http://www.cic.unb.br/~rezende/sd.php > English: License debates

Software and Comuunity
in the Early 21st Century

Eben Moglen *
Keynote speech at the 06 Plone Conference
Seattle, USA, October 2006

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Transcribed from video recorded by Grace Stahre **
Annotated (for non-technical readers) transcription by Geof Glass ***
Annotated transcription edited (for this) by Pedro A D Rezende


Eben Mogle I want to talk about the piece of our common lives that my host Paul was pointing at, these rules, these methods of living together around software. I want to try and explain what I think their larger moral and economic meaning is. It is both a moral and economic analysis; it has to be. It began as a moral question, it remains a moral question, but it becomes along the way also a window into the economic organization of human society in the 21st. century.

Underlying community

If you think about the 20th century economy out of which we are passing, its primary underlying commodity was steel. The making of steel was the 20th century's root activity, and societies measured themselves substantially by their success in producing steel. It was the first sign of the real wakening of Europe as an economic entity, after the devastation of the second world war.

What we now think of as the European Union, and we thought of for a while as the European Commission, and before that, as the common market began as you may recall, under Jean Monet, as the Coal and Iron Union, to bring back the European industrial economy. The Asian tigers began to claim for themselves rising importance in the world economy when they began producing noticeable amounts of steel.

And when Mao Tse Tung tried to imagine an alternative for economic development for the People's Republic of China in the "great leap forward", his best thought was backyard steel furnaces. So that was how the 20th century thought about collaboration in the economy. It made steel, and from steel it made the rest of what the 20th century possessed for the exploration of the environment and the control of nature for human benefit.

The 21st century economy is not undergirded (strengthened) by steel. The 21st century economy is undergirded (strengthened) by software. Which is as crucial as the underlying element of economic development in the 21st century as the production of steel ingots was in the 20th. We have moved to a societal structure in this country, are moving elsewhere in the developed world, will continue to move throughout the developing economies, towards economies whose primary underlying commodity of production is software. And the good news is that nobody owns it.

Mathematics as property

The reason that this is good news requires us to go back to a moment in the past, in the development of the economies in the west, before steel. What was, after all, characteristic of the economy before steel? Was the slow, persistent, motivated expansion of European societies and European economies, out into the larger world, for both much evil and much good, built around the possession of a certain number of basic technological improvements.

Mostly to the naval, transportation and armament fields, all of which was undergirded by the control of mathematics. Superior to the control of mathematics available in other cultures around the world. There are lots of ways we could conceive the great European expansion, which redescribed human beings' relationship to the globe, but one way to put it is they had the best math. And nobody owned that either.

Imagine, if you will for a moment, a society in which mathematics has become property, and it is owned by people. Now, every time you want to do something useful, build a house, make a boat, start a bridge, devise a market, move objects weighting certain numbers of kilos from one place to another, your first stop is at the mathematics store.  To buy enough mathematics to complete the task which lies before you.

You can only use as much arithmetic at a time as you can afford, and it is difficult to build a sufficient inventory of mathematics, given its price, to have any extra on hand. You can predict, of course, that the mathematics sellers will get rich, and you can predict that every other activity in society, whether undertaken for economic benefit or for the common good, will pay taxes in the form of mathematics payments.

The productization of knowledge about computers, the turning of software into a product, was, for a short, crucial period of time, at the end of the 20th century, the dominant element in technological progress. Software was owned. You could do what you could afford, and you could accomplish what somebody else's software made possible. To contain in within your own organization a sufficient inventory of adaptable software, to be able to meet new circumstances flexibly, was more expensive than any but the largest organizations, seeking private benefit in the private economy, could afford to pay.

Software as infrastructure

We are moving to a world in which, in the 21st century, the most important activities that produce occur not in factories, and not by individual initiative, but in communities held together by software [1]. It is the infrastructural importance of software, which is first important in the move to the pos-industrial economy. It isn't that software itself is a thing of value, that's true. It isn't that applications produce useful endpoint activities, or benefit real people in their real lives, though that's true. It is that software provides alternate modes of infrastructure and transportation.

That is crucial, in economic history terms, because the driving force in economic development is always improvement in transportation. When things move more easily and more flexibly, and with less friction from place to place, economic growth results, welfare improvement occur. They occur most rapidly among those who have previously been unable to transport value into the market. In other words, infrastructure improvement has a tendency to improve matters for the poor more rapidly than most other forms of investment in economic development.

Software is creating roadways that bring people, who has been far from the center of human social life, to the center of human social life. Software is making people adjacent to one another, who has not been adjacent to one another. And with a little bit of work, software can be used to keep software from being owned. In other words, software itself can lift the software tax.

