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diff --git a/talermerchantdemos/blog/articles/en/moglen-harvard-speech-2004.html b/talermerchantdemos/blog/articles/en/moglen-harvard-speech-2004.html new file mode 100644 index 0000000..6171025 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/moglen-harvard-speech-2004.html @@ -0,0 +1,1605 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.77 --> +<title>Eben Moglen Harvard Speech +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/moglen-harvard-speech-2004.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Eben Moglen - Speech for Harvard Journal of Law & Technology</h2> + +<blockquote> +<p>February 23, 2004 - Cambridge, MA, USA</p> +</blockquote> + +<p> +<i>Eben Moglen is a Professor of Law & Legal History at Columbia +Law School, and General Counsel for the Free Software Foundation</i> +</p> + +<p> +Thank you. It's a great pleasure to be here. I want to thank the +Journal of Law and Technology and Jonathan Zittrain for combining to +set things up for me in this delightful way. It is true that I feel +somewhat overwhelmed at the prospect of trying to talk for any +substantial length of time about a lawsuit that isn't going anywhere +very much. I am, however, going to mention the SCO lawsuit from time +to time in my remarks. +</p> + +<p> +Mr. McBride, when he was here, was kind enough to mention me once or +twice, and I am going to do him the same favor. I hope you will feel, +those of you who followed the conversation, that I am responsive to +his remarks, though I don't think that doing it in the form of he +said, I say, would lead, as Jonathan suggests, to a particularly +intellectually challenging evening. +</p> + +<p> +Free software, you will know, I am sure, that I didn't make this up, +is free as in freedom, not free as in beer. One of the primary +problems with the conversation we have been having about this lawsuit, +in your distinguished speaker series this year, is that at least so +far it had apparently been suggested that the goal of those of us who +believe in the free software movement was primarily to prevent people +from earning a profit in the computer industry. +</p> + +<p> +This results, it is sometimes suggested, from some wild antipathy to +the idea of economic benefit or some particular antipathy to the idea +that people ought to have incentives to do what they do. I shall along +the way suggest that we believe very strongly in incentives, though we +see the problem of incentive perhaps a little bit differently than +Mr. McBride. But it isn't, after all, and we need to begin there, it +isn't, after all, about making things free as in beer. It is about +making things free as in freedom. +</p> + +<p> +The goal of the Free Software Movement is to enable people to +understand, to learn from, to improve, to adapt, and to share the +technology that increasingly runs every human life. +</p> + +<p> +The fundamental belief in fairness here is not that it is fair that +things should be free. It is that it is fair that we should be free +and that our thoughts should be free, that we should be able to know +as much about the world in which we live as possible, and that we +should be as little as possible captive to other people's knowledge, +beyond the appeal to our own understanding and initiative. +</p> + +<p> +This idea lay behind my dear friend and colleague, Richard Stallman's, +intense desire, beginning in the early 1980's, to bring about a world in +which all the computer software needed by anybody to do anything +would be available on terms which permitted free access to the knowledge +that that software contained and a free opportunity to make more +knowledge and to improve on the existing technology by modification and +sharing. +</p> + +<p> +This is a desire for a free evolution of technical knowledge. A descent +by modification untrammeled by principles that forbid improvement, +access and sharing. If you think about it, it sounds rather like a commitment +to encourage the diffusion of science and the useful arts by promoting access to +knowledge. +</p> + +<p> +In short, the idea of the Free Software Movement is neither hostile to, +nor in any sense at cross-purposes with, the 18th century ambition for +the improvement of society and the human being through access to +knowledge. +</p> + +<p> +The copyrights clause in Article 1 Section 8 is only one of the many +ways in which those rather less realistic than usually pictured founding +parents of ours participated in the great 18th century belief in the +perfectability of the world and of human life. +</p> + +<p> +The copyrights clause is an particular legal embrace of the idea of +perfectability through access to and the sharing of knowledge. We, +however, the 21st century inheritors of that promise, live in a world +in which there is some doubt as to whether property principles, +strongly enforced, with their inevitable corollary of exclusion +— this is mine, you cannot have it unless you pay me — +whether property principles best further that shared goal of the +perfectability of human life and society based around access to +knowledge. +</p> + +<p> +Our position has been for twenty years that to the extent that existing +copyright rules encourage the diffusion of science and the useful arts, +they were good. And to the extent that they discouraged the diffusion of +knowledge and the useful arts, that they could be improved. +</p> + +<p> +We have, pardon me for taking credit for something, we have improved +them, substantially, not by negating any of the existing rules of +copyright. On the contrary, we have been quite scrupulous about that. +</p> + +<p> +One of the things which amuses me amidst the rhetoric that is now being +thrown around, is how oddly orthodox I seem to me when I consider my +weekly activities as a lawyer. +</p> + +<p> +Though not necessarily welcome in Los Angeles, I find myself behaving +very much like an awful lot of lawyers in Los Angeles. I want my clients' +copyrights respected, and I spend a fairly large amount of tedious time +trying to get people to play by the very rules embodied in the Copyright +Act that I am supposedly so busy trying to destroy. +</p> + +<p> +Free software is an attempt to use the 18th century principles for the +encouragement of the diffusion of knowledge to transform the technical +environment of human beings. And as Jonathan says, my own personal +opinion on the subject is that the early going in our experiment has worked +out pretty well. +</p> + +<p> +It is because it has worked out pretty well that there is blowback from +it, and one of the little pieces of that blowback is the +controversy now roiling the world entitled SCO against IBM, which +apparently is supposed to become, Mr. McBride said it when he was here, +SCO against something called the Linux Community. +</p> + +<p> +I don't think that's actually what's happening, but it is certainly what +Mr. McBride came here to say was happening. +</p> + +<p> +So I'd best talk for a moment or two about how we see the situation that +Mr. McBride describes as a great test of whether free goods are somehow +going to drive out the incentive to produce in the net. +</p> + +<p> +Free software, of which the operating system kernel called Linux is one +very important example among thousands, free software is the single +greatest technical reference library on Planet Earth, as of now. +</p> + +<p> +The reason I say that is that free software is the only corpus of +information fixed in a tangible form, through which anyone, anywhere, +can go from naivete to the state of the art in a great technical +subject — what computers can be made to do — solely by +consulting material that is freely available for adaptation and reuse, +in any way that she or he may want. +</p> + +<p> +We enable learning all over the world by permitting people to +experiment, not with toys, but with the actual real stuff on which all +the good work is done. +</p> + +<p> +For that purpose, we are engaged in making an educational system and a +human capital improvement system which brings about the promise of +encouraging the diffusion of our science and useful art in a way which +contributes to the perfectability of human beings. +</p> + +<p> +That's what we were trying to do, and we have done it. We are, as it +happens, driving out of business a firm called the Santa Cruz +Operation [sic] - or SCO Ltd. That was not our intention. That's a +result of something called the creative destruction potential of +capitalism, once upon a time identified by Joseph Schumpeter. We are +doing a thing better at lower cost than it is presently being done by +those people using other people's money to do it. The result - +celebrated everywhere that capitalism is actually believed in — +is that existing firms are going to have to change their way of +operation or leave the market. This is usually regarded as a positive +outcome, associated with enormous welfare increases of which +capitalism celebrates at every opportunity everywhere all the time in +the hope that the few defects that capitalism may possess will be less +prominently visible once that enormous benefit is carefully observed. +</p> + +<p> +Mr. McBride does not want to go out of business. This is +understandable. Mr. Gates does not want to go out of business +either. But