protect an intellectual property interest or avoid
apparent notice that their software creation efforts violate the intellectual
property interests of others.
[84] Id.
[85]
Interestingly, at least one author, Ellen Ullman, has
noted that
the use of “pre-built” or shared code has
resulted
in the dumbing-down of programming. See
Ellen
Ullman,
The Culture Of Technology, The Technology Of
Culture:
The Dumbing-Down Of Programming, Salon Magazine,
June 8, 1998
<http://www.salon.com/21st/feature/1998/05/cov_12feature
.html> (visited Oct. 27, 1999).
According to Ullman, code sharing ensures that programmers do not understand
the code they are using and, perhaps much worse, the “knowledge” accessible by
programming disappears into the source code unknown or unknowable by the
programmer. While this trend,
undoubtedly, could have an alarming impact on the goals of the open source code
movement, which consider the aims of empowering programmers and computer users
as primary objectives of the movement, it is noteworthy that the separation of
knowledge from programming seems to be supported by those that view the open
source code movement as tremendously dangerous to their own objectives: namely,
programming tool makers who support a legal regime that privileges proprietary
source code. Admittedly, due to the
scope and vast range of programming projects, the line between these two
competing trends becomes blurred at critical points.
[86] The
success of open source is well established in Cyberspace. Indeed, its success in Cyberspace may
signify that open source is a viable model of electronic commerce that could
extend far beyond the software industry.
In this respect, what may be called “open source theory” will provide the
core for examining how a dramatic shift in conventional business models will
occur over the next decade. See,
e.g., Bill Gates, Business at the Speed
of Thought (1999).
[87] As
noted, infra, like any movement, the open source code movement is not
monolithic; some factions’ abhorrence of proprietary source code does not seem
to run as deep as their distaste for software produced by ubiquitous software
developers. In this regard, the free
software faction tends to view the goals of the open source movement as more
than merely challenging the economic model of proprietary software development.
[88]
Interestingly enough, the specifications for the software protocol that
controls the flow of information on the World-Wide-Web, HTTP (Hypertext
Transfer Protocol) and the specifications that allow website authors create
websites, HTML (Hypertext Markup Language), were developed as open source
technologies by the father of the World-Wide-Web, Tim Berners-Lee. Berners-Lee, who is often wrongly referred
to as a physicist, released the specifications for web browsers and the web
page programming language, HTML, so that others could adapt or improve the
specifications for uses beyond the needs of his employer, CERN, an
international research center in
Geneva. E-mail correspondence between
Rod Dixon and Tim Berners-Lee, (Apr. 9
- 21, 1999) (on file with author).
[89] On
January 22, 1998, Netscape Communications Corporation (Netscape) made the
source code for its popular web browser software available for free licensing
on the Internet. Netscape joined the open source code movement in an attempt to
harness the creative power of thousands of programmers on the Internet. The open source code movement generally is
viewed as a successful way to stimulate the creative energies of the
Cyberspace-based programming community.
It has been credited with having inspired unprecedented levels of
innovation in software development.
Netscape manages its open source code project by using a distribution
license called Mozilla Public License (MPL) that allows source code modification
and redistribution and provides for free availability of source code versions,
but has no copyleft provision. Although
Microsoft disputes Netscape’s claims, Netscape has indicated that it has an
install base of more than 68 million users. See generally, Netscape Press
Release, Bold Move To Harness Creative Power Of Thousands Of Internet
Developers; Company Makes Netscape Navigator And Communicator 4.0 Immediately
Free For All Users, Seeding Market For Enterprise And Netcenter Businesses,
<http://www.netscape.com/newsref/pr/newsrelease558.html>
(visited November 29, 1999).
[90]
This movement unquestionably deviates from the once prevailing view of computer
source code as a trade secret. See
Delta Filter Corp. v. Morin, 108 A.D.2d 991, 992, 485 N.Y.S.2d 143, 144 (3d
1985); Support Sys. Assocs. v.
Tavolacci, 135 A.D.2d 704, 706, 522 N.Y.S.2d 604, 606 (2d 1987).
[91] One
of Harvard Law School’s research centers, the Berkman Center for Internet and
Society, was established, in part, to provide a useful focal point for
research, discussion, policy analysis and strategic planning for the open
source movement. See generally <http://cyber.law.harvard.edu/projects/opencode.html>
(visited November 29, 1999). For an engaging assessment of the limitations of
the open source code movement, see Lawrence Lessig, Code: And other Laws of
Cyberspace, 101-110 (1999).
[92] Open
source is in some limited respects similar to the “freeware” tradition of
distributing software on the Internet.
Freeware describes software that is distributed to users at no cost
while the software application is under development. In other words, users were granted free use of a software program
in exchange for comments about whether the software performed according to
expectations. Once a program had been
sufficiently improved, many programmers would abandon earlier versions of the
software and begin selling the more refined product. In this respect, the open
source movement significantly extends the freeware development process far
beyond cheap labor and smart marketing by allowing others to freely develop new
programs using original source code.
[93] The
open source movement is not without its thoughtful critics. Aside from the many critics of the Free
Softtware Foundation, the seminal paper, “The Cathedral and the Bazaar,”
written by Eric S. Raymond and viewed as a manifesto of the non-free software
faction of the open source movement, also has been criticized as simplistic and
far too idealistic for the commercial enterprise of software development. In it, Raymond seems to assume an
open-is-good/commercial-is-bad software development environment, and claims
that the goals of software development are pitted between these diametrically
opposed alternatives. The Cathedral and
the Bazaar, <http://www.tuxedo.org/~esr/writings/cathedral-bazaar/>
(visited November 13, 1999). According
to Raymond, “The Cathedral” represents a monopolistic, property rights-centered
style of software development, while “the Bazaar” represents freedom,
community, and information sharing.
Although these characterizations do not seem far off the mark there are
notable exceptions, including the Netscape Navigator web browser, which has
roots in both open source and proprietary software development. Charis DiBona,
et al., eds., Open Sources: Voices from the Open Source Revolution (1999).
[94]See
Eric Raymond, Homesteading on the Noosphere
<http://www.tuxedo.org/~esr/writings/homesteading/ homesteading.html>
(visited April 24, 2000). Raymond
discusses the difference between economically motivated exchange (e.g.
commercial software development for money) and “gift exchange”. “Homesteading” is acquiring property by
being the first to ‘discover’ it or by being the first to make a significant
contribution to it. The “Noosphere” is loosely defined as the “space of all
work” or the community of open source code programmers. In gift cultures, social status is
determined not by what you control but by what you give away. In this regard, Noosphere is a gift
culture, wherein source code and software is freely shared. This communal
sharing shifts the primary measure of success from income to reputation among
peers as a gifted and highly regarded programmer.
