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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Peter Junger v. William M. Daley, United States Secretary of Commerce, et al.

No. Civ. 1:96-1723 (N.D. Ohio, July 2, 1998)

(Court rejects Professor's challenge that the United States Export Administration Regulations, 15 C.F.R. part 730 et seq., violate his First Amendment rights by prohibiting the Professor from posting encryption software he authored on the Internet without a license. Central to the court's holding was its determination that encryption source code is not sufficiently expressive of ideas to merit First Amendment protection. Rejecting the court's determination in Bernstein v. United States Dep't. of State, 922 F. Supp. 1426 (N.D. Cal. 1996), the court held that "although encryption source code may occasionally be expressive, its export is not protected conduct under the First Amendment ... [E]ncryption software is especially functional rather than expressive. ... [T]he software carries out the function of encryption ... [and] in the overwhelming majority of circumstances ... is exported to transfer functions, not to communicate ideas.")

Peter Junger v. William M. Daley, United States Secretary of Commerce, et al., No. Civ. 1:96-1723 (N.D. Ohio, July 2, 1998)

United States Export Administration Regulations, 15 C.F..R. part 703 et seq. (the "Export Regulations"), place a number of restrictions on those seeking to export various types of encryption software outside the United States. For all practical purposes, posting such software to the Internet falls within the ambit of the Export Regulation's restrictions. Individuals are not permitted to export various classifications of encryption software (or post it on a website) without first obtaining a governmental license. No such license is required, however, to export the source code for such encryption software outside the country, provided the source code is in printed form, such as a book.

Plaintiff, a law professor, sought to post encryption software he authored to his website. When the Government informed him that he could not proceed with this posting without the license mandated by the Export Regulations, plaintiff commenced this action challenging the constitutionality of the Regulations. The essence of plaintiff's challenge was that the Export Regulations violated his First Amendment rights by improperly preventing him from engaging in protected speech, to wit, the posting of his encryption software to his website.

The court disagreed, and granted the Government's motion for summary judgment.

Central to the court's ruling was its determination that encryption software, and particularly the source code used to create it, was not speech sufficiently expressive of ideas to be entitled to the protection of the First Amendment. Instead, this source code is merely a technological device which performs the function of instructing a computer to encrypt information. Its value is not in the expression of ideas but rather in the function it performs. Said the court:

The most important issue in the instant case is whether the export of encryption software source code is sufficiently expressive to merit First Amendment protection. ... This court finds that although encryption source code may occasionally

be expressive its export is not protected conduct under the First Amendment. ... Among computer software programs, encryption software is especially functional rather than expressive. ... [T]he software carries out the function of encryption ... [and] in the overwhelming majority of circumstances, encryption source code is exported to transfer function, not to communicate ideas.

In reaching this conclusion, the court expressly rejected the court's contrary holding in Bernstein v. United States Dep't. of State, 922 F. Supp. 1426 (N.D. Cal. 1996) that encryption source code is speech subject to the protections of the First Amendment. Moreover, the court reached its conclusion notwithstanding its finding that "trained computer programmers can read and write in source code ... [and] can reveal source code to exchange information."

The court went on to reject plaintiff's claims that the Export Regulations were overbroad, vague or an impermissible prior restraint on free speech.

Because encryption source code is not sufficiently expressive speech, its regulation is not subject to the strict judicial scrutiny which the First Amendment mandates for prior restraints on expressive speech. Instead, the regulation's imposition of restrictions on speech must be measured against the First Amendment's "intermediate scrutiny" standard to determine whether it passes constitutional muster. Under this standard, a content neutral regulation that restricts speech is valid only if it furthers an important governmental interest or purpose unrelated to the suppression of free expression, and imposes a restriction on speech that is no greater than essential to achieve the furtherance of that governmental purpose.

The court held that the Export Regulations were content neutral because they burden encryption software without reference to any views it may express. The regulations furthered the important governmental interest of protecting the nation's security by curtailing the dissemination of complex encryption software without appropriate safeguards. Lastly, the court found the regulations appropriately tailored to meet this end because of the varying degree of restrictions the regulations placed on differing levels of encryption software, and the ability the regulations granted academics and others to address ideas about encryption software in the print media.

The full text of this decision can be found on a website maintained by the plaintiff, Professor Peter Junger.

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