Coding Freedom: The Ethics and Aesthetics of Hacking

in Las Vegas by the Federal Bureau of Investigation (FBI) as he left Defcon, the largest hacker conference in the world. Arrested at the behest of the Silicon Valley software giant Adobe, Sklyarov was charged with violating the recently ratified and controversial Digital Millennium Copyright Act (DMCA). He had written a piece of software, the Advanced eBook Processor software, for his Russian employer. The application transforms the Adobe eBook format into the Portable Document Format (PDF). In order for the software to perform this conversion, it breaks and therefore circumvents the eBook’s copy control measures. As such, the software violated the DMCA’s anticircumvention clause, which states that “no person shall circumvent a technological protection measure that effectively controls access to a work protected under this measure.” 7
    We had marched from the annual LinuxWorld conference being held in San Francisco’s premier conference center, the Moscone Center, to the federal prosecutor’s office. Along the way, a few homeless men offered solidarity by raising their fists. Two of them asked if we were marching to “Free Mumia”—an assumption probably influenced by the recent string of protests held in Mumia Abu-Jamal’s honor. Indeed, as I learned soon after my first arrival in San Francisco, the city is one of the most active training grounds in the United States for radical activists. This particular spring and summer was especially abuzz with activity, given the prominence of counterglobalization mobilizations. But this small and intimate demonstration was not typical among the blizzard of typically left-of-center protests, for none of the participants had a way of conveying quickly nor coherently the nature of the arrest, given how it was swimming in an alphabet soup of acronyms, such as DRM, DMCA, and PDF, as opposed to more familiar ideas like justice and racism. A few members of our entourage nonetheless heartily thanked our unlikely though clearly sympathetic supporters, and assured them that while not as grave as Mumia’s case, Dmitry’s situation still represented an unfair targeting by a corrupt criminal justice system, especially since he was facing up to twenty-five years in jail “simply for writing software.”
    Once at the Hall of Justice, an impassioned crew of programmers huddled together and held up signs, such as “Do the Right Thing,” “Coding Is Not a Crime,” and “Code Is Speech.”
    There must have been something about directly witnessing such fiery outpourings among people who tend to shy away from overt forms of political action that led me to evaluate anew the deceptively simple claim: code is speech. It dawned on me that day that while I had certainly heard this assertion before (and in fact, I was only hearing it increasingly over time), it was more significant than I had earlier figured. And after some research,it was clear that while the link between free speech and source code was fast becoming entrenched as the new technical common sense among many hackers, its history was remarkably recent. Virtually nonexistent in published discourse before the early 1990s, this depiction now circulates widely and is routinely used to make claims against the indiscriminate application of intellectual property law to software production.
    FIGURE INTRO.1. Protesting the DMCA, San Francisco
    Photo: Ed Hintz.
    Early in my research, I was well aware that the production of free software was slowly but consistently dismantling the ideological scaffolding supporting the expansion of copyright and patent law into new realms of production, especially in the US and transnational context. Once I considered how hackers question one central pillar of liberal jurisprudence, intellectual property, by reformulating ideals from another one, free speech, it was evident that hackers also unmistakably revealed the fault line between two cherished sets of liberal principles.
    While the two-hundred-year history of intellectual property has long been freighted with controversies over the scope, time limits, and purpose of various of its instruments (Hesse 2002; Johns 2006, 2010; McGill 2002), legal scholars have only recently given serious attention to the uneasy coexistence between free speech and intellectual property principles (McLeod 2007; Netanel 2008; Nimmer 1970; Tushnet 2004). Copyright law, in granting creators significant control over the reproduction and circulation of their work,