Remembering the Case that Established Code as Speech
eff.org
eff.org
See http://www.geekytattoos.com/illegal-tattoos-rsa-tattoos/ for details.
Fair use was a judicially-created copyright law doctrine founded on the First Amendment freedom of speech and press before it was codified, in a very loose form closely mirroring the pre-existing judicially-created factors, into the copyright statutes in 1976. So it is an express exemption in statutory copyright law, but it is also closely tied to First Amendment free speech/press.
And, independently of whether the statutory exemption applies, that the First Amendment freedom of speech and press limits the scope of exclusive rights that can be granted in copyright and permits those rights nominally assigned in the statute to be violated when the government grant of those exclusive rights would conflict with speech/press freedoms is the entire foundation of the pre-existing fair use doctrine.
The main lynchpin in my thinking is Alice Corp v CLS Bank Intl - that an abstract idea in and of itself is not patentable. I can't imagine a case where mere speech could transcend being an abstract idea ... I suppose there is some slight room on the edges where your source code could be a program that directly interacts with some specific piece of hardware that is covered by a patent ... if that was the case though it seems to me that any program written against a patented processor or architecture would need to be licensed (and maybe that is indeed the case, I'm not a lawyer obviously)
Actually, I didn't realize this. Good to know!
Though I kind of wonder what the limits to this are. Does a reporter have to disclose source code if they use it to calculate something the NSA/CIA/military don't want the world knowing? Can the government jail me for publishing source code it deems "obscene"?
It's an interesting idea, but obscenity is a tricky one to pin down.. IIRC it's generally something that 'depraves and corrupts', and of course one man's obscene is another man's Art..
What would be obscene code and not already fall in the areas of law that already deal with illegality of code, i think that's one question to ask, in order to answer your question.
(current Penn professor Matt Blaze's mid-90s account of registering as an arms dealer with US Customs to transport an encrypted telephone to Europe)