[DMCA-Activists] Phil Salin on Software Patents

[Seth Johnson]

(A very fine essay on software patents, from 1991.  The referenced John
Gilmore message is pasted below it.  -- Seth)

> http://philsalin.com/patents.html


The following text is derived from the transcript of Phil's article as it
appears in this message
(http://lists.elistx.com/archives/interesting-people/199308/msg00049.html)
by John Gilmore. In this message
(http://www.toad.com/freedom.speech.software), Gilmore says about this
article

Phil Salin opposed software patents on free speech grounds, claiming a
government monopoly over the use of certain ideas in software was
exactly equivalent to censorship of literary ideas. This was the first
application of the concept of freedom of speech to software.



To:  Patent and Trademark Office
     Department of Commerce
     (E.R. Kazenske, Executive Assistant to the Commissioner
     U.S. Patent and Trademark Office, Box 15, Washington, DC 20231) 

From: Phillip Salin
      President
      American Information Exchange Corporation
      2345 Yale St., Palo Alto, Ca. 94306 (415) 856-1234 

Re: Request for Comments, Advisory Commission on Patent Law Reform (56 FR
22702-02) 

Title: Freedom of Speech in Software 

Date: July 14, 1991 

The following comments relate to point I. "Protection of Computer Related
Inventions", subpoint c) "The Supreme Court has found that new and useful
computer program-related inventions are eligible for patent protection. What
rationale, if any, exists in law or policy for Congress to now remove patent
protection for this field of science and technology?" 

SUMMARY OF POSITION. 

1. Computer Programs are Writings. As such, they should be subject to
copyright law (narrowly interpreted) or trade secret protection, but not
patent law. As writings, programs should be protected against any attempt by
government to license what can be written. This includes well-intentioned
but mistaken legal or policy arguments which create de facto censors and
censorship under another name, viz. patent examiners and patent examination. 

Such censorship and restraint on freedom of expression of software writers
is anathema in a free society, and a violation of the First Amendment. That
software patents are a severe violation of the rights of speech of
programmers has not yet been widely recognized; this is perhaps in part
because most lawyers, judges and politicians are still insufficiently
knowledgeable regarding computers to realize that writing a computer program
is in fact a form of writing, not significantly more arcane than writing
music, mathematics, scientific papers, or for that matter, laws. All of
these forms of speech, including writing programs, deserve full protection
under the First Amendment. 

2. Central Planning or Licensure of Good Ideas in Software Won't Work. Just
as any attempt to centralize or classify all original (or "non-obvious")
literary, musical, or scientific writings in the patent office would fail,
so any attempt to centralize information regarding all innovative software
programs will also fail. No human can know all of software relevant to any
large subject, just as no human can know all that has been written on any
large subject, and for the same reasons. Current and near-term innovations
in the writing of software will cause the amount of software developed every
year by the one million professional programmers in the U.S. to grow at an
ever-increasing rate. As a result, the burden of central licensing of
innovation by the patent office will grow steadily more onerous, creating
unnecessary and costly barriers to software progress. 

3. Patents on Writings Discourage Trial and Error Perfection of Ideas.
Rather than allowing government to restrict different expressions of the
same important idea, by patents or otherwise, public policy should recognize
that the more important the idea, the more important it is to support the
freest possible variation of expression, in order to rapidly perfect the
idea. The intense competition of commercial software in recent years, and
the rapid improvements in software practice which the free market in
software has hitherto engendered, strongly validates this theory in
practice. 

ELABORATION. 

1. Computer Programs are Writings. 

Anyone who has ever written both a program and an essay knows how similar
these complex endeavors are. Both require use of all one's skill and
knowledge. Both involve continual invention and creativity. Both require
constant revision. Both evolve with time, as one's knowledge grows. Both are
written in a language which has a vocabulary that can be used in an infinite
variety of ways. Although software is often a less direct method of
communication than prose, in that there may be many intermediaries between a
particular programmer and the end-user of an application which uses a piece
of his or her code, the same is true for other forms of expression. Theater
goers, for example, don't directly read theater scripts, but see and hear
them acted by intermediaries (actors); nonetheless, the scripts are
writings. 

