Given that courts reviewing restrictions on the development and distribution of software are increasingly invoking the First Amendment, it should follow that software will receive strong protection. Yet, while there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term "the new software jurisprudence" cast severe doubt on the ability of the courts to apply the First Amendment so as to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more, with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. This article analyzes two cases important to the development of this new jurisprudence, DVD CCA v. Bunner and Universal v. Corley,' both of which provide reason to believe that the First Amendment will not be up to the task of providing the protection which computer code deserves.
Liam S. O'Melinn,
The New Software Jurisprudence and the Faltering First Amendment,
6 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol6/iss1/14