[95]
Since the technology of the Internet is based largely on open standards, the
open source code movement views issues of Internet governance a primary concern
to the movement. Therefore, attempts by
Microsoft and Sun Microsystems to privatize the technology of Cyberspace have
not been well received. Similarly,
efforts by the Internet Corporation for Assigned Names and Numbers (ICANN) to
influence or establish Internet protocol standards have been viewed with
suspicion. See Lawrence Lessig, The
Code of Cyberspace, The Industry Standard, Dec. 6, 1999, at 184-188.
[96] In
this regard, open source programming may weaken the anti-competitive effects of
the proprietary software development practice, where developers invest creative
efforts in proprietary software design methods in order to create or strengthen
position in markets, lock in their technology, and limit consumer choice.
Indeed, many commentators have noted that the current intellectual property
regime, which has granted Microsoft “property rights” in its immensely
successful operating system software, is a significant factor supporting
Microsoft’s continued market power in the operating system software market. See
Mark A. Lemley, Antitrust and the Internet Standardization Problem, 28 Conn. L.
Rev. 1041 (1996); S.J. Liebowitz &
Stephen E. Margolis, Network Externality: An Uncommon Tragedy, 8 J. Econ. Persp.
133(1994); see also Pamela Samuelson, The Copyright Grab, Wired 4.01 (Jan. 1996).
It should also be acknowledged that to some degree Microsoft’s ability
to squeeze nearly $8 billion dollars of net profit from $20 billion dollars in
corporate sales may be due to the increasing returns to scale that seems to
accompany market leadership in software development. See, e.g., James Fallows,
Billion-Dollar Babies, The New York Review of Books Vol. XLVI, No. 20, Dec. 16
1999, at 9.
[97]
“Open source” does not just refer to free or open access to source code; a
public license must accompany source code distributed as open source code and
the license must comport with the standards of the open source movement,
containing terms that ensure that those who use the software may do so freely
(that is, there is no restriction on copying or modifying the source code) and
those who distribute the software do so in accordance with the terms of the
original public license. See Frequently
Asked Questions About Open Source, <http://www.opensource.org/faq.html>
(visited Apr. 16, 2000). It should be
noted that there is considerable debate among those within and outside the open
source code community as to what terms of the public license are
enforceable. Although the issues raised
by that debate are interesting questions, there are outside the scope of this
article.
[98]
Some software developers have argued that source code encapsulated in compiled
object code actually is kept private in order to protect trade secrets. However, copyright law exists to aid authors
to protect their creative, original expression, not to withhold that expression
under claims of trade secrecy.
[99]
Unmistakably, the open source code movement is about a great deal more than a
preferred method or style of programming; the movement, if successful, could
challenge conventional economic principles of marketplace competition and
traditional political notions of democratic decision-making. In this respect,
openness is a virtue not just because it may produce a superior software
product, but also because it reinforces free market competition and progressive
principles. Linux, for example,
represents a fundamental attack on the traditional association between
technology and property. It is attempting to infuse principles of openness and
shared intellectual property into common conceptions regarding property.
[100]
See Open Source Movement,
<http://www.opensource.org/links.html>
(visited Nov. 13, 1999).
[101]
One of the leading successes of the open source movement is that the Apache
software, a totally free Web server program that runs on several different
operating systems, controls more than half the world’s Web servers. According to Netcraft, a networking analyst
in Bath, England, claiming to have surveyed more than 4.3 million sites, almost
55 percent of Web sites use Apache, followed by Redmond, Wash.-based Microsoft
with 24 percent; Mountain View, Calif.-based Netscape with about 4 percent; and
Sebastopol, Calif.- based O’Reilly & Associates Inc. with less than 2
percent. The survey is available at <www.netcraft.com/survey/>.
Interestingly, none of the commercial Web server vendors is terribly concerned
about Apache, instead stressing their market segments, channel programs and
support. Indications are that large consumer-oriented sites are moving to
commercial products to take advantage of better support, transaction abilities,
security and, most importantly, administration, according to Forrester Research
Inc., Cambridge, Mass. “It may be free to acquire the bytes, but over the long
term, it is probably cheaper to buy Netscape for the support.
[102] Some
refer to this phenomenon as the “viral” effect of the GPL. If the source code of two programs are
combined, one a non-GPL program and the other a GPL program, in most
circumstances, the terms of the GPL infect the non-GPL program by imposing the
distribution and other licensing restrictions on the entire derivative work.
[103]
Notably, the open source movement does not, generally, view revocable licenses
as genuine GPLs and, hence, not as open source software. Nonetheless, there are open source projects
with GPLs that may be lawfully altered by the original copyright owner. In one well-known instance, the “Open Group,” which manages the X-Window
open source project, attempted to collect royalties for its copyright grants by
altering its GPL. The open source
community quite characteristically opposed this “copyright grab” and convinced
the Open Group to abandon the unfavorable terms of its new public license.
[104]
What is Copyleft?, (visited November
13, 1999)
<http://www.fsf.org/copyleft/copyleft.html>.
[105] In
this manner, copyleft ensures that “code and freedoms become legally
inseparable.” Id. In the open source
movement, copyleft is controversial and is often not included in the GPLs used
by the non-free software faction of the movement. The controversy arises, in part, on the boldness of the copyleft.
Copyleft precludes the distribution of open source software with proprietary
source code and it halts the conversion of free software to non-free
software. In some respects, copyleft
provisions are viewed as necessary to thwart the erosion of open source
projects by Triple E tactics (embrace, extend and extinguish) often, but not
solely, used by Microsoft Corporation.
Whether copyleft provisions are lawfully enforceable or may effectively
prevent pernicious code-forking is still an unanswered question. The irony of the copyleft provision is that
it seems to have a tendency to weaken an author’s freedom to develop software
almost as much as it may temporarily enhance some of those freedoms. More importantly, without revising copyright
law as it applies to software, copyleft provisions ultimately may have the same
adverse impact upon the public domain of source code as proprietary software
development models. A detailed
analysis of copyleft provisions is certainly warranted.
[106] A
short-hand reference to the faction of the open source movement supporting the
use of copyleft provisions in GPLs.
[107]
Id.