Neither essays nor software are written with primary attention to "What has
someone else said?", much less "What has the official licenser/patent
examiner pronounced?" Rather, both are written with attention to solving a
particular problem or achieving an objective of importance to the writer. In
both cases, any similarity to the works of others normally comes about
because of similarity in the problems which are being addressed, and not
because of slavish copying of either ideas or implementations of others. 

Writing programs today is no more esoteric than writing prose once was, and
writing music still is. Until a few hundred years ago, literacy was a
rarity. Acquiring the ability to write prose took training. It still does,
but nowadays we teach writing to everyone in schools. Other forms of
writing, such as writing music or writing computer programs, are treated as
optional, but we still recognize them as writing. Even though the notes
don't sing by themselves -- they have to be played -- we recognize the
writing of music as a form of speech or expression. 

Similarly, although a program has to be run to be used, before it can be run
it has to be written. There are now millions of individuals in the U.S.A.
who know how to write a computer program. It is an absurdity to expect those
millions of individuals to perform patent searches or any other kind of
search prior to the act of writing a program to solve a specific problem. If
others wish to purchase a program, as with the sale of written prose and
written music, absolutely no patent restrictions should be placed on the
ability of authors to sell or publish their own writings. To do otherwise is
to confuse the player piano (which is patentable) with the specific
arrangement of notes on a specific player piano roll (which is indeed
subject to copyright, but not to patenting). 

Regrettably, the courts have allowed the patent office to be placed in the
position of promoting de facto censorship of the work of over 1,000,000
employed writers of computer software, along with the several million
additional amateur writers of computer software. All these millions of
citizens are now asked to censor their own writings, or have them reviewed
and censored by third parties or the courts. Whenever and wherever the
patent office issues a software patent, software authors must now plead with
patent holders to grant - for a price - licenses to speak as they choose;
and the patent holder is under no obligation to grant these licenses. 

Suppression of free thought and speech in software (writing, or publishing)
is an evil, even when only a small number of individuals recognize that
speech is being restricted, or what the costs will be if this harmful
censorship-by-another-name, viz "patent licensure", is now allowed to expand
unchecked. 

The grant by any agency of government of the exclusive right to speak in
software, and the enforced branding by government of all alternative
expressions of the same or similar ideas (algorithms) as illegal is
inherently harmful. It is to say, in effect, "Don't try to solve problems
and invent solutions as you see fit; you or your software agents might
independently write or invent something which the patent office's licensers
have placed on the Index of Banned Algorithms; in which case, at their
discretion, they can force you into an expensive, traumatic legal
Inquisition..." 

Under the First Amendment, the freedom to speak or write may not be abridged
by any branch of government or by any government licensee. This holds
regardless of the good or bad intentions of those who argue otherwise. 

2. Central Planning or Licensing of Good Ideas in Software Won't Work. 

Requiring writers of software to know all potentially relevant patents is
the same as requiring writers of literature to have read all potentially
significant works of literature before ever setting pen to paper. It is not
possible; and even if it were, it is not desirable. 

The main costs of software patents are not in the past or present; they are
in the future. As programming literacy increases, and as Object-Oriented
Programming, Genetic Algorithms, Neural Networks, and Computer Aided
Software Engineering techniques expand, the volume, breadth, complexity, and
scale of software written will continue to expand exponentially. 

As this happens, the percentage of all that is worth knowing about software
which can be known by a single person will continue to drop exponentially.
This applies to software writers, and also to software readers, users, and
reviewers, including patent examiners. No one can know much of what is
non-obvious and innovative in software, even today; tomorrow, the problem
will be even worse. 