they are both on the wrong side of a problem in the +political economy of the 21st century. They see software as a +product. In order to make their quote “business model” +close quote work, software must be a thing which is scarce. And out +of the scarcity of software there will be a price which can be +extracted, which will include an economic rent, from which Mr. McBride +has suggested somebody will be enabled to buy a second home. +</p> + +<p> +Mr. McBride thought it was the programmers who would be able to buy a +second home but people who actually understand the current state of +the software industry recognize that programmers are not buying second +homes these days. I think Mr McBride means the executives who employ +programmers and the financiers who employ executives to employ +programmers will buy a second home on the software-is-product business +model for a little while longer. +</p> + +<p> +We think that software is not a product, because we do not believe in +excluding people from it. We think that software is a form of knowledge. +The International Business Machines Corporation, the Hewlett Packard +Corporation, and a number of other organizations either represented here +in body or in spirit this evening have another theory, which is that +software in the 21st century is a service, a form of public utility +combined with knowledge about how to make best use of the utility, which +enables economic growth in peoples' enterprises generally, from which +there is a surplus to be used to pay the people who help you produce the +surplus, by making the best possible use of the public utility. +</p> + +<p> +I think it would be appropriate to suggest, if you like, that where we +now are is in a world, where, if I may employ a metaphor, Mr. McBride +and his colleagues — I do mean those in Redmond, as well as +those in Utah — think that roads should all be toll roads. The +ability to get from here to there's a product. Buy it, or we exclude +you from it. Others believe that highways should be public +utilities. Let us figure out how to use the public highways best, so +that everybody can profit from them - from the reduction of the costs +of transportations of goods and the provisions of services — and +by the by, there will be plenty of money to pay traffic engineers and +the people who fix the pot holes. +</p> + +<p> +We believe, for what little our view of the economics of the software +market may be worth in the 21st century — after all we are the +people who transformed it — we believe that the public utility +service conception of software better reflects economic actuality in +the 21st century. We are not surprised that Mr. McBride is going out +of business on the other business model. +</p> + +<p> +Mr. McBride's claim is that he is going out of business because somebody +has taken what belongs to him. That's a lawsuit. As it turns out, +however, the people he believes have taken what don't belong to him +aren't us. His theory is that various people promised AT&T at various +times that they would do or refrain from doing various things, that some of +the people who promised AT&T in the old days to do or refrain from doing +various things broke those promises, and that out of the breaking of +those promises, Linux, a computer program distributed under free terms, +benefitted. +</p> + +<p> +Mr. McBride may be right about that or he may be wrong. We do not know +what the contents of those contracts are in general terms, and we do not +even know, as Mr. McBride pointed out to you when he was here, that he is +the beneficiary of those contracts. He is presently in litigation trying +to prove that he has what he claims to have — certain contract rights +which he claims were conveyed to him by Novell. I have no opinion about whose +rights those are, and I wish Mr. McBride luck in his litigation over that +question. +</p> + +<p> +But what Mr. McBride has also claimed is that our creative works are +somehow dominated by those contract disputes, dominated in the sense +that he has claimed, though so far not behaved in concert with the +claim, that users of free software are liable to him, or to his firm, on +the basis of claims that grow out of the contractual relations between +AT&T, Sequent, IBM, and others, over time. +</p> + +<p> +I have spent a fair amount of time tediously reflecting on whether each +piece of the story, as Mr. McBride and his colleagues have told it, could +amount to a copyright claim against third parties. +</p> + +<p> +I have spent that time because there were lots of third parties out +there in the world who were concerned about assertions of copyright +problems that Mr. McBride was making. I have confronted wraithlike +examples of what were said to be derivative work but weren't derivative work +under copyright law, or asserted copyright claims that turned out to be +based on code that nobody owned ascertainably and had been in the public +domain for a lengthy period of time, or code that Mr. McBride claimed he +was entitled to prevent people to stop using long after he had +deliberately given to people that very code under promises that +they could use it, copy, modify it and distribute any way that they want. +</p> + +<p> +And bit by bit, I have found myself unable to discover a single way in +which Mr. McBride's firm could claim against third parties, not those who +had ever been in privity of contract with AT&T or its successors over +code in the Unix operating system, anything that could force them to pay +damages or stop them from using free software. +</p> + +<p> +This is the thing we call SCO, not a lawsuit actually brought on the +basis of promises exchanged between IBM and AT&T, but a mysterious +belief that somewhere out in the world tens of thousands of people might +have to stop using billions of dollars worth of software that we made +it possible for them to have at marginal cost solely because of some +agreement between AT&T and somebody else to which Mr McBride's firm is a +successor in interest. +</p> + +<p> +I see no substance to that claim. And I am prepared, under the guidance +of your searching and hostile questioning, to explain bit by bit why I +think that's true. But I have published those various inquiries, and I don't +want to recapitulate them here this evening. I think that that would be a poor +use of our time together. +</p> + +<p> +At <a href="/philosophy/sco/">www.gnu.org/philosophy/sco</a>, all of +it in lower case letters, you will find the various papers that I have +written and that Mr. Stallman has written on these subjects, and there +I hope we will have taken up in detail all the various points. +</p> + +<p> +But it's hard to resist talking about the United States Supreme Court in +a classroom at Harvard Law School. And so, for just a moment, I do want to +engage in a little court watching with you. +</p> + +<p> +Mr. McBride, when he was here, had much to say about a case called +Eldred against Ashcroft, in which Mr. McBride discovers that the +United States Supreme Court came out 7-2 against free software and in +favor of capitalism [laughter from audience]. The odd thing is that +on the very day when Mr. McBride was standing here discussing that +subject with you, I was in Los Angeles discussing the very same thing +with a fellow called Kevin McBride, Mr. McBride's brother and the +actual author of the document from which Mr. McBride was speaking. +</p> + +<p> +Kevin McBride has the advantage in this discussion of being a lawyer, +which is a little bit of help in discussing the United States Supreme +Court. But it is not quite enough help. +</p> + +<p> +The primary trick in discussing cases - I shrink from saying that even +in this room where I have taught first-year law students — the +primary trick in discussing cases is to separate holding from dicta, a +job with which many lugubrious Septembers and Octobers have been +occupied by lawyers all over the planet and by every single one of you +here. +</p> + +<p> +The McBrides, jointly — I feel sometimes as though I'm in a +Quentin Tarantino movie of some sort with them [laughter] — the +McBrides have failed to distinguish adequately between dicta and +holding. +</p> + +<p> +I do not like Eldred against Ashcroft. I think it was wrongly +decided. I filed a brief in it, amicus curiae, and I assisted my +friend and colleague Larry Lessig in the presentation of the main +arguments which did not, regrettably, succeed. +</p> + +<p> +Oddly enough, and I will take you through this just enough to show, +oddly enough, it is the position that we were taking in Eldred against +Ashcroft, which if you stick to holding rather than dicta, would be +favorable to the position now being urged by Mr. McBride. What +happened in Eldred against Ashcroft, as opposed to the window dressing +of it, is actually bad for the argument that Mr. McBride has been +presenting, whichever Mr. McBride it is. But they have not thought +this through enough. +</p> + +<p> +Let me show you why. The grave difficulty that SCO has with free +software isn't their attack; it's the inadequacy of their defense. In +order to defend yourself in a case in which you are infringing the +freedom of free software, you have to be prepared to meet a call that I +make reasonably often with my colleagues at the Foundation who are here +tonight. That telephone