Code Is Speech: Legal Tinkering, Expertise, and Protest among Free and Open Source Software Developers

Abstract

In this essay, I examine the channels through which Free and Open Source Software (F/OSS) developers reconfigure central tenets of the liberal tradition—and the meanings of both freedom and speech—to defend against efforts to constrain their productive autonomy. I demonstrate how F/OSS developers contest and specify the meaning of liberal freedom—especially free speech—through the development of legal tools and discourses within the context of the F/OSS project. I highlight how developers concurrently tinker with technology and the law using similar skills, which transform and consolidate ethical precepts among developers. I contrast this legal pedagogy with more extraordinary legal battles over intellectual property, speech, and software. I concentrate on the arrests of two programmers, Jon Johansen and Dmitry Sklyarov, and on the protests they provoked, which unfolded between 1999 and 2003. These events are analytically significant because they dramatized and thus made visible tacit social processes. They publicized the challenge that F/OSS represents to the dominant regime of intellectual property (and clarified the democratic stakes involved) and also stabilized a rival liberal legal regime intimately connecting source code to speech.

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"Free Dmitry."

Editorial Footnotes

Cultural Anthropology has published a number of essays on the practices and politics of digital media. See particularly Brian Axel's "Anthropology and the New Technologies of Communication" (2006), Christopher Kelty's "Geeks, Social Imaginaries, and Recursive Publics" (2005), and René T. A. Lysloff's "Musical Community on the Internet: An On-line Ethnography" (2003).  Also see Anthropology of/in Circulation: The Future of Open Access and Scholarly Societies, a conversation in Cultural Anthropology amongst open access advocates.

Cultural Anthropology has also published a number of essays on the politics of law. See, for example, Damani James Partridge's "We Were Dancing in the Club, Not on the Berlin Wall:  Black Bodies, Street Bureaucrats, and Exclusionary Incorporation into the New Europe" (2008), Heather Paxson's "Post-Pasteurian Cultures: The Microbiopolitics of Raw-Milk Cheese in the United States" (2008), Ilana Feldman's "Difficult Distinctions: Refugee Law, Humanitarian Practice, and Political Identification in Gaza" (2007), and Sarah Jain's "'Dangerous Instrumentality': The Bystander as Subject in Automobility" (2004).

About the Author

Gabriella (Biella) Coleman examines the ethics of online collaboration/institutions as well as the role of the law and digital media in sustaining various forms of political activism. Between 2001-2003 she conducted ethnographic research on computer hackers primarily in San Francisco, the Netherlands, as well as those hackers who work on the largest free software project, Debian.  Her first book, "Coding Freedom: The Aesthetics and the Ethics of Hacking" is forthcoming with Princeton University Press and she is currently working on a new book on anonymous and digital activism. She is the recipient of numerous grants, fellowships, and awards, including ones from the National Science Foundation, the Woodrow Wilson Foundation, the Ford Foundation, the Social Science Research Council and the Institute for Advanced Study.

Questions for Classroom Discussion

1. What is the distinction between "free speech" and "free beer" and why is this difference significant for the hackers Coleman discusses?

2. Is the technical work of writing code, designing software, etc. inherently political?  If so, in what ways?  If not, how are such activities politicized?

3. How did the epistemological shift from software as property to software as speech occur?

4. According to Coleman, how does equating source code with speech relate to liberalism as a political philosophy?  How does F/OSS embody the principles of liberalism?

5. In what ways is the ability to challenge formal legal structures made possible by the digital form with which hackers work; how might the efficacy of their arguments change if they were working with an analog or print form instead?

Related Readings

Axel, Brian. 2006 Anthropology and the New Technologies of Communication. Cultural Anthropology 21(3): 354-384.

Coleman, E. Garbriella, and Alex Golub. 2008 Hacker Practice: Moral Genres and the Cultural Articulation of Liberalism. Anthropological Theory 8(3): 255-277.

Comaroff, Jean, and John Comaroff. 2003 Reflections on Liberalism, Policulturalism, and ID-Ology: Citizenship and Difference in South Africa. Social Identities 9(3): 445-474.

Feldman, Ilana. 2007 Difficult Distinctions: Refugee Law, Humanitarian Practice, and Political Identification in Gaza. Cultural Anthropology 22(1): 129 169.

Jain, Sarah. 2004 'Dangerous Instrumentality': The Bystander as Subject in Automobility. Cultural Anthropology 19(1): 61-94.

Kelty, Christopher. 2005 Geeks, Social Imaginaries, and Recursive Publics. Cultural Anthropology 20(2): 185-214.

Lessig, Lawrence. 2001 The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House.

Lysloff, René T. A. 2003 Musical Community on the Internet: An On-line Ethnography. Cultural Anthropology 18(2): 233-263.

Partridge, Damani. 2008 We Were Dancing in the Club, Not on the Berlin Wall:  Black Bodies, Street Bureaucrats, and Exclusionary Incorporation into the New Europe. Cultural Anthropology 23(4): 660-687.

Warner, Michael. 2002 Publics and Counterpublics. New York: Zone.

Editorial Overview

In the August 2009 issue of Cultural Anthropology, Gabriella Coleman examines how Free and Open Source Software (F/OSS) developers have reconfigured the ethical, legal, and cultural meanings of source code and speech "by producing and altering both technology and the law." Drawing upon Robert Cover's concept of "jurisgenesis," Coleman demonstrates how F/OSS developers explore and expand the meaning of liberal freedom as they produce new legal tools and analyses along with new software.

Coleman focuses on how source code came to be framed as constitutionally protected free speech by F/OSS developers following the arrests of Jon Johansen and Dmitry Sklyarov, both of whom developed software that violated the DigitalMillennium Copyright Act. Coleman finds that F/OSS developers use similar skills to concurrently tinker with both technology and the law, allowing for the transformation of technologists into informal legal scholars.

Through the protests surrounding Johansen and Sklyarov, Coleman argues that heightened visibility was brought to the social processes related to the development of F/OSS, leading to a proliferation ofstatements connecting code to speech, rather than private property.  In doing so, Coleman provides a better understanding of the relationship between the technical and political, and historicizes the shifting meaning of democratic citizenship that has emerged from this technical and legal work.

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