We are now entering the era when programs can write and edit other programs,
and where it will simply not be possible for anyone to know which programs
have evolved or been automatically revised to the point of similarity with
other programs, innovative or not. Furthermore, new programs and algorithms
will be written at the rate of the computer programs running to create them,
not at the rate of the computer programmers typing code line by line. 

At this point, software patents will go from being unworkable to being
widely and deservedly recognized as impossible. For not only will they
become impossible to enforce; they will become impossible to comply with. In
the meantime, real companies will have to pay real lawyers increasing sums
to try to avoid lawsuits, negotiate otherwise unnecessary cross- licensing
agreements, and continually waste time, money, attention and energy on these
and other defensive, rear-guard activities which will add nothing to
America's productivity or actual stock of inventive software. 

Allowing patents in software is tantamount to asking each individual
programmer to know what all the other millions of programmers on Earth are
currently doing or have already done. Requiring such omniscience by software
writers is a sure way to force them into civil disobedience, if not
intentionally, then after they find that they increasingly and unwittingly
are nevertheless violating patents of which they cannot adequately remain
current or aware. When the law begins to tell people to do what is
impossible, disobedience and disrespect for the law are the inevitable
result. 

Thus, the only thing which software patents can do is create increasingly
arbitrary and costly roadblocks to progress, including crucial progress in
using new tools and techniques for writing software. 

Since promoting innovation is the primary rationale for patents, and since
patents instead serve to impede innovation when it comes to software, and
will increasingly impede innovation as the volume of software continues to
expand, it is quite clear that patents should not be applied to software
writings for this reason alone, independent of the First Amendment issues
discussed earlier. 

Similar considerations argue against a broad interpretation of copyrights,
including broad "look and feel" claims. The burden of proof should always be
on the copyright holder to prove substantive and thorough copying or reverse
engineering. Like writers of literature, writers of software should not be
expected to constantly look over their shoulders out of fear that someone
someday may try to sue them due to partial or accidental similarities with
the works of others. Broad interpretations of copyright are even worse than
patents in this respect, because claims of copyright infringement can be
made by almost any party in any field, without significant time limit, and
without any requirement to state publicly in advance exactly what aspects of
one's work are sufficiently unique to deserve copyright protection. As a
result, the idea of copyright protection, coherent when applied to a
specific piece of writing, becomes incoherent and requires de facto
omniscience if applied to all possible variations on all existing pieces of
writing. 

Because the focus of this analysis is on patent law and software, further
discussion of the dangers of broadly interpreted copyrights should take
place elsewhere. 

3. Patents on Writings Discourage Trial and Error Perfection of Important
Ideas. 

Whenever a patent is granted on a particular expression of an idea in
software, it will have a chilling effect on everyone who is considering
writing software to solve similar problems. They must now tread gingerly
lest their writings be later judged to overlap with the area that has had
exclusive title granted to the patent holder; this holds even if their
expression was independently derived, and even if it is a superior solution
to the same problem. Given the manifest unpredictability of court decisions,
many people will prudently decide not to innovate in areas in which someone
has already been granted a patent. This is a perverse way to encourage
invention. 

Favoritism by a government official towards "non-obvious" (i.e. important)
software innovations is like favoritism by government towards specific
religious writings or specific commercial products in the marketplace: it's
an inherently bad idea. The idea that one party's writings on a subject
shall be certified by the Executive branch of the government, and all other
expressions suppressed, would appear very strange to those who wrote the
constitution. 

Like a work of fiction, the value of a sophisticated work of software is not
in the simple plot idea, but in the complex telling of the tale. It is only
those unfamiliar with the strong feelings, beliefs and preferences which
exist among writers of software regarding alternative expressions of the
same software ideas who could believe that differences in expression of the
"same" idea are unimportant to those who write software, or to those who use
software written by others. 