call goes like this:<br /> + +“Mr. Potential Defendant, you are distributing my client's copyrighted +work without permission. Please stop. And if you want to continue to +distribute it, we'll help you to get back your distribution rights, +which have terminated by your infringement, but you are going to have to +do it the right way.” +</p> + +<p> +At the moment that I make that call, the potential defendant's lawyer +now has a choice. He can cooperate with us, or he can fight with +us. And if he goes to court and fights with us, he will have a second +choice before him. We will say to the judge, “Judge, +Mr. Defendant has used our copyrighted work, copied it, modified it +and distributed it without permission. Please make him stop.” +</p> + +<p> +One thing that the defendant can say is, “You're right. I have +no license.” Defendants do not want to say that, because if they +say that they lose. So defendants, when they envision to themselves +what they will say in court, realize that what they will say is, +“But Judge, I do have a license. It's this here document, the +GNU GPL. General Public License,” at which point, because I know +the license reasonably well, and I'm aware in what respect he is +breaking it, I will say, “Well, Judge, he had that license but +he violated its terms and under Section 4 of it, when he violated its +terms, it stopped working for him.” +</p> + +<p> +But notice that in order to survive moment one in a lawsuit over free +software, it is the defendant who must wave the GPL. It is his +permission, his master key to a lawsuit that lasts longer than a +nanosecond. This, quite simply, is the reason that lies behind the +statement you have heard — Mr. McBride made it here some weeks +ago — that there has never been a court test of the GPL. +</p> + +<p> +To those who like to say there has never been a court test of the GPL, I +have one simple thing to say: Don't blame me. I was perfectly happy to +roll any time. It was the defendants who didn't want to do it. And when +for ten solid years, people have turned down an opportunity to make a +legal argument, guess what? It isn't any good.</p> + +<p> +The GPL has succeeded for the last decade, while I have been tending it, +because it worked, not because it failed or was in doubt. Mr. McBride and +his colleagues now face that very same difficulty, and the fellow on the +other side is IBM. A big, rich, powerful company that has no intention +of letting go.</p> + +<p> +They have distributed the operating system kernel program called Linux. +That is, SCO has. They continue to do so to their existing customers +because they have a contractual responsibility to provide maintenance. +</p> + +<p> +When they distribute that program called Linux, they are distributing the +work of thousands of people, and they are doing so without a license, +because they burned their license down when they tried to add terms to +it, by charging additional license fees in violation of Sections 2 and 6 +of the GPL. +</p> + +<p> +Under Section 4 of the GPL, when they violated it, they lost their +right to distribute, and IBM has said as a counterclaim in its +lawsuit, “Judge, they're distributing our copyrighted work, and +they don't have any permission. Make them stop.” +</p> + +<p> +If SCO played smart, they would have said, “But your Honor, we +do have a license. It's the GNU GPL.” Now for reasons that we +could get into but needn't, they didn't want to do that, possibly +because it would have affected adversely their other claims in their +lawsuit, or possibly because they had taken a 10 million dollar +investment from Microsoft, but we'll talk about that a little further, +I'm sure, in the question period. +</p> + +<p> +At any rate, they didn't say that. What they said back is, “But +Judge, the GNU GPL is a violation of the United States Constitution, +the Copyright Law, the Export Control Law”, and I have now +forgotten whether or not they also said the United Nations Charter of +the Rights of Man. [laughter] +</p> + +<p> +At the moment, we confine ourselves solely to the question whether the +GPL violates the United States Constitution. I am coming back to Eldred +against Ashcroft along the way. +</p> + +<p> +In Eldred against Ashcroft, 435 Congressmen and a hundred Senators had +been bribed to make copyright eternal in a tricky way. The bribe, which +of course was perfectly legal and went by the name of campaign +contributions, was presented to the Congress for a copyright term +extension. +</p> + +<p> +In 1929, “Steamboat Willy” first brought before the public +a creature called Mickey Mouse. The corporate authorship term under +copyright being then, as almost now, 75 years, had it not been for +action by Congress in the year 2004, Mickey Mouse would have escaped +control of ownership, at least under the Copyright Law. This, of +course, necessitated major legal reform to prevent the escape of +Mickey Mouse into the public domain. +</p> + +<p> +Copyright term extension now provides that, whether or not a Sonny Bono +skis into a tree again in the next ten years or so, every once in a +while Congress will extend the term of copyrights a little while +longer. And then, as the ball approaches midnight in Times Square, they'll +extend it a little longer. And so on and so on. Nothing need ever escape +into the public domain again, least of all Mickey Mouse. +</p> + +<p> +Professor Lessig, Eric Eldred, I and lots of other otherwise sensible +people in the United States thought that this did not actually conform +to the grand idea of the perfectability of human beings through the +sharing of information. We doubted that securing perpetual ownership a +slice at a time was actually a form of encouraging the diffusion of +science and the useful arts, and we suggested to the Supreme Court that +on this basis alone, the Copyright Term Extension Act should fall. +We were, as Mr. McBride rightly points out, soundly repudiated. +</p> + +<p> +It turns out that there's no such thing as an unconstitutional copyright +rule, if Congress passes it, and if it observes the distinction between +expression and idea, which the Supreme Court says is the constitutional +guarantee that copyright does not violate the freedom of expression, and +provided that fair use rights are adequately maintained. +</p> + +<p> +In short, the actual holding of Eldred against Ashcroft is, Congress can +make such copyright law as it wants, and all licenses issued under the +presumptively constitutional copyright law are beyond constitutional +challenge. +</p> + +<p> +I have news for Mr. McBride. The existing copyright law is constitutional +and our license, which fully observes all the requirements that the +copyright law places upon it, are also presumptively constitutional. Only +in the world in which we succeeded in Eldred against Ashcroft, in which +if you like there would be substantive due process review of copyright +licenses to see whether they met the form of copyright called for in +Article 1 Section 8, could Mr. McBride and friends even stand in a United +States courtroom and argue that a copyrights license is +unconstitutional. +</p> + +<p> +Regrettably for Mr. McBride, in other words, we lost Eldred against +Ashcroft, and the very claim he now wishes to make perished, along +with some more worthwhile claims, at that moment, at least until such +time as the Supreme Court changes the holding in Eldred against +Ashcroft. +</p> + +<p> +Mr. McBride takes a great deal of cold comfort from the pro-capitalist +rhetoric in which Justice Ginsberg announced the decision of the +Supreme Court. And, as yet another disgruntled observer of Eldred +against Ashcroft, I wish him luck with his cold comfort, but he and I +were on the same side of that case, little as he knows it, and the +legal arguments that he would now like to present unfortunately +failed. Mind you, even if he were allowed to present to the court the +idea that copyright licenses should be judged for their squareness +with constitutional policy, we would triumphantly prevail. +</p> + +<p> +There is no copyright license in the United States today, I will lay +this down without further demonstration but we can talk about it if +you like, there is no copyright license in the United States today +more fitting to Thomas Jefferson's idea of copyright or indeed to the +conception of copyright contained in Article 1 Section 8, than ours. +For we are pursuing an attempt at the diffusion of knowledge and the +useful arts which is already proving far more effective at diffusing +knowledge than all of the profit-motivated proprietary software +distribution being conducted by the grandest and best funded monopoly +in the history of the world. +</p> + +<p> +But, sorrily for us all, Mr. McBride will not get us to the stage +where we are allowed to tell that to the United States Supreme Court, +where we would prevail gloriously, because the United States Supreme +Court's already decided that copyright law is presumptively +constitutional as soon as Congressmen have taken the campaign +contributions, held the vote, and passed the resulting gumball-like +statute to the White House for the obligatory stamping. But I welcome +Mr. McBride to the campaign for a less restrictive copyright in the +United States, as soon as he actually figures out, from the legal +point of view, which