Why lawyers always say 'It depends'
One of the most frequently asked questions on this site is "Is this legal?" The 'this' then always is some complex hypothetical situation, set up to circumvent a particular legal issue. A lawyer normally responds to such questions with "it depends", which is usually disappointing to the person who posed the question.
Answering a question like that is very difficult. Of course the lawyer often can find articles of law or court cases that come close, but not always. In fact, usually the 'this' is a situation that was designed to be just a little different from the situations handled in law or jurisprudence (caselaw).
Personally I call that kind of question "law hacks". For computer programmers, a 'hack' is a clever trick to get something working. Often the hack is made to have some software work with another piece of software that has an annoying limitation. For example, if a web server does not properly conform to a standard, you could hack the browser so it sends its requests in adapted form, allowing the server to properly understand it.
In lawhacking, an activity or technology is adapted to avoid an annoying legal limitation.
Lawhacking can be a fun acitivity. It requires knowledge of law, technology and language. It also takes a lot of creative effort to combine that knowledge into a new construct. There's also often the feeling of "beating the system with its own rules". If the law says that it's illegal to break a protection mechanism, and I merely use a backdoor without protection, then surely I haven't broken that law?
Now that the law is getting more and more important in the software world, and programmers are faced with more and more legal limitations, it should be no surprise that lawhacking is getting more popular.
An interesting example is the United States' Digital Millennium Copyright Act (DMCA). This act provides several copyright-related provisions that among other things make it illegal to crack access control mechanisms. Using this provision a program to bypass the DVD copy protection mechanism was declared illegal. This despite the fact that the program's purpose was merely to allow people to play the DVD on Linux. The original playback software only worked under Microsoft Windows.
Some clever people then created a modified version of the program. By putting all bytes of this version one after the other, the result was a (very big) prime number. The lawhack here was that the injunction forbidding distribution of the program would mean that it would be illegal to publish a prime number! Therefore, Your Honor, you should lift that injunction.
That kind of argument does not fly well with judges though. And not just because they don't understand technology. Judges have over 500 years of experience with defendants that use overly clever or subtle arguments to talk their way out, and they usually make short work of it.
In 1917 a Dutch citizen was charged with exporting a horse to Germany, which at the time was illegal because the Netherlands were neutral during World War I. The defendant claimed he had not exported anything, but merely had released the horse close to the border, then stepped over the border into Germany so he could use a lasso to drag the horse over the border from German soil. Hence, on Dutch soil no act of transporting the horse into Germany had been committed.
Clever constructs like that make good anecdotes, but they usually won't let you off the hook in an actual court case. Judges need to interpret the statute and the jurisprudence (caselaw) to arrive at a conclusion that makes sense and which is fair given the circumstances. All too clever arguments tend to get pushed aside since they merely distract from the real situation. It was clear that the Dutch guy above was exporting horses to Germany. And similarly, it's clear that the injunction was not aimed at forbidding prime numbers from being published, but at programs that broke the DMCA.
So, while lawhacking and "is this legal" are nice in theory, the only practical answer is and remains "it depends."
This article was published earlier (in Dutch) in Netkwesties.