Imagine if, for 17 years, only one author was allowed to write about the
plot line "boy meets girl, boy loses girl, boy regains girl". Or that once
some consortium of artists has invented rock and roll or string quartets
(and produced an initial "reduction to practice"), no one else could write
music in those styles for 17 years without their permission. Or that once
the first mathematician has invented a technique for dividing numbers, all
other mathematicians must for 17 years request permission before inventing
their own techniques, for fear of accidentally reinventing or coming too
close to reinventing what another mathematician has also thought about. In
each of these cases, imagine the arrogance of someone claiming a right to
bring before a court of law and convict of a civil crime all others who
choose to think for themselves and write independently. 

Any assertion that some one individual or organization can ever rightfully
establish exclusive ownership of the use or refinement of abstract ideas -
obvious or non-obvious, important or unimportant - embodied in a work of
prose, music, mathematics, or software, should trouble the conscience of
everyone whose creative work is built, as it necessarily must be, in part or
in whole, out of ideas and techniques discovered and developed by others. 

The notion that the better the idea, the better it is to grant one author a
monopoly over all possible expressions of that idea is perverse. It is
precisely the most important ideas which deserve the most varied and
thorough exploration. The more important or innovative the area of
discourse, the more important it is to avoid government favoritism or
censorship of thought or expression. Letting the government grant monopoly
licenses to only the most important ("non-obvious") new ideas does not make
such licensing better, but worse. 

In addition to being harmful to the freedom of expression and
experimentation with ideas by others, patents on software are also
unnecessary. As with any complex novel or movie, significant works of
software necessarily involve significant complexity and detail. Barring
direct copying, which can and should be prevented by copyright law, the
expertise and judgement involved in creating and continually improving any
complex piece of software provides inherent protection against would- be
competitors; those who invest in writing such complex software master the
intricacies of the problem they are solving far better than any pure copycat
competitor is likely to achieve. Asking for more protection than this,
however, is asking too much. In all walks of life one makes investments
which one would like to protect. But where granting protection for some
involves imposing licensing requirements on others, we should always err on
the side of forbearance. Software which is complex and original enough to
deserve patent protection doesn't need it; and software which is simple
enough to require patent protection doesn't deserve it. 

Like censorship of religious speech in the 17th century, the issue here is
not what the original justifications were (software patents as incentives to
invention, etc.), but rather, how we can eliminate a dangerous, but
avoidable, error: restrictive licensure of software; and how we can,
instead, re-establish full freedom of speech in the writing and publishing
of computer programs. 

ACKNOWLEDGEMENTS. 

These comments have benefited from review and suggestions and assistance of
many colleagues, including: Ravi Pandya, Mark Miller, John Walker, Marc
Stiegler, Chip Morningstar, Chris Hibbert, Chris Peterson, Eric Drexler,
Eric Tribble, Nick Whyte, Gayle Pergamit, Roger Gregory, Robin Hanson,
Michael McClary, Paul Baclaski, Rick Mascitti, Kimball Collins, and Bob
Schumaker. Any error or inelegance of expression, however, remains the
responsibility of the author. 

The ideas in these comments have been evolving over a period of years, and
may be to some extent original with the author. However, there is a wider
intellectual climate within which they are shared. Several colleagues who
share the general views expressed in this document have attached their
signatures. They are almost all writers of software. 

Authors of non-software whose writings have heavily influenced my thinking
regarding the severe dangers and foolishness of even attempting to centrally
plan or license spontaneous areas of human endeavor such as the writing of
software, are: F.A. Hayek (Law, Legislation, and Liberty); Karl Popper
(Conjectures and Refutations); and Michael Polanyi (Personal Knowledge). 

As President of a small company which is currently working day and night on
developing an innovative software-based product, I do not have much free
time to participate in public policy issues. I had not until recently
planned to attempt to write my views on the subject of software patents and
copyrights until a few years from now, when I would have more leisure to
fully research, critique, and elaborate on them. However I have decided to
make these views public at this time, in somewhat "raw" form, as a
contribution to regulatory proceedings which I consider to be of the utmost
importance. 

