No. 97-16686 (9th Cir.) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL J. BERNSTEIN, Plaintiff-Appellee U.S. DEPARTMENT OF COMMERCE, et al. Defendants-Appellants ______________________ BRIEF OF AMICUS CURIAE ______________________ Garrett Epps University of Oregon School of Law Eugene, OR 97103-1221 (541) 346 3111 Attorney for Amici TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii I. INTRODUCTION 1 II. COMPUTER CODE IS SPEECH FOR PURPOSES OF THE FIRST AMENDMENT 2 A. COMPUTER PROGRAM CODE IS LANGUAGE AND IS SPEECH BY DEFINITION 2 B. COURTS SHOULD NOT ACT AS ARBITERS OF EXPRESSIVE OR AESTHETIC VALUE 6 C. FUNCTIONALITY DOES NOT DETERMINE THE SCOPE OF FIRST AMENDMENT PROTECTION 8 D. FIRST AMENDMENT PROTECTIONS SHOULD NOT DISTINGUISH BETWEEN MEDIUMS OF EXPRESSION 11 III. THE EAR'S REGULATORY LICENSING SCHEME CONSTITUTES AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH 14 IV. SOFTWARE AS LITERATURE: THE EXTENSION OF COPYRIGHT PROTECTION UNDER FEDERAL AND INTERNATIONAL LAW TO SOFTWARE 21 V. CONCLUSION 27 VI. CERTIFICATE OF COMPLIANCE 29 VII. CERTIFICATE OF COMPLIANCE 30 I. TABLE OF AUTHORITIES CASES Alm v. Fan Nostrand Reinhold Co., 134 Ill.App.3d 716, 480 N.E.2d 1263 (1985) 10 Apple Computer, Inc. v. Franklin Computer Corporation, 714 F.2d 1240 (3rd Cir. 1983) 22, 26 Atari, Inc. v. North Am. Philips Consumer Elec. Corp., 672 F.2d 607 (7th Cir. 1982) 25 Baker v. Seldon, 101 U.S. 99 (1879) 24 Bernstein v. United States Department of State, 922 F.Supp 1426 (N.D. Cal. 1996) 13 Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 23 S. Ct. 298 (1903) 7 Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827 (1969) 9 Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) 7 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) 15 Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) 14 Data Cash Systems, Inc. v. J.S&A Group, Inc. 480 F. Supp. 1063 (N.D. Ill. 1979). 26 Data East USA, Inc., v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988) 25 Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978) 25 First Equity Corp. v. Standard & Poor's Corp., 869 F.2d 175 (2d Cir. 1989) 10 Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992) 15 Freedman v. Maryland, 380 U.S. 51 (1965), 16 FW/PBS, 493 U.S. at 227 19, 20 FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) 16 Harper & Row Publishers, Inc. v. Nation, 471 U.S. 539 (1985) 27 Herbert Rosenthal Jewelry Corp v. Kalpakian, 446 F.2d 738 (9th Cir. 1971) 26 In Re Freeman, 573 F.2d 1237 (C.C.P.A. 1978) 26 In Re Iwahashi, 888 F.2d 1370 (Fed. Cir. 1989) 26 Johnson Controls v. Phoenix Control Systems, 886 F.2d 1173 (9th Cir. 1989) 22 Jones v. J.B. Lippincott Co., 694 F. Supp. 1216 (D. Md. 1988) 10 Karn v. U.S. Department of State, 925 F. Supp. 1 (D.D.C. 1996) 5 Keyishian v. Board of Regents of University of New York, 385 U.S. 589 (1967) 1 Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) 1, 16, 20 Lewin v. McCreight, 655 F. Supp. 282 (E.D. Mich. 1987) 10 Miller v. California, 413 U.S. 22, 93 S.Ct. 2607 (1973). 8 Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967) 25 Near v. Minnesota, 283 U.S. 697 (1931) 15 Nebraska Press Assoc. v. Stuart, 427 U.S. 439 (1976) 15 New York Times Co. v. United States, 403 U.S. 713 (1971). 16 NFLC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231 (7th Cir.1995) 22 Norris Indus., Inc. v. International Tel. & Tel. Corp., 696 F.2d 918 (11th Cir. 1983) 25 Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) 15 Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918 (1987) 8 Princeton University Press v. Michigan Document Services, Inc., 74 F.3d 1512 (6th Cir. 1996) 24 Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1996) 2, 6, 12, 18 Rice v. Paladin Enterprises, Inc., 940 F. Supp. 836 (S.D. Md. 1996). 8 Roman v. City of New York, 110 Misc.2d 799 (N.Y. Sup. Ct. 1981) 10 Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203 (1957) 1 Taylor Instrument Co. v. Fawley-Brost Co., 139 F.2d 98 (7th Cir. 1943) 23 U.S. v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990) 5 United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979) 8 University of California Regents v. Bakke, 483 U.S. 265 (1978) 1 Walter v. Bauer, 109 Misc.2d 189, 439 N.Y.S.2d 821 (Sup. Ct. 1981) 13 Whelan Assoc., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1229 (3d Cir. 1986) 4 Winter at 1034-35 13 Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991). 9 Winter, 938 F.2d at 1035 10 Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267 (S.D.N.Y. 1992) 7 Yniguez v. Arizonians For Official English, 69 F.3d 920 (9th Cir. 1995) 2 Yniguez v. Arizonians For Official English, 69 F.3d 920, 934-35 (9th Cir. 1995) 3 STATUTES 17 U.S.C. Sect. 101 22 17 U.S.C. Sect. 102(a). 21 17 U.S.C. Sect. 102(b). 23 22 U.S.C. Sect. 2751-2796d 5 OTHER AUTHORITIES Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 655 (1955). 15 Knuth, 1 The Art of Computer Programming 4-5 (2d. ed., 1974); 3 Pamela Samuelson, CONTU Revisted, 1984 Duke L. J. 663, 737 (1984) (citing CONTU Final Report at 21)). 24 Richard H. Stern, Copyright in Computer Programming Languages, 17 Rutgers Computer & Tech. L.J. 321, 327 (1991). 3 REGULATIONS 15 C.F.R. Sect. 734.2(b)(9)(ii 19 15 C.F.R. Sect. 750.4(a)(1 19 15 C.F.R. Sect. 768.1(d). 18 15 C.F.R. Sect. 768.2(a 17 15 C.F.R. Sect. 768.7 18 15 C.F.R. Sect. 772 8 15 C.F.R. Sect. 730-774 1 15 C.F.R. Sect. 756.2(c)(2). 