That's where we now are. At that moment, on that cusp. In this neighborhood, at this moment, the richest and most deeply funded monopoly in the history of the world is beginning to fail. Within another few months, the causes of its failure will be apparent to everyone, as they are now largely apparent to the knowledgeable observers of the industry who expect trouble for Microsoft.

The very engineering limits of trying to make software that you own work as well as software that the community produces are becoming apparent. It used to be suggested that, eventually, software produced without ownership relations [2] might achieve superiority beyond that of software produced by proprietary producers. It used to be argued that that might eventually happen.

Free software prevails

When those of us who have some theoretical experience in this area say why do you think it is only going to happen eventually, it has happened already, people tend to point at the monopoly product and show the ways in which they are still, one way or another, better: "you see, you can't do it." The browser, as we are all aware, is a pretty crummy piece of software. It is commodity activity nowadays, these browsers. And Microsoft has written some browsers.

And they have been working on the browser they just released for years. And now they have announced what their best browser, at present levels of engineering investment, can be. And on the day of its release, it is less good than the unowned competitor [3]. Produced by...who? what? where? when? On the day of its release.

What is being seen this week, next week, the week after about Internet Explorer version 7, will soon be seen about operating system kernels, file systems, desktop and window managements, and all the other commoditized parts of a client side operating system at which we are now operating to produce superior software at infinitely lower price. We are still, only partially of course, but we are still a capitalist society.

And when someone entrenched, no matter how deeply, is producing overtly inferior goods at three orders of magnitude higher price or infinitely higher price, the event, or the outcome of the event, is obvious. Ownership of software, as a way of producing software for general consumption, is going out for economic reasons [4].  But as I said, the economic insight that we can get from watching the transition from steel to software is far less important than the moral analysis of the situation.

Dilemma of redistribution

The moral analysis of this situation presents where we are now as, if I may borrow a phrase, a singularity in human affairs. One of the grave problems of human inequality, for everyone who has attempted to ameliorate the problem of human inequality, which is most thinkers about the morality of social life, the gravest problem of human inequality is the extraordinary difficulty in prizing wealth away from the rich, to give it to the poor, without employing levels of coercion or violence which are themselves utterly corrosive of social progress.

And repeatedly, in the course of the history of our human societies, well intentioned, enormously determined and courageous people, willing to sacrifice their lives for an improvement in the equality of human life, have had to face that problem. We can not make meaningful redistribution fast enough to retain momentum politically without applying levels of coercion or violence which will destroy what we are attempting [5].

And again and again, as Isaiah Berlin and other late 20th century political theorists pointed out, through hubris, through arrogance, through romanticism, through self-deception, parties seeking permanent human benefit in an increase in the equality of human beings have failed that test. And watched as their movements of liberation spiraled downwards from the poison of excess coercion.

We do not have to do that any more. The gate that has held the movements for equalization of human beings strictly in a dilemma between ineffectiveness and violence has now been opened. The reason is that we have shifted to a zero marginal cost world. As steel is replaced by software, more and more of the value in society becomes non-rivalrous. It can be held by many, without costing anybody more than if it is held by a few [6].

Education

In the English-speaking world (and it was primarily in the English speaking world: in Scotland, in North America, in the outer edges of the British empire) we moved towards a system of universal public education in the course of the 18th and 19th centuries. Protestant north Europe moved over a lengthier period of time in a similar direction, but universal public education still had to be conducted on the basis of knowledge that could not be indefinitely duplicated.

Books are the first mass-produced article in western society. They are the cheapest method of making large amounts of information available by broad public access, available in analog technology. And they are still grossely expensive, difficult to move, cumbersome to keep and catalog and maintain, and very difficult for people to have access to who are not already located in socially central places. They are also vulnerable, as anybody who remembers the burning of the Sarajevo library will recall vividly. It takes a day, with contemporary technology, to destroy the libraries it takes centuries to build. And in times of great social stress, libraries burn.

Now we live in a different world, for the first time. All the basic knowledge, all the refined physics, all the deep mathematics, everything of beauty in music, in the visual arts, all of literature, all of the video arts of the 20th century, can be given to everybody everywhere. At essentially no additional cost beyond the cost it required to make the first copy [7].

Marginal cost and morality

And so we face, in the 21st century, a very basic moral question. If you could make as many loaves of bread as it took to feed the world, by baking one loaf and pressing a button, how could you justify charging more for bread than the poorest people can afford to pay? If the marginal cost of bread is zero, then the competitive market price should be zero too [8].

But leaving aside any question of microeconomic theory, the moral question, "What should be the price of what keep someone alive, if it costs you nothing to provide it to him" has only one unique answer. There is no moral justification for charging more for bread that costs nothing than the starving can pay. Every death from too little bread, under those circumstances, is murder. We just don't know who to charge, for the crime.