I apologize for any lack of familiarity with the fine points of current
patent law as it is currently being applied to software. My whole point is
that any such details are necessarily irrelevant once one recognizes that
patents should not be applied to any form of writing, including the writing
of computer software. 

             ---Phil Salin, July 14, 1991. 

We the undersigned are in substantial agreement with the argument here, and
hold that for these reasons as well as others, patents should not be granted
in computer software.

Eric Drexler
President
Foresight Institute

Roger Gregory
Chief Scientist 
Xanadu Operating Company

Robin Hanson
Artificial Intelligence Researcher
NASA Ames Research Center

Chris Hibbert
Manager of Software Development
Xanadu Operating Company

Richard J. Mascitti
Manager, Hypermedia Software Development
Autodesk, Inc.

Michael McClary
Software Quality Control Tools
Xanadu Operating Company

Mark S. Miller
Co-Architect
Xanadu Operating Company
Co-Director
The Agorics Project
George Mason University

Chip Morningstar
Vice-President of Software Development
American Information Exchange

Ravi Pandya
Co-Architect
Xanadu Operating Company

Gayle Pergamit
Manager
American Information Exchange

Chris Peterson
Director
Foresight Institute

Bob Schumaker
Macintosh Programmer
American Information Exchange

Eric Dean Tribble
Co-Architect
Xanadu Operating Company

----

> http://www.toad.com/freedom.speech.software


[this version is not yet corrected to match what I actually said -- gnu]

Subject: Freedom of Speech in Software (ApacheCon speech notes)
Date: Wed, 14 Oct 1998 02:36:49 -0700
From: John Gilmore <address@hidden>

Most people at this conference have spent some time looking at the concept
of free software.  But closely allied to that concept is the concept of
freedom of speech in software.   Free software (or open source software)
cannot exist without freedom of speech in software.

Freedom of speech means the absence of censorship.  Each speaker or author
is free to speak or write on topics of their own choosing, to audiences of
their own choosing, in their own choice of language and their own choice of
words, without hindrance from the government.

Software has been written for years without general examination of its free
speech aspects.  So far, attempts to censor software have carefully been
couched in other terms, such as "creation of patent rights", "restrictions
on export of defense trade goods", or "outlawing circumvention of
intellectual property protection technologies".  However, the constitutional
theories about software that these special cases are creating will come to
control whether the government can censor *all* kinds of software.

Movies started off being treated by the courts as mere flickering
light-machines run by businesses, that they were free to regulate. (Mutual
Film in 1915).  It took almost 35 years to overturn that model, seeing them
as a medium of expression for which regulation was forbidden.

A straightforward look at software will show clearly how it deserves First
Amendment protection.  Software is written by humans, like fully protected
books or magazine articles.  It is designed to be read by humans -- any
program which is NOT readable by humans quickly falls into disuse, since it
can't be maintained.  Programs are filled with ordinary human language, in
the form of comments and names.  Programs are copied and sold by "software
publishers", just as books are copied and sold by ordinary publishers.


Why haven't we noticed freedom of speech in software until now?

The essence of free speech is the publication of communicative words.
Software was originally published in such forms only in tiny quantities,
such as in the Algorithms section of the Communications of the ACM magazine,
since it was painful to manually punch these programs into cards for use
with a computer.  Still, they were published for readers to examine and
understand.

The next major stage was publication on computer-readable media, such as
floppy disks or tapes.  Such publication was expensive, and was frequently
done by proprietary companies who only published binaries, not
human-readable sources, though IBM's mainframe software was readily
available in source code (in the days when IBM hardware was required to run
it).  A few user's groups published freely available source code, such as
SHARE, DECUS, and the Sun User Group.  The free speech issue did not tend to
arise; like moving pictures, people thought of these tapes as "business
machinery" rather than "creative works of authorship".