[108]
Id.; Open Sources: Voices from the Open Source Revolution (Charis DiBona et
al. eds., 1999).
[109]
Open Sources, supra note 108. The
factionalism in the open source movement was enhanced by the increasing
tendency of some GPLs without copyleft
provisions to ostensibly permit code-forking.
[110]Since
code-forking can aid Copyleftists overcome the attempts of others to obstruct
the objectives of open source by “privatizing” the code, Copyleftists do not
endeavor to preclude all avenues to code-forking. For example, an open source program may avert “death” from a
Triple E attack by code-forking its own source code away from a company like
Microsoft, and subsequently, re-opening the code as a re-claimed open source
project that competes along side the proprietary product(s). Code-forking is by no means the only way to
undermine an open source project. Even
though most open source projects may level, at least, a soft blow to the
proprietary model of software development, to a significant extent, the failure
to copyleft an open source project renders the capacity of the GPL to safeguard
freedom software dubious. The most
notable example of weak capacity of non-copyleft GPLs is Netscape
Corporation’s (now, America Online and
soon-to-be Time Warner AOL) public license for its browser software, Netscape
Navigator. The Netscape Navigator is
currently being developed as an open source project governed by a so-called
public license, Mozzilla Public License (MPL). The MPL, however, has no copyleft
provision, and contains considerable restrictions on freedom software. Indeed, the MPL renders Netscape Navigator’s
development model more like a beta freeware software project than an open
source project.
[111]
See generally Open Sources, supra note 108.
[112]
Peter Norton, Peter Norton’s Inside the PC, 454 – 456 (6th ed.
1995).
[113]
Id.
[114]
Id.
[115]
Id.
[116]
Id.
[117]
Id.
[118] In
the 1970s Congress and the Commission on the New Technological Uses of
Copyrighted Works (CONTU) included computer programs in the category of works
that contain expression that may be protected without granting a monopoly on
underlying methods or ideas. See CONTU, supra, and generally, see, Fred H.
Cate, Law in Cyberspace, 39 How. L.J.
565, 575-77 (1996); Margaret Chon, New Wine Bursting from Old Bottles:
Collaborative Internet Art, Joint Works, and Entrepreneurship, 75 Or. L. Rev.
257, 260-61 (1996).
[119]
See also Raymond T. Nimmer &
Patricia Ann Krauthaus, Copyright on the Information Superhighway: Requiem for
a Middleweight, 6 Stan. L. & Pol’y Rev. 25 (1994).
[120]
Indeed, source code written in Cyberspace-based programming languages like Perl
and JavaScript is, generally, easily accessible by others, and can be read in
any text editor. This open “feature” has enhanced code
sharing even outside of the open source code movement. On the other hand, some
programmers may have unknowingly sacrificed enforcement of their copyright
interests as a result of using programming tools unsuitable for proprietary
source code development. See Edward A.
Cavazos & Gavino Morin, Cyberspace and the Law 47-48 (1994); James Gleick,
I’ll Take the Money, Thanks, N.Y. Times Magazine, Aug. 4, 1996, at 16; Thomas
K. Landry, Roundtable on Electronic Rights, 20 Colum.-VLA J.L. & Arts 605,
658 (1996); Pamela Samuelson, The Copyright Grab, Wired, Jan. 1996.
[121]
White Paper, The Power Of Openness: Why Citizens, Education, Government and
Business Should Care About the Coming Revolution in Open Source Code Software;
A Critique and a Proposal for The H20 Project, Berkman Center For Internet and
Society, 1999, (visited Nov. 15, 1999) <http://opencode.org/h2o/>.
[122] Po
Bronson, Nudist on the Late Shift (and Other True Tales of Silicon Valley),
(Random House 1999) 112-114; see also Lawrence Lessig, Intellectual Property
and Code, 11 St. John’s J. Legal
Comment 635 (1996).
[123]
See Charis DiBona, Sam Ockman &
Mark Stone, editors, Open Sources: Voices from the Open Source Revolution
(O”Reilly & Associates, 1999).
[124]
Technically speaking, modules and subroutines are slightly different. Compare R. Andree, J. Andree & D. Andree, Computer Programming 336 (1973)
(defining subroutines) with R. Coats, Software Engineering for Small Computers
12 (1983) (modules).
[125]
See Peter Norton, Peter Norton’s Inside the PC, at 454 – 456 (6th
ed. 1995); Apple Computer, Inc. v. Franklin Computer Corp, 714 F.2d 1240, 1243
(3d Cir.1983), cert. dismissed, 464
U.S. 1033 (1984).
[126]
See generally William C. Taylor,
Inspired by Work:
Working
on Open source Software, Fast Company, 200-208, (Nov. 1999).
[127]
Josh McHugh, For the Love of Hacking, Forbes Magazine, (August 10, 1998).
[128] In
its present mode, the open source movement is hardly inconsequential. All Internet users rely upon at least one open
source code software application to navigate through Cyberspace.
[129]
See, John Perry Barlow, The Economy of Ideas, Wired, Mar. 1994, at 84, 85.
[130]
The Supreme Court has found that the idea/expression dichotomy strikes a
definitional balance between the First Amendment and the Copyright Act by
permitting free communication of facts while still protecting an author’s
expression. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539,
556 (1985) (quoting the Second Circuit in 723 F.2d 195, 203 (1983)). In Harper
& Row, the Supreme Court held that Time Magazine infringed on a copyright
when it published, without authorization, verbatim quotes, totally 300 words,
from President Ford’s memoirs. Id. at 569.
[131]
Synercom Technology, Inc. v. University Computing Co., 462 F.Supp. 1003 (N.D.
Tex. 1978), dealt with the question whether the “input formats” of a computer
program – the configurations and collations of the information entered into the
program – were idea or expression. The
court held that the input formats were ideas, not expressions, and thus not
protectable.
[132]
Congress has extended the limited time period for which copyright interests may
be claimed. The Sonny Bono Copyright Term Extension Act (“CTEA”), Pub. L.
105-298, 112 Stat. 2827 (1998) (codified in scattered sections of 17 U.S.C.)
extends by twenty years the basic term of copyright protection for both newly
created works of authorship and most pre-existing works with subsisting
copyrights. This recent Congressional
extension of copyright is under challenge before the Court of Appeals for the
District of Columbia Circuit in Eldred v. Reno, No. 99-5430 (the case is
scheduled for oral argument on October 5, 2000).
