A Copyfighter\’s Musings

Today I read David McGowan’s “From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech” which goes through Corley, Elcomsoft, Bernstein, and other interesting code cases. It’s a great article, discussing how courts classify code on the basis of its function, expressive content, and context. His recommendations seem quite reasonable. Here are my notes, but it’s worth reading for yourself.

Relating “social friction” to free speech and code
     “By social friction I mean the costs of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another”
    Problems for judges
           Internet’s ease of distribution means code has no categorical context or social understandings
          Code is general purpose
          Cases and critics all think of code’s first amendment protection in terms of its context

Purpose: Discuss how context analysis in cyberspace is different than in meatspace
 Recommendations:
        Reject facial challenges to tech regulation like DMCA - categorical statements about regulations won’t work
       Think of context in terms of incitement doctrine
       Content neutrality should not be given too much weight

Part 1 - How Software Code is Expressive
 Describing code
  Software code, like musical notation, is meaningful to those who can read it - every court considers this speech
  Object code -  not as readable. Reimerdes said its “covered” by first amendment, but that doesn’t mean it’s always protected.
  Both only one factor in analysis

 Context is key to speech
  Saying “shoot the president” at the White House versus an actor saying it in a movie or my saying it in this example
  Code is expressive, but that doesn’t end the analysis

 Context as Function - Commodities Future Trading Commission v. Vartuli
  Investment program not immune from liability because it was an investing tool, not a tool that works by a users’ deliberation.
  Based on FUNCTION
  Similar ideas in Elcomsoft case - got right result but wrong reasoning - shouldn’t have said he was protected by First Amendment, because he wasn’t engaging in any expressive social practice

 DOes Function Mean Speech is Not “Pure Speech”? No.
  This argument states expression and function are inseparable in code, but expressive functions are only slight. Reimerdes case focuses on code’s immediate instantiation of action.
  Problems with this:
   So abstract that it doesn’t recognize importance of contextual uses (think of the “shoot the president” example above)
   Even code = machine, that doesn’t end analysis - eg, banning all printing presses
   All expression is functional (the EFF said this again and again in the Corley briefs)
   The immediacy of the action doesn’t solve it. You could still put the burden on the user of the code instead.
 
Part 2 - How Analyses Have Been Complicated
 Judges have trouble with new contexts

 What do they do?
  Dominant use analysis - using the record, common sense, and analogies to determine context.
   In Corley - the predominant use
  Problems with this: a non-dominant use may have high benefits, protection shouldn’t end just because a use is unusual

 Code and Internet as New Context
  Probability of use depends in part on cost, ease of employing code - from here, make assumptions about BEHAVIOR
  Practices thus must be stable

 How analogies fail
  Microsystems/CPHack case (essay and source code hacking CyberPatrol’s filters)
   Were they academic researchers or hooligans?
  Corley
   Is he a journalist? Was The Hacker Quaterly producing deliberation or dialogue? Was this publication something totally new or could it be analogized?

 The Public/Private Distribution
  Aim to protect public discourse. Public expression gets more protection that expression aimed at small groups.
  Public expression used to only be possible for large media agencies.

 Internet changes this
  Even if Jon Johansen aimed DeCSS at only a few people, low social friction leads to large general audience.
  Ease of publication means wider variety of information is freely available. Hard to tell whether content is general or particular interest.
  Don’t have “social cues” of physical space. In Corley, used linking and linked sites as providing cues.
  Intent - because practices are unstable, hard to tell if someone is really doing something as expressive speech.
 
Part 3 - Recommendations
 Rejecting Facial Challenges
  Facial challenges look at statute broadly, analyzing whether it would be overbroad and unconstitutional in other cases even if constitutional in this case.
  Don’t have stable practices to look to. 

 Weighing Deliberate Unlawful Uses of Code
  Incitement doctrine applies to speech otherwise protected if not for imminent harm.  So, does it deserve first amendment protection? And, is there imminent harm?

  Three important variables
   Cost of using for unlawful purpose
           Corley repeated how copying was instantaneous. But they were only looking at the code and not the accompanying magazine story.
   Listeners’ Time for deliberation
          Downloading DeCSS did not mean a movie was stolen.
   Intent
         Really difficult because social context is unstable.  Should not try to divine secret intent too much.

 Why Expressive Uses of Code Should Be Analyzed as Incitement and Receive Constitutional Protection Where User Illegality Is Deliberate
  Normative - it’s the listeners who are doing something illegal
  ”Conflicts over code will not have the same broad social salience as conflicts over civil rights, but much of the debate over regulation of code and the Internet is in fact a debate over conflicts between commercial and research cultures.  Given the increasing importance of technology to society, reconciling such conflicts is a very important interest. Providing legal space for expression that advances learning and public dialogue on technological issues is an important part of the reconciliation process.”
  Harm is economic, not physical and thus not as serious
  We know we’d lose discourse, we don’t know what actual social harm piracy will cause
  Difficult to establish causation - injunction against Corley was pretty meaningless
  Judges are not technologists

 Why Courts Should Not Put Too Much Weight on
Content Neutrality In Cases Involving Expressive Uses of Code
  Content neutrality ends up being too separate from context of the expression. Ends up treating Sklyarov and Corley exactly the same even though they’re quite different (Sklyarov was programmer, wasn’t really trying to be expressive - Corley was acting as a journalist in some fashion)
  Focuses too much on how code could be used not enough on how speaker actually used it.

Filed by Derek Slater at 1:21 am under cmusingsStories