20 22 C.F.R. Sect. 120-130 5 37 C.F.R. Sect. 202.10(c) (1976). 25 61 Fed. Reg. 68,575 14 61 Fed. Reg. 68,580 20 I. I. INTRODUCTION Amici are law professors and organizations who seek to preserve the freedom of speech and expression protected by the First Amendment. We assert that Fundamental to First Amendment doctrine is the right to freely express oneself, irrespective of the specific language or medium chosen. We offer this brief to assist the Court in analyzing the First Amendment issues that prompted Professor Daniel Bernstein to seek an injunction against enforcement of the Export Administration Regulations (EAR), 15 C.F.R. Sect. 730-774. We urge the Court to recognize the substantial blow that will be inflicted upon First Amendment doctrine if academic speech such as Professor Bernstein's is subject to purely discretionary licensing controls such as the EAR. See Sweezy v. New Hampshire, 354 U.S. 234, 249-50, 77 S.Ct. 1203, 1211-12 (1957) (noting the importance of protecting scholarship and academic inquiry); Keyishian v. Board of Regents of University of New York, 385 U.S. 589, 603 (1967); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); University of California Regents v. Bakke, 483 U.S. 265, 312 (1978) ("Academic freedom, though not a specifically enumerated constitutional right, has long been viewed as a special concern of the First Amendment"). II. COMPUTER CODE IS SPEECH FOR PURPOSES OF THE FIRST AMENDMENT A. COMPUTER PROGRAM CODE IS LANGUAGE AND IS SPEECH BY DEFINITION This Court has already provided the relevant definition of constitutionally protected speech. "Speech in any language consists of the 'expressive conduct' . . . of putting hand to keyboard. . . . the fact that such conduct is shaped by a language -- that is, a sophisticated and complex system of understood meanings -- is what makes it speech." Yniguez v. Arizonians For Official English, 69 F.3d 920, 934-5 (9th Cir. 1995) (vacated on other grounds, 117 S. Ct. 1055 (1997) (citations omitted)). By this definition, program code is speech, entitled to the greatest protection afforded by the Free Speech Clause. To find otherwise would be to create an arbitrary and artificial distinction between printed type and digitally stored and displayed type. This distinction is contrary to both First Amendment jurisprudence and U.S. legislation. As recognized by the Supreme Court, digital information as embodied by the internet is entitled to the broadest possible First Amendment protection. Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1996). Program code is a language, a "formal system of expression including: (1) a set of vocabulary elements; (2) a set of syntax rules for combining vocabulary elements into statements; and (3) the assignment of meaning to statements that properly combine vocabulary elements in accordance with the syntax rules." Richard H. Stern, Copyright in Computer Programming Languages, 17 Rutgers Computer & Tech. L.J. 321, 327 (1991). Program code conveys information both from and to humans; humans themselves write the program code. Such code is admittedly characterized by functionality, but this alone fails to distinguish it from other languages. "The choice to use a given language may often simply be based on a pragmatic desire to convey information to someone so that they may understand it." Yniguez v. Arizonians For Official English, 69 F.3d 920, 934-35 (9th Cir. 1995) (vacated on other grounds, 117 S. Ct. 1055 (1997)). To acknowledge a rigid separation between languages readable by humans and readable by machines would imply that the two linguistic groups are mutually exclusive and that protected expression can only be found in the former. Any persons capable of writing program code, however, can both read it and gain ideas from its structure and content. Knuth, 1 The Art of Computer Programming 4-5 (2d. ed., 1974); Encyclopedia of Computer Science 962, 1263-64 (Anthony Ralston & Edwin D. Reilly, eds., 3d ed. 1995). The Third Circuit has stated that computer programs are the expressive product of human beings: "[t]he fundamental processes utilized by a program . . . must be developed by the human creativity of the programmer, and the program therefore cannot contain any algorithms not already considered by humans." Whelan Assoc., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1229 (3d Cir. 1986) (citation omitted) (emphasis added). While many people may not be able to read and accurately interpret programming code, it is nonetheless a language that can be read and understood by anyone with the appropriate skill. Anthony L. Clapes, Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 UCLA L. Rev. 1493, 1512 (1987) ("Programs written for commercial distribution are almost always written with the idea that they will be read by people"). If obscurity deprived a language of its expressive value, then ancient Greek, shorthand or sign language would be unprotected under the First Amendment. Choice of language does not dictate what speech is or is not entitled to protection. This doctrine, well reasoned by this Court in Yniguez, should not be contradicted here. The District Court for the District of Columbia, in addressing a similar case, found that the central issue was not whether program code was speech, but whether the O'Brien test could be properly