Coding Freedom: The Ethics and Aesthetics of Hacking

programs, to the extent that they embody an author’s original creation [ … ] [the] proper subject matter of copyright.” 5
    Legislators took CONTUs recommendations and modified the copyright statute in 1976 to include provisions for new technologies, prompting computer-related companies to routinely assert copyrights over software. The changes to the 1976 copyright statute were significant on various fronts. As noted by legal scholar Jessica Litman (2001, 54–63), it was a statute of “broad rights and narrow exceptions.” 6 By 1980, legislators amended the statute to officially include software, making statutory what CONTU had recommended. Copyright applies to the “expressive” implementations of a software application, and covers the program code along with any graphic images and documentation.
    In the late 1970s, patents were still off-limits. Courts considered software algorithms (the underlying recipes or formulas that specify how parts of a program do their job) to be mathematical processes, not machines or mechanical devices, and thus unfit for patent protection. You could copyright the program’s source code, but you couldn’t patent what the code did. According to Adam Jaffe, before 1980 the US Department of Justice, Federal Trade Commission, and the US federal courts were far more reluctant than they are today to uphold disputed patents in court. Interpreting patents through antitrust law, courts and regulators often ruled against them, concluding they were anticompetitive. This stance was “essentially reversed in 1980” (Jaffe 1999, 3; see also Drahos and Braithwaite 2002; Sell 2003) and culminated in a “historically unprecedented surge in patenting by U.S. inventors” (Jaffe 1999, 1). 7 By the mid-1980s, courts ruled that new objects were eligible for patent protection. For example, starting in the 1980s, courts deemed new materials, like modified bacteria, genes, algorithms, and eventually business methods, as suitable for patents. In the 1990s, judges redefined software as a technical invention akin to physical machines (Jaffe and Lerner 2004). Patents and copyrights, used together, now offer the software industry multiple points of control over distinct components of individual software programs. 8
    1984–1991: Hacking and Its Discontents
    The rise of an independent and soon to be enormously profitable software industry based on the pervasive use of copyrights and, eventually, patents came to reshape the social organization of hacking within the MIT artificial intelligence lab (as well as other similar communities) where Stallman landed in 1971. Starting in the late 1970s, but becoming more common in the 1980s, corporations started to deny university-based hackers access to the source code to their corporate software, even if the hackers onlyintended to use it for personal or noncommercial use. With this decrease in access came a dramatic increase in business and professional opportunities as countless firms sought to hire talented programmers. In the particular case of the MIT lab where Stallman worked, a number of computer companies hired away a cohort of his peers, ultimately creating a rift between the few who remained and those who left. These hackers working at new software firms were barred from collaborating on projects they had previously created together.
    As these changes were under way, many hackers were unaware of—one might even say oblivious to—the intricacies of copyright or patent law, as the work of Kelty (2008) has keenly demonstrated. Many hackers, and Stallman in particular, nonetheless viewed these transformations and new legal barriers as a personal affront as well as significant cultural threat. Stallman fundamentally viewed the sharing of source code as the bedrock supporting the hacker practices of inquisitive tinkering and collaboration, and thus for Stallman, the end of sharing amounted to the end of hacking.
    The evisceration of his community drove Stallman into a fit of depressive rage, leaving him “downtrodden and resigned,” as he described it in a documentary film (Florin 1986). His first response was maniacal retaliation, and his fury was launched against the specific corporation he felt was personally responsible for splintering his beloved hacker community: Symbolics. In 1982, Stallman sequestered himself in near isolation; for the next two years, he adopted the persona of a revenge programmer. He re-created the changes made to the LISP OS