[133] Of
course, within the limits of the constitutional grant, Congress has broad
flexibility “to implement the stated purpose of the Framers by selecting the
policy which in its judgment best effectuates the constitutional aim.” Graham
v. John Deere Co., 383 U.S. 1, 6 (1966); That notwithstanding, stimulating
creative activity by authors is, of course, one of the principal purposes of
copyright protection. Sony Corp. of
America v. Universal City Studios, 464 U.S. 417, 429 (1984).
[134] In
general, where a particular expression is common to the treatment of a
particular idea, process or discovery, it is lacking in the originality
required for copyright. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9
F.3d 823, 838 (10th Cir. 1993).
[135]
Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 358
(1991) (originality requires that the selection and arrangement exhibit some
minimal level of creativity).
[136] In
the context of a copyright infringement claim that includes an allegation about
source code, the elements of a copyright infringement action include a showing
that the plaintiff owned the copyright in the source code and that the
defendant copied the source code in developing its program. Sid & Marty Krofft Television Prods.,
Inc. v. McDonald’s Corp., 562 F.2d
1157, 1162 (9th Cir.1977);
Reyher v.
Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429
U.S. 980 (1976); 3 Nimmer On Copyright
§ 13.01 (1985). As it is rarely
possible to prove copying through direct evidence, Roth Greeting Cards v.
United Card Co., 429 F.2d 1106, 1110 (9th Cir.1970), copying
may be proved inferentially by showing that the defendant had access to the
allegedly infringed copyrighted work and that the allegedly infringing work is
substantially similar to the copyrighted work.
Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th
Cir.1978); Sid & Marty Krofft
Television Prods. Inc., supra;
Universal Athletic Sales Co. v.
Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, 423 U.S. 863 (1975); Midway Mfg. Co. v. Strohon, 564 F.Supp. 741, 752 (N.D. Ill. 1983).
[137]
The idea/expression dichotomy is presumed to strike a definitional balance
between the First Amendment and the Copyright Act. No author may copyright her ideas or the facts she narrates. 17
U.S.C. § 102(b); See, e.g., New York Times Co. v. United States, 403 U.S. 713,
726 (1971) (Brennan, J., concurring) (summarily concluding that Copyright laws
are not restrictions on freedom of speech as copyright protects only form of
expression and not the ideas expressed).
[138]
The idea/expression dichotomy has been further refined as the
abstraction-filtration-comparison method of determining copyright protection
for computer programs. Gates Rubber Co.
v. Bando Chemical Indus., 9 F.3d 823 (10th Cir. 1993). The Tenth Circuit defined the method as
follows: “First, in order to provide a framework for analysis, we conclude that
a court should dissect the program according to its varying levels of
generality as provided in the abstractions test. Second, poised with this framework, the court should examine each
level of abstraction in order to filter out those elements of the program that
are unprotectable. Filtration should
eliminate from comparison the unprotectable elements of ideas, processes, facts,
public domain information, merger material, scenes a faire material, and other
unprotectable elements suggested by the particular facts of the program under
examination. Third, the court should
then compare the remaining protectable elements with the allegedly infringing
program to determine whether the defendants have misappropriated substantial
elements of the plaintiff’s program.”
[139]
Even if that is not so, the dichotomy could not help. It does not apply to infringement actions based on literal
copying.
[140] In
Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930), cert.
denied, 282 U.S. 902 (1931), the court found that no more than the idea of
plaintiff’s play, “Abie’s Irish Rose,” had been used in defendant’s motion
picture “The Cohens and the Kellys.” Although common to both works were a
“quarrel between a Jewish and an Irish father, the marriage of their children,
the birth of grandchildren and a reconciliation,” the court held that these
were ideas, not expressions, and, therefore,
not subject to copyright protection.
Id. at 122.
[141] In
writing these directions, the programmer works “from the general to the
specific.” Whelan Assoc., Inc. v.
Jaslow Dental Lab., Inc., 797 F.2d 1222, 1229 (3d Cir. 1986), cert. denied, 479 U.S. 1031
(1987). See generally Steven R.
Englund, Note, Idea, Process, or Protected Expression?: Determining the Scope
of Copyright Protection of the Structure of Computer Programs, 88 Mich. L. Rev.
866, 867-73 (1990).
[142]
Before a computer program can qualify for copyright protection, it must meet a
number of general requirements outlined in the copyright statutes. First, the
work (computer program) must be “fixed” in a tangible form “in which, or by
means of which, other people can perceive it.” The moment of “fixation” marks
the start of federal copyright protection, assuming the program meets the
Copyright Act’s requirement of originality. “Originality,” in this regard, is a
term of art. If a computer programmer developed a particular program that was
identical in all respects to a previously copyrighted program, and the
programmer had not had access to or knowledge of the previously copyrighted
program, the second programmer could still obtain a copyright for the work.
However, certain elements-such as facts, scientific discoveries, mathematical
equations, and historical theories-although newly discovered by an author, are
not “original” within the meaning of the copyright statutes. See, e.g., Feist v. Rural Telephone
Services, 499 U.S. 340 (1991).
[143]
See also Circular 61 Copyright Registration for Computer Programs, Register of
Copyrights, Library of Congress.
[144] A
1976 House of Representatives committee report explained the applicability to
computer programs of Section 102(b) of
the 1976 Copyright Act, which codified the rule that copyright protection does
not extend to ideas. The committee
report stated that Section 102(b) would clarify that a computer programmer’s
expression is a copyrightable element of a computer program, but that the actual
processes or methods embodied within the program are outside the scope of
copyright law See, e.g., Michael E. Johnson, Note, The Uncertain Future of
Computer Software Users’ Rights in the Aftermath of MAI Systems, 44 Duke L.J.
327 (1994).
[145]
Baker v. Selden, 101 U.S. 99 (1879) (allowing free borrowing of accounting
system described in a copyrighted book). The ambiguities and unstated
assumptions in the idea/expression dichotomy are specifically discussed, infra.
[146]
Amy B. Cohen, Copyright Law and the Myth of Objectivity: The Idea-Expression
Dichotomy and the Inevitability of Artistic Value Judgments, 66 Ind. L.J. 175,
184-95 (1990).; see Baker v. Selden, 101 U.S. 99 (1879). The Supreme Court
found nothing copyrightable in Selden’s bookkeeping system, and rejected his
infringement claim regarding the ledger sheets.
[147]
Id.
[148]
Id. at 101.
[149]
Id.
[150]
Id.
[151] 3
Nimmer, § 13.03[A][1], at 13-24.
