Coding Freedom: The Ethics and Aesthetics of Hacking

(Benkler 2006; Boyle 1996; Coombe 1998; Lessig 1999, 2001a; Litman 2001; Vaidhyanathan 2001). These partly independent trajectories intersected to become inseparable histories, with their horns locked in a battle over the future of the very technologies (the Internet and personal computer) that have enabled and facilitated the existence of both proprietary software firms and the free software movement.
    What follows is not a comprehensive history. 1 Instead, this chapter starts by discussing what is at stake in representing the conflicts between two legal regimes and then considers them in tandem. In so doing, I will emphasize various unexpected and ironic outcomes as I elaborate a single development that will continue to receive considerable treatment in the conclusion: the cultivation, among hackers, of a well-developed legal consciousness.
    A Politics of Hope
    In 1997, when I first learned about free software and the GPL, I found myself excited (and puzzled) by the legal alternative it provided. Although I ultimately became more interested in how the free software movement changes the way we think about computer hacking, legal statutes, and property rights, I remained invested in the politics of access, and vociferously read works on this topic. 2 But as time passed, I also grew dissatisfied withmany of the political analyses of free software, open access, and digital media, largely for either being too broad or limited in their assessments. Take, for instance, Andrew Ross’s critique of free software. He quite correctly characterizes free software as “artisanal”:
    For the most part, labor-consciousness among FLOSS communities [ … ] seems to rest on the confidence of members that their expertise will keep them on the upside of the technology curve that protects the best and brightest from proletarianization. There is little to distinguish this form of consciousness from the guild labor mentality of yore that sought security in the protection of craft knowledge. (Ross 2006, 747)
    He deems this insufficient, however, poetically stating: “Voices proclaiming freedom in every direction, but justice in none” (ibid., 748). If Ross faults free software for its supposed political myopia, others shine a more revolutionary light on free software and related digital formations, treating them as crucial nodes in a more democratic informational economy (Benkler 2006), and as allowing for novel forms of group association and production (Shirky 2008). If one position demands purity and a broader political consciousness from free software developers, the other position veers in the opposite direction: it has free software perform too much work, categorizing it and other digital media as part of a second coming of democracy, shifting in fundamental ways the social and economic fabric of society.
    Analyses that either call for more political orientation or assume fundamental, widespread democratic effects tend to paper over the empirical dynamics animating the political rise of free software. What follows is a more nuanced account of not only the importance of free software but also its historical constitution. While many free software hackers are driven by the pleasures of hacking—chiefly motivated by a desire to ensure their productive freedom (and not by some commitment to justice, as Ross has correctly identified)—the social element of this movement inadvertently offers an education in relevant laws and statutes. It has produced a generation of hackers that function as an army of amateur legal scholars. Over the last number of years, many developers, armed with this legal consciousness, have questioned or directly protested the so-called harmonization (i.e., tightening) of intellectual property law. To rephrase labor historian E. P. Thompson (1963, 712), hackers have “learned to see their own lives as part of a general history of conflict”—a consciousness not always steeped primarily in class struggle, as was the case with the early industrialists/workers described by Thompson, but instead tied to legal battles. Given the significance of the law in shaping and guiding political transformations, especially in the transnational arena, this form of political consciousness far exceeds the narrow ethics of craft that people like Ross stress. Legal consciousness and especially legal knowledge are integral elements of almost any present-day political program.
    Despite the legal alternatives provided by free