applied to speech. Karn v. U.S. Department of State, 925 F. Supp. 1, 9 (D.D.C. 1996). Karn involved a diskette containing program codes for cryptographic algorithms which had been classified as a defense article under the Arms Export Control Act (AECA), 22 U.S.C. Sect. 2751-2796d, and the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Sect. 120-130. The plaintiff alleged that governmental regulation of the diskette violated his First Amendment rights. The Karn court granted summary judgment to defendants, but found with some reservations that "the protection of the First Amendment extends to the source code . . . on the plaintiff's disk." Karn, 925 F. Supp. at 9. Similarly, the Ninth Circuit has found that the central issue in extending First Amendment protection to computer programs is not whether the "computer program is speech but whether it is protected speech." U.S. v. Mendelsohn, 896 F.2d 1183, 1185 (9th Cir. 1990). In Mendelsohn, defendants were convicted for conspiring to transport and aid and abet the interstate transportation of wagering paraphernalia. The conviction in question was based on the defendants' creation and sale of a computer program called SOAP. SOAP was designed to aid in sports bookmaking. Defendants argued that the conviction was improper under the First Amendment. The court found that the defendants were not entitled to a First Amendment defense because "'[w]here speech becomes an integral part of the crime a First Amendment defense is foreclosed.'" Id. (quoting United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985)). The court concluded that SOAP was "too instrumental in and intertwined with the performance of a criminal activity to retain first amendment protection." Id. (citing Freeman, 761 F.2d at 552). This is not the case with respect to the computer program code the EAR amendments attempt to curtail. Taken together, the opinions in Mendelsohn, Karn and Reno v. ACLU indicate that whatever else program code may be, it is speech. The fact that a language, both written and readable by humans, can also provide instructions or information to a machine should not affect the First Amendment protection afforded to speech in that language. If the Court adopts such a standard, ever-increasing amounts of human communication will be subject to censorship as computers inevitably become more and more sophisticated. The capabilities of machines (no matter how sophisticated) do nothing to diminish the expression, embodied in the writings of individuals, that is protected by the First Amendment. B. COURTS SHOULD NOT ACT AS ARBITERS OF EXPRESSIVE OR AESTHETIC VALUE First Amendment jurisprudence indicates that courts should hesitate to engage in a case-by-case evaluation of the expressive value of speech. As noted by the Supreme Court, "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final arbitrators of the worth of [a] work." Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251, 23 S. Ct. 298, 300 (1903); see also Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1173 (1994) quoting Yankee Pub. Inc. v. News America Publishing, Inc., 809 F.Supp 267, 280 (S.D.N.Y. 1992) ("First Amendment protections do not apply only to those who speak clearly."). "Except in rare and extreme cases courts . . . should avoid as much as possible making the protections of the First Amendment turn on the courts' assessment of literary success." Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267, 281 (S.D.N.Y. 1992). Judicial hesitation to act as an arbiter of the value of speech is fundamental to First Amendment protection. Except for certain clearly defined types of speech (such as obscene speech, or speech that is inextricably intertwined with the commission of a crime), "[a]ll ideas having even the slightest redeeming social importance . . . have the full protection of the [First Amendment] guaranties." Roth v. United States, 354 U.S. 476, 484-485, 77 S.Ct. 1304, 1309 (1957). Within the context of obscenity, the Supreme Court has consistently rejected the notion that judgments regarding literary value can or should be legal judgments finding instead that such judgments are judgements of fact. Pope v. Illinois, 481 U.S. 497, 500-01, 107 S.Ct. 1918, 1920-21 (1987) (Scalia, J., concurring) ("impossible to come to an objective assessment of literary or artistic value") Cf . Miller v. California, 413 U.S. 22, 93 S.Ct. 2607 (1973). C. FUNCTIONALITY DOES NOT DETERMINE THE SCOPE OF FIRST AMENDMENT PROTECTION First Amendment protection is not dependent on the functionality of speech. Recipes, how-to manuals, blueprints, and even guides for committing murder have all been admitted to the realm of First Amendment protection. See United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979); Rice v. Paladin Enterprises, Inc., 940 F. Supp. 836 (S.D. Md. 1996). These informational products, like computer program code, convey both expressive and functional content; in many cases, the functional content of such speech far exceeds its "creative expression." However, First Amendment jurisprudence does not support diminished protection for speech based on its functionality. The EAR, as amended by 61 Fed. Reg. 68,572-587 (the amendments), state that cryptographic program code should be regulated because of its functional capacity. 