[152]
Copyright protection extends beyond a literary work’s strictly textual form to
its non-literal components. Nichols v. Universal Pictures Co., 45 F.2d 119, 121
(2d Cir. 1930) (L. Hand, J.), cert. denied, 282 U.S. 902 (1931). Where “the fundamental essence or structure
of one work is duplicated in another,” 3 Nimmer, § 13.03[A][1], at 13-24, courts have found copyright infringement.
[153]
See, e.g., Pamela Samuelson, Digital Media and the Changing Face of
Intellectual Property Law, 16 Rutgers Computer & Tech. L.J. 323, 332-34
(1990).
[154]
Id. (noting those that support continued support of the dichotomy in the
context of computer programming). On
the other hand, the open source code movement is one compelling example of why
source code, in particular, and perhaps software, in general, should be treated
differently from traditional literary works by copyright jurisprudence.
[155]
Whelan Assocs. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir.1986),
cert. denied, 479 U.S. 1031 (1987).
[156]
797 F.2d at 1225.
[157]
Id.
[158]
The Whelan test has received a mixed reception. While some decisions have
adopted its reasoning, See, e.g., Bull HN Info. Sys., Inc. v. American Express
Bank, Ltd., 1990 Copyright Law Dec. (CCH) P 26,555 at 23,278 (S.D.N.Y. 1990);
Dynamic
Solutions, Inc. v. Planning & Control, Inc., 1987 Copyright Law Dec. (CCH)
P 26,062 at 20,912 (S.D.N.Y. 1987);
Broderbund
Software Inc. v. Unison World, Inc., 648 F. Supp. 1127, 1133 (N.D.Cal. 1986), others have rejected it. See Plains
Cotton Co-op v. Goodpasture Computer Serv, Inc., 807 F.2d 1256, 1262 (5th
Cir.), cert. denied, 484 U.S. 821 (1987).
[159]
For example, at some abstract level one could argue that the purpose of
Microsoft’s Windows operating systems is to manage input/output functions and
disk drive access on a personal computer.
Obviously, such over-generalized descriptions of complex software
programs like operating systems would render the utility of the idea/expression
dichotomy of dubious worth since it would seem to offer very little First
Amendment limitation on the scope of copyright.
[160]
Certainly, it is the position of some encryption software programmers that
their source code expresses at least two distinct ideas; namely, that
encryption algorithms should be made public through access to the source code
as a way to conduct certain forms of cryptanalysis and that the encryption
program use a cipher of a certain key length.
Indeed, these ideas are not only expressed in source code, but are
debated in the scholarly literature of cryptology; to wit, encryption software
programmers and other cryptographers
dispute in the marketplace of ideas the principle strengths and
weaknesses of cipher key lengths and various publicly known algorithms.
[161]
See, e.g., Stillman v. Leo Burnett Co.,
720 F. Supp. 1353, 1358 (N.D. Ill.
1989) (referring to dual usages of term “substantial similarity”); Alan Latman,
“Probative Similarity” as Proof of Copying: Toward Dispelling Some Myths in
Copyright Infringement, 90 Col. L. Rev. 1187, 1189-90 (1990).
[162]
Broderbund Software, Inc. v. Unison World, Inc, 648 F.Supp. 1127, 1137 (N.D.
Cal. 1986).
[163]
Id. at 1132.
[164]
This is not to say that the Broderbund court is hostile to First Amendment
claims in the context of copyright infringement actions. Rather, it may be that the court understood
the First Amendment question to be fully resolved by simple application of the
Whelan court’s peculiar interpretation of the idea/expression dichotomy.
[165]
Courts, of course, also have noted troubles with the general application of the
dichotomy. See Denker v. Uhry, 820 F. Supp. 722, 728 (S.D.N.Y. 1992) (noting
that “courts have been reluctant to make subjective determinations regarding
the similarity between two works”); Steinberg v. Columbia Pictures Indus., 663 F. Supp. 706, 709 (S.D.N.Y.
1987).
[166]
Computer Associates International, Inc. v. Altai, Inc.
982 F.2d
693, 706 (2d Cir. 1992).
[167]
Id. at 703-05.
[168]
Id.
[169] In
this regard, the abstraction-filtration-comparison test seems to fail to filter
out any source code. This is a notable
failure of analysis. The encryption
decisions each support the proposition that source code contains ideas, some of
which are protectable by the First Amendment.
[170]
Finally, the court held that the list of services and the charts were
unprotected under the scenes a faire doctrine. Based on the above analysis, the
court affirmed the district court’s holding that the copyright-protected
program had not been infringed. Id.
[171] In
Gates Rubber Co. v. Bando Chemical Industries, Ltd., the Court of Appeals for
the Tenth Circuit also expressly adopted the abstraction-filtration-comparison test
as the proper test to apply in computer program copyright infringement cases.
See Gates Rubber Co. v. Bando Chemical Industries, Ltd. , 9 F3d 823, 834 (10th
Cir. 1993).
[172]
Autoskill, Inc. v. National Educational Support Sys., 994 F.2d 1476 (10TH
Cir.), cert.denied, 114 S.Ct. 307 (1993).
[173]
Id.
[174]
Autoskill, Inc. v. National Educational Support Sys., 793 F. Supp. 1557, 1558
(D.N.M. 1992).
[175]
Id. at 1570.
[176]
Id. at 1570-71.
[177]
Id.
[178]
Id.
[179]
Autoskill, Inc. v. National Educational Support Sys., 994 F.2d 1476 (10TH
Cir.), cert.denied, 114 S.Ct. 307 (1993).
[180]
Id. at 1493-94.
[181]
Id. at 1492.
[182]
Id. at 1493-94.
[183]
Id.
[184]
Some commentators have noticed this very effect in the operating system market
for personal computers.