With the spread of the Arpanet, Usenet, and eventual Internet and Web, there
arose a natural publishing medium for programs.  FTP sites, newsgroups such
as net.sources, and mailing lists allowed the creation, distribution, and
widespread public collaboration in software source code.  The Unix system
was a major piece of software that evolved this way, but its proprietary
licensing limited authors' freedom to publish both the original Unix code
and their modifications to it.

In 1984, the GNU Project started building a large body of freely publishable
code, and a large set of worldwide collaborators, using the Internet
publishing and collaboration medium.  This set of people discovered some of
the value of having freedom of speech in software. The quality, broad
usability, and evolutionary speed of their "open source" software were much
easier to create than in un-publishable proprietary software.


Challenges to freedom of speech in software

Joni Mitchell said "You don't know what you've got til it's gone". We
noticed the topic of freedom of speech in software when the government
started trying to remove our freedom.

Software patents were the first attempt we noticed.  Open source advocates
such as Richard Stallman founded the League for Programming Freedom to fight
for their right to write and publish any program they wish to write.

Phil Salin opposed software patents on free speech grounds, claiming a
government monopoly over the use of certain ideas in software was exactly
equivalent to censorship of literary ideas.  This was the first application
of the concept of freedom of speech to software.

    As writings, programs should be protected against any attempt by
government to license what can be written.  . . .  Such censorship and
restraint on freedom of expression of software writers is anathema in a free
society, and a violation of the First Amendment.

    Phil Salin, Freedom of Speech in Software, July 1991

The whole creation of "software patents" as a class of patentable items is
an administrative fiction created by creative misreading of a 1981 Supreme
Court decision (Diamond v. Deihr), which actually only held that the use of
software in a hardware invention did not render the whole thing
unpatentable.

These issues still haven't been examined by the courts.  As far as I know,
no patent case that relies on First Amendment protection of software is in
the pipeline.  There may be cases that rest on fixing the overbroad
interpretation of Diamond v. Deihr.


Export controls on cryptographic software are the second case where the
government has tried to control the publication of software.

The government regulates the publication of encryption software in
machine-readable form, or communicating it privately to someone overseas, as
a tool of war.  It is also trying hard to regulate the domestic use of
encryption.

The authors and users of Apache were touched by the censorship of software. 
Apache used to contain "hooks" for inserting encryption libraries, though it
did not contain any encryption software itself. The National Center for
Supercomputing Applications (NCSA) wrote the "httpd" code that Apache was
originally based on.  The National Security Agency informed NCSA in 1995
that it was illegal to publish httpd on the Web because it contained hooks
for adding encryption. NCSA and the Apache developers removed these hooks
under the threat of felony prosecutions.  (The illegality of these "hooks"
is never mentioned anywhere in the regulations -- it's a fictional creation
of the department that enforces them -- but since there is no viable method
of appealing their decisions, it doesn't matter what the regulations say.)

Gov't regulated publication of cryptographic software for many years.
Eventually researcher Bernstein took a well documented claim to court in
1995.  Bernstein federal court decided in favor of free speech protection in
1996 and 1997. Government appealed; in 1998, being re-examined by 9th
Circuit Court of Appeals.

PGP was published on paper to avoid these regulations, is now legally sold
overseas after scanning it in.

EFF published its Cracking DES book on paper in order to get the software
published legally.  Web publication in the United States is illegal.  We
could have copyrighted the software, but that would not have permitted it to
be published.  Instead we put it into the public domain, so that foreigners
could freely scan it in and publish it on the Web.  Several of them have
done so, which means the online text of the book is available to everyone. 
Free software (not controlled by copyright) made it possible to have free
speech (not controlled by governments).


Should software be able to be freely published without restraint?