We live there, now. This is both an extraordinary achievement, and a very pressing challenge. There are good reasons, after 1789, to be a little doubtful about the wisdom of revolution. Because revolution meant coercive redistribution, likely to spiral downwards in the well known way. In the economy of steel, people who make steel become workers. They have little individuality. They are reckoned as workers in an industrial army.

And as Marx, and others like him pointed out in the middle of the 19th century, that is largely likely to lead to the model internally of political progress through a clash of armies. We don't live there anymore. We find ourselves now in a very different place: you live there, I live there, I and my clients live there, it's a place in which the primary infrastructure is produced by sharing. The primary technology of production is unowned.

The effectiveness of that mode of production in the broader society is now established. Plus or minus a couple of years left, before Microsoft fails entirely [9], we have now proven either the adequacy or the final superiority, in crass economic terms, of the way we make things. We have brought forward now, the possibility of distributing everything that every public education system uses. Freely, everywhere, to everyone. True universal public education for the first time.

We have shown how our software, plus commodity hardware, plus the electromagnetic spectrum that nobody owns, can build a robust, deep, mash-structured communications network which can be built out in poor parts of the world far more rapidly than the 20th century infrastructures of broadcast technology and telephone.

We have began proving the fabric of a 21st century society which is egalitarian in its nature, and which is structured to produce for the common benefit more effectively than it can produce private, exclusive, proprietary benefit. We are solving epochal problems. We are introducing new possibilities, based upon new technological arrangements, to deal with the fundamental political difficulties that we have coped with, and our predecessors in seeking equality and justice have coped with, for generations.

We are very lucky. We live at a time when technological progress and the pressure for human justice are coming together in a way which can produce fundamental satisfactions that have eluded us for centuries. But in that luck there comes responsibility. We need to get it done. There are other people, with other views. We are not everybody.

Distributing without giving

The other views assume that this technology too can be shaped to support hierarchy. That it can be shaped to support ownership. That it can be shaped not only to ignore the moral question I have put forward, but to make that moral question invisible to almost everybody. Forever [10]. The folks on the other side are also very powerful. They look way more powerful than we. They are also quite clear-sighted. They also understand that there is an epochal openness here, and they have no more intention of giving up what the claim as theirs now, then they ever have had.

The dystopic possibilities of where we live are non-trivial. If you imagine, right now, a flood of billions of dollars of consumer products moving towards you, in containers from the East, containing devices that use all the software we have made, but locked down so no one may thinker with it [11], so that if you try and exercise the freedoms that it gives you, your movies don't play any more, your music won't sing, your books will erase themselves, your textbooks will go back to the warehouse unless you pay next semester's tuition to the textbook publishers, and so on.

The magic of this technology is that it can be used for the great ideal of capitalist distribution: never actually give anybody anything. Just as it can be used for our fundamental purpose, which is: always give everybody everything. And so in fact, we now find ourselves in a more polarized place than usual. Not because Paris is starving. Not even because the lettres de cachet [12] have grown so horrifying to the population. On the contrary, this population has never been less horrified by putting people in jail without charges and keeping them there forever than it ever has been in the past.

What we want

The reason that we now face a more than usually polarized circumstance is that the sides that have confronted one another over equality and social justice for generations are now more evenly matched than they have ever been before. You and I, and the people who came before us [13], have been rolling a very large rock uphill a very long time. We wanted freedom of knowledge in a world which didn't give it, which burned people for their religious or scientific beliefs.

We wanted democracy, by which we meant originally the rule of the many by the many and the subjection of today's rulers by the force of law. And we wanted a world in which distinctions among persons were based not on the color of skin, or even the content of character, but just the choices that people make in their own lives.

We wanted the poor to have enough, and the rich to cease to suffer from the diseases of too much. We wanted a world in which everybody had a roof, and everybody had enough to eat, and all the children went to school. And we were told, always, that it was impossible. And our efforts to make it happen turned violent on their side, or on ours, many more times than we can care to think for.
 
Now we are in a different spot. Not because our aims have changed, not because the objectives of what we do have changed. But because the nature of the world in which we inhabit technologically has altered so as to make our ideas functional in new and non-coercive ways. We have never, in the history of free software, despite everything that has been said by lawyers and flaks and propagandists in the other side -- we have never forced anybody to free any code.

GPL Strategy

I have enforced the GPL [14] since 1993. Over most of that time I was the only lawyer in the world enforcing the GPL. I did not sue, because the courts were not the place for the rag-tag revolution, in its early stage, to win pitched battles against the other side. On the contrary, in the world we lived in only ten or fifteen years ago, to have been forceful in the presentation of our legal claims would have meant failure, even if we won. Because we would have been torn to pieces by the contending powers of the rich.

