One of my favorite answers to this question comes from a federal lawsuit that ended with a ruling that source code is protected by the First Amendment. Here's a

One of my favorite answers to this question comes from a federal lawsuit that ended with a ruling that source code is protected by the First Amendment. Here's an excerpt: Programs written in source code also share many of the linguistic elements of texts written in natural languages, like German or French... For First Amendment purposes, the use of language is highly significant. Languages are made up of conventions, regular ways of expressing and communicating thoughts and ideas shared by a group of speakers... Language can be technical, and even arcane, but that does not make it any less like language. A native speaker of English, untrained in medicine, might have difficulty understanding the discussion of a cancer patient's progress. The vocabulary is different even if the grammar is not. Musicians use artificial notation for writing and reading music. Mathematicians and scientists do the same to express concepts important in their fields, with grammar and other conventions that may be wholly incomprehensible to the uninitiated... For every shared language, natural or artificial, however, there is a community of speakers and listeners (or readers) for whom the language is both comprehensible and for which the language is its conventional form of communication. To belong to a community is to speak its language... That's from a brief submitted by attorneys for the late Peter Junger (http://louisville.edu/faculty/ddking01/cecs311/cases/Junger%20v%20Daley%20--%20ACLU%20Brief.htm http://louisville.edu/faculty/ddking01/cecs311/cases/Junger%...) in an effort to attack FedGov encryption export controls. If source code can be expressive, and it is, then it can be art. That doesn't mean that all code is art, of course -- I've written my share of single-use utilities that aren't -- but some subset does deserve that title.