61 Fed. Reg. 68,585 (codified at 15 C.F.R. Sect. 772). The amendments are based on the argument that this functional capacity facilitates lawless activity because encryption can enable criminals and terrorists to commit crimes. 61 Fed. Reg. 68,572. This argument fails under the Brandenburg v. Ohio standard. In Brandenburg, 395 U.S. 444, 89 S.Ct. 1827 (1969), the Supreme Court set the level of protection for speech that advocates unlawful conduct. The Court held that "[t]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829. The EAR amendments, however, do not attempt to control speech that actually incites imminent lawless action. Instead, they endeavor to contain academic dialogue because it supposedly enables actions that could assist illegal activity. This connection is far too tenuous to pass the Brandenburg threshold. Courts have clearly rejected the idea that functionality should determine the scope of First Amendment protection when asked to apply principles of products liability to publishers of "how to" books. This Court, "[g]uided by the First Amendment and the values embodied therein," rejected a products liability claim by mushroom enthusiasts who became severely ill after picking and eating mushrooms described in THE ENCYCLOPEDIA OF MUSHROOMS. Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036 (9th Cir. 1991). Plaintiffs argued that to the extent that how-to-books encourage and facilitate conduct they are different from other books. The court rejected this argument, placing "a high priority on the unfettered exchange of ideas. We accept the risk that words and ideas have wings we cannot clip and which carry them we know not where." Winter, 938 F.2d at 1035; Cf. First Equity Corp. v. Standard & Poor's Corp., 869 F.2d 175, 179-80 (2d Cir. 1989) (investors who relied on inaccurate financial publications to their detriment may not recover their losses); Jones v. J.B. Lippincott Co., 694 F. Supp. 1216, 1216-17 (D. Md. 1988) (publisher not liable to nursing student injured in treating self with remedy described in nursing textbook); Lewin v. McCreight, 655 F. Supp. 282, 283-84 (E.D. Mich. 1987) (publisher not liable to plaintiffs injured in explosion while mixing a mordant according to a book on metalsmithing); Roman v. City of New York, 110 Misc.2d 799, 802, 442 N.Y.S.2d 945, 948 (Sup. Ct. 1981) (Planned Parenthood not liable for misstatement in contraceptive pamphlet); Alm v. Fan Nostrand Reinhold Co., 134 Ill.App.3d 716, 480 N.E.2d 1263, 1267 (1985) (publisher not liable to plaintiff injured following instruction in book on how to make tools). We recognize the ease with which information in the form of program code can be transformed into conduct. Further, the program code at issue here might actually propose such conduct. However, all speech with functional content enables and proposes conduct. The relative ease of that enablement has never been a factor in ascertaining the scope of First Amendment protection. Elementary cooking recipes are neither more nor less protected than sophisticated blueprints. The scope of the First Amendment has never depended upon a lack of functionality or upon legal determinations of the expressive value of the speech. This Court should avoid ruling in a manner which would necessitate case-by-case evaluations of such functionality or expressive content. D. FIRST AMENDMENT PROTECTIONS SHOULD NOT DISTINGUISH BETWEEN MEDIUMS OF EXPRESSION Like choice of language or functionality of speech, choice of medium cannot be allowed to drive First Amendment doctrine. Inscribing information onto a floppy disk or other magnetic medium does nothing to alter the information itself, and should do nothing to alter the protections offered by the First Amendment. A floppy disk is simply a device for storing information. In this respect it is similar to a musical compact disc or a video cassette. All contain information that can only be accessed through the use of a machine. The First Amendment protects (and should continue to protect) speech regardless of the medium on which it is stored. Books, compact discs, films and printed scientific journals are all equally protected. Like a book, a floppy disk can do nothing more than store and convey information. To distinguish between information stored on a floppy disk and information stored in a book is to assert that information on floppy disk is qualitatively different than that on paper. The Court should reject such an assertion. Such reasoning would lead to the conclusion that while a printed newspaper is entitled to First Amendment protection, an electronically published newspaper is not. Thus, the government would be free to regulate all electronically stored and communicated speech. This would directly contradict the Supreme Court's recent decision in Reno v. ACLU, 117 S.Ct. at 2344 (holding that internet communications are entitled to the same level of protection as those conveyed via more traditional media). To distinguish speech from non-speech based on the medium by which it is transmitted to others is to mistake a computer for a floppy disk -- much like mistaking a camera for film. The medium should not be conflated with the ideas and expression it contains. That argument was rejected by this Court in Winter, when it "declined to expand products liability law to the ideas and expression in a book." Winter, 938 F.2d at 1036. The Court