side his bread is buttered. Unfortunately, as +you all realize, we cannot hold our breaths waiting for enlightenment +to strike. If only Mr. McBride attended Harvard Law School. +</p> + +<p> +That's, I think, enough about SCO, truly, though I am delighted to +answer your questions in due course about it. It's actually a +copyright lawsuit desert. There aren't any copyright claims in it. +There are some contract claims between IBM and SCO, and those will, in +due course, be adjusted by the courts, and I look forward with a +moderate degree of interest to the outcome. A threat to the freedom +of free software, it ain't. One hell of a nuisance it most certainly +is. And I, unfortunately, expect to continue to spend a good deal of +my time abating the nuisance, but without much sense of the presence +of a hovering threat to the things I really care about, of which this +is not a very good one. +</p> + +<p> +So instead I want to talk about the legal future of free software as +it actually is, rather than as Mr. McBride sees it, some titanic clash +between the American way of life and whatever it is we're supposed to +be. I should say about that titanic clash between the American way of +life and whoever we are that it rings familiar to me. Increasingly I +listen to Mr. McBride and I hear Mr. Ballmer, as perhaps you do as +well. That is to say, I treat SCO now as press agentry for the +Microsoft monopoly, which has deeper pockets and a longer-term concern +with what we are doing. +</p> + +<p> +Microsoft's a very wealthy corporation, and it could succeed on a +business model of software-as-a-public utility surrounded by services +in the 21st century. But for all the profound depth of Mr. Gates' +mind, the idea of human freedom is one of those things which doesn't +register very well with him. And the idea of transforming his +business into a service business, for reasons that are, I think, +accessible to us all, doesn't appeal. Therefore, for the survival of +the Microsoft monopoly, and I do actually mean its survival, the +theory being presented by Mr. McBride that we are doing something +horrid to the American way of life must prevail. +<span class="gnun-split"></span>Regrettably for +Microsoft, it won't, because what we are actually doing is more +apparent to the world than that propagandistic view will allow for. +We at any rate have to go on about our business, which is encouraging +the freedom of knowledge and in particular the freedom of technical +knowledge, and in doing that, we have to confront the actual +challenges presented to us by the world in which we live (which aren't +SCO), and so for just a few more moments I want to talk about those. +</p> + +<p> +Software is, in our phrase, free, libre. That is to say, we now have +a body of software accessible to everybody on earth so robust and so +profound in its possibilities that we are a few man months away from +doing whatever it is that anybody wants to do with computers all the +time. And of course new things are constantly coming up that people +would like to do and they are doing them. In this respect — I +say this with enormous satisfaction — in this respect the Free +Software Movement has taken hold and is now ineradicably part of the +21st century. But there are challenges to the freedom of free software +which we need to deal with. +</p> + +<p> +Patent law, unlike copyright law, presents certain features which are +egregious for the freedom of technical knowledge. If the copyright +law presents a workable form of the great 18th century ambition of the +perfectability of human kind, the patent law regrettably does not. +This is not surprising, 18th century thinkers were a little dubious +about the patent law as well. They had a concern for statutory +monopolies and a deep history of English law that made them worry +about them very much. +<span class="gnun-split"></span>Patent law in the 21st century is a collection +of evil nuisances. There's no question about it. And in the world of +software where we exist, there are some particularly unfortunate +characteristics of the way that the patent law works. We are going to +have to work hard to make sure that the legitimate scope of patent, +which is present, but which is small, is not expanded by careless +administrators any further in the course of the 21st century to cover +the ownership of ideas merely because those ideas are expressed in +computer programming languages rather than in, say, English or +mathematics. +</p> + +<p> +This is work for us, and it is work for us which a lot of smart +lawyers are doing, but they are doing it around the world in various +licenses and other legal structures connected with software in +inconsistent ways. And the inconsistency among the ways in which +lawyers are attempting to cope with the threats posed to software by +patents are a serious difficulty for us. We need to conduct a very +high-level seminar in the next five years around the world over the +relationship between patentability and free software ideas and get +square for ourselves what license terms and ways of working minimize +the risks posed by patents. +<span class="gnun-split"></span>There is what I would characterize at the +moment as a constructive diversity of views on that subject. But the +diversity will have to be thinned a little bit through an improvement +of our thought processes if we are by the end of this decade to have +done what we need to do in subduing the growth of inappropriate +patenting and its effect on our particular form of human knowledge +enhancement. +</p> + +<p> +As you are aware, and as I am spending a year writing a book about, +there are lots of other things going on in the Net about ownership. +Music and movies and various other forms of culture are being +distributed better by children than by people that are being paid to +do the work. Artists are beginning to discover that if they allow +children to distribute art in a freehanded sort of way, they will do +better than they do in the current slavery in which they are kept by +the culture vultures, who do, it is true, make a good deal of money +out of music, but they do so primarily by keeping ninety-four cents +out of every dollar and rendering six to the musicians, which isn't +very good for the musicians. +</p> + +<p> +So there is a great deal of fuss going on about ownership in the Net, +and since I care about more than just free software, I care about that +fuss. I have a side over there too. But the important thing for us in +the conversation we're presently having is that the owners of culture +now recognize that if they are going to prop up their own methods of +distribution, a method of distribution in which distribution is bought +and sold and treated as property — and you can't distribute +unless you pay for the right to do so — unless they can prop up +that structure, they are done in their business models. And for them +that requires something which I truly believe amounts to the military +occupation of the Net. They have to control all the nodes in the Net +and make sure that the bitstreams that pass through those nodes check +in before they go some place that the right of distribution hasn't +been bought or sold in order to permit that bitstream to go. +</p> + +<p> +It is precisely because software is free, that the owners of culture +have to occupy the hardware of the Net in order to make good their +business model. Free software, like, for example, Ian Clark's Freenet +or other forms of free software that engages in peer-to-peer sharing +of data, or for that matter just free software like TCP/IP which is +meant for sharing data, presents overwhelming obstacles to people who +want every single bitstream to bear requirements of ownership and +distribution inside it and to go only to the places that have paid to +receive it. The result is an increasing movement to create what is in +truly Orwellian fashion referred to as trusted computing, which means +computers that users can't trust. +<span class="gnun-split"></span>In order to continue to move for +the freedom of knowledge in 21st century society, we have to prevent +trusted computing and its various ancillary details from constituting +the occupation of the hardware of the Net, to prevent the hardware +from running free software that shares information freely with people +who want to share. Beating the trusted computing challenge is a +difficult legal problem, more difficult for the lawyer in dealing with +licensing and the putting together of software products than the +original problem presented by freeing free software in the first +place. This, more than the improvement of the free software +distribution structure as we currently know it, is the problem most +before my mind these days. +</p> + +<p> +But I would take one more step with you to discuss the problem that +lies behind the problem of free hardware. We are living now in a +world in which hardware is cheap and software is free, and if all the +hardware continues to work pretty much the way it works now, our major +problem will be that bandwidth is now treated in the world also as a +product, rather than a public utility. And you are allowed to have, in +general, as much bandwidth as you can pay for. So then in the world +in which we now exist, though hardware is cheap and software is