Thursday, April 12, 2012

Code as physical property: interpreting legal descissions

As reported by Wired, the programmer who stole code from Goldman-Sachs had his conviction overturned because "code is not physical property", implying that it's somehow above the law, that there is some sort of right to open source code. That's an incorrect interpretation of the decision. The conviction was overturned because of technicalities, while the laws may have been intended to cover to this theft of code, their wording is outdated and cannot be stretched to cover this incident.

The decision says:

the source code was not a "stolen" "good" within the meaning of the National Stolen Property Act (NSPA)

It clarifies later that the NSPA wording clearly means "physical good", and not intangible goods. It cites similar cases, such as bootleg recordings also being intangible goods not covered by the NSPA.

The ruling says that congress could easily amend the NSPA to include intangible goods. It's not that intangible goods are special and above the law, the issue is simply that the court doesn't find that the wording of the NSPA covers intangible goods.

The ruling likewise found that the crime didn't fall under the Economic Espionage Act (EEA) because the source code wasn't used for interstate or international commerce. The source code in question was for high-speed trading by Goldamn-Sachs, something that happened within the state of New York. Again, the court finds that while law makers might've intended to cover this theft of secrets, the fact that they specifically mention "interstate commerce" means that the law doesn't technically cover this incident.

People on Twitter are interpreting this as meaning that "code" is somehow above the law, that there is some natural right that code must be free and open. The ruling specifically tries to dispel this interpretation. It says only that the wording of existing laws doesn't cover this specific case, and that a minor change in wording would've covered it.

BTW, I'm not criticizing the above article. The article makes the same points I make. It's just that people can't read, and make assumptions without paying attention to the article itself.

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