Coding Freedom: The Ethics and Aesthetics of Hacking

the Sklyarov indictment, the BSA, satisfied at a job well done, released the following statement:
    US prosecutors have now obtained the first indictment under the Digital Millennium Copyright Act, involving Elcomsoft, and its employee, Dimitry Skylarov [
sic
]. This indictment under the DMCA is consistent with the plain reading of the law and with Congress’s intention when the law was drafted and enacted in 1998. Law enforcement actions are critical to the BSA’s anti-piracy efforts, which resulted in over $11 billion in losses to the industry alone. The BSA has a productive history working with the Department of Justice on anti-piracy measures and educating the public about software piracy. We look forward to continuing efforts in this area. 24
    The copyright industry clearly found great comfort in using a law that granted it a generous degree of technological control over digitized contentwhile outlawing a certain class of technologies. But the BSA and its peer associations were in for a shock, as an unforeseeable series of events erupted soon after the corporation persuaded the US attorney’s office to bring legal actions using the DMCA: hackers, in the face of such new restrictions, responded to the arrest and lawsuits with a series of protests, during which they affirmed their free speech right to write and circulate source code. Hackers and programmers took to the streets following the arrests of Johansen and Sklyarov. They received the arrest and other threats doled out under the DMCA as a crisis for their community, and responded with potent expressions of dissent. These protests further cemented the pragmatic and political associations that many US and European F/OSS programmers had been forging between free speech and source code—a link they now use liberally to argue against the incursion of intellectual property restrictions in software production.
    Thus, under the DMCA banner (and the lawsuits and arrests doled out under its jurisdiction), free and open-source licensing along with conventional intellectual property law, both now part of a liberal legal tradition, came into furious conflict. As noted by legal scholar Dan Hunter (2005, 1113), “these statutes [the DMCA and the Sonny Bono act] motivated a number of public interest groups in a way that had never occurred before. Up until the passing of this legislation, corporate interests lobbied for IP expansion without much, if any public comment.” In particular, the DMCA’s application to halt the dissemination of software led to some of the most powerful expressions of protest among hackers and aligned various groups (academics, librarians, and hackers) in their fight against various trends in intellectual property law. Sklyarov’s arrest proved a greater boon to the consolidation of the anti-DMCA movement than to the suppression of so-called piracy.
    During the 1990s, when trade associations began in earnest to expand and strengthen the global reach of intellectual property laws while linking them with trade issues, free software production acted informally as a training ground for an army of amateur legal scholars, critical of the new intellectual property legislation. Free software hackers came to deeply value a legal morality other than the neoliberal credo spun by copyright industries. As part of this informal education process, hackers collectively learned a great deal about the law of copyrights, patents, trademarks, and the DMCA—a regime that many of them choose to resist, seeing it as a limitation on the pursuit of hacking.
    If most geeks and hackers were unaware of intellectual property law in one era, in a subsequent period they had grown intimate with its inner workings. To get an initial taste of the depth of legal consciousness among hackers, take, for example, the IRC below among a handful of Debian developers, who are simultaneously judging a piece of technology and its copyright notice. This form of legal exegesis, which we will see in much greaterdetail in the conclusion, is today simply a part of the routine landscape of many free software projects. In this case, a developer named “vilinger” is posting the copyright terms of a piece of software. Vilinger’s fellow developers are critical of not only the software but its license as well, observing that it is a “real crappy copyright statement” due to its vague language:
     * Copyright © 1998–1999 by [ … ]
     * License: Free for any use with