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Comment by nnx | Hacker News Reader

It's terrible precedent. What about the first amendment? Software is speech.

Terrible precedent it may be yet the idea that software is speech is probably even worse. You can’t just equate software with speech because to prevent an outcome you dislike.

The Ninth Circuit Court of Appeals held that software is speech in Bernstein v United States. The precedent already exists.

[0] https://en.wikipedia.org/wiki/Bernstein_v._United_States

I will acquiesce to that argument if we were discussing the government attempting to prevent tiktok from open sourcing their implementation.

It is a stretch, however, to present this decision as a precedent preventing the government from regulating application markets.

Maybe this is my mechanical engineering brain kicking in but isn't software more akin to machinery? I press the run button and gears turn and oil burns and a piece of toast comes out.

It's not physical, it's just an suite of ideas written in the form of a (programming) language, just like a book, so nothing to do with machinery. This is essentially the same argument against software patents.

That's an argument about code not operating software.

How is software "speech"? Do you consider all software "speech"? Do you think any form of software should be allowed, no matter what?

I don’t think software is speech, but to play devil’s advocate for a moment; if money is speech then why can’t software be speech? Both propositions seems equally ridiculous, but the Supreme Court has affirmed that money is speech.

The Ninth Circuit affirmed that software is speech in Bernstein. It's the reason cryptography is no longer heavily restricted by the US.

Yes, all software is speech and any form of software should be allowed.

If not, who decides what software is allowed or not? Will I need to get a license from the government before I push my PR to a repo?

What if you made the same argument for photography and freedom of speech?

> Yes, all photography is speech and any form of photography should be allowed.

> If not, who decides which photography is allowed or not? Will I need to get a license from the government before I publish a photograph online?

You see the problem here, don't you? There are many cases where a photograph can be illegal.

Sure. There are also many cases where any kind of speech can be illegal, depending on the context and content of the speech. That does not mean that form of speech is not constitutionally protected.

Legally, whether photographs are speech seems to come down to whether they are taken with communicative intent or not.

This is within the well known (and tested) limits of freedom of speech... which neither TikTok or WeChat software were found guilty of (with or without due process).

Do you consider blueprints and mechanical diagrams to be speech?

Under the US constitution and given legal precedent, absolutely.

Extraordinary claims require extraordinary evidence.

There's no evidence at all that software can in any capacity be speech as defined under the us constitution.

"One of EFF's first major legal victories was Bernstein v. Department of Justice, a landmark case that resulted in establishing code as speech and changed United States export regulations on encryption software, paving the way for international e-commerce."

https://www.eff.org/deeplinks/2015/04/remembering-case-estab...

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