Coding Freedom: The Ethics and Aesthetics of Hacking

everything that constitutes the cultural expression of our society. If we fail to protect and preserve our intellectual property system,
the culture will atrophy
. And corporations won’t be the only ones hurt. Artists will have no incentive to create. Worst-case scenario: The country will end up in a sort of cultural Dark Ages. 23
    The copyright industries told Congress that their economic future in the new millennium utterly depended on a drastic revision of copyright law (Vaidhyanathan 2001). Congress listened. These industries successfully pushed for a bill—the DMCA—that fundamentally rewrote intellectual property law by granting copyright owners
technological control
over digitized copyright material. The main thrust of the act, with a few narrowly defined exceptions, is that it prohibits the circumvention of access and copy control measures that publishers place on copyrighted work.
    Exceeding the mandates in the 1996 World Intellectual Property Organization treaty on copyrights, the DMCA imposes severe criminal penalties (a single offense can involve up to five years in prison and a $25,000 fine) against those who circumvent access control measures protecting copyrighted material. The act steps even further into unprecedented legal territory: the DMCA also outlaws the distribution, trafficking, and circulation of
any device
with the potential to decrypt an access or copy control, even if the device can be used for an entirely lawful purpose. Thus, along with making the act of circumvention per se illegal, it bans any technology that can potentially be used to circumvent an access control method. As noted perceptively by one media scholar, the DMCA’s circumvention clause actually makes the “Digital Millennium Copyright Act” a misnomer; it is an “Anticopyright act” (Vaidhyanathan 2004, 85), since the DMCA grants copyright holders the right to “circumvent” the few restrictions built into copyright law such as expiration terms, first sale, and fair use.
    Hence, just as a swath of volunteers and a segment of the corporate world embraced the open-source credo of access and openness, other corporate players were relieved when President Bill Clinton signed maximalist copyright principles into law with the DMCA on October 28, 1998. The DMCA, signed only a week after the Sonny Bono Copyright Term ExtensionAct (which retroactively extended copyright an additional twenty years), signaled a new era in which copyright owners would wield tremendous influence over legislation.
    The DMCA passed without much public awareness, much less any controversy. Trade associations working on behalf of the entertainment and copyright industries backed the act. During hearings, these associations consistently claimed that unless copyright owners were given total control, they would never digitize content. Without the said protections, economic growth would halt. The BSA was armed with unverifiable statistics to buoy its stance, reporting that the eradication of piracy would add 430,000 jobs in the United States, worth five billion dollars in wages (Benkler 1999, 423).
    In 1999, after hackers released DeCSS (a short program used by Linux enthusiasts to circumvent DVD access control), the MPAA sued various programmers and publishers for publishing this program. In Norway, one of its authors, Jon Johansen, was arrested—although not under the DMCA (this is described in greater detail in chapter 5 ). These events, and others that followed, mark the moment when two legal trajectories finally clashed.
    In 2001, at Adobe’s urging, the FBI made its first arrest under the DMCA—as mentioned earlier, the Russian programmer Sklyarov. Sklyarov was arrested as he was leaving Defcon, where he had presented a paper on a software application he helped code for his Russian firm. It was a piece of software deemed illegal under the DMCA. The US Office of the Attorney General charged Sklyarov with violating the DMCA for his role in developing the Advanced eBook Processor. As Sklyarov was whisked off to prison, the FBI’s first arrest under the DMCA sent a chilling message to the other five thousand hackers who attended Defcon in the heat of Las Vegas. The industry was more than ready to follow through with extreme measures to control the production of technology, which also meant controlling what hackers did on their personal computers in the privacy of their homes. For many hackers, this meant controlling thought itself.
    Soon after