8 July 1998

See related files at Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

Documents of the suit: http://jya.com/pdj.htm

    To: jvd-announce@samsara.law.cwru.edu
    Subject: Press Release: Judge holds software is not protected speech
    Date: Wed, 08 Jul 1998 09:39:36 -0300
    From: "Junger v. Daley Announcements" <jvd@samsara.law.cwru.edu>

    		  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
    		    <junger@samsara.law.cwru.edu>

    		    Raymond Vasvari (216) 662-1780
    		   <freespeech@mail.multiverse.com>

    	Or see URL: http://samsara.law.cwru.edu/comp_law/jvd/
    To be added to, or removed from, the list of those who were sent this
    press release, please send e-mail to <lawsuit@upaya.multiverse.com>.

         _________________________________________________________________

    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 suit
    challenging 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 the
    Law 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 distribution
    of 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 functional

    device: ``The court in Bernstein misunderstood the significance of
    source code's functionality. Source code is `purely functional,' in a
    way that the Bernstein Court's examples of instructions, manuals, and
    recipes 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 the
    resources 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>.

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