First amendment, encryption, fonts (Was: Shrinkwrap Licenses - Reply re UCC2b)

On 8/27/98, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> On 26 Aug 98, Patrice A. Lyons <plyons/0003432266[_at_]mcimail.com> wrote:
> >
> > There appears to be a basic conflict between the concept of "computer
> > program" as it has developed under the U.S. copyright law over the
> > last twenty years or so, and the definitional notes on this matter in
> > the July 1998 draft of UCC2b. Note 6 to the definitional section
> > appears to suggest that a computer program for copyright purposes is
> > limited to what it terms "functional operations (program)," while the
> > rather vague notion of "communicated content (informational content)"
> > would not be covered. This distinction is unusual from a copyright
> > perspective, and, indeed, may serve to inhibit the development of
> > dynamic new programming services over the coming years as distributed
> > integration software continues to emerge in the Internet environment.
>
> It is also (arguably) absurd from a computer science point of view. By
> bizarre coincidence, the same issue arose in a message I received the
> same day as the above-quoted message from Prof. Peter Junger's
> "SoftSpeech" mailing list. Here is the relevant quote:
>
> > To: "Peter D. Junger" <junger[_at_]samsara.law.cwru.edu>
> > Subject: Re: [SoftSpeech] Aren't all digital texts actually
> > computer programs?
> > Date sent: Tue, 25 Aug 1998 21:43:30 EDT
> > From: "M. Dakin" <mdakin[_at_]mit.edu>
> >
> > You are definitely onto something. A few years ago I took 6.001:
> > Structure and Interpretation of Computer Programs (the textbook for
> > this class has been quoted on the softspeech list) here at MIT.
> > Needless to say this was quite an amazing class. I recall one day one
> > of the lecturers mentioned some court case as an aside. It could have
> > been a current event (Spring 1997), or he might have been just
> > mentioning it because of its relevance. It was a case about fonts if
> > I recall. I think it had to do with deciding wether a font could be
> > copyrighted rather than patented. Apparently the court was trying to
> > decide wether the font was a "program" or wether it was "data". He said
> > something along the lines of that this was totally silly, because all
> > programs are data, and all data are programs, there really is no
> > difference! This is truly one of the underlying philosophies that the
> > class instilled in me.
>
> Prof. Junger emphasized this same point himself in his "Computers and
> the Law" course at CWRU School of Law -- the distinction between a
> "functional program" on one hand and mere "data" on the other is
> entirely artificial and not terribly useful from a CS point of view.
> Of course, this issue is all the more important to him now that he is
> appealing the ruling against him (the Junger v. Daley case has been
> discussed at some length here before) which was based on the notion that
> an encryption program is purely "functional" and therefore not subject
> to First Amendment protection.

I see the point you and those you reference are making. Actually, in the Junger case, the court held that the encryption program *was* entitled to protection under the First Amendment; not all expression is given the same degree of protection, however. The court held that, because of the high level of functionality in this "expression," the government could justify a restriction on it under "intermediate scrutiny" (like a time, place, or manner restriction on expression, or a restriction on commercial speech) rather than under "strict scrutiny." Thus, the government didn't have to demonstrate a "compelling" governmental interest to justify the export controls, but rather a "substantial" one. As constitutional scholars (I'm not one) know, this distinction approaches the metaphysical, but the bottom line is that the government has a very small chance of demonstrating a compelling interest and a somewhat greater chance of demonstrating a substantial one.

Also, the "fonts" case you referred to is quite important. Fonts themselves have been treated for a long time as not being copyrightable because of their functionality, or because of merger of the expression with the idea. However, in that case (the name of which I do not immediately recall), the court held that the *program* creating the fonts was indeed copyrightable subject matter. Irrespective of the logic of this distinction, if this case holds up, the practical effect would seem to be that fonts are now copyrightable subject matter.

I hope that someone will disagree with my analysis if they find problems with it.

John Allison

John R. Allison
The Spence Centennial Professor
Graduate School of Business
University of Texas at Austin
allisonj[_at_]mail.utexas.edu
Phone 512-471-9435
FAX 512-471-0587 Received on Fri Aug 28 1998 - 15:55:42 GMT