Coding Freedom: The Ethics and Aesthetics of Hacking

written by Schoen (2001), for example, makes just this claim:
    Programmers’ art as
    that of natural scientists
    is to be precise,
    complete in every
    detail of description, not
    leaving things to chance.
    Reader, see how yet
    technical communicants
    deserve free speech rights;
    see how numbers, rules,
    patterns, languages you don’t
    yourself speak yet,
    still should in law be
    protected from suppression,
    called valuable speech! 1
    Schoen’s protest poem not only argued that source code is speech but also demonstrated it: the extensive haiku was in fact a transcoding of a short piece of free software called DeCSS, which could be used to decrypt access controls on DVDs in violation of current copyright laws. Schoen did not write this poem simply to be clever. His work was part of a worldwide wave of protests following the arrest of DeCSS’ coauthor, Johansen, and the lawsuits launched against some of those who published the software.
    In this chapter, I examine how F/OSS developers like Schoen are reconfiguring what source code and speech mean ethically, legally, and culturally, and the broader political consequences of these redefinitions. I demonstrate how developers refashion liberal precepts in two distinct cultural “locations” (Gupta and Ferguson 1997): the F/OSS project, already covered in detail in the last chapter, and the context of much broader legal battles.
    First, I show how F/OSS developers explore, contest, and specify the meaning of liberal freedom—especially free speech—via the development of new legal tools and discourses within the context of the F/OSS project. I highlight how developers concurrently tinker with technology and the law using similar skills, which transform and consolidate ethical precepts among developers. Using Debian as my primary ethnographic example, I suggest that these F/OSS projects have served as an informal legal education, transforming technologists into astute legal thinkers who are experts in the legal technicalities of F/OSS as well as proficient in the current workings of intellectual property law.
    Second, I look at how these developers marshal and bolster this legal expertise during broader legal battles to engage in what Charles Tilly and Sidney Tarrow (2006) describe as “contentious politics.” I concentrate on a series of critical events (Sewell 2005): the separate arrests of two programmers, Johansen and Sklyarov, and the protests, unfolding between 1999 and 2003, that they provoked. These events led to an unprecedented proliferation of claims connecting source code to speech, with Schoen’s 456-stanza poem providing one of many well-known instantiations. The events are historically notable because they dramatize what normally exists more tacitly and bring visibility to two important social processes. First, they publicize the direct challenge that F/OSS represents to the dominant regime of intellectual property (and thus clarify the democratic stakes involved), and second, they make more visible and hence stabilize a rival liberal legal regime intimately connecting source code to speech.
    The Ethics of Legal Contrast
    Debian developers, like other F/OSS developers, are constituted as legal subjects by virtue of being extremely active
producers
of legal knowledge. This is an outgrowth of three circumstances. For one, developers have to learn basic legal knowledge in order to participate effectively in technological production. They must ascertain, for instance, whether the software license on the software application they maintain is compliant with licensing standards, such as the DFSG. Second, developers tend to closely track broader legal developments, especially those seen as impinging on their practices. Is the Unix company SCO suing IBM over Linux? Has the patent directive passed in the EU Parliament? Information regarding these and otherrelevant developments is posted widely on IRC channels, mailing lists, and especially Web sites such as Slashdot, Boing Boing, and Reddit. These channels form a crucial part of the discourse of the hacker public. Third and most important, developers largely produce their own legal artifacts, and as a result, there is a tremendous body of legal exegesis (e.g., charters, licenses, and legal texts) in the everyday life of their F/OSS projects. Projects adopt the language of the law to organize their operations, adding a legal layer to the structural sovereignty of these projects.
    To be sure, there are some