noted that a book consists of two parts, the print therein and the ideas and expression thereof. While the first is product, the latter is not. Winter, 938 F.2d at 1034. Thus, the Court found products liability law inapplicable to the ideas and expressions contained in the book because products liability law is concerned with the tangible world and does "not take into consideration the unique characteristics of ideas and expression." Winter at 1034-35; Cf. Walter v. Bauer, 109 Misc.2d 189, 190-91, 439 N.Y.S.2d 821, 822-23 (Sup. Ct. 1981) (student injured doing science project described in textbook; held that the book was not a defective product because the intended purpose of a book is for reading) (aff'd in part & rev'd in part on other grounds, 88 A.D.2d 787, 451 N.Y.S.2d 533(1982)). The Winter Court explicitly rejected the plaintiff's argument that "how-to books" encouraging readers to engage in conduct could be distinguished from other books; it stated that "[w]e find such a limitation illusory. Ideas are often intimately linked with proposed action, and it would be impossible to draw such a bright line." Id. at 1035. Like a book, a floppy disk may encourage further conduct but alone it is incapable of action. Its functionality is that of a piece of paper and a pen; it is a surface on which ideas and expression can be captured and shared with others. The government conceded in the lower court that the same program code printed in a book is protected by the First Amendment and not subject to the requirements of ITAR. Bernstein v. United States Department of State, 922 F.Supp 1426, 1434 (N.D. Cal. 1996). They attempt to distinguish electronic from print media by pointing out the ease with which terrorists and criminals could transform electronic media into computer "conduct." In the instant case, however, the printed program code, conceded to be protected speech, is identical to the digitally stored program code at issue. Id. at 1434. As such, it could be transformed into "conduct" with virtually the same ease as the digital code, since printed program code can easily be scanned and turned into machine-readable form. See 61 Fed. Reg. 68,575. As discussed above, human expression and machine-readable content will overlap more and more as technology inevitably advances. III. THE EAR'S REGULATORY LICENSING SCHEME CONSTITUTES AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH "[T]he purpose of the free speech clause . . . is to protect the market in ideas, broadly understood as the public expression of ideas, narratives, concepts, imagery, opinions -- scientific, political or aesthetic." Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1188 (6th Cir. 1995) (quoting Swank v. Smart, 898 F.2d 1247, 1250 (7th Cir. 1990). Under the EAR, as amended by 61 Fed. Reg. 68,572-587 (the amendments), an individual must obtain a license prior to publication of a book or article containing cryptographic software, distributing encryption programs on the Internet or disclosing cryptographic information to foreign persons. 61 Fed. Reg. 68,578 (codified at 15 C.F.R. Pt. 734.2). This constitutes "the clearest form of prior restraint," which "arises in those situations where the government . . . undertakes to prevent future publication or other communication without advance approval of an executive official." Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 655 (1955). The Supreme Court has declared that prior restraints constitute "the most serious and least tolerable infringement on First Amendment rights." Nebraska Press Assoc. v. Stuart, 427 U.S. 439, 559 (1976). Thus, "[a]ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (citations omitted); Near v. Minnesota, 283 U.S. 697, 713 (1931) ("it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication"). The government may validly impose such licensing schemes to control the time, place, and manner of certain expression, but only if several criteria are met. First, the Supreme Court noted in Clark v. Community for Creative Non-Violence that the scheme must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. 468 U.S. 288, 293 (1984). See also Forsyth County v. The Nationalist Movement, 505 U.S. 123, 130 (1992) (citing United States v. Grace, 461 U.S. 171, 177 (1983)). Second, in order to avoid placing "unbridled discretion in the hands of a government official or agency," the licensing scheme must contain adequate procedural safeguards. Lakewood v. Plain Dealer Publishing Co., 486 U.S. at 757-58. In Freedman v. Maryland, 380 U.S. 51 (1965), the Court set forth three procedural safeguards to be used in evaluating licensing schemes: "(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court." FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227 (1990) (citing Freedman, 380 U.S. at 58-60 (1965)). Appellants argue that respondent's academic work must be contained for national security reasons. National security qualifies as a significant governmental interest. However, it is insufficient, without more, as the justification for a prior restraint of protected speech. In the famous "Pentagon Papers" case, a majority of the Court rejected the use of national security alone as reason to enjoin free expression, dissolving a restraining order against newspaper publication of classified information. New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). In