free, +there are major difficulties in disseminating knowledge and +encouraging the diffusion of science and the useful arts, because +people are too poor to pay for the bandwidth that they require in +order to learn. +</p> + +<p> +This arises from the fact that the electromagnetic spectrum too has +been treated as property since the second quarter of the 20th century. +That was said to be technically necessary as a result of technical +problems with interference that are no longer relevant in the world of +intelligent devices. The single greatest free software problem in the +21st century is how to return the electromagnetic spectrum to use by +sharing rather than use-by-propertization. Here again, as you will +notice, free software itself, free executable software, has a major +role to play. +<span class="gnun-split"></span>Because it is software-controlled radios, that is to +say devices whose operating characteristics are contained in software +and can be modified by their users, that reclaim the spectrum for +shared rather than propertarian use. Here is the central problem that +we will be dealing with, not at the end of this decade, but for the +two or three decades that follow, as we seek to improve access to +knowledge around the world for every human mind. We will be dealing +with the question of how to make the technical and legal tools under +our control free the spectrum. +</p> + +<p> +In attempting that trick, we will be confronting a series of owners +far more powerful than Microsoft and Disney. You need only consider +the actual embedded power of the telecommunications oligopolists in +the society around you to recognize just what an uphill battle that +one will be. That's the one that we must win if we are to approach +the middle of the 21st century in a world in which knowledge is freely +available to be shared by everybody. We must see to it that everyone +has a birthright in bandwidth, a sufficient opportunity to +communicate, to be able to learn on the basis of access to all the +knowledge that is there. This is our greatest legal challenge. The +freedom of the software layer in the Net is an essential component in +that crusade. Our ability to prevent the devices that we use from +being controlled by other people is an essential element in that +campaign. +</p> + +<p> +But in the end, it is our ability to unify all of the elements of the +information society — software, hardware, and bandwidth — +in shared hands, that is in our own hands, that determines whether we +can succeed in carrying out the great 18th century dream, the one that +is found in Article 1 Section 8 of the United States Constitution, the +one that says that human beings and human society are infinitely +improvable if only we take the necessary steps to set the mind +free. That's where we are really going. Mr. McBride's company's fate, +whether it succeeds or fails, even the fate of the International +Business Machine corporation, is small compared to that. We are +running a civil rights movement. We're not trying to compete +everybody out of business, or anybody out of business. We don't care +who succeeds or fails in the marketplace. We have our eyes on the +prize. We know where we are going: Freedom. Now. +</p> + +<p> +Thank you very much. +</p> + +<p> +I'm delighted to take your questions: +</p> + +<p> +<b>Zarren:</b> So, I've been asked by the media services people to +make sure that when people ask their questions, if they could speak +into the microphone, that would be good. There's a little button that +turns it on. +</p> + +<p> +<b>Q:</b> I just wanted to ask a question clarifying and, well, +anyway… You seem to, or not, have expressed a dichotomy between +software and hardware, in the sense that software needs to be free, +software is a utility, a public good. Hardware you don't talk about +so much. And by hardware, initially I mean related to software but +then generalizable to machines, just any kind of machine. How do you +distinguish why should software be free and hardware not? +</p> + +<p> +<b>Moglen:</b> The 21st century political economy is different from +the past economic history of the human beings because the economy is +full of goods that have zero marginal cost. Traditional microeconomic +reasoning depends upon the fact that goods in general have non-zero +marginal cost. It takes money to make, move, and sell each one. The +availability of freedom for all in the world of bitstreams hinges on +that non, on that zero marginal cost characteristic of digital +information. It is because the marginal cost of computer software is +zero that all we have to do is cover the fixed costs of its making in +order to make it free to everybody, free not just in the sense of +freedom, but also in the sense of beer. +</p> + +<p> +Hardware, that is computers and, you know PDAs, as well as shoes and +tables and bricks in the wall and even seats in a Harvard Law School +classroom, has non-zero marginal cost. And the traditional +microeconomic reasoning still continues to apply to it in pretty much +the way that it did for Adam Smith, David Ricardo, or Karl Marx. +Reasoning about hardware is, in that sense, like reasoning about the +economy we grew up in and presents all of those questions of how you +actually cover the costs of each new unit that the market is designed +to help us solve. +<span class="gnun-split"></span>It's precisely because so much of human knowledge +and culture in the 21st century no longer participates in the +traditional microeconomics of price, asymptotically reaching towards a +non-zero marginal cost, that we experience so much opportunity to give +people what they never had before. And when I speak to you about the +difference between hardware and software I'm implicitly observing the +distinction between the traditional non-zero marginal cost economy and +the wonderful and weird economics of bitstreams, in which the +traditional microeconomic theory gives the right answers, but +traditional microeconomic theorists don't like what they see when they +do the chalk work. +</p> + +<p> +<b>Q:</b> Would you then advocate to, in other words, because +knowledge can be contained in hardware, and also hardware has this +additional marginal cost, would you advocate every, that for instance, +for every computer to come with chip diagrams so that the knowledge in +the hardware is free while you can still collect on the marginal cost? +</p> + +<p> +<b>Moglen:</b> Sure, it would be a very good idea, and if you watch +and see what happens in the 21st century you'll see more and more +manufacturers deciding to do precisely that, because of the value of +empowered user innovation, which will drive down their costs of making +new and better products all the time. Indeed for reasons which are as +obvious to manufacturers as they are to us, the softwarization of +hardware in the 21st century is good for everybody. I'm writing a +little bit about that now. I don't mean to plug a book, but wait a +little bit and I'll try and show you what I actually think about all +of that in a disciplined sort of way. +</p> + +<p> +<b>Q:</b> I was wondering if the SCO lawsuit might be the first of +what could become a series of lawsuits filed ad seriatim and in +parallel against free software? And wanted to get your view on two +possible types of lawsuits that could follow on the heels of SCO, +regardless of whether SCO won or lost. +<span class="gnun-split"></span>The first would be a lawsuit +filed by a company that to its shock and amazement found that instead +of its programmers hoping for their first house, working on the stuff +they were supposed to work on by day, they were in fact spending most +of their time Slashdot and the rest of their time coding free +software, and then occasionally staying up late to do something for +the old man. If those programmers have signed, which is typical, +agreements with their company that says any software they write +actually is property of the company, maybe even a work for hire, what +is the prospect that a company could then say, Our code through that +coder has been worked in to something like Linux, and it is now +infringing unless we are paid damages? +<span class="gnun-split"></span>The second possible way in +which you could see this kind of lawsuit come up would be, oddly +enough, through the thirty-five year termination rule, something that +normally would be heralded by people in your position, to say +copyright law allows musicians and artists who stupidly signed +agreements when they were but small peons, without legal assistance +with big companies, thirty-five years later can take it all back, no +matter what. They can reset the clock to zero and re- negotiate. I +call this the Rod Stewart Salvation Act. [laughter] And while that +might be helpful for the artists, much as the music industry hates it, +couldn't that also mean that free software coders, who willingly +contributed, weren't even blocked by their employers, to contribute to +Free Software Movement, could — down the line — and +thirty-five years isn't that long in the history of Unix, say, +“We take it all back?” +</p> + +<p> +<b>Moglen:</b> So, those are two very good questions. If I answer +each one of them fully, I'm going to take too long. Let me concentrate +on the first one, because I think it's really quite important. What +Jonathan's question does is point out to you that the great legal +issues in the freedom of free software have less to do with the +license than with the process of assembly by which the original +product is put together. One of the legal consequences of the SCO +affair is that people are going to start to pay closer attention all +the time to how free software products are put together. They are +going to discover that what really matters is how you deal with the +questions of, for example, possible lurking work-for-hire claims +against free software. They're going to discover that in this respect, +too, Mr. Stallman was quite prescient, because they are going to +recognize that the way they want their free software put together is +the way the Free Software Foundation put it together since now more +than twenty years. +<span class="gnun-split"></span>The way we're going, they're going to discover that +they really would like to have it, is for each individual contribution +of code to a free software project, if the guy who contributed the +code was working in the industry, they would really like to have a +work-for-hire disclaimer from the guy's employer, executed at the same +time that the contribution was made. And the filing cabinets at the +Free Software Foundation are going to look to them like an oasis in a +desert of possible problems. We saw that problem coming. We have tried +in our act as stewards over a large part of the free software in the +world to deal with it. People are going to want to have that up front +for everything that they can possibly, and they're going to be much +more reluctant to rely on software that wasn't assembled in those +ways. +</p> + +<p> +If you are thinking about working in the law of free software, and +gosh, I hope you are, one of the things you might want to be thinking +about working on is the software conservation trusts that are going to +be growing up around this economy in the next five years. I'll help +you make one, or you can come to work in one of mine. We're going to +need to spend a lot of time doing work which is associated with +trustees. We're going to be spending a lot of time making sure that +things are put together and they are built well. And we are going to +be doing that on behalf of a third-party insurance industry which is +going to be growing up, is growing up before our very eyes now, which +is learning that it really cares how the free software is assembled. +</p> + +<p> +When you go to an insurance company and ask for fire insurance on your +house, they don't want to know how your house is licensed. They want to +know how your house is built. And the questions you are asking about how +the free software is built are about to become really important +questions. What will abate those lawsuits is that we did our work well +or that we are doing our work well as lawyers, assisting programmers to +put projects together in defensible ways that protect freedom. +</p> + +<p> +Up until the day before yesterday, there were probably three +lawyers on earth who cared a lot about that, and two of them are in this room. +There will be more in the near future. I will say quickly about your +second question, Jonathan, that the problem presented is a serious +problem, but, at least from my point of view, a manageable one, and I'm +willing to talk more about why, but I think we ought to get more voices +into the conversation. +</p> + +<p> +<b>Q:</b> Without disputing the importance or difficulty of the +spectrum battle, or the … clearly the copyright battle and +progress is very immediate, but it seems to me that most worrisome +right now is the patent battle that I expect to come next. Compared to +that, the whole thing with SCO, well, SCO is a paper dragon, a hollow +threat. Can you say anything about what you expect that battle to look +like? And how it will be fought? How it can be? +</p> + +<p> +<b>Moglen:</b> Sure. Patents are about politics. I thought that the +pharmaceuticals companies did my side a favor by buying us 12 trillion +dollars in free publicity in the last half decade by teaching every +literate twelve year old on earth that “intellectual +property” means people dying of preventable diseases because the +drugs are too expensive because patents cover them. +</p> + +<p> +Patents are politics. Patents are about how we distribute wealth over +very long periods of time, in quite absolute ways. We're not going to +have an answer to our patent problem which lies in courtrooms or in +laboratories. We're going to have an answer to our patent problems which +lies in the actual conduct of politics. +</p> + +<p> +You saw the beginning of it this past summer when the European +Parliament decided, in a very unusual move, to refuse, and to refuse +promulgation to the European Commission's preferences with respect to +changes in patent law in Europe regarding inventions practiceable in +software. +</p> + +<p> +The European Commission put forward a suggestion for change and +harmonization in European patent law which would have made the +issuance of patents for inventions practiceable in software very much +easier. The European parliament after a lengthy campaign, led in part +by the Free Software Movement in Europe — that's Euro Linux and +the Free Software Foundation Europe and a lot of small software houses +in Europe benefitting substantially from the new mode of software as a +public utility — a campaign which involved in the end 250,000 +petition signatories, the European Parliament decided to say no. And +two parties, Greens and Social Democrats, in the European Parliament +now understand that patent policy in Europe is a partisan issue. That +is to say that there are sides, and that electoral politics and party +organization can be conducted around those sides. +</p> + +<p> +Our society is a much less aware one on that subject. For those of us +who live here, the task of getting to the standard set for us by our +colleagues in Europe this past summer is the first and most important +challenge. We must make our Congressmen understand that patent law is +not an administrative law subject to be decided in the +<abbr title="Patent and Trademark Office">PTO</abbr>, but a political +subject to be decided by our legislators. We may have to restore +actual democracy to the House of Representatives in the United States +in order to make that possible, and there are many other aspects to +the challenge involved. +</p> + +<p> +But this is one of the primary respects in which technically +sophisticated people in the United States are going to have to get +wise to the mechanisms of politics, because we're not going to solve +this in the Supreme Court, and we're not going to solve this in the +work station. We are going to solve this in Congress, and we're going +to have to build our muscles up for doing that. +</p> + +<p> +<b>Q:</b> Related to that point, I'm curious, this isn't so much a +legal point as a, maybe even a public relations point. You opened up +your talk by saying, This is about freedom not free beer. But when +you, I think, listen to people like Jack Valenti and the +<abbr title="Recording Industry Association of America">RIAA</abbr>, +you know, and, Mr. McBride, the constant drumbeat is of this idea of +free beer and teaching kids that they can't steal from, you know, Big +Music. How do you win that battle of public relations on the ground, +which ultimately will have ramifications in Congress? How do you, how +do you convey that message outside the technology community? +</p> + +<p> +<b>Moglen:</b> Well, one of the things that I guess I would say about +that is that English language fights us on it, right? One of the +things that has happened over the course of time in our European +environments, where the word for free in the sense of costless and the +word for free in the sense of liberated are two different words, is +that people have twigged to the distinction much more easily. +</p> + +<p> +Software libre works nicely, or logiciel libre if you have to +truckle to the Academie Francaise, in a way that free software +doesn't at making that distinction. It was in part for that reason that +some folks decided in the late 90's, that maybe they ought to try and find +another phrase and settled on open source. That turned out to have more +difficulties, I think, than benefits for the people who did it, though it +now works very nicely as a way for business to identify its interest in +what we do without committing itself to political or social philosophies +that businessmen may not share or at any rate don't need to trumpet just +in order to get their work done from day to day. +</p> + +<p> +So one of the things that we do, for those who speak English, is we +actually have to reinforce from time to time — that is all the +time — the distinction between free beer and free speech. On the +other hand those of us who live in the United States and speak English +shouldn't have quite that much trouble because free speech is a way +more important part of the American cultural landscape than free beer +is. At least it was in the world that I grew up in, whatever Rupert +Murdoch may want to say about it now. +</p> + +<p> +We are the party of free speech, and we need to point out to people that +if you allow anybody, including a well-dressed lobbyist of