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