Here is Eben Moglen's address and Q & A at Harvard February 23. Thanks go to Groklaw's amazing transcriber, MadMax, who did almost all of it all by himself by dawn, then slept four hours and got up to play some golf and then did some more. His secret? While giving proper credit to "a pair of $300 headphones, a 19" Sony
monitor, and hands that have played classical guitar for 12 years, and
chatted on IRC every day for the last 4," he also says, "It also makes it a lot easier when you have someone decent to listen to . . . I'm really appreciating the
subtle humour that he weaves through everything he says." We also must thank RSC and Dex~ for doing the rest.
Although we strive for accuracy, any errors/inaccuracies are the fault of Groklaw and not the Harvard Journal of Law & Technology, or the fault of any other person or organization, including Professor Moglen. If accuracy is vital, do check with the Harvard video. If you wish to hear the talk to verify it or just to enjoy it, here it is. I am continuing to edit, so if you see any errors, can you please help me out by letting me know? I just didn't want you to have to wait for perfection on my part, as that might be a long wait indeed.
He makes reference to two legal terms, dicta and holding, which I'll explain briefly, so you can follow his thought. Dicta, the plural of dictum, is, according to my law dictionary, "a statement, remark, or observation in a judicial opinion not necessary for the decision of the case. Dictum differs from the holding in that it is not binding on the courts in subsequent cases." You can extrapolate holding's meaning from the definition of dicta. So, with that introduction, here is the transcript.
Can you hear me OK? All right, here we go.
Welcome, everyone, to tonight's event. I just have a couple of quick announcements. I'm Mike
Zarren, the editor-in-chief of the Harvard Journal of Law and Technology. Two quick
announcements. First is, if you don't know about our Journal, you should check out our web
page. It's jolt.law.harvard.edu. Our fall issue, which I know it's not the fall any more but it's just coming out now, has
some great articles in it which I won't repeat all the topics, but they're cool.
The second announcement is that our next big event is our symposium. It's our annual spring
symposium. This year the symposium is on innovations and ownership issues with regard to
media. The symposium is going to examine how technological innovation and the digitization
of print and broadcast media are impacting ownership and control of media distribution
channels, as well as consumer access and choice. So please look at our website for current
list of participants. There is a whole bunch of people coming and talking here, and that
event is also open to the public and will also be webcast.
Special thank you to those of you who are watching online. The last JOLT webcast was the
most watched webcast in the history of Harvard Law School, so that's exciting. I don't know
what that means but.... [laughs] Anyway, without further ado, I would like to introduce
Jonathan Zittrain, who's not only the co-director of the Berkman Center for
Internet and Society -- there we go --as well as one of the best professors here at Harvard Law School.
Hi, there. This session is something of a bookend to the session a couple of weeks ago.
Maybe we should just find out, right? How many of you were here at the last session? You know
what I mean, right? How many of you were here? How many of you were not here? All right,
so the not-heres have it over the heres from the last session. It's a bit of a bookend
from the presentation by . . . Problems? OK. OK, ma'am, turn down your radio.
OK, so this is a bookend to a session that started with Darl McBride of SCO, the Santa
Cruz Operation two, Santa Cruz Operation Jr., who presented a number of theories about their
ownership of UNIX and how that impacts Linux. I understand that there were people at the
event, handing out copies of Linux as a form of civil disobedience. I don't know how many
people made use of their copies to install Linux on their coffee makers or reinstall it on
I was disappointed to see that there was no one, I guess, in converse fashion, frisking people
in their way in, looking for copies of Linux to seize, as a form of civil obedience by the
powers-that-be. But in some important respects, too, I am not sure this will be a bookend, and
that's because of who is speaking, Eben Moglen. Eben Moglen is a scholar of the first
order, somebody who thinks very big, and yet also very deep. And therefore, my guess is
he will not be looking at this problem solely as a lawsuit that has certain facts and
issues of law to be decided and here's how it ought to come out.
Of course, he is also looking at it that way, because he is, among other things, counsel to
the Free Software Foundation, and therefore, Richard Stallmans' lawyer, and somebody who
is the legal, and in other important respects, public face of the Free Software
Foundation and the Free Software Movement.
This is probably an appropriate job for him to hold. In other lives, he has been a computer
programmer. As early as 1973, at age 14, he was contributing to the development of VSAPL,
the little-known successor, APL II, and PASCAL, at IBM Santa Teresa Laboratory. He has since,
aside from being a historian, been a law professor at Columbia University, where in a way
that is truly scholarly, in the sense that it depicts that a true relish of knowledge and
of not just stockpiling knowledge but challenging conventional wisdom and making new
knowledge out of old, new analysis, he has taken on a number of sacred cows, including,
some of you may be chilled to find out, the law review establishment, which I think he
probably still thinks is overripe for change and renewal, to put it lightly.
How does Eben Moglen describe his own mode of scholarship? He says it is basically a two
step, purely experimental paradigm. Step 1: try to create freedom by destroying
illegitimate power sheltered behind intellectual property law. Right? What could step 2 be?
Step 2: See what happens.
So far, he reports that early results are encouraging. So you are all part of the grand
experiment that is really just Eben Moglen's research agenda, but obviously there is
something a little more to it. There is a sense that this isn't just an economic or
financial issue, that there really are broad-brushed social and cultural things at stake,
and I'm sure that's what you are going to hear about today. So with that, please join me in
welcoming Professor Eben Moglen.
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.
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
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
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.
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.
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
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
I don't think that's actually what's happening, but it is certainly what
Mr. McBride came here to say was happening.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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
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,
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.
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.
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.
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
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.
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.
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.
At www.gnu.org/philosophy/sco, 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.
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.
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.
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.
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.
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.
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.
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
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.
"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."
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."
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."
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.
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.
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.
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.
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.
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."
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.
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]
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.
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
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.
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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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. 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.
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.
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. 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.
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. 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.
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.
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.
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. 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.
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.
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. 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.
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.
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.
Thank you very
I’m delighted to take your questions:
Zarren: 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.
Q: 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?
Moglen: 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.
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. 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.
Q: (unintelligible) 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?
Moglen: 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.
Q: 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. 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? 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?"
Moglen: 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. 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.
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.
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.
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.
Q: 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
Moglen: Sure, Jeremy[?]. 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.
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.
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
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.
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 PTO, 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.
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.
Q: 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 RIAA, 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?
Moglen: 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.
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.
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.
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.
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.
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.
Q: 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. 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.
Moglen: 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 "Freeing the Mind",
addresses this question, I hope comprehensively, or at least a little
bit. Now, let me give you an answer.
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?
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.
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.
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.
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.
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.
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.
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
Q: But what about the software writer?
Moglen: Ah, the software. . .
Q: 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.
Moglen: 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.
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.
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.
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.
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.
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. 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.
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.
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
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.
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.
Can you recommend any economists who have studied zero marginal cost
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.
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.
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
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.
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?
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
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.
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.
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.
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.
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.
Please join me in thanking JOLT and Professor Eben Moglen.