 On the contrary, we played very shrewdly, in my judgment now as I look back on the decisions that my clients made (I never made them). We played very shrewdly. When I went to work for Richard Stallman [15] in 1993 he said to me, at the first instruction over enforcing the GPL: "I have a rule. You must never let a request for damages interfere with a settlement for compliance."

I thought about that for a moment and I decided that that instruction meant that I could begin every conversation with a violator of the GPL with magic words: We don't want money. When I spoke those words, life got simpler. The next thing I said was: we don't want publicity. The third thing I said was: we want compliance. We won't settle for anything less than compliance, and that's all we want. Now I will show you how to make that "ice in the wintertime."

And so they gave me compliance, which had been defined mutually as ice in the wintertime. But as all of those of us who are about to live with less ice in the wintertime than we used to have will soon know, ice in the winter time can be good if you collect enough of it. And we did. We collected enough of it that people out there who had money to burn said "Wait a minute. This software is good, we don't have to burn money over it."

"And not only is this software good as software, these rules are good. Because they are not about ambulance chasing. They are not about a quick score. They are not about holding up deep pockets. They are about real cooperation, between people who have a lot, and people who have an idea. Why don't we go in for that" And within a very short period of time, they had gone in for that.

And that's where we live now. In a world in which the resources of the wealthy came to us, not because we coerced them. Not because we demanded, not because we taxed, but because we shared [16]. Even with them, sharing worked better than suing or coercing. We were not afraid. We did not put up barbed wired, and so when they came to scoff, they remained to pray.

And now, the force of what we are is too strong for a really committed, really adversary, really cornered, really big monopoly, to do any thing about, at all.  That's pretty good work, in a short period of time, that you all did [13]. You changed the balance of power in a tiny way. But when you look at it against the long background of the history of who we are and what we want, it was an immense strategic victory, and not a small tactical engagement.

Now, as usual, when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back. So we are now moving into a period in which what we have to do is to consolidate the gains. We have to strengthen our own understanding about what our community can do.

Community-based peer production

I want to go back to  the thing I said at the beginning. In the twenty-first century economy, production occurs not in factories or by people but in communities [17]. eBay is a pretty decent way of organizing a community to sell and buy stuff and empty garages, and it is doing a pretty fair job of it. MySpace, Friendster – never mind who owns, never mind what’s intended, never mind the pedophiles and all that stuff – it’s a pretty good way of dealing with an extraordinarily deep and important problem that most societies have to cope with, which is how to give old children becoming young adults some way of experiencing their independent identity in the world.

How to give them a way to say, “Here I am. This is what I am. This is what I feel. This is what is going on in my life.” It has produced a lot of bad adolescent poetry. It has produced a lot of risqué photography and self-portraits in states of deshabille. But it is also dealing with a thing which has sometimes been known to cause suicide, and which shouldn’t be taken quite so lightly. It is not a small thing if you feel yourself to be a really isolated teenager living and working in a part of the world that doesn’t understand you at all to know that you can have tens of thousands of people all around the world immediately available to you, who know what you’re feeling and who can provide the kind of support that you need. That’s actually social service work of a very deep and important kind.

We are making communities that produce good outputs and other people are looking at them as business models where eyeballs are located. Up to a point that’s acceptable, and when the tipping point is reached it isn’t anymore. And that’s the kind of activity which is now our political challenge. To understand how to manipulate those processes – as we all can because we make the technology – how to manipulate those processes so as to gain the social benefit and reduce the possibility of power discrepancies developing that neutralize the very kinds of social justice outcomes we are looking for.

One Laptop Per Child

This is possible to do. It is not only work for lawyers. Mary Lou Jepsen’s inventions in connection with the display of the One Laptop Per Child [18] box will turn out to be of enormous importance to the world. The One Laptop Per Child box (which I’ve spent a lot of time helping with this past year and which everybody in this room ought to be thinking about hard, because it’s a great moment in human technological history), the One Laptop Per Child box has a few requirements that are really important for computers in the twenty-first century.

One: a child has to be able to take it apart safely. Two: you have to be able to generate electricity for it by pulling a string. Three: it has to be culturally accessible to people who live in a whole lot of different places around the world, speak different languages, have different world views, have different understandings of what a computer is or might be or could be or what this thing is that their children are holding. It has to be discoverable. It has to be a place for a child to explore indefinitely and learn new things in all the time.

I just want to concentrate on the first parts: it has to be something you can pull a string to power, and it has to be something a child can take apart safely. No existing LCD panel meets those needs, because every existing LCD panel in the world uses a mercury back-light which runs on high voltage which is dangerous and which contains toxic chemicals (the mercury itself of course).

So how about a display which gives you transmissive color – beautiful color – indoors, and high-contrast black and white in full sunlight, so that it can be used in every natural environment, and which consumes per unit area one tenth of the electricity used by standard current LCD panel displays. How about that it doesn’t have any harmful substances in it, can be safely disassembled and reassembled by a child down to its components so that field replacement of almost anything can occur, and is in addition cheap to manufacture.

So we’re going to give an enormous gift to all the cell phone and gadget manufacturers of the world out of OLPC – which is why Quanta, the largest manufacturer of laptops in the world, and the display manufacturers throughout the Pacific Rim are screaming to be first or second sources of the OLPC display. Because the patents in there are worth sharing.

In other words, the free world now produces technology whose ability to reorient power in the larger traditional economy is very great. We have magnets; we can move the iron filings around. We can also change the infrastructure of social life. That OLPC has every textbook on earth. That OLPC is a free MIT education. That OLPC is a hand-powered thick-mesh router.

When you close the lid as a kid and put it in the shelf at night, the main CPU shuts down – but the 802.11 gear stays running all night long on the last few pulls of the string. And it routes packets all night long and it keeps the mesh. The village is a mesh when the kids have green or purple or orange boxes. And all you need’s a downspout somewhere, and the village is on the Net [19]. And when the village is on the Net, everybody in the village is a producer of something: services, knowledge, culture, art, YouTube TV.

Ubiquitous networking

The week that Rodney King was beaten in Los Angeles, I was on the telephone with a friend of mine who does police brutality cases in Dallas, Texas. And he said to me, “You know what the difference is between Dallas and Los Angeles?” And I said, “I don’t know.” He said, “Fewer video cameras.” That was a long time ago. There’s no place on earth with too few video cameras anymore. The gadget makers took care of that.

Now what is journalism like when every village has a video camera and is on the Net? What is diplomacy like? What does it mean if the next time somebody starts some nasty little genocide in some little corner of the Earth the United States Government would prefer to ignore, that there’s video all over the place all the time in every living room?

What’s it mean when children around the world are networking with one other over the issues that concern them directly without intermediation, everybody to everybody, saying, “Do you have what we need? How come you have what we need? How come we can’t do what you can do? Because your father is rich? Because we are dark? Because we live down here?”

Globalization has been treated up ‘till now as a force which primarily puts ownership in the saddle. Maybe. Maybe. But the One Laptop Per Child seems to me to consolidate some of our strategic gains, which is why I’m in favor of pressing hard for it and things like it. Now let me come back to the stuff we have in common in this room.

GPL3 community building

Community, I have said – not an original thought – is powerful. The network makes community out of software. But some software is better at producing community than other software. GCC is a really useful thing. But it doesn’t produce community. If anything, GCC has been known to produce the opposite to community. This is not a joke about compiler guys either.

The Perl interpreter, which is a fine thing, produces rather little community too, and the community it produces is, shall we say, a little inward-looking. There are other kinds of software which produce community in a very different way – and you know what that’s like because you work on one of those corners. The problem that I have with content management systems is that they’re systems for managing content, which is not very important [20].

Community-building software, however, is very important. I’m trying to do a little thing this year called making GPL 3 [21], which is actually more about having a lot of discussions with a lot of very different people around the world about what they think free software licensing ought to be like and why they don’t like Stallman. The latter is not the subject I go out to talk about, it’s just what they talk about no matter what I do about it.

It is an attempt to create a kind of broad global community of people who care about a thing they all take very seriously. And they do take it very seriously: you understand when guys fly from Germany to India to participate in their second international conference on GPL 3, you know they really care. So I’ve been talking to a lot of different people in a lot of different forms, some of them like IRC, some of them produce formal documents, some of them are telephone types.

That’s all held together by Plone [22]. That’s many different overlapping communities held together by software for making communities. It’s related to voice over IP through Asterisk, which changes my life as a lawyer completely. Those of you who haven’t discovered what free software can do to IP telephony, you have a great discovery headed your way.

And we made a little bit of software of our own for dealing with a thing it turned out there was no existing tool for that we really liked – namely some austere simple interface for marking up one document in a very very very multiplicitous way with tens of thousands of possible commentators, so that everybody participating can see what everybody else has done in some manageable way, and can intervene in the process in a thoughtful fashion tied to some particular word or phrase or piece of a document that concerns them.

