Coding Freedom: The Ethics and Aesthetics of Hacking

limits the deployment of copyrighted material in other expressive activity, and consequently censors the public use of certain forms of expressive content. Legal scholar Ray Patterson (1968, 224) states this dynamic eloquently in terms of a clash over the fundamental values of a democratic society: “A society which has freedom of expression as a basic principle of liberty restricts that freedom to the extent that it vests ideas with legally protected property interests.”
    Because a commitment to free speech and intellectual property is housed under the same roof—the US Constitution—the potential for conflict has long existed. For most of their legal existence, however, conflict wasnoticeably absent, largely because the scope of both free speech and intellectual property law were more contained than they are today. It was only during the course of the twentieth-century that the First Amendment and intellectual property took on the unprecedented symbolic and legal meanings they now command in the United States as well as many other nations. (Although the United States has the broadest free speech protections in the world, many other Western nations, even if they limit the scope of speech, have also expanded free speech and intellectual property protections in the last fifty years.)
    For example, copyright, which grants authors significant control over their expression of ideas, was initially limited to fourteen years with one opportunity for renewal. Today, the copyright term in the United States has ballooned to the length of the author’s life plus seventy years, while works for hire get ninety-five years, regardless of the life of the author. The original registration requirement has also been eliminated. Most any expression—a scribble on a piece of paper, a blog post, or a song—automatically qualifies for protection, so long as it represents the author’s creation.
    Free speech jurisprudence follows a similar trajectory. Even though the Constitution famously states that “Congress shall make no law [ … ] abridging the freedom of speech, or of the press,” during the first half of the twentieth century the US Supreme Court curtailed many forms of speech, such as political pamphleteering, that are now taken to represent the heart and soul of the democratic process. It is thus easy to forget that the current shape of free speech protections is a fairly recent social development, largely contained within the last fifty years (Bollinger and Stone 2002).
    Due to the growing friction between free speech and intellectual property, US courts in the last twenty-five years have openly broached the issue by asserting that any negative consequences of censoring speech are far outweighed by the public benefit of copyright law. In other words, as a matter of public policy, copyright law represents an acceptable restriction on speech because it is the basis for what is designated as “the marketplace of ideas.” 8 The theory animating the marketplace of ideas is that if and when ideas are allowed to publicly compete with each other, the truth—or in its less positivist form, the best policy—will become evident.
    Given this historical trajectory, the use of F/OSS licenses challenges the current, intellectual property regime, growing ever more restrictive, and thus dubbed ominously by one legal scholar as the contemporary motor for “the second enclosure movement” (Boyle 2003). Many free software developers do not consider intellectual property instruments as the pivotal stimulus for a marketplace of ideas and knowledge. Instead, they see them as a form of restriction so fundamental (or poorly executed) that they need to be counteracted through alternative legal agreements that treat knowledge, inventions, and other creative expressions not as property but rather as speech to be freely shared, circulated, and modified.
    The Aesthetics of Hacking
    If free software hackers render the tensions between two liberal principles visible, and offer a targeted, if not wholesale, critique of neoliberalism in challenging intellectual property law (but rarely using the language of neoliberalism), their commitment to free speech also puts forth a version of the liberal person who strays from the dominant ideas of liberal personhood: a self-interested consumer and rational economic seeker. Among academics, this has often been placed under the rubric of “possessive individualism,” defined as “those deeply