[185] 15
C.F.R. Parts 730-774. See Executive
Order 13206, 61 Fed. Reg. 58,767 (Nov. 19, 1996); 32 Weekly Comp. Pres. Doc. 2397 (Nov. 15, 1996). The principal
purpose of the EAR is to regulate the export of “dual use items—items that can
be used both for military and for civilian purposes. See 15 C.F.R. 6 730.3; see also Id. Part 772
(definition of “dual use”). Broadly speaking, and with various exceptions (see
Id. Part 740), the EAR prohibits the
export of dual use items to specified foreign destinations without a
license from the Department of
Commerce’s Bureau of Export Administration (BXA). See Id. § 736.2(b)(1). The core of the EAR’s regulatory scheme is
the Commerce Control List (CCL). See 15
C.F.R. 774 Supplement No. 1. The Commerce Control List establishes ten general
categories of controlled items, such as nuclear materials (Category 0),
computers (Category 4), telecommunications and
information security items (Category 5), and lasers and sensors (Category
6). Each of these general categories
encompasses “commodities,” “software,” and
“technology.” A “commodity” is any item other than software or
technology. See 15 C.F.R. Part 772
(definition of “commodity”). “Software” is defined in its conventional sense. See ibid. (definitions of “software” and
“program”). “Technology” is defined as
specific information necessary for the ‘development,’ ‘production,’ or ‘use’ of
a product,” including technical data (such as
blueprints and diagrams) and technical assistance (such as instruction
and consulting services). Every item on the Commerce Control List is
assigned an Export Control
Classification Number (ECCN). See
generally 15 C.F.R. § 738.2(d)(1)-(2). An item’s ECCN specifies (among other things) the particular
reasons, such as national security or anti-terrorism, why the government
controls the export of the item. see
Id. § 738.2(d)(2)(i). The reasons for
control affect the nature and scope of
the export controls that apply to the item. see Id. §§ 738.4(a),
742.2-742.16. Certain items are not
“subject to the EAR,” a term of art meaning that they are not within the regulatory jurisdiction of
the BXA and may be exported without
regard to the EAR’s export controls, even if the Commerce Control List
otherwise would cover them. See 15
C.F.R. §§ 734.1(a), 734.2(a), 734.3(b). Among
other things, printed materials such as newspapers, books, and
periodicals are not subject to the EAR,
regardless of their subject matter or contents. See Id. § 734.3(b)(2). In addition, “publicly available”
software and technology generally are
not subject to the EAR. Id. § 734.3(b)(3), 734.7-734.10.
[186]
See 61 Fed. Reg.68,572 (Dec.30, 1996);
see also 63 Fed. Reg;.72,156 (Dec.31,1998) (amendments). As amended, the
Commerce Control List includes encryption
commodities (e.g., circuitry and other
hardware), encryption software,
and encryption technology. See 15
C.F.R. Part 774 Supplement No. 1 (CCL), ECCN 5A002 (commodities), 5D002
(software), 5E002 (technology). The
regulatory scheme under the EAR creates two important classifications:
Encryption Products, which are subject
to the EAR, and Cryptographic Information, which are not subject to the
EAR. In this regard, the EAR imposes no licensing requirement or other
limitation on the export of Cryptographic Information. § 734.3(b)(3). This is an important distinction because it
forms part of the basis for why the Federal government argues that its
regulations are content neutral.
Nonetheless, encryption source code, by regulatory definition, cannot be
considered Cryptographic Information and, in this regard, although a given
encryption software product may not require a license, it remains subject to
the EAR. § 742.15.
[187] 32
Weekly Comp. Pres. Doc. 2397; see 15
C.F.R. § 742.15.
[188]
32 Weekly Comp. Pres. Doc. 2398.
See also Exec.
Order
No. 13,026, 61 Fed. Reg. 58,767 (1996).
[189]
See 15 C.F.R. §§ 736.1(b)(1),
742.15(a). 740.8, 740.17,
742.15(b)(2)-(7).
[190]
Junger v. Daly, 8 F. Supp. 2d. 708 (N.D. Ohio 1998). On April 4, 2000, the Sixth Circuit ruled in Junger’s favor on the First Amendment
question by holding that source code is an articfact of expression entitled to
First Amendment protection. The court
remanded the case to the district court for further proceedings on the revised
regulations issued y BXA subsequent to the district court’s initial ruling. _
F3d _ (April 4, 2000) (2000 FED App. 0117P (6th Cir.)). While it is possible that the district
court’s analysis and fact-finding may result in the Federal government
ultimately prevailing, the Circuit Court opinion follows the trend
characterized in this article.
[191]
During the litigation Professor Junger has continued to teach the computer law
course, but, due to the government’s position on the use and export of his
cryptographic software program, Professor Junger has not used his website as a
resource for the course and during the Fall 1999 semester “for the first time”
has not used his own material as the casebook. See Rod Dixon and Peter Junger,
Electronic Mail Correspondence, September 19 - 20, 1999 (on file with author).
[192]
The EAR defines an export as “an actual shipment or transmission of items
subject to the EAR out of the United States, or release of technology or
software subject to the EAR to a foreign national in the United States.” 15
C.F.R. § 734.2(b)(1) (1998). With
regard to the exportation of encryption
source code, the word “exporting” includes downloading, or causing the downloading
of, such software to locations (including electronic bulletin boards, Internet
file transfer protocol, and World Wide Web sites) outside the U.S., or making
such software available for transfer outside the United States, over wire,
cable, radio, electromagnetic, photo-optical, photoelectric or other comparable
communications facilities accessible to persons outside the United States,
including transfers from electronic bulletin boards, Internet file transfer
protocol and World Wide Web sites. 15
C.F.R. § 734.2(b)(9)(ii) (1998).
[193] See
15 C.F.R. § 734.2(b)(9).
See also Arms Export Control Act of
1976, Pub. L. No. 94-329, title II, 212(a)(1), 90 Stat. 744 (1976) (codified at
22 U.S.C. 2778 (1994)). Since source
code posted on a website can be accessed from any country in the world, posting
software on a website (or, possibly, even listing software as a hypertext link
on a webpage) may constitute an export of encryption that requires a license.
[194]
Id. at 712.
[195]
Id. at 712 - 714.
[196]
Id. at 712 - 714.
[197]
Id. While the mere posting of a program to a file transfer protocol (FTP) or
web server located in the United States constitutes an export according to the
definition, the mere posting of such a program does not by itself result in any
sending, taking, disclosure or transmission of the program to a foreign person. Though the definition classifies the mere
posting of encryption as an export, it does include a caveat that permits
encryption products to be placed on Internet sites within the United States as
long as the provider implements safeguards that are adequate to prevent
unauthorized transfer of such code outside the United States. The required precautions include making sure
that access to and transfer of the software is controlled through such measures
as: (1) checking the address of every system attempting to obtain the software
to make sure that the system is located within the United States; (2) providing
a requesting party with notice that the transfer of the software is subject to
export controls and that it cannot be exported without a license; and (3)
requiring every party requesting a transfer to acknowledge that they understand
that the software is subject to export controls. 15 C.F.R. §
734.2(b)(9)(ii)(A)(1-3) (1998).
