The Medium Is the Mistake: The Law of Software for the First Amendment Export

@article{citeulike:207639, abstract = {Is computer software-code written by humans that instructs a computer to perform certain tasks-protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation and will affect the scope of free expression rights in new media. In this note, R. Polk Wagner sets forth a framework for analysis of this issue, noting at the outset that the truly important question in this context is the threshold question: What is \"speech or... the press\"? Wagner first describes two ways that the Supreme Court has addressed the threshold question. One is ontological-focusing on the expressive content of the speaker's conduct or the medium chosen. The second approach is teleological-determining whether the regulation at issue implicates free expression. Wagner argues that the teleological mode-especially as applied to computer software and other new media-is the more likely to be consistently speech-protective, and that the courts that have addressed computer software have mistakenly opted for the ontological, medium-focused analysis. Use of a teleological approach implies that there should be no \"law of software,\" a conclusion that Wagner argues holds the most promise for extending robust First Amendment protections into new mediums of communication.}, author = {Wagner, R. Polk}, citeulike-article-id = {207639}, citeulike-linkout-0 = {http://www.jstor.org/stable/1229273}, journal = {Stanford Law Review}, keywords = {collaboration, computing, copyleft, copyright}, number = {2}, pages = {387--408}, posted-at = {2005-05-22 21:11:09}, priority = {2}, title = {The Medium Is the Mistake: The Law of Software for the First Amendment}, url = {http://www.jstor.org/stable/1229273}, volume = {51}, year = {1999} }

TY - JOUR ID - citeulike:207639 L3 - citeulike-article-id:207639 N2 - Is computer software-code written by humans that instructs a computer to perform certain tasks-protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation and will affect the scope of free expression rights in new media. In this note, R. Polk Wagner sets forth a framework for analysis of this issue, noting at the outset that the truly important question in this context is the threshold question: What is "speech or... the press"? Wagner first describes two ways that the Supreme Court has addressed the threshold question. One is ontological-focusing on the expressive content of the speaker's conduct or the medium chosen. The second approach is teleological-determining whether the regulation at issue implicates free expression. Wagner argues that the teleological mode-especially as applied to computer software and other new media-is the more likely to be consistently speech-protective, and that the courts that have addressed computer software have mistakenly opted for the ontological, medium-focused analysis. Use of a teleological approach implies that there should be no "law of software," a conclusion that Wagner argues holds the most promise for extending robust First Amendment protections into new mediums of communication. IS - 2 JF - Stanford Law Review EP - 408 TI - The Medium Is the Mistake: The Law of Software for the First Amendment VL - 51 SP - 387 KW - collaboration KW - computing KW - copyleft KW - copyright AU - Wagner, Polk PY - 1999/// UR - http://www.jstor.org/stable/1229273 ER -