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called valuable speech!
Schoen was not only arguing that source code is speech, his poem was also demonstrating it. The lengthy verse was a transcoding of a short piece of free software called DeCSS, which is used to decrypt access controls on DVDs, in violation of current copyright laws.
Schoen did not write his poem simply to be clever. His work was part of a worldwide wave of protests against the prosecution of open source developers, including the arrest of one of the initial developers of the DeCSS software referenced in the verse.
Schoen’s poem captures the ethical spirit of the free and open source software (F/OSS) movement, which is composed of individuals who believe software should be free to be modified and redistributed by anyone. The hackers and other geeks who identify with this movement have managed to do something remarkable: In the course of writing software, they have built an alternative theory of intellectual production and property in opposition to current copyright law, all while developing the tools to put that theory into practice.
Free as in Beer
One of the best-known philosophical and legal distinctions in the world of free software is the concept of free beer versus free speech. Common among developers today, this notion was popularized in the 1990s by developers of the open source operating system called Debian.
“Free speech is the possibility of saying whatever one wants to,” one Debian developer explained in an application required to join the project at the time. “Software free as in beer can be downloaded and used for free, but no more. Software free as in speech can be fixed, improved, changed, be used as building block for another software.”
Other open source practitioners placed their understanding of free speech firmly within a broader meaning codified in the constitutions of most liberal democracies: “Used in this context the difference is this: ‘free speech’ represents the freedom to use/modify/distribute the software as if the source code were actual speech which is protected by law in the US by the First Amendment,” one developer wrote. “ ‘Free beer’ represents something that is without monetary cost.”
For open source developers, then, freedom means expression, learning, and modification, not the mere absence of a price tag.
Hackers first started talking about software as speech in response to what they saw as excessive copyrighting and patenting of computer software in the 1970s and ’80s. The first widely circulated paper associating source code with free speech was “Freedom of Speech in Software,” written by programmer Peter Salin in 1991. Salin characterized computer programs as “writings,” arguing that software was unfit for patents (intended for inventions) but appropriate for copyrights and thus free speech protections (which apply to expressive content).
The idea that coding was a variant of writing was gaining traction, in part because of the popular writings of Stanford computer science professor Donald Knuth on the art of programming. During the early 1990s, a new ethical sentiment emerged among participants of Usenet, a pre-Web online forum, that the Internet should be a forum for unencumbered free speech. From this climate emerged what have come to be known as the “encryption wars” of the mid-1990s, when wary governments cracked down on developers of cryptography software (for instance, programs that keep email and other communications or data private) in the name of national security.
The most notable encryption court case was Bernstein v. U.S. Department of Justice. This battle started in 1995 after a computer science student, Daniel J. Bernstein, sued the government over the International Traffic in Arms Regulations, rules issued under the Arms Export Control Act that classified certain types of strong encryption as munitions and hence subjected them to export controls. Bernstein could not legally publish or export the source code of his encryption system, Snuffle, without registering as an arms dealer.
In 1999, after years of litigation, U.S. District Judge Marilyn Patel concluded that regulations of cryptographic “software and related devices and technology are in violation of the First Amendment on the grounds of prior restraint.” This decision not only allowed developers to export cryptographic software; it also deemed source code to be speech protected by the First Amendment.
Bernstein and his lawyers used free speech to defend programming against intrusive government controls but never questioned the legitimacy of copyrights for software. Soon after, a large cadre of developers began to launch a direct critique of the copyright system. The legal regime to protect and reward copyrighted artistic material, developers claimed, was butting up against their legal rights to write software. At the dawn of the new millennium, this fight was breaking out all over the international legal system.