Before we started this activity I read lots and lots of commentary that said, as soon as FSF tries to do this it’s going to dissolve into a flame war. As soon as anybody attempts to do this it’s just going to become Slashdot all of the time. It wasn’t like that. It hasn’t been like that. Even Slashdot hasn’t been like that. That’s not the way it went. Of course there was lots of stuff said that I regret; some of it was said by very big people; much of it was said by Forbes.

But that wasn’t the problem. The coherence of the community – a community which includes Ubuntu [23] users in Soweto as well as IBM, includes developers in Kazakhstan as well as Hewlett-Packard, includes people who have thousands of patents as well as people who don’t know what a patent is – that conversation has gone, I think, remarkably peaceably and quite constructively for a period now of about ten months.

Twenty years from now the scale of our consultation over GPL is going to seem tiny. The tools we use are going to seem primitive. The community we built to discuss the license is going to seem like a thing a six year-old could put together without taking more than a couple of breathers around it. And yet, that’s only going to be because our sophistication in global coordination of massive social movements is going to be so good.

You do not see Microsoft out conducting a global negotiation over what the EULA for Vista [24] should say. And even if they were minded to do it, they couldn’t. Because they’re not organized for community, they’re organized for hierarchical production and selling. I have heard a lot of stuff from people who thought that Richard Stallman was a problem. But ask yourself this: if the GPL process had been run by Steve Ballmer.

So we are learning, in very primitive ways within our community, how to build large globe-girdling organizations for a special purpose, for a short period of time, to engage people constructively in deliberation, and we are learning how to do that despite vast cultural and economic discrepancies in the assets of the participants. That’s twenty-first century politics. Plone makes it.

Political consciousness

But it isn’t what you have. It’s what you do with it. So we have some remarkable opportunities, all of us. We have a very special place in the history of the campaign for social justice. We have some very special infrastructure. We have new means of economic development available to us. We have got proof-of-concept. We have got running code. That’s all we ever need.

But we need prudence. We need good judgment. We need the willingness to take risks at the right places at the right time. We need to be uncompromising about principle even as we are very flexible about modes of communication. We need to be very good at making deals. And we need to be very clear, absolutely clear, without any variance at the bottom line about what the deals are for, where we are going, what the objective is.

If we know that what we are trying to accomplish is the spread of justice and social equality through the universalization of access to knowledge; if we know that what we are trying to do is to build an economy of sharing which will rival the economies of ownership at every point where they directly compete; if we know that we are doing this as an alternative to coercive redistribution, that we have a third way in our hands for dealing with long and deep and painful problems of human injustice; if we are conscious of what we have and know what we are trying to accomplish, this is the moment when, for the first time in lifetimes, we can get it done.

We do not need revolutions in which the have-nots dispossess the haves right now. But we’re under pressure. There are a lot of people in the world. There is not a lot extra to eat. There is not a lot of excess clean water to drink. Minds are being thrown away by hundreds of millions in a world where people are trapped in subsistence crisis that are now avoidable, and their ability to think and create and be is stunted forever.

The climate is changing beneath our feet, the air is changing above our heads, and as the fossil fuel system decays, the inequalities and power discrepancies and authoritarianisms that grew up around the oil business in the twentieth century are going to do us real harm. So we have great opportunities, we have great challenges. The upside is the highest it has been in generations, and the downside is not too pleasant.

That means there is a great deal of work to be done. Oddly enough, it’s not painful. It consists of doing neat stuff and sharing it. You’ve been successful at it already beyond anybody’s expectations and beyond most people’s dreams. More of the same is a good prescription here. But a little more political consciousness about it, and a little more attempt to get other people to understand not just “what” but “why”, would help a lot.

Because people are getting used to the “what”. “Oh yeah, Firefox, I use it all the time.” “Why?" “Why, because of the Internet…” “No no no no no. Not why do you use it, why does it exist?” “Oh I dunno, some people did it.” That’s the moment, all right, that’s the moment. That’s the one where that annoying Stallman voice should enter the mind, okay. Free As In Freedom, Free As In Freedom. Tell people it’s free as in freedom.

This time, we win

Tell them that if you don’t tell them anything else, because they need to know. We’ve spent a long time hunting for freedom. Many of us lost our lives trying to get it more than once. We have sacrificed a great deal for generations, and the people who have sacrificed most we honor most, when we can remember them. And some of them have been entirely forgotten. Some of us are likely to be forgotten too.

The sacrifices that we make aren’t all going to go with monuments and honors. But they’re all going to contribute to the end. The end is a good end if we do it right. We have been looking for freedom for a very long time. The difference is, this time, we win.

Thank you very much.

