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Courts have never equated code with speech in such a way that it’s protected the same way as, say, political speech. People have been making the argument that “

Courts have never equated code with speech in such a way that it’s protected the same way as, say, political speech. People have been making the argument that “code is speech” (without understanding that not all speech is treated alike by our legal system) since DMCA was still being drafted 20+ years ago, but the legal system has never seen it that way.

AnthonyMouse 2y ago
This reply doesn't seem responsive to the issue. It's not just whether you can censor someone from publishing code -- that's a separate problem. It's whether the law can prohibit circumvention even when the copying is fair use -- or when the same technological protection measure is locking away works in the public domain.
- otterley 2y ago
  We’re talking about freedom of speech here, so First Amendment law is on point. There’s no other mechanism in our legal system than the Constitution that would prevent DMCA, including its anti-circumvention provisions, from having full force and effect. Similarly, absent some Constitutional protection, states can restrict who can purchase lock picks.
  - actionfromafar 2y ago
    The Constitution doesn't seem to be very respected these days, in either the Executive nor Congress these days.
JimDabell 2y ago
What about Bernstein v. United States? > the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional. — https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Bernstein_v._United_States
- otterley 2y ago
  Obviously it's impossible to cover all cases in a HN comment. I was perhaps a bit too broad when I suggested that the legal system doesn't treat code as speech. It does, sometimes; but even when it does, not all speech is treated alike for the purpose of legal analysis. In the Bernstein cases, the Government was trying to squelch the author from publishing code that he personally wrote, that had scientific expressive value, and of which the Government required prepublication review, and the Ninth Circuit held: "We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve 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. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech." The Court, as you can see, was trying very hard not to declare some sort of framework or test to be applied to future cases.

AnthonyMouse 2y ago

This reply doesn't seem responsive to the issue. It's not just whether you can censor someone from publishing code -- that's a separate problem. It's whether the law can prohibit circumvention even when the copying is fair use -- or when the same technological protection measure is locking away works in the public domain.

otterley 2y ago
We’re talking about freedom of speech here, so First Amendment law is on point. There’s no other mechanism in our legal system than the Constitution that would prevent DMCA, including its anti-circumvention provisions, from having full force and effect. Similarly, absent some Constitutional protection, states can restrict who can purchase lock picks.
- actionfromafar 2y ago
  The Constitution doesn't seem to be very respected these days, in either the Executive nor Congress these days.

JimDabell 2y ago

What about Bernstein v. United States? > the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional. — https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Bernstein_v._United_States

otterley 2y ago
Obviously it's impossible to cover all cases in a HN comment. I was perhaps a bit too broad when I suggested that the legal system doesn't treat code as speech. It does, sometimes; but even when it does, not all speech is treated alike for the purpose of legal analysis. In the Bernstein cases, the Government was trying to squelch the author from publishing code that he personally wrote, that had scientific expressive value, and of which the Government required prepublication review, and the Ninth Circuit held: "We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve 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. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech." The Court, as you can see, was trying very hard not to declare some sort of framework or test to be applied to future cases.