[ILUG] Free Speech Rights For Software Authors - last days for letters

[kevin lyda]

On Fri, May 14, 2004 at 10:36:30AM +0100, Colm MacCarthaigh wrote:
> Ireland's case-law practises exclude the majority of courts in the US.
> (some courts, particularly in commonwealth states are referenceable
> though, some other courts judgement are citable in certain limited
> circumstances and others such as courts in louisiana are almost entire
> uncitable).

with the exception of louisiana, i think all states in america use some
form of common law.

> For one last try; The cases in the US that you are referencing are
> constitutional in nature and based on the 1st amendment to the US
> constitution. We do not share that constitution, and the 1st amendment
> to ours is concerning emergency state powers. Those cases will never,

now that's just silly.  no one expects the headings of various
constitutions to match up.  the first ammendment in the us constitution is
not as clear as some people make it and it's interpretation has changed
over the years.  it also doesn't just deal with freedom of speech.

the irish constitution apparently covers various bits of freedom of
expression in several places, and there are similar debates about how
far that right can be fleshed out.  a quick google search finds:

    http://www.iccl.ie/constitution/fos/98_censor11.htm

there is an explicit right protecting you against defamation in the
irish constitution, but not in the us constitution.  nonetheless you can
sue for defamation in the states.

> There is no constitutional right to free speech in Ireland, it simply is
> not a right we have. There are limited commitments to freedom of
> expression but provision is made for it's limitation all of the time,
> like;
> 
> 	The public order act
> 	The official secrets act
> 	The copyright act
> 	The patents and design act
> 	The Freedom of Information act

all of which have analogous things in the states either in the
constitution or in law.

> I agree that that could continue to be a good thing for the European
> software industry, yes. But I don't agree that that's based on any
> fundamental rights of software developers, or that it is in any way a
> civil liberties issue. 

software is being used in many fields that directly relate to civil
liberties: voting, personal communications, political campaigns,
health records, policing, etc.  people working for human rights in
various countries are using things like gpg to communicate with others.
and recently the software encoding and transmitting digital pictures
and video made some impact on human rights.

> I'm a programmer, and I've written a lot of code, a lot of which is in
> major open-source projects, some of which is no doubt covered by patents
> somewhere. But I don't regard any of that code as speech that should
> have a constitutional or legal protection. It's just code, and it's a
> whole lot more similar to a watch than it is a political doctrine.

i don't think you're considering the larger picture.

> Nope, watchmakers have been happy to accept patents and have never even
> tried such an absurd argument. And to be clear; it's that it is
> expression, not speech and it is expression for which we have limited
> protection.

machine code is not speech.  but we (programmers) don't normally write
straight machine code.  we write in higher level languages in order to
generate machine code from those ideas AND to communicate those ideas
with other programmers.

> O.k. this is obviously going to take baby steps. Firstly; I have read
> it, it even includes examples of American courts finding software not to
> be Free Speech under the 1st amendment. Now, next step; We do not have
> constitutionally protected speech, nor do we live under the American
> constitution. In what way would precedent in a US court, relevant to
> their constitution ever become relevant to us? You clearly don't
> understand how case-law operates. 

i don't understand how it works exactly either, but i would guess that a
lawyer here would look through those cases and see which ones fit with
the rights given by the irish constitution.

in addition, the irish constitution has personal and political rights.
in addition it has a right to organise - and one can argue that code is
used to organise programmers.

> I'm not argueing that at all. I'm saying that a) We do not have a right
> to unimpeded free speech, it does not exist. b) one of allowable
> limitations on our limited right to free expression is that it may be
> limited for the reasons of commercial protection, this is well
> established in law.

again i think you'll discover that (a) and (b) apply to the first
ammendment to the us constitution.  the question is how do you balance
competing rights?

kevin

-- 
kevin at ie.suberic.net  ~  "you're either with us or against us." --dubya
iraq: vietnam again?  ~  in that simplistic world-view progressives and
a new lbj selected -  ~  liberals are "us" while bush and bin laden are
"looney bush junior"  ~  "against us."
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