their concurrence to the per curiam decision, Justices Black and Douglas refused to hold "that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of 'national security.'" Id. at 718 (Black, J., with Douglas, J., concurring). Justice Brennan noted that precedent indicated that only in times of war, "a single, extremely narrow class of cases," does national security warrant an override of the First Amendment. Id. at 725-26 (Brennan, J., concurring). Justices Stewart and White went further, adding that even the wartime exception was only when the speech at issue "will surely result in direct, immediate, and irreparable damage to our Nation or its people." Id. at 730 (Stewart, J., with White, J., concurring). Even assuming that national security, without more, is a significant governmental interest for which speech may be regulated, that regulation must still be "narrowly tailored" to further that interest. Clark, 468 U.S. at 293. Ordinarily, items controlled via the EAR are subject to "foreign availability determination procedures." 15 C.F.R. Pt. 768. Foreign availability of an item is deemed to exist when an item comparable in quality to an EAR-controlled item is available to a foreign country (from a non-U.S. source) in such quantity "as to render the U.S. export control of that item or the denial of a license ineffective." 15 C.F.R. Sect. 768.2(a). If foreign availability of a controlled item exists, then either the requirement of a license for that item is removed, the license is granted, or the President must invoke a National Security Override and "actively pursue negotiations with the government of any source country . . . to eliminate the availability." 15 C.F.R. Sect. 768.7. Cryptographic items are specifically excluded from this part of the EAR -- they may be denied export even when, by the terms of the EAR themselves, the restriction is completely ineffective. The EAR amendments explicitly allow for denial of an export license without regard to its foreign counterparts' function, technological approach, performance thresholds, maintainability and service life, or "any other attribute relevant to the purpose for which the control" was issued. 15 C.F.R. Sect. 768.1(d). Amici argue that such a regulatory scheme fails to narrowly tailor its scope to suit its objective as the Supreme Court has mandated. The EAR amendments also implicate the third prong of the Freedman test, which requires that prior restraints leave open "ample alternatives for communication." There simply is no purely domestic forum equivalent to the Internet, a network the Supreme Court recently termed "a unique and wholly new medium." Reno v. ACLU, 117 S.Ct. 2329, 2334 (1997) (footnote omitted). The EAR amendments prohibit any discussion or posting of encryption technology in any electronic medium "unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code outside the United States." 61 Fed. Reg. 68,578 (codified at 15 C.F.R. Sect. 734.2(b)(9)(ii)). This kind of geographic containment is virtually impossible on the Internet, and certainly prohibits any participation in "Usenet," a conglomeration of separate textual discussion groups that includes hundreds of crucial forums for academic and scientific debate. There are no "ample alternatives" available to the communicative outlets the EAR amendments foreclose. Finally, the amendments ignore the procedural safeguards mandated by the Supreme Court for regulatory licensing schemes. First, prohibition of the communication must only last for a "specified brief period" of time. FW/PBS, 493 U.S. at 227 (citing Freedman, 380 U.S. at 58-60). The EAR require that an application for export license either be resolved or referred to the President within 90 days of receipt. 15 C.F.R. Sect. 750.4(a)(1). However, because there are no time limitations whatsoever on applications referred to the President, this 90-day limit is meaningless. The facial requirements of the regulations would enable the President or his agent to retain a referred license application indefinitely. Id. Second, expeditious judicial review of an unfavorable licensing decision must be available. FW/PBS, 493 U.S. at 227 (citation omitted). The only appeals process the EAR provide is through the BXA itself; there is no judicial review available at all, expeditious or otherwise. 15 C.F.R. Sect. 756.2(c)(2). Third, the reviewing agency or agencies must bear the burden of litigating in order to suppress the speech, and must bear the burden of proof during that litigation. FW/PBS, 493 U.S. at 227 (citation omitted). No such burden exists for the BXA or any other reviewing agency under the EAR. Besides ignoring the procedural safeguard requirements, the EAR amendments provide no distinct standards by which licenses are judged. The EAR only stipulate that licensing applications "will be reviewed on a case-by-case basis by BXA, in conjunction with other agencies, to determine whether the export or reexport is consistent with U.S. national security and foreign policy interests." 