Coding Freedom: The Ethics and Aesthetics of Hacking

the Bernstein case, hackers were primarily engaged spectators. Furthermore, many free software advocates were critical of Bernstein’s decision to copyright, and so tightly control, all of his software. In the DeCSS and DVD cases, by contrast, many F/OSS hackers became participants by injecting into the controversy notions of free software, free speech, and source code (a language they were already fluent in from F/OSS technical development). Hackers saw Johansen’s indictment and the lawsuits as a violation of not simply their right to software but also their more basic right to produce F/OSS. As the following call to arms reveals, many hackers understood the attempt to restrict DeCSS as an all-out assault:
    Here’s why they’re doing it:
Scare tactic
. [ … ] I know a lot of us aren’t political enough—but consider donating a few bucks and also mirroring the source. [ … ] This is a full-fledged war now against the Open Source movement: they’re trying to stop [ … ] everything. They can justify and rationalize all they want—but it’s really about them trying to gain/maintain their monopoly on distribution. 14
    Johansen was, for hackers, the target of a law that fundamentally challenged their freedom to tinker and write code—values that acquired coherence and had been articulated in the world of F/OSS production only in the last decade.
    Hackers moved to organize politically. Many Web sites providing highly detailed information about the DMCA, DeCSS, and copyright history went live, and the Electronic Frontier Foundation launched a formal “Free Jon Johansen” campaign. All this was helping to stabilize the growing linksbetween source code and software, largely because of the forceful arguments that computer code constitutes expressive speech. Especially prominent was an amicus curiae brief on the expressive nature of source code written by a group of computer scientists and hackers (including Stallman) as well as the testimony of one of its authors, Carnegie Mellon computer science professor David Touretzky, a fierce and well-known free speech loyalist. Just as they dissected free software licensing, F/OSS programmers quickly learned and scrutinized these court cases, behaving in ways that democratic theorists would no doubt consider exemplary.
Linux Weekly News
, for example, published the following overview and analysis of Touretzky’s testimony:
    His point was that the restriction of source is equivalent to a restriction on speech, and would make it very hard for everybody who works with computers. The judge responded very well to Mr. Touretzky’s testimony, saying things like [ … ]
“I think one thing probably has changed with respect to the constitutional analysis, and that is that subject to thinking about it some more, I really find what Professor Touretzky had to say today extremely persuasive and educational about computer code.”
[ … ]
    Thus, there are two rights being argued here. One is that [ … ] we have the right to look at things we own and figure out how they work. We even have the right to make other things that work in the same way. The other is that code is speech, that there is no way to distinguish between the two. In the U.S., of course, equating code and speech is important, because protections on speech are (still, so far) relatively strong. If code is speech, then we are in our rights to post it. If these rights are lost, Free Software is in deep trouble. 15
    In this exegesis, we see again how free software developers wove together free software, source code, and free speech. These connections had recently been absent in hacker public discourse. Although Stallman certainly grounded the politics of software in a vocabulary of freedom, and Bernstein’s fight introduced a far more legally sophisticated idea of the First Amendment for software, it was only with the DeCSS case that a more prolific and specific language of free speech would come to dominate among F/OSS developers, and circulate beyond F/OSS proper. In the context of F/OSS development in conjunction with the DeCSS case, the conception of software as speech became a cultural reality.
    Much of the coherence emerged through reasoned political debate. Cleverness—or prankstership—played a pivotal role as well. Prodromou, a Debian developer and editor of one of the first Internet zines,
Pigdog
, circulated a decoy program that hijacked the name DeCSS, even though it performed an entirely different