ancient, +ancient vintage, to declare that a love of free speech is like taking a +CD out of a record store under your arm, game's over. Not game about +free software, but game about liberty and life in a free society. +</p> + +<p> +We stand for free speech. We're the free speech movement of the +moment. And that we have to insist upon, all the time, +uncompromisingly. My dear friend, Mr. Stallman, has caused a certain +amount of resistance in life by going around saying, “It's free +software, it's not open source”. He has a reason. This is the +reason. We need to keep reminding people that what's at stake here is +free speech. We need to keep reminding people that what we're doing is +trying to keep the freedom of ideas in the 21st century, in a world +where there are guys with little paste-it labels with price tags on it +who would stick it on every idea on earth if it would make value for +the shareholders. And what we have to do is to continue to reinforce +the recognition that free speech in a technological society means +technological free speech. I think we can do that. I think that's a +deliverable message. +</p> + +<p> +That's what I spend a good deal of my time doing, and while it's true +that I bore people occasionally, at least I think I manage, more or less, +to get the point across. We're just all going to have to be really +assiduous about doing it. +</p> + +<p> +<b>Q:</b> I'll ask a question. You talked a lot about distribution and +how you think that ought to be free, and I think I see that argument +much better than I see the argument about how creators of +zero-marginal-cost distribution goods will necessarily be compensated +for what they create, and so I've heard a lot of, I don't think these +are any of your arguments, but I've heard, OK, well, that the +musicians will go on tour, so they'll make it back that way, you know, +whatever time they put in. Or people will keep creating whatever it is +they create — and this applies to more than just, you know, +movies or music — it applies to books, or even +non-entertainment-style knowledge-type things, there's gotta be, you +hear people will still do the same amount of it because they love to +do it or are interested to do it, but I don't think that quite +compensates for the compensation that many of those creators now +receive. +<span class="gnun-split"></span>And so I was wondering if you would comment a little bit on +how the free distribution world, which differs from the current world +in that many of the current distribution regimes were created +specifically only to compensate people, will differ in terms of +compensating creators. +</p> + +<p> +<b>Moglen:</b> I will say a little bit now, and in the interests of +time also say that you can find in the Net where I put stuff which is +at http://moglen.law.columbia.edu a paper called +<a href="http://moglen.law.columbia.edu/publications/maine-speech.html"> + “Freeing the Mind”</a>, which addresses this question, I +hope comprehensively, or at least a little bit. Now, let me give you +an answer. +</p> + +<p> +Historical perspective is useful here. Before Thomas Edison, there was no +way for culture to be commodity. Every musician, every artist, every +creator of anything before Thomas Edison was essentially in the business +of doing what we now have go back to doing, except those who lived in a +world of goods that could be distributed in print, for whom you only +have to step back to before Gutenberg. Right? +</p> + +<p> +The commoditization of culture is a phenomenon of yesterday, with +respect to the deep history of human creativity. Whatever else we +believe, and the problems are serious, we have to remind ourselves that +there is no prospect that music would go away if it is ceased to be +commodifiable. Music is always there. It always was. +</p> + +<p> +What you are asking about is, why do people pay for the things they care +about, in a way that will allow creators to go on making them? And the +answer that I need to give you is that people pay out of the personal +relationship that they have to the concept of making. +</p> + +<p> +Musicians got paid by people who heard music, because they had a +personal relationship to musicians. This is what you mean by going on +tour or the Grateful Dead or anybody who uses the non-zero marginal cost +of the theatre seat as a way of getting back, just as people merchandise +as a way of getting back. +</p> + +<p> +Think for a moment about the coffee house folk musician, the +singer/songwriter. The simplest case in a way of the transformation of +the music business. Here are people who are currently on tour 40, 45, 50 +weeks a year. What happens is, they go to places and they perform and at +the back, CDs are on sale, but people don't buy those CDs as a kind of, +you know, I would otherwise be stealing the music; they buy it the way +they buy goods at a farmers market or a crafts fair, because of their +personal relationship to the artist. +</p> + +<p> +So let me tell you what I think the owners of culture were doing in +the 20th century. It took them two generations from Edison to figure +out what their business was, and it wasn't music and it wasn't +movies. It was celebrity. They created very large artificial people, +you know, with navels eight feet high. And then we had these fantasy +personal relationships with the artificial big people. And those +personal relationships were manipulated to sell us lots and lots of +stuff — music and movies and T-shirts and toys and, you know, +sexual gratification, and heavens knows what else. All of that on the +basis of the underlying real economy of culture, which is that we pay +for that which we have relations with. We are human beings, social +animals. We have been socialized and evolved for life in the band for +a very long time. And when we are given things of beauty and utility +that we believe in, we actually do support them. +</p> + +<p> +You think that this isn't true, because the current skin at the top of +social life says that that's not a robust enough mechanism to sustain +creation, and that the only mechanism that will sustain creation is +coercive exclusion — you can't have it, if you don't pay. +</p> + +<p> +But they can't be historically right, because the ability to coerce +effectively is a thing of yesterday. And the longer, deeper history of +culture is the history of the non-coercive mechanisms for securing +compensation to artists, only some of which we are now in a position to +improve immeasurably. +</p> + +<p> +<b>Q:</b> But what about the software writer? +</p> + +<p> +<b>Moglen:</b> Ah, the software… +</p> + +<p> +<b>Q:</b> That's the kind of stuff I think I was more getting at with +my question. So you have somebody who creates something useful but it +has a zero distribution cost, and it's useful in a way that's not, not +useful like celebrity, though I'm not sure, I don't think that's +useful in some ways, but it's useful in the different sense that it +takes a long time to create well. +</p> + +<p> +<b>Moglen:</b> See, the programmers I worked with all my life thought +of themselves as artisans, and it was very hard to unionize them. They +thought that they were individual creators. Software writers at the +moment have begun to lose that feeling, as the world proletarianizes +them much more severely than it used to. They're beginning to notice +that they're workers, and not only that, but if you pay attention to +the Presidential campaign currently going on around us, they are +becoming aware of the fact that they are workers whose jobs are +movable in international trade. +</p> + +<p> +We are actually doing more to sustain the livelihood of programmers than +the proprietary people are. Mr. Gates has only so many jobs, and he will +move them to where the programming is cheapest. Just you watch. We, on +the other hand, are enabling people to gain technical knowledge which +they can customize and market in the world where they live. We are +making people programmers, right? And we are giving them a base upon +which to perform their service activity at every level in the economy, +from small to large. +</p> + +<p> +There is programming work for fourteen-year-olds in the world now +because they have the whole of GNU upon which to erect whatever it is +that somebody in their neighbourhood wants to buy, and we are making +enough value for the IBM corporation that it's worth putting billions +of dollars behind. +</p> + +<p> +If I were an employee of the IBM corporation right this moment, I +would consider my job more secure where it is because of free software +than if free software disappeared from the face of the earth, and I +don't think most of the people who work at IBM would disagree with me. +</p> + +<p> +Of all the people who participate in the economy of zero marginal cost, +I think the programmers can see most clearly where their benefits lie, +and if you just wait for a few more tens of thousands of programming +jobs to go from here to Bangalore, they'll see it even more clearly. +</p> + +<p> +<b>Q:</b> So, author writes software. The moment the software is fixed +in a tangible medium, copyright attaches; others can't use it without +further action by author. Author chooses to adopt the General Public +License to govern what others can do with the software, and you made +the intriguing