When Efforts to Conceal May Actually Reveal: Re-Drawing the Constitutional Line Between the First Amendment and Copyright for Authors of Computer Software

Actual publication title: "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 for Authors of Computer Software" Computer source code is speech. At least, that is the argument advanced by privacy advocates and cryptographers, who recently obtained the support of the Ninth Circuit in Bernstein v. U.S. With respect to adjudicating disputes over the Federal government's authority to regulate the use or export of encryption products, courts are in general conflict over the appropriate standard of review to apply to the government's regulations; 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. The encryption decisions are compelling indications that the time has comefor courts to put aside and replace the amorphous and ineffective idea/expression dichotomy; this is particularly true in the context of copyright infringement actions involving computer source code. Since the 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. 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 - as well as 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 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, which, of course, is required of works subject to copyright protection.