Christopher Kelty’s Two Bits (of which I read the Introduction and Chapters 3 and 6) is illuminating in its complexity, which is to say, I didn’t realize that the story of Free and Open Source Software (FOSS) was so difficult to tell. Approaching the creation of FOSS from a historical perspective, however, reveals its complexity to be just a modern manifestation of the (Western) democratization of knowledge that dates back to the 15th century.
It’s sometimes easy to forget that people have rarely known what they are doing, particularly in the sociopolitical sphere. For instance, when I first learned about the invention of the printing press and how it granted a greater number of people access to a wider variety of books, pamphlets, newspapers, and other reading materials, I assumed that, well…that was it. Printing press, reading, democracy, done.
Of course, Gutenberg’s printing press had vastly more complicated implications for public and private life in Europe. Even with that knowledge, however, I have trouble actually realizing life back then as little more than the names of kings and episodic wars. A sort of Doppler effect takes pace in my mind he further back in history I attempt to study; by the time I’ve reached the Middle Ages, Chaucer is seducing Joan of Arc wiping his nose with the Magna Carta, shortly before succumbing to the plague. In other words, my awareness of that history does not precipitate my conception of it. History is more complicated than all but the most learned of scholars can possibly understand.
Three hundred years from now, I wonder how much people will know about the FOSS “movement,” and to what degree of accuracy. Assuming software is even a thing in the distant future, I wonder whether the hackers of 2250 will realize that free software and open source are simply different perspectives of the same general concept, or as Kelty puts it, “different narratives for identical practices” (Kelty 112).
I wouldn’t fault future students for ignoring this duality altogether. As a matter of fact, I have to resist the urge to ignore it as well; what strikes me most about Two Bits is the fact that the free-software-versus-open-source debate plays out as just one strand of the broader web of concerns over copyright and intellectual property that resulted from the Copyright Acts of 1976 and 1980. Despite remaining far from completely clear even today, these two statutes changed the discourse surrounding hacking and raised new questions for programmers about intellectual property, copyright, and the conditions of infringement. These issues are still pertinent, and “apprenticeship in the world of hacking is now impossible […] without a long, deep study of intellectual-property law” (180).
Considering their impact, the most remarkable aspect of the Copyright Acts may very well be their ambiguity. Even the diligent hackers whose work was directly affected by the updated laws seemed to have trouble grasping the statutes’ meanings, a fact confirmed by the “ample evidence throughout the Usenet archive that the 1976 changes were poorly understood, especially by comparison with the legal sophistication of hackers in the 1990s and 2000s” (203). Even stranger is the speed of the Acts’ effectiveness. Considering that “Free Software hackers are now nearly as deeply educated about intellectual property law as they are about software code,” I expected the Acts’ ramifications to be felt swiftly and totally after their passage in both 1976 and 1980 (206). Instead, however, “the state of intellectual-property law was in great flux at the time, and it was not clear to anyone, whether corporate or academic, exactly what kind of legal arrangements would be legitimate” (187). Looking at the situation as a whole, I’m surprised that the subsequent conflicts that arose between hackers, programmers, and corporations weren’t more injurious.
The grand irony of the Copyright Acts lies between their intention and their efficacy. The purpose of copyright laws is to protect creators’ interests and preserve their intellectual property; all the Acts of 1976 and 1980 did, however, was foster in the programming community “a structural uncertainty created by the need for a case law to develop around the statutory changes implemented by Congress” (202). In attempting to demarcate the copyrightability of software and explain the exclusive rights to those that hold a copyright, Congress proved more fatal than helpful. When they enacted the Acts, they also used them—and the ever-present threat of legal discipline they insidiously brought with them—to colonize the hackers’ sphere. The Acts were intended to define the practices of distribution and replication in a nascent, booming industry, one that was populated by a body of programmers, hackers, and software companies increasingly frustrated by such regulation’s increasing necessity. But the Acts’ consequences were less judicious; they allowed Congress to enter the hackers’ spheres and pose questions never before considered by a majority of the hacking community; and Congress indirectly coupled the increasing commercialization of the hackers’ community with a new outside force in the form of an unhelpful pair: a set of new, disruptive questions, and ambiguous legislation.
The most pressing of these questions about “the copyrightability of software […] concern[ed] how much similarity constitutes an infringement in each” case of alleged copyright violation (202-3). Richard Stallman faced just this dilemma with his GNU EMACS application, and only avoided potential legal action by rewriting the code he’d been accused of effectively “stealing.” But he was not the only programmer affected by the Acts; in fact, everyone mentioned in the Chapter, be they supporters of “open source” or “free” software, suffered the same consequences of misinterpreting a complex set of laws that capped the unbounded freedom espoused by the Hacker Ethic. Their motivations might have been different, but the new copyright laws impacted each hacker’s work identically.
And the fact that “two radically opposed ideologies can support people engaged in identical practices” is a testament to the pointlessness of their polarization in the first place (116). As one participant in the Harpers forum on the legality of hacking said, “Hackers hack. Because they want to. Not for any higher purpose.” Regardless of whether or not you agree with that assessment, it is “obvious that the real space of politics and contestation is at the level of these practices and their emergence” (116). It is this “real space” that holds the hackers’ imagined keys to a brighter future, and it is this “real space” that I believe students of the future will study. When they learn about our binary world, people of the future won’t ask why we hacked; their quality of life will be a wordless answer in itself.

The decision to guard the property claims of software using copyright instead of trade secret protection bears an important significance to the creative aspects of writing software. While trade secrets are most often associated with something calculated, like the recipe for a soda, copyright implies a strong creative element.

As Kelty mentions, “the switch [from trade secret to copyright] had consequences for how non-commercial programmers, researchers and amateurs might interpret their work.” Did it lead them to regard their work in a more artistic light? Does the switch further legitimize software as a form of art? And does the fact that their creative expression is protected by copyright encourage the inclusion of personal flourishes in their creations?

“GNU EMACS 15.34 was the safest option” — you mean GNU EMACS 16, right?

[...] world. In fact, my very favorite academic piece on free software exists in these pages: and is the chapter on the history of the actual conflict between James Gosling and Richard Stallman that led to the creation of the GNU General Public License. Here is a small excerpt to whet your [...]