The government claims that the answer is no.  They are arguing in several
current cryptography court cases that since software is "functional", it can
be regulated, despite also being a form of human-to-human communication. 
Their essential argument is that if a machine can read and act on the
information in a program, the program can be regulated by the government; it
doesn't matter how many humans can also read it.  Reduced to the absurd, it
means that as soon as a machine can read the New York Times, the Times will
lose its First Amendment protection.

If the government's opinion prevails in court, this means that Congress
could decide what kinds of programs can or can't be written, sold, or
published.  Governments could make the use of a particular operating system
mandatory, or forbidden, at their whim.  Software which threatens sacred
cows can be censored, and the authors and distributors of such softwre
thrown in jail.  (Cryptography software is exactly one such threat to a
sacred cow, the spy and wiretap bureacracy.)  The creation, possession, use,
or distribution of encryption software could be outlawed.  The government
could even prohibit software such as Apache or Mozilla, which permits minors
to view indecent materials -- whether or not a prohibition against
*publishing* those indecent materials would ever hold up in court.

The example of cryptographic software shows the dangers of allowing
arbitrary government control of software.  Today's crypto regulatory scheme
requires that individuals or companies seek government permission BEFORE
publishing certain kinds of software; gives them endless time to decide,
keeping your software unpublished while they do; each requester gets a
private decision on a case-by-case basis, so you may get a better or worse
deal than your competitor; the agency makes decisions that are flatly
contrary to the regulations; yet there is no way to challenge their
decisions because the law and regulations attempt to forbid courts from
examining or overturning them.  Oh, and the government can change its mind
at any time, even after permitting publication -- shutting down your
business by merely writing you a letter.

If the courts uphold this scheme, Congress and the Executive Branch will be
free to extend similar standardless and discretionary regulations to all
kinds of software.  Today's export controls already claim to regulate
software that does packet-switching (most or all IP implementations),
disassembly from object to source code, and other readily available
functions.  We haven't noticed because they have not applied these obscure
regulations with the fervor that they show for regulating cryptography.


What's the practical difference?

If software really is protected by the free speech guarantees of the First
Amendment, then there are many procedural protections.  Congress cannot
delegate the power to censor protected expression to the Executive Branch;
any decision to suppress publication must be made by a court, where there's
an impartial opportunity for both sides.

In any a constitutional scheme to regulate protected speech, there are many
hurdles that the government must pass:

        *  The government must clearly define what is legal and what is
illegal, in a law that speakers can read, the government can use to decide
particular cases, and judges can check.  There must be no room for
administrative discretion.

        *  The government must make a very quick decision on whether each
bit of speech is forbidden or not.

        *  To be effective for more than a few days, the decision must be
backed up by a court, where the speaker can usefully challenge it.

        *  The government must file the court case and bear the burden of
proving that the speech is illegal.  The speaker need not file a lawsuit to
be permitted to speak, nor be forced to prove that their speech is
protected.

        *  The government must prove to the court that the speech would
"surely result in direct, immediate and irreparable damage to our Nation and
its people."  (Pentagon Papers, 1971)


Call to action

It's easiest to forget about rights when we think we have them. Mostly,
those who lack fundamental rights are the ones who notice their absence.

As a cryptographer, I have personally noticed the lack of fundamental rights
in software.  I've been doing something about it.  So far the Executive and
Legislative branches have been unresponsive, and only the courts have taken
my message to heart.

Before you too lose your fundamental right to write and publish software, I
encourage you to do something about it.  Think about how the First Amendment
applies to the software that you or your company writes.  Push the
Administration and the Congress to not only protect *commerce* in encryption
software, but to protect *free expression* and *scientific inquiry* in
encryption software.


-- 

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://www.boson2x.org/article.php3?id_article=21

I reserve no rights restricting copying, modification or distribution of
this incidentally recorded communication.  Original authorship should be
attributed reasonably, but only so far as such an expectation might hold for
usual practice in ordinary social discourse to which one holds no claim of
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