From the Questions session

As you may have noticed, Internet Explorer 7 solves the phishing problem. No more phishing. Every time you type in a URL at the location bar of the browser it sends it to a Micorost server and says: "is this phishing?" You have got to admit, this is a new solution to that problem, right? I have not thought of it before. Maybe Google had thought of it and Microsoft wanted to get there first.

Right, it is correct. Software is really good at one thing. Software is good at saying "this data is mine". Software does that by branding data all the time, with whose it is, where it came from, and what we did with it, and lots of the data that other people's software brands is about us, and concerns us, and even identifies us in the deepest and most intimate ways.

Dealing with that, without disturbing the freedom of software to operate, is a tricky problem. Almost everybody's solutions, not coincidentally, hurt the freedom of software because they are largely solutions which offer either security or privacy through a proprietary solution which hurts the freedom of software. And that is a dialog that we have at the moment.

So there are corporate parties participating in the GPL3 dialog who deeply disagree with FSF about the importance of Disney and Sony and other entertainment manufacturers, in the anti-DRM part of the GPL3.  They say: we think you at the FSF are wrong. Disney and Sony are never going to lock down the entire net to protect content, they want it but they can't. And if that's the only reason to have anti-DRM component in GPL3, we would be as hostile to it as they are.

But we, gadget manufacturers mostly, we think that you should get your right, that pervasive lock down is a worry, it's just that we just think that you've identified the source of it wrong, it's not the entertainment industry, it's the security establishment. We think that the reason that everything is going to be locked down is people are going to rush to implement security, and the only way they can think of is to lock down the hole stack [25].

And we worry about that too, because locked down stacks are bad for us as gadget manufacturers. They interfere with porting our stuff around, they reduce flexibility, and so we don't like that and we will therefore be prepared, they would say quietly, to work with you on anti-DRM if you'd only stop kicking Disney's chin quite so much.

Footnotes

[1]- Does production happen in communities, with all the social and emotional ties that implies, or in impersonal networks (as Manuel Castells proposes)? Wal-Mart's just-in-time delivery, for example, is held together by software, but Wal-Mart and the like seeems not the kind of community Moglen is thinking of. Even when production is dispersed (design in California, manufacturing in China, phone support in New Brunswick), control is often centralized (head office in New York). Moglen's communities are not well enough defined here to determine whether this is really what is happening in the world.

[2]- He's talking about free software, which is shared, rather than exclusively owned. Here's what the Free Software Foundation (FSF) has to say: "“Free software” is a matter of liberty, not price. To understand the concept, you should think of 'free' as in 'free speech', not as in 'free beer'. Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software." The term "open source" software refers to the same thing, but without the moral and political implications.

[3]- Firefox is widely considered to be technically superior, easier to use, more flexible, and more standards compliant (which significantly reduces the costs of Web design and development).

[4]- One reason he doesn't mention is that making information proprietary, through mechanisms like the default ones in copyright, incurs high transaction costs.

[5]- There are comments by a number of people whose bias against the term "social justice" leads them to conclude that Moglen is a "communist" proposing to take from the rich to give to the poor. Of course we do that to some extent already, as he points out when he says we are "only partially . . . a capitalist society". But Moglen is not talking about redistribution at all. He believes we can achieve social justice without taking anything from anybody, as he explains in this speech.

[6]- Rivalrous goods, like land, water, and steel are "used up", literally consumable, for being material things - if one person has more, someone else must have less. Non-rivalrous goods, like music, mathematics, or a beautiful sunset are not diminished by aquisition and use, being symbolic things. Ideas are inherently non-rivalrous, hence the famous Jefferson quote: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." In The Success of Open Source, Stephen Weber proposes that free/open source software is anti-rival - sharing it increases its value (e.g. because others improve it, benefiting the sharer). Rivalrousness can be affected by social and economic factors. When a work is fixated in a book or CD, for example, the set is more rivalrous than the work itself; similarly, copyright laws is designed to maintain and enforce scarcity.

[7]- How do we pay for the first copy? Yochai Benkler argues that copyright and patent protection are not required by the vast majority of industries. IBM, for example, makes more money from free software than from royalties over patents.

[8]- Economic theory says that if the marginal cost (the cost of making subsequent units) is zero, then the price in a competitive market should fall to zero (see Lemley 33). Market intervention for zero marginal cost goods (e.g. copyright) is designed to fund the creation of the first item. Moglen is not suggesting free bread for everyone. His moral claim is only that intervention in the market should not force the poor to pay, in this case, more than they can afford

[9]- Moglen may be exaggerating here. he may be predicting the failure of Vista, the next version of Windows. Whether the negative reporting that has circulated accurately predicts its failure is yet uncertain. Even if this isn't a turning point for Microsoft, the indications have been clear for years that free software will overtake (though not eliminate) proprietary software for most (general purpose) tasks (such as operating systems).

