[ NNSquad ] Re: Cato / Public Citizen: Tim Wu is wrong claiming searchengines aren't protected by the First Amendment (Lauren Weinstein)

I agree with your first paragraph, of course. But what something is "not" says very little about what it *is*.

Code is not the input or output of executing that code. As a programmer, my code might be my creative work, but its inputs and consequent outputs are not my creative work - I've written compilers for programming languages that take a program and produce another program represented in machine code. I may hold the copyright to the compiler _expression_ (the way I wrote down the algorithm), but I hardly expect nor as a matter of legal principle do I gain the right to own what that compiler produces when someoone enters a program that expresses how to compute the greatest common divisor of two typed numbers.

As a minor matter of fact, I have been involved directly (as expert witness and also as advisor) to many of the key legal conceptual cases and evolutions of the application of copyright and patent law to computer programs, algorithms, and related computing issues. These are, of course, continuing to be in a state of flux as they evolve. When I was younger (in the 1970's) the first "software" patent was allowed by the US Supreme Court (the Refac patent) - I later ended up as an expert witness during its first assertion. Similarly, software copyright cases seem to have grown up around me. This is not simple stuff.

I mention that because a trivial "analogy" between "Free Speech" and patent/copyright is hardly legally sound. The copyright laws regarding audio recordings bear little on free speech rulings, while they have a lot to do with the structure of the music recording industry (since they were invented by courts to deal with the issues around recording, royalties and radio). E.g. ASCP and BMI don't consider free speech at all.

So what does this complex of conflated legal doctrines have to do with claiming that the First Amendment has do do with the output of an automated search/pattern match algorithm, implemented by a company that primarily manages its code with "Trade Secret" law?

-----Original Message-----
From: "Lillie Coney" <coney@epic.org>
Sent: Saturday, June 23, 2012 9:58pm
To: dpreed@reed.com
Cc: "NNSquad - Network Neutrality Squad" <nnsquad@nnsquad.org>
Subject: Re: [ NNSquad ] Re: Cato / Public Citizen: Tim Wu is wrong claiming searchengines aren't protected by the First Amendment (Lauren Weinstein)

There is speech that is not protected--if speech causes
reputation or physical injury to another there are
consequences.

How many courts have ruled that computer code is
a form of speech? Computing heavily relies upon
Mathematics. Mathematics is viewed as the only
universal form of speech. We know that if construction
and civil engineers who rely on mathematics are wrong
they are held accountable for their errors.

Search engine searches should be viewed in the same
light as searching for a book in a library. But they should not
be owned by the search engine provider, but the searcher. If
it is not then this vital information resource for self and world
exploration will not be fully realized. The chilling effect on search
engine searches being treated as public information is obvious--
seeking information regarding very private matters--medical
conditions, employment (while still employed), research
on a wide range of topics from simple curiosity to professional
or educational interest would be under a light.

I understand why Internet Search Engine providers may
want to argue that the searches belong to them--they are valuable
commodities in micro-targeting driven online environment. These
search request are worth billions. But the company would also not
want to be responsible for searches that are deemed to be illegal
in some countries -- certain topics are criminal offenses.

There are no real firm numbers on how much profit is in
selling data that include all forms of information on users//consumers/
citizens, but the estimates are in the billions. If users owned
the information being sold that would present some serious
difficulty for the data broker industry.

Computer code is copyright protected, however many
developers are moving to patents for additional protection
of their work.

Lillie

On Jun 23, 2012, at 11:38 AM, dpreed@reed.com wrote:

> I have a simple question, if Cato and Public Citizen claim that
> algorithms written by humans are protected by the first amendment
> because they are authored by humans ...
>
> If the algorithm discriminates against the conversations of (say)
> black people, is it protected speech, or a violation of civil rights?
>
> The argument by Cato/Public Citizen presumes that the search results
> are spoken by the Google company. Yet Google claims that it is not
> prosecutable for libel under the laws of the UK? Yet Google claims a
> purely human *authorship*.
>
> This argument by Cato/Public Citizen includes a significant element of
> sophistry - a rhetorical equating of human voluntary speech to an
> automatic process making a decision to synthesize a result in a
> simplistic scenario - yet in contrast Tim Wu discusses the precedent
> setting nature of giving automatic processes programmed by humans a
> *First Amendment* right!
>
> Sophistry is meant to confuse and conflate. I don't know why Cato and
> Public Citizen want to confuse and conflate - perhaps merely to retain
> alignment with power?
>
> [ David, there are a number of aspects to the issues you've invoked.
> The UK view of libel, which unlike the US system does not permit
> a defense of truth, is one factor. Also, it appears to me that
> ultimately you are conflating to some degree the issues of search
> results per se vs. the contents those results refer to.
>
> But a more basic question is why you (apparently) don't feel that
> search results should have the same level of first amendment
> protection as, say, newspapers, magazines, and other media, which
> have traditionally had such protection, and also express opinions,
> make "best of" recommendations, and so on.
>
> If your concern is specifically the use of automated algorithms,
> I would suggest it is misplaced. The algorithms are merely the
> embodiment of the values and opinions of their human creators,
> and I see no reason why those opinions -- as exercised through
> algorithms -- should not have the same level of protections as
> any other opinions.
>
> The alternative, to suggest that opinions as expressed through
> algorithms should not be subject to first amendment protections,
> would seem onerous indeed.
>
> -- Lauren Weinstein
> NNSquad Moderator ]
>
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