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+<!--#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 &amp; Technology</h2>
+
+<blockquote>
+<p>February 23, 2004 - Cambridge, MA, USA</p>
+</blockquote>
+
+<p>
+<i>Eben Moglen is a Professor of Law &amp; 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
+&mdash; this is mine, you cannot have it unless you pay me &mdash;
+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 &mdash; what computers can be made to do &mdash; 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 &mdash;
+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 &ldquo;business model&rdquo;
+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 &mdash; I do mean those in Redmond, as well as
+those in Utah &mdash; 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 &mdash; 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 &mdash; after all we are the
+people who transformed it &mdash; 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&amp;T at various
+times that they would do or refrain from doing various things, that some of
+the people who promised AT&amp;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 &mdash; 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&amp;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&amp;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&amp;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&amp;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 &mdash; 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 &mdash; I feel sometimes as though I'm in a
+Quentin Tarantino movie of some sort with them [laughter] &mdash; 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 />
+
+&ldquo;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.&rdquo;
+</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, &ldquo;Judge,
+Mr. Defendant has used our copyrighted work, copied it, modified it
+and distributed it without permission. Please make him stop.&rdquo;
+</p>
+
+<p>
+One thing that the defendant can say is, &ldquo;You're right. I have
+no license.&rdquo; 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,
+&ldquo;But Judge, I do have a license. It's this here document, the
+GNU GPL. General Public License,&rdquo; at which point, because I know
+the license reasonably well, and I'm aware in what respect he is
+breaking it, I will say, &ldquo;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.&rdquo;
+</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 &mdash; Mr. McBride made it here some weeks
+ago &mdash; 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, &ldquo;Judge, they're distributing our copyrighted work, and
+they don't have any permission. Make them stop.&rdquo;
+</p>
+
+<p>
+If SCO played smart, they would have said, &ldquo;But your Honor, we
+do have a license. It's the GNU GPL.&rdquo; 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, &ldquo;But
+Judge, the GNU GPL is a violation of the United States Constitution,
+the Copyright Law, the Export Control Law&rdquo;, 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, &ldquo;Steamboat Willy&rdquo; 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 &mdash; I
+say this with enormous satisfaction &mdash; 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 &mdash; and you can't distribute
+unless you pay for the right to do so &mdash; 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 &mdash; software, hardware, and bandwidth &mdash;
+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&hellip; 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 &mdash; down the line &mdash; and
+thirty-five years isn't that long in the history of Unix, say,
+&ldquo;We take it all back?&rdquo;
+</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 &hellip; 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 &ldquo;intellectual
+property&rdquo; 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 &mdash; 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 &mdash; 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 &mdash; that is all the
+time &mdash; 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, &ldquo;It's free
+software, it's not open source&rdquo;. 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 &mdash; and this applies to more than just, you know,
+movies or music &mdash; 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">
+ &ldquo;Freeing the Mind&rdquo;</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 &mdash; 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 &mdash; 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&hellip;
+</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 &mdash; even
+though it's an ideal world &mdash; 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 &mdash; this is our concern with the freedoms presented,
+for example, by the BSD license &mdash; 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" -->
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+</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
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+ If you wish to list earlier years, that is ok too.
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+
+<p>Copyright &copy; 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 -->
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