point then that the General Public License gives, with +certain limits, and that's why, you point out, nobody is really +wanting to challenge it all that much because it would be a Pyrrhic +challenge. If you win and the license evaporates, then it +rubber-bands back to the author. +<span class="gnun-split"></span>That seems so persuasive, and almost +proves too much, doesn't it? Because, suppose another author writes +software, writes for now with the author and chooses to license it +under the Grand Old Party License, by which only Republicans may make +derivative works, and other, what would otherwise be +copyright-infringing uses of the software. One, do you think such a +license should be enforced by the courts? And two, couldn't you say +the same logic would apply, that nobody would dare to challenge it +because half a loaf is better than none? At least, let the +Republicans use the software. +</p> + +<p> +<b>Moglen: </b> So, fundamentally I think the question that you asked +is, Has the law of copyright misuse evaporated entirely? And I think +the answer, notwithstanding the Supreme Court's current deference to +whatever Congress chooses to say, is no. I think there's still a +common law of going too far out there, and as a lawyer who works on +behalf of people who are fairly militant on behalf of sharing, I hear +proposals all the time about stuff that they think it would be really +neat to do that I don't think the copyright law, unalloyed by further +contractualization will permit them to do. +</p> + +<p> +I think the actual tool set of Berne-harmonized copyright law has certain +limits on the power of the licensor, and I believe that those limits are +capacious enough to allow us to create the kind of self-healing commons +we have created, but I'm not sure that they would be strong enough +to permit the importation of lots of additional contractualizing +restrictions as though they were part of the body of copyright law +itself. +</p> + +<p> +Moreover I'm pretty sure that if you tried to do it and succeeded in one +jurisdiction, you would find that the Berne Convention didn't actually +export all of those propositions around the world for you, and that +therefore you would have difficulty erecting a worldwide empire around +the GPL Public License. +</p> + +<p> +But I think you're correct to say another thing, which is that if there +were a number of self-defending commons raised on different principles +around the world, that that would create undesirable dead weight +lawsuits, which is why I spend a fair amount of time trying to help +people see why the GPL is good and doesn't require to be turned into the +XPL and the YPL and the ZPL around the world. In fact I think in the +next few years, we're going to have a greater consolidation of licenses, not +a greater multiplication of them. But it's a conceptual issue of +importance, and it depends upon the belief that copyright law all by +itself permits some things and not others, and that you can only fill +those gaps with the kind of contract law that we try not to use. +</p> + +<p> +<b>Q:</b> Can you recommend any economists who have studied zero +marginal cost economics? +</p> + +<p> +<b>Moglen:</b> Well, see now, I sometimes joke with my dear colleague, Yochai +Benkler at Yale Law School, that Yochai is well-positioned now to win the final +Nobel Prize in economics. But I fear that that's not quite correct +and that people are beginning to flood in. I have a little bit this sort +of feeling that sooner or later I'm going to wake up and find out that +in Stockholm they've decided to award a prize to guys for teaching +economics that we have known for 25 years. +</p> + +<p> +Eric von Hippel is doing very important work about that, if you want to +take just people living in the neighborhood. We are beginning to get in +our business schools a bunch of people who are actually trying to think +about these questions, because they see billions of dollars being bet +and in good business school tradition, they tend to figure out that +what rich businessmen and their investors are thinking about is +something they might want to pay attention to. +</p> + +<p> +In the pure economics departments, unfortunately we remain a phenomenon +too disquieting to consult just yet. But PhD students, of course, do not +always do what their professors do, and my guess is that we are merely a +few years away from the beginning of some rocket science on these +subjects. +</p> + +<p> +It's an enormous, beautiful opportunity for the revision of a field. Even +in an economic, even in a discipline like economics, it is only so long +that people can be prevented from working on really interesting +problems. And the day is coming. +</p> + +<p> +<b>Q:</b> Just a general question on market forces and the free +software economy. Even in an ideal world, wouldn't you say that, you +know, because of the market forces and then we, you know, a group of +players become especially successful, then they actually — even +though it's an ideal world — they actually become powerful +enough and they monopolize under standards again, and we come back to +the same system we have today. So, I guess the question is that +whether this product-type system economy we have, is that just a +function of the structure we have, or is that, you know, a result of +just market forces? +</p> + +<p> +<b>Moglen:</b> Well, the structure that we have constitutes what we call +market forces. I wouldn't want to take the position that the market was a +Newtonian mechanism that existed in the universe independent of human social +interaction. +</p> + +<p> +Look, what we are doing is trying, through legal institutions +directed at the protection of a commons, to prevent that commons from +suffering tragedy. Because the content of that commons is capable of +renewal and has zero marginal cost, the tragedy we're trying to prevent +is not Garrett Hardin's one, which was based upon the inherent +exhaustibility of natural resources of certain kinds. But there is no +question that the commons that we are making is capable of being +appropriated and destroyed in the ways that you suggest. +</p> + +<p> +Those of us who believe in the GNU GPL as a particularly valuable +license to use believe in that because we think that there are other +licenses which too weakly protect the commons and which are more +amenable to a form of appropriation that might be ultimately +destructive — this is our concern with the freedoms presented, +for example, by the BSD license — we are concerned that though +the freedoms in the short term seem even greater, that the longterm +result is more readily the one that you are pointing at, market +participants who are free to propriatize the content of the commons +may succeed in so effectively propriatizing it as to drive the commons +out of use altogether, thus, if you like, killing the goose that laid +the golden egg in the first place. +</p> + +<p> +So, to some extent, I would say, avoidance of the tragedy of the commons +in our world depends upon the structuring of the commons. Institutions +alone, as I also pointed out earlier in this conversation however, +commons resources need active management. +</p> + +<p> +You, as a lawyer, will either engage in assisting to protect the commons +or not protect the commons. This is a form of natural resources law for +the 21st century. It is about the recognition that no machine will go of +itself, that it will require assistance to achieve its goals precisely +in the way that you have in mind. +</p> + +<p> +The best National Park Law on earth won't prevent the poaching of the +park if there are not committed people willing to defend it. So you +offer a general theory of the possibility of commons destruction and I +agree with you. I say two things. We can design a better commons, and we +can work our tails off to keep that commons in being healthy, strong and +well. That's what I'm up to. That's what I hope you'll be up to as well. +</p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations +README</a> for information on coordinating and submitting translations +of this article.</p> +</div> + +<!-- Regarding copyright, in general, standalone pages (as opposed to + files generated as part of manuals) on the GNU web server should + be under CC BY-ND 3.0 US. Please do NOT change or remove this + without talking with the webmasters or licensing team first. + Please make sure the copyright date is consistent with the + document. For web pages, it is ok to list just the latest year the + document was modified, or published. + + If you wish to list earlier years, that is ok too. + Either "2001, 2002, 2003" or "2001-2003" are ok for specifying + years, as long as each year in the range is in fact a copyrightable + year, i.e., a year in which the document was published (including + being publicly visible on the web or in a revision control system). + + There is more detail about copyright years in the GNU Maintainers + Information document, www.gnu.org/prep/maintain. --> + +<p>Copyright © 2004 Eben Moglen</p> + +<p>Verbatim copying and distribution of this entire article is +permitted in any medium without royalty provided this notice is +preserved.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2014/04/12 12:40:27 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |