Fighting Keywords: Freedom of Functional Expression in Software

R. Plotkin (USA)


software, speech, freedom of expression, Digital Millenium Copyright Act (DMCA)


The ongoing debate over the applicability of the First Amendment to software focuses primarily on whether software is speech, a device, or a combination of both. Under the terms of this debate, if software is speech then the First Amendment fully protects it; if software is a device, however, it deserves no First Amendment protection. I argue that this debate is misplaced because the mere classification of software as “speech” or “device” does not end the First Amendment inquiry. I propose an alternative framework in which well-accepted principles of tort law, criminal law, and First Amendment jurisprudence are combined to provide maximum protection for “software speech” while promoting the public interest in regulating harm. I note, however, that shaping the precise contours of such a framework will require the resolution of difficult public policy questions raised by the unique nature of software and the Internet.

Important Links:

Go Back