Coding Freedom: The Ethics and Aesthetics of Hacking

battle: shall programs be compared to epidemics of disease (evil, menacing, worthy only of quarantine) or to books in libraries (the cornerstones of our culture and our civilization)? 22
    Even if the court cases never declared source code as First Amendment speech, the arrests, lawsuits, and protests cemented this connection. Hackers, programmers, and computer scientists would continue to be motivated to transform what is now their cultural reality—a rival liberal morality—into a broader legal one by arguing that source code should be protectable speech under the US Constitution and the constitutions of other nations.
    Conclusion
    The law, in its formal and informal dimensions, clearly saturated this story, acting as a double-edged sword that constrains and enables (and produces) new possibilities. In an article on liberal law, Jane Collier, Bill Maurer, and Liliana Suarez-Navaz note how liberal law, riddled with productive contradictions, works to sanction an individuated identity. If “bourgeois law is constructed as a system of rules that people are required to obey, whatever their personal desires,” at the same time it also encourages “expressions of individual contention or will, particularly in private contract that legal agencies enforce” (Collier, Maurer, and Suarez-Navaz 1997, 4). While liberal law certainly individuates its citizens (and private contract has been one privileged route by which this is accomplished), free software is just one example of what we might think of as a type of legal populism, especially prevalent in the United States since the civil rights era, under which collectives take the law into their own hands, and whereby the content of the law matters as much as its formal attributes to recharge and change cultural meaning. If the law, to use the formulation offered by Geertz (1983, 184), is “part of a distinctive manner of imagining the real,” what I have shown in this chapter is how the law
becomes
social reality, and in effect, constitutes particular cultural meanings related to personhood, expression, creativity, and thought.
    This period of political protest and avowal, like much of hacker activity, is rooted initially in a defense of the existing hacker lifeworld, insofar as intellectual property law in basic ways challenges the capacity of hackers to do their work. Yet this defense does not merely leave the hacker lifeworld untouched; it in fact transforms it in significant ways, most especially by bringing hackers into more quotidian, though quite persistent, contact with the language of law. Software developers have now deployedand also contested the law to reconfigure central tenets of the liberal tradition—and specifically the meaning of free speech—to defend their productive autonomy.
    Many hackers, understood to be technologists, became legal thinkers and tinkerers, undergoing legal training in the context of the F/OSS project while building a corpus of liberal legal theory that links software to speech and freedom. By means of lively protests and prolific discussions, almost continuously between 1999 and 2003, hackers as well as new publics debated the connection between source code and speech. This link became a staple of free software moral philosophy, and has helped add clarity in the competition between two different legal regimes (speech versus intellectual property) for the protection of knowledge and digital artifacts. Now other actors, such as activist lawyers, are consolidating new projects and bodies of legal work that challenge the shape along with the direction of intellectual property law.
    To be sure, the idea of free speech has never held a single meaning across the societies that have valued, instantiated, or debated it. Yet it has come to be seen as indispensable for a healthy democracy, a free press, individual self-development, and academic integrity. It is, as one media theorist aptly puts it, “as much cultural commonplace as an explicit doctrine” (Peters 2005, 18). F/OSS is an ideal vehicle for examining how and when technological objects, such as source code, are invested with new liberal meanings, and with what consequences. By showing how developers incorporate legal ideals like free speech into the practices of everyday technical production, I trace the path by which older liberal ideals persist, albeit transformed, into the present.
    This is key to emphasize, for even if we can postulate a relation between a product of