Coding Freedom: The Ethics and Aesthetics of Hacking

licenses CSS to hardware manufactures. Before DeCSS, only computers using either Microsoft’s Windows or Apple’s OS could play DVDs; Johansen’s program allowed Linux users tounlock a DVD’s DRM to play movies on their computers. Released under a free software license, DeCSS soon was being downloaded from hundreds or possibly thousands of Web sites. In the hacker public, the circulation of DeCSS would transform Johansen from an unknown geek into a famous “freedom fighter”; elsewhere, entertainment industry executives saw his program as criminal and sought Johansen’s arrest.
    Although many geeks were gleefully using this technology to bypass a form of DRM so they could watch DVDs on their Linux machines, various trade associations sought to ban the software because it made it easier to copy and potentially pirate DVDs (Gillespie 2007). In November 1999, soon after its initial spread, the DVD CCA and the MPAA sent cease-and-desist letters to more than fifty Web site owners and Internet service providers, requiring them to remove links to the DeCSS code for its alleged violation of trade secret and copyright laws, and in the United States, the DMCA. Passed in 1998 to “modernize” copyright for digital content, the DMCA’s most controversial provision outlaws the manufacture and trafficking of technology (which can mean something immaterial, such as a six-line piece of source code, or something physical) capable of circumventing copy or access protection in copyrighted works that are in a digital format. The DMCA outlaws the trafficking and circulation of such a tool, even if it can be used for lawful purposes (such as fair use copying) or is never used. “Now with the DMCA,” media scholar Tartelton Gillespie (2007, 184) perceptively notes, “circumvention is prohibited, meaning that the technologies that automatically enforce these licenses are further assured by the force of the law.”
    In December 1999, alleging trade secret misappropriation, the DVD CCA filed a lawsuit against hundreds of individuals, and eventually two cases from this batch moved forward. 11 In 2000, the MPAA (along with other trade associations) sued the well-known hacker organization and publication
2600
along with its founder, Eric Corley (more commonly known by his hacker handle, Emmanuel Goldstein), claiming violation of the DMCA. 12 Corley would fight the lawsuits, appealing to
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’s journalistic free speech right to publish DeCSS. As frequently happens with censored material, the DeCSS code at this time was unstoppable; it spread like wildfire.
    Simultaneously, the international arm of the MPAA urged prosecution of Johansen under Norwegian law (the DMCA, a US law, had no jurisdiction there). The Norwegian Economic and Environmental Crime Unit took the MPAA’s informal legal advice and indicted Johansen on January 24, 2000, for violating an obscure Norwegian criminal code. Johansen (and since he was underage, his father) was arrested and released on the same day, and law enforcement confiscated his computers. He was scheduled to face trial three years later.
    Hackers and other geek enthusiasts discussed, debated, and decried these events, and a few consistent topics emerged. The influence of the court case discussed above,
Bernstein v. U.S. Department of Justice
, was one suchtheme. This case established that software could be protected under the First Amendment, and in 1999, caused the overturning of the ban on the exportation of strong cryptography. Programmers could write and publish strong encryption on the grounds that software was speech.
    F/OSS advocates, seeing the DeCSS case as a similar situation, hoped that the courts just might declare DeCSS worthy of First Amendment protection. Consider the first message posted on dvd-discuss—a mailing list that would soon attract a multitude of programmers, F/OSS developers, and activist lawyers to discuss every imaginable detail concerning the DeCSS cases:
    I see the DVD cases as the natural complement to Bernstein’s case. Just as free speech protects the right to communicate results about encryption, so it protects the right to discuss the technicalities of decryption. In this case as well as Bernstein’s, the government’s policy is to promote insecurity to achieve security. This oxymoronic belief is deeply troubling, and worse endangers the very interests it seeks to protect. 13
    There were, it turned out, significant differences between Bernstein and DeCSS. In