Junger v. Daley Patents6/5/2000; 7:11:40 AM April 4, 2000: A very interesting court opinion here... in the case of Junger v. Daley, the court has issued some stunning pronouncements!

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

The Wired story puts a spin on the story as a victory for privacy advocates (and of course the professor involved in the lawsuit "smile"), but I'd like to look at this from another point of view.

Consider: We have two major structures in this country for dealing with intellectual property, and they are fairly clearly defined and do not overlap. One is patent law, and one is copyright law.

Patent law covers machines and processes. Copyright law covers particular expressions. If code is protected by the First Amendment, then it is clearly an expression. Yet the Patent Office issues patents on code, by which I mean that a particular code expression can be found in violation of a patent. AFAIK, there is nothing that is covered under both systems, which is a good thing; they are not terribly compatible!

Now, this 'proves' nothing... law is what the courts say it is. But I think this is a valuable example of a clear inability of the current system to deal with the conditions brought on by the Information Revolution. You can't just wrap the current system around this contradiction... patent law and copyright law are immiscible. It's not going to work. We need to step back and re-analyze the problems from the original principles, I think.