[198]
Essentially, the EAR establishes a voluntary procedure for submitting dual-use
export classification requests; establishes a mandatory procedure for export
licensing applications; establishes categories of subject matter that is
subject to encryption export controls; and authorizes the Department of
Commerce’s Bureau of Export Administration (or BXA) to decline issuance of export licenses. The BXA’s final determination may be challenged by filing a
notice with the Office of the President.
[199]
Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
[200]
Id. at 712. See, Mary M. Cheh,
Government Control of Private Ideas—Striking a Balance Between Scientific
Freedom and National Security, 23 Jurimetrics J. 1, 22 (1982) (arguing that
cryptographic information is protected by the First Amendment); James R.
Ferguson, Scientific Inquiry and the First Amendment, 64 Cornell L. Rev. 639,
654-56 (1979) (arguing that scientific inquiry merits some degree of protection
by the First Amendment).
[201]
Without regard to a principled distinction, the Court suggested that some
software is inherently expressive, while other software is “inherently
functional.” According to the Court,
an indication of “inherently functional” software is software that users look to the performance of tasks with
scant concern for the methods employed or the software language used to control
such methods. Id.
[202] It
is beyond dispute that prior restraints on expressive materials bear a heavy
presumption against their constitutional validity, and are subject to the
strictest judicial scrutiny. See New
York Times Co. v. United States, 403 U.S. 713, 714 (1971). If a law
distinguishes among types of speech based on their content of ideas, the Court
reviews it under strict scrutiny. To survive strict scrutiny, the government
must employ narrowly tailored means that are necessary to advance a compelling
government interest. See Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642 (1994). However, if a law does not distinguish among
types of speech based upon the content of the speech, it will not be subject to
strict scrutiny.
[203]
The Court granted the government’s motion for summary judgment.
[204]
Id. at 721.
[205] 491
U.S. 397, 404 (1989),
[206]
Bernstein I, 922 F. Supp. at 1434. In a preliminary ruling, Judge Marilyn Patel
denied the government’s motion to dismiss the case, and held that cryptographic
computer source code is speech. Thus, Bernstein had asserted a “colorable”
claim to First Amendment protection. Id.
Accordingly, Judge Patel became the first to explicitly recognize in a
judicial opinion that computer programmers maintained a protected speech
interest in their computer source code.
[207]
Johnson, 491 U.S. at 404. In addition, the Court observed that Bernstein’s assertion that “language equals
protected speech” is unsound. Junger at 716.
“Speech” is not protected simply because we write it in a language. Instead, what determines whether the First
Amendment protects something is whether it expresses ideas. See Roth v. United States, 354 U.S. at 484;
Virginia Citizens Consumer Counsel, 425 U.S. at 762.
[208]
Junger at 1111.
[209]
Id.
[210]
See Id. at 1113.
[211]
The overbreadth rule arises from the purpose of the doctrine. The overbreadth
doctrine allows a challenge to laws having the potential to repeatedly chill
the exercise of expressive activity by many individuals. To make the
overbreadth challenge, there must be a realistic danger that the statute will
significantly compromise recognized First Amendment protections of parties not
before the Court. Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984).
Under Vincent, to prevail on a facial overbreadth challenge, the plaintiff must
show that the challenged law is “substantially overbroad.” Id. at 801. To
establish substantial overbreadth, a plaintiff must show that the law will have
a significant and different impact on third parties’ free speech interests than
it has on his own. See Id.
Professor
Junger’s overbreadth challenge failed because he did not show that the Export
Regulations injure parties not before the Court in a manner different from the
way they affect Professor Junger. The
Court also determined, without helpful explanation, that the Export Regulations
are not vague.
[212]
945 F. Supp. at 1289-90.
[213] In
Bernstein v. United States Department of State, the District Court for the
Northern District of California ruled that licensing requirements for the
export of cryptographic software under the International Traffic in Arms
Regulations (“ITAR”) an unconstitutional prior restraint of protected speech.
945 F. Supp. 1279 (N.D. Cal. 1996), enforcing 922 F. Supp. 1426 (N.D. Cal. 1996) (ruling that computer code was
protected speech under the First Amendment).
[214]
Bernstein had also submitted commodity jurisdiction requests for several
written texts that contained the Snuffle algorithm and description. Initially,
the State Department denied him permission to distribute the texts, but
retracted this decision after Bernstein filed suit. Bernstein v. Dep’t of State, 922 F. Supp. at 1433-34.
[215] A
similar analysis is undertaken under the law of copyright with respect to
examining the limitations of copyright in the First Amendment context. There, the legal regime of copyright has
come to rely upon the so-called idea/expression dichotomy, wherein ideas are
associated and fixated as protectable artifacts of the First Amendment while
expressions are protectable artifacts of the law of copyright. In this respect, the law of copyright yields
to the First Amendment by excluding from copyrightable “expression” abstract ideas. The empowerment of a tautology is at work here. Courts use as
definitional line drawing between objects that are in many, if not most,
respects indistinguishable.
[216]
945 F. Supp. at 1289.
[217]
945 F. Supp. at 1289-90.
[218]
Interestingly enough, although the rigid grammar of software programming
renders the code unintelligible to “outsiders,” the strict structure of
programming language similarly limits creative expression, not in style, but in
fact. In other words, since there are
so few ways to write an “If…then” decision structure, the level originality
cannot possibly represent copyrightable expression. Id. at 1296.
[219]
Interestingly enough, the snuffle program seems to rely upon a known Hash
algorithm, despite the Ninth Circuit’s conclusion about the distinct use of
encryption source code to publicly expose untested algorithms. The court may have been responding to
arguments of counsel rather than making its own determination or accepting the
district court’s finding about what the snuffle program actually does. An encryption software application can
initialize a cryptographic algorithm contained in another source like an API
(application programming interface) in an operating system, a programming environment
– like JAVA, or another application – like Cyberspace-based SSL encryption
transactions or specify – through programming notation – its own unique
algorithm. See, e.g., Jonathan Knudsen,
Java Cryptography at 5-7 (O’Reilly 1998).
Rather astonishingly, under the Federal government’s encryption
regulations, the Ninth Circuit’s panel decision, and the district court’s
analysis, whether the source code, itself, contains a cryptographic algorithm
or merely makes a call to an “external” cryptographic software library is
apparently a relevant factor under both
the licensing scheme and the assessment of the expressive qualities of the
source code. Only in the Karn case was
source code, itself, containing a unique cryptographic algorithm at issue.
[220] 922
F. Supp. at 1435.
[221]
See, e.g., Simon Singh, The Code Book.
