Coding Freedom: The Ethics and Aesthetics of Hacking

Excerpt and photo taken from
Free Version A
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    Developers organized protests across US cities (such as Boston, New York, Chicago, and San Francisco) and in Europe as well as Russia. San Francisco, where I was doing my fieldwork at the time, was a hub of political mobilization. Even though Sklyarov was in no fashion part of or identified with the world of F/OSS development, local F/OSS developers were behind a slew of protest activities, including a protest at Adobe’s San Jose headquarters, a candlelight vigil at the San Jose public library, and a march held after Linux World on August 29, 2001, that ended up at the federal prosecutor’s office.
    At a fund-raiser that followed the march to the prosecutor’s office, Stallman, the founder of the FSF, and Lessig, the superstar activist-lawyer, gave impassioned speeches. Sklyarov, in a brief appearance, thanked the audience for their support. The mood was electric in an otherwise-cool San Francisco warehouse loft. Lessig, who had recently published his
Code and Other Laws of Cyberspace
, a book that was changing the way F/OSS developers understood the politics of technology, fired up the already-animated crowd with charged declarations during his speech:
    Now this is America, right? It makes me sick to think this is where we are. It makes me sick. Let them fight their battles in Congress. These million-dollar lobbyists, let them persuade Congressmen about the sanctity of intellectual property and all that bullshit. Let them have their battles, but why lock this guy up for twenty-five years? 20
    Most programmers agreed with Lessig’s assessment: the state had gone too far in its uncritical support of the copyright industries. The protests had an immediate effect. Adobe withdrew its support of the case, and eventually, the court dropped all charges against Sklyarov on the condition that he testify in the subsequent case against his employers, which he did. In December 2002, the jury in that case acquitted Elcomsoft, Sklyarov’s employer. Johansen was acquitted just over a year later because the charges against him were seen as too shaky for prosecution (the law he was arrested under had nothing to do with DRM). Johansen still writes free software (including programs that subvert DRM technologies) as well as a blog, So Sue Me, and is admired among F/OSS hackers.
    The DeCSS lawsuits were decided between 2001 and 2004, and even though the courts were persuaded that the DeCSS was a form of speech, they continued to uphold copyright law and deemed DeCSS unfit for First Amendment protection. In one of the
2600
cases,
Universal City Studios Inc. v. Reimerdes
, Judge Lewis A. Kaplan went so far as to declare that the court’s decision meant to “contribute to a climate of appropriate respect for intellectual property rights in an age in which the excitement of ready access to untold quantities of information has blurred in some minds the fact that taking what is not yours and not freely offered to you is stealing.” 21
    Many developers and hackers were deeply disappointed with these decisions, which equated DeCSS with theft, and were shocked about how narrow the consequences of Bernstein turned out to be. Many developers, however, emboldened and galvanized by the collective outpouring they organized or witnessed, continued to assert, in passionate and often considerable legal detail, a different narrative to that of piracy and stealing. Schoen, the DeCSS haiku author who questioned the cultural assumptions and stereotypes at play with Judge Kaplan’s doctrinal reasoning, published one of the most incisive accounts:
    It’s hard to avoid the inherent
sympathy
Judge [Marilyn Hall] Patel bears toward Professor Bernstein (a speaker whose expression is crushed by the awesome might of government bureaucracy) or the equally apparent suspicion with which Judge Kaplan regards Emmanuel Goldstein (a self-avowed hacker seemingly hell-bent on trouble). These attitudes seem to me to be visible behind all the doctrinal questions; without committing myself for all time to a position in a contentious area of legal theory, I would say that Judge Patel fought to show why her case was a free speech case and that Judge Kaplan fought toshow why his was not. The question of which approach seems natural would then be not primarily a question of legal doctrines, standards, or precedents. It would instead be a conceptual, cultural