Press Release of Peter Junger.
Re: Junger v. Daley.
Date: July 8, 1998.
Source: Peter Junger's Website.
Federal District Court Holds That Software Publishers Are Not Protected by the First Amendment
Government Wins Summary Judgment in Junger v. Daley
Judge Gwin's Opinion Is Available on Line
Cleveland, Ohio, Wednesday, July 8, 1998
For Immediate Release
For More Information
Contact: Peter D. Junger (216) 368-2535 firstname.lastname@example.org
Raymond Vasvari (216) 662-1780 email@example.com
Or see URL: http://samsara.law.cwru.edu/comp_law/jvd/
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Cleveland, Ohio, July 8 --
On July 3, 1998 Judge Gwin of the United States District Court of the Northern District of Ohio held that computer programs are not writings protected by the constitution because they are ``inherently functional'' and granted summary judgment dismissing a suitchallenging regulations that forbid the publication of encryption programs on the Internet or the World Wide Web.
The suit was brought by Peter Junger, a law professor at Case Western Reserve University in Cleveland, to enjoin the enforcement of export regulations on encryption software that prevent him from publishing his class materials and articles for his course in Computing and theLaw on the Internet because they contain some encryption programs. Junger claimed in his suit that those encryption programs were writings that were entitled to the full protection of the First Amendment. ``Of course they are writings,'' Junger says, ``I know because I wrote some of them. And I need to be able to publish them if I am ever going to be able to explain to lawyers and law students how computers work and how the law should be applied to computing.''
The government, on the other hand, argued that its export regulations, which require that one obtain a license from the Commerce Department before publishing materials containing encryption software on the Internet or the World Wide Web, seek only to restrict the distributionof encryption software itself, not ideas on encryption. And Judge Gwin agreed with the government, finding 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, and because the Export Regulations do not reach academic discussions of software, or software in print form.''
In a related case in California brought by mathematics professor Daniel Bernstein, Federal District Court Judge Patel held that computer programs are speech that is protected by the First Amendment,but Judge Gwin rejected that argument, saying: ``The Bernstein court's assertion that `language equals protected speech' is unsound. `Speech'is not protected simply because we write it in a language.'' It is Judge Gwin's position that computer source code is a purely functionaldevice: ``The court in Bernstein misunderstood the significance ofsource code's functionality. Source code is `purely functional,' in away that the Bernstein Court's examples of instructions, manuals, andrecipes are not. Unlike instructions, a manual, or a recipe, source code actually performs the function it describes. While a recipe provides instructions to a cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption.''
There is thus a clear split between the two courts: Judge Patel holding that computer software is protected by the First Amendment and Judge Gwin holding that it isn't. The Bernstein case is on appeal and Professor Junger says that he intends to appeal Judge Gwin's decision: ``We have had almost no financial support for this case, but the issue of whether encryption software and software in general is protected like other writings under the First Amendment, or whether it is to be treated as a special exception like obscenity and fighting words as Judge Gwin held, is so important that we will have to scrape up theresources somehow to bring an appeal.''
Judge Gwin's opinion is now available at http://jya.com/pdj11.htm and is mirrored at http://samsara.law.cwru.edu/comp_law/jvd/pdj11.html.