[222]
922 F. Supp. at 1435.
[223]
922 F. Supp. at 1435 – 1442.
[224]
See International Traffic in Arms
Regulations, 22 C.F.R. § 120.4(a) (specifying a procedure for determining if an
article is covered under the Munition List).
[225]
Interestingly enough, Bernstein’s argument lays bare the analytic similarity
between the two questions: whether source code is speech and whether source
code is copyrightable. Generally, an
affirmative answer to the former question requires a negative answer to the
latter. Encryption algorithms that are
publicly available—and, therefore, not trade secrets or national secrets—are
scenes a faire. Source code
constituting artifacts of the public domain should not be subject to copyright
protection.
[226]
922 F. Supp. at 1435 – 1442.
[227]
Id.
[228]
Id.
[229]
922 F. Supp. at 1435 – 1442.
[230]
Id.
[231]
Id. at 1441-42.
[232]
Id. at 1442.
[233]
Id. at 1441-42.
[234]
Id.
[235]
The court noted that Cellular phones are subject to monitoring, email is easily
intercepted, and transactions over the Internet are often less than secure.
[236]
According to the Court, the government’s efforts to retard progress in
cryptography may implicate the Fourth Amendment, as well as the right to speak
anonymously, see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, (1995), the
right against compelled speech, see Wooley v. Maynard, 430 U.S. 705, 714
(1977), and the right to informational privacy, see Whalen v. Roe, 429 U.S.
589, 599-600 (1977).
[237]
See Martin Redish, The Value of Free
Speech, 130 U.
Pa. L.
Rev. 591, 628 (1982).
[238]
Although programmers occasionally can be found describing an individual’s
source code (or more likely there own code) as elegant. This reference does not
describe stylistic splendor or refined and graceful code that communicates in
clearly expressed language. Instead,
elegant code refers to the scientific precision and simplicity of source code. In the world of computer science,
succinctness, brevity and precision in source code are valued highly. Precise
source code usually yields robust, well performing software applications that
function efficiently while using minimal resources of the microprocessor and
few amounts of random access memory.
[239] Wooley
v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he right of freedom of thought
protected by the First Amendment against state action includes both the right
to speak freely and the right to refrain from speaking at all.”).
[240]
Philip Karn filed suit challenging the State Department’s denial of permission
to export a diskette containing the source code for several encryption
algorithms printed in the book Applied Cryptography by Bruce Schneier. See
Bruce Schneier, Applied Cryptography (2d ed. 1996). The State Department approved the export of
the book itself, but not the diskette containing identical information. Karn
sought review in federal district court of the government’s denial claiming
that the Arms Export Control Act (AECA) and the International Traffic in Arms
Regulations (ITAR) were unconstitutional under the First and Fifth Amendments.
925 F. Supp. 1 (D.D.C. 1996), remanded, 107 F.3d 923 (D.C. Cir. 1997).
[241]
925 F. Supp. 1-7.
[242]
925 F. Supp. 1-7.
[243]
925 F. Supp. 1-7.
[244]
See 22 C.F.R. § § 120.4 and 121.1, category XIII(b)(1), Note.
[245]
925 F. Supp. 1-3.
[246]
925 F. Supp. 1-3.
[247] 22
C.F.R. § § 120.10(a)(4), n10 120.11 and
121.8(f). (a) Public domain is a term
of art under the ITAR that means information which is published and which is
generally accessible or available to the public. 10 22 C.F.R. § 120.10.
[248]
925 F. Supp. 1-3.
[249] At
this stage in the proceedings, Karn was not challenging the licensing scheme.
Instead, Kan challenged the discretionary classification scheme. One rationale
for the Court’s reliance on this general rule is that such “facial” challenges
typically raise “a discrete issue, unrelated to the facts of the case, that
only needs to be resolved once,” and therefore, entertaining the challenge does
not “open the floodgates to litigation.” Id.; see also, Bowen v. Michigan Acad.
of Family Phys., 476 U.S. 667 at 677, 680 n.11, (1986); Johnson v. Robison, 415
U.S. 361, 370 (1974). As such, the
Court may have rightly rejected Karn’s challenge.
[250]
The Court dismissed Karn’s APA claim,
and ruled that the government was entitled to summary judgment on the First and
Fifth Amendment claims. Karn subsequently challenged the licensing scheme under
the EAR.
[251]
See also Laura M. Pilkington, Comment,
First and Fifth Amendment Challenges to Export Controls on Encryption:
Bernstein
and Karn, 37 Santa Clara L.Rev. 159 (1996).
[252]
There may be no better example of how copyright protection of source code has
stood on its head the objectives of copyright to encourage the dissemination of
creative and useful works than the manner in which Microsoft Corporation uses
its copyright in the source code of its operating systems software to forestall
or completely eliminate opportunities for others to create useful works in the
marketplace of personal computers. See,
e.g., A guide to Act II in the Antitrust Trial, U.S. News & World Report,
December 15, 1999 at 50 (noting that the district judge’s over 400 findings of
fact issued in the Federal government’s antitrust litigation against Microsoft
supported the court’s suggestion that the software developer used its
government granted monopoly over its source code to erect an impenetrable
barrier to others who wished to create similar works).
[253]
See Laurence H. Tribe, American
Constitutional Law § 12-7 825-832 (2d
ed. 1988) (noting that the distinction arises from labor picketing cases such
as Thornhill v. Alabama, 310 U.S. 88
(1940) and arguing that the dichotomy is too oversimplified to be applied
consistently or to have much determinate content); Cass R. Sunstein, Words,
Conduct, Caste, 60 U. Chi. L. Rev. 795 (1993) (arguing that regulation of
speech should be evaluated against goals of fostering democracy and equality,
not on the speech/conduct distinction); see also Stephanie M. Kaufman, The
Speech/Conduct Distinction and First Amendment Protection of Begging in
Subways, 79 Geo. L.J. 1803 (1990).
[254]
See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
558-59 (1985) (public interest in the content of copyrighted subject matter
does not necessarily override the author’s right to first publication or other
exclusive rights granted to copyright owners by the Copyright Act).
[255]
The Clinton administration is viewed by some as attempting to circumvent
significant Congressional scrutiny by obtaining increased copyright protection
through new international copyright treaties.
See Stephen Fraser, The Copyright Battle: Emerging International Rules
and Roadblocks on the Global Information Infrastructure, 15 J. Marshall J. of Computer & Info. L. 759
(1997).