61 Fed. Reg. 68,580 (to be codified at 15 C.F.R. Sect. 742.15(b)). These nebulous criteria are virtually identical to those at issue in Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988). In Lakewood, a city ordinance granted the mayor the power to grant or deny permits to place newspaper racks on public property, without any stated criteria for doing so. The Court held that placing such "unfettered discretion" in the hands of an official was unconstitutional. Id. at 772. It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement "it is not in the public interest" when denying a permit application. . . . To allow these illusory "constraints" to constitute the standards necessary to bound a licensor's discretion renders the guarantee against censorship little more than a high-sounding ideal. Id. at 769-70. The "national security and foreign policy interests" specified by the EAR amendments are no more concrete or constraining than the "public interest" at issue in Lakewood. IV. SOFTWARE AS LITERATURE: THE EXTENSION OF COPYRIGHT PROTECTION UNDER FEDERAL AND INTERNATIONAL LAW TO SOFTWARE First Amendment doctrine and federal copyright law are not identical. Both areas, however, revolve around protection of communication based on its expressive value. The fact that copyright law affords protection to computer software based on its capacity for creative expression is at least implicative of the standards by which First Amendment protection is erected. The extension of copyright protection to software by Congress, and by almost every nation in the world, is a testament to the literary nature of programming languages. Copyright protects original works of authorship fixed in a tangible medium of expression. 17 U.S.C. Sect. 102(a). Congress has enumerated seven categories under "works of authorship" including literary works; as early as 1964, the U.S. copyright office began to register computer software as a form of such expression. In 1980, Congress amended the Copyright Act to protect as literary works "works other than audiovisual works expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied." 17 U.S.C. Sect. 101. This definition has been interpreted by federal courts as specifically protecting computer software as literary works. Johnson Controls v. Phoenix Control Systems, 886 F.2d 1173, 1175 (9th Cir. 1989); Apple Computer, Inc. v. Franklin Computer Corporation, 714 F.2d 1240 (3rd Cir. 1983); NFLC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231 (7th Cir.1995). Literary works are protected speech under the First Amendment. In addition to judicial and administrative precedent, legislative history supports the proposition that software and digitally stored information are literary work. While Congress could have created a separate category of copyright protection for digitally stored and conveyed information by adding to the categories contained in section 102(a), it did not. Congress explicitly rejected adding software as a new category under section 102(a) finding that "'literary works' . . . includes . . . computer programs". 1976 U.S. Code & Cong. Ad. News 5667. Indeed, Congress could have protected digital information by placing it in a copyright category more akin to conduct. Alternatively, Congress could have extended patent law so as to embrace software, but it did not. It was precisely the expressive quality of program code that led Congress to protect software as literary work under the copyright statute as opposed to mechanical processes under patent law. Congress has provided two separate and distinct fields of protection, the copyright and the patent. In the former . . . it has placed 'all writings of an author,' and in the latter . . . inventions and discoveries of 'any new and useful art, machine, manufacture . . . or any new and useful improvements thereof . . . .' Taylor Instrument Co. v. Fawley-Brost Co., 139 F.2d 98, 99 (7th Cir. 1943). Copyright does not protect conduct or behavior; it protects original works of authorship fixed in a tangible means of expression. The copyright statute clearly excludes from copyright protection "any . . . procedure, process, system, [or method] of operation . . . regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. Sect. 102(b). The legislative history of the 1980 amendments to copyright law clearly indicates that Congress considered the exclusions of 102(b) in determining that software should be protected under the copyright statutes. As noted in the House and Senate reports, "[s]ection 102(b) is intended . . . to make clear that the expression adopted by the programmer is the copyrightable element in a computer program and the actual process or methods embodied in the program are not within the scope of the copyright law." 1976 U.S. Code & Ad. News 5670. The characterization of computer programs as machines was specifically rejected by the advisory committee which stated that "[p]rograms should no more be considered machine parts than videotapes should be considered parts of projectors or phonorecords parts of sound reproduction equipment." Pamela Samuelson, CONTU Revisted, 1984 Duke L. J. 663, 737 (1984) (citing CONTU Final Report at 21)). The fact that software is protected by copyright should be evaluated in light of the long established doctrine that copyright law protects creative expression, not ideas. Baker v. Seldon, 101 U.S. 99 (1879); Princeton University Press v. Michigan Document Services, Inc., 74 F.3d 1512, 1518 (6th Cir. 1996). Courts have often been called upon to distinguish between the expressive and functional aspects of a work. In Mazer v. Stein, 347 U.S. 201 (1954), the Supreme Court found that where the functional or utilitarian aspects of a work could be conceptually separated from the expressive aspects, the expressive aspects were entitled to copyright protection. Mazer, 347 U.S. at 214-15. After Mazer the Copyright Office issued additional regulations to clarify the issue of copyright in works with functional components: If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration. 