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Re: [dev] Re: LZW patented file left in .orig.tar source package?

On Tue, Oct 29, 2002 at 01:06:54AM +1300, Nick Phillips wrote:
> I thought that in the US at least, source code had been held to be speech
> (due to the necessity for precise communication of the ideas expressed
> therein) during one of the crypto cases.

That's in one Federal Circuit, the 9th, which is also the most overruled
of the U.S. Federal Circuit Courts[1].  That's not quite enough for a
safe, nationwide precedent.  That would require an Act of Congress or a
ruling by the U.S. Supreme Court, and neither looks likely.  The current
administration is very hostile to the First Amendment, but even the
current conservative-leaning Supreme Court is fairly literalist in its
reading of the First Amendment[2], so the Administration is trying to
get rid of the issue entirely, fearful of a defeat[3].

> There's nothing about patent law that enables it to override the constitution,
> is there?

Bwa ha ha ha, the Constitution gets "overridden" all the time.
Congressmen consider it a sport to see who can flout the Constitution
most egregiously.  Presidential administrations are also eager to
compete in this game.

Anyway, to more closely address the point I think you're making, relying
upon the opinion of one Federal Circuit is not a good idea; it is
costing two Florida men their lives[4].  Well, actually they were
relying on a Supreme Court ruling from earlier this year, and the
Florida Supreme Court ignored that, so my point is even stronger.

I do not think it is safe for Debian to rely on the premise that "source
code is speech" as protection from patent infringment claims.  We don't
do so for DVD CSS access technologies that people have packaged; those
stay out of "US main" for fear of suits under the DMCA.

[1] I express no opinion as to whether that's a good or a bad thing.
[2] Except when it comes to the Establishment Clause, and of course
    the recently-argued case of Eldred v. Ashcroft may illustrate that,
    as ever, conservatives are more than happy to sacrifice liberty at
    the altar of commerce.
[3] http://www.politechbot.com/p-04092.html
[4] http://www.upi.com/view.cfm?StoryID=20021024-025738-3676r

G. Branden Robinson                |      The noble soul has reverence for
Debian GNU/Linux                   |      itself.
branden@debian.org                 |      -- Friedrich Nietzsche
http://people.debian.org/~branden/ |

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