37 C.F.R. Sect. 202.10(c) (1976). The courts have subsequently held that only where the functional and expressive aspects of a work have merged so completely as to be inseparable will the work be ineligible for copyright protection. This is recognized as the doctrine of idea-expression merger. See Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967); Data East USA, Inc., v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir. 1988); Atari, Inc. v. North Am. Philips Consumer Elec. Corp., 672 F.2d 607, 616 (7th Cir. 1982) cert. denied, 459 U.S. 880 (1982); Norris Indus., Inc. v. International Tel. & Tel. Corp., 696 F.2d 918 (11th Cir. 1983) (invalidating copyright in wire wheel covers because they were utilitarian in nature in that they protected lugnuts, brakes, wheels and axles from damage and corrosion; Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978)(affirming dismissal of mandamus action brought against Registrar of Copyright to accept registration of a typeface); Herbert Rosenthal Jewelry Corp v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). The doctrine of conceptual separability has been applied to digitally stored information. See Data Cash Systems, Inc. v. J.S&A Group, Inc., 480 F. Supp. 1063 (N.D. Ill. 1979). Under this doctrine, expression contained in "Read-Only-Memory" (ROM) chips has been found to be ineligible for copyright protection because such expression merges with the functional characteristics of the chip. Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812 (E.D. Pa. 1982). While under the merger doctrine copyright protection does not extend to the expression imbedded in ROM chips, patent protection does extend to ROM chips when the ROM chips become an integrated part of a mechanical process. See In Re Iwahashi, 888 F.2d 1370 (Fed. Cir. 1989); In Re Freeman, 573 F.2d 1237 (C.C.P.A. 1978). "That a thing have utility to be patentable and not have utility to be copyrightable" is fundamental to the distinction between copyright and patent law. Samuelson, CONTU Revisted, 1984 Duke L. J. at 735. The protection of ROM chips under patent law combined with the merger doctrine found in copyright provides a framework for determining when digitally stored and conveyed information is speech versus conduct. When the digital information serves as a book substitute, as in the instant case, the disk and its contents should be considered speech. However, "to the extent that the program causes . . . [it] . . . to be something other than a book or an audiovisual work and to the extent it makes the computer a dishwashing machine or a gas pump" it should be considered a machine. Samuelson, CONTU Revisted at 749. Thus, it is only when the expression embodied in digital form so merges with its functional aspects, as in the case of a semiconductor chip, that it may properly be considered conduct. The values protected by copyright and the First Amendment are closely linked. "It should not be forgotten that the Framers intended copyright itself to be the engine of free expression." Harper & Row Publishers, Inc. v. Nation, 471 U.S. 539, 558 (1985). The fact that copyright law affords protection to computer software based on its capacity for creative expression is indicative of the standards by which First Amendment protection should be erected. V. CONCLUSION Under the First Amendment speech is not defined by the language one chooses to express oneself, the medium that conveys the speech, or the relative degree of expressiveness of the speech. For the above mentioned reasons, Amici urge the court to find that computer program code, a language both read and written by humans, is speech of the most protected kind and entitled to the greatest protection afforded by the First Amendment. VI. CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(e)(4), I hereby certify that the foregoing Brief of Amicus Curiae is (1) double spaced; (2) printed using a 14-point proportional font; and (3) contains 5,987 words. November 10, 1997. ______________________________ Garrett Epps Professor of Law University of Oregon Attorney for Amici VII. CERTIFICATE OF COMPLIANCE I hereby certify that on November 10, 1997, I have filed and served the foregoing BRIEF FOR AMICUS CURIE by: (1) causing copies to be delivered to the Clerk of the Court via Federal Express; and (2) causing copies to be delivered to counsel for appellant and counsel for appellee in the manner specified below: BY FEDERAL EXPRESS: Cindy A. Cohn McGlashan & Sarrail 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Tel: 415/341-2585 Douglas N. Letter Civil Division, Room 9550 Department of Justice 601 D Street, N.W. Washington, D.C. 20530-0001 Lee Tien 1452 Curtis St. Berkeley, CA 94702 Tel: 510/525-0817 Scott R. McIntosh Civil Division, Room 9550 Department of Justice 601 D Street, N.W. Washington, D.C. 20530-0001 November 10, 1997. ______________________________ Garrett Epps Professor of Law University of Oregon Attorney for Amici