[10]- This is why language matters. "Intellectual property" isn't - property that is. But the words change our perception. If we believe ideas are rivalrous, we can make it so. Free software is connected to the idea of a free society; open source software is an economic concern.

[11]- Digital rights management (including copy protection and control over specific uses of media) effectively extinguish existing rights (e.g. the right to quote for purposes of education or satire). Furthermore, because copy protection requires a single authorizing authority which decides who can do what, they create technological monopolies with the power to limit the capabilities of devices and software with access to content. This is why a Japanese DVD will not play in the U.S. Yet governments have been crafting laws forbidding the circumvention of such technology, and in some cases requiring it in whole classes of devices.

[12]- In this paragraph, Moglen contrasts abuses that led to the French Revolution in 1789, with the political climate of the United States at the time of his speech (the two places were the bedrocks of modern democracy).  Lettres de cachet were letters signed by the king of France, countersigned by one of his ministers, and closed with the royal seal, or cachet. They contained orders directly from the king, often to enforce arbitrary actions and judgements that could not be appealed. The best-known lettres de cachet, however, were penal, by which a subject was sentenced without trial and without an opportunity of defense to imprisonment in a state prison or an ordinary jail, confinement in a convent or a hospital, transportation to the colonies, or expulsion to another part of the realm. The wealthy sometimes bought such lettres to dispose of unwanted individuals. (from Wikipedia)

[13]- The reader should keep in mind that Moglen was speaking to an audience formed predominatly by Free Software programmers, as the title indicates. He was performing a keynote speech at a conference about the free software project named Plone (see [22])

[14]- The GNU General Public License uses copyright law, or the core of author's rights law as sanctioned by the Berne Convention, to guarantee that the licensed software is free. Instead of granting exclusive rights to software, it preserves the right to use, to study, to share, and to modify it. The only restriction is in that any shared or modified version, or any software combined withe GPLed software, must also use the GPL if it is distributed. Here, Moglen says the FSF has never attempted to distort this restriction, as suggested by some flaks and propagandists in the proprietary side,  to force proprietary software which has not been distributed to be shared.

[15]- Richard Stallman is a famous programmer and founder of the Free Software Foundation. His stance on free software is contentious among those for whom open source software is a better way to make software, but not a moral imperative.

[16]- The FSF has been adamantly egalitarian, in the sense of sharing free software with profit and non-profit entities alike. The success and quality of free software attracted some important businesses, such as IBM, Netscape, and Intel, who have based for-profit business on it. Most web servers, for example, run on free software (this one is no exception), as do numerous hardware devices such as cell phones. Even core technologies like Internet support in Windows are based on free software. Microsoft recognized the threat as early as 1998, but has had difficulty competing with a community that cannot be bought or defeated in the market. Now, Moglen claims, it is too late.

[17]- Moglen specifies only "important" production as being done in communities. None of the examples of community production here are of physical (rival) goods. In the historical commons of land, community and production were inextricably linked - see J.M. Neeson's fascinating Commoners: common right, enclosure and social change in England, 1700-1820. In the case of (non-rival) intellectual and creative production in a commons, community may be essential.

[18]- The OLPC project is an attempt to develop a cheap laptop for use by children in poor parts of the world.

[19]- The laptops automatically connect to each other to create a wireless network. If one or more of them are connected to the Internet, they can provide Internet to all of the other laptops in the network. (Proposals to allocate wireless spectrum specifically for mesh networking have run into opposition from companies and economists who argue spectrum should be owned, not shared. The shared spectrum we do have is not good over long distances and is shared by numerous uses, ranging from 802.11 (WiFi) to cordless phones, which can cause interference.)

[20]- It is unfortunate Moglen doesn't explain this more, because it's central. This is how he sees software achieving progress towards social justice. It's necessary because community is where production (at least intellectual and creative production) takes place. And it's inevitable because, one can argue, that production in turn creates community. Or maybe commons production creates community. The nature of that community and the existence of the commons itself may be anything but inevitable.

[21]- The GPL is being revised, so that authors of free software can have a new license to choose for distributing their work. Possibly the most contentious provision is one which would require that when software is shared, everything necessary to run it effectively, modlified or in other hardware, must also be shared. This would defeat the practice of delivering software but withholding one or more keys necessary for it to decrypt protected content (e.g. to play a DVD), including itself (e.g., TiVo, preventing in this case modified versions of it from running on its native hardware).

[22]- Plone is a free software application used to create web sites. Moglen gave this speech at the 2006 Plone conference in Seattle.

[23]- Ubuntu is a popular version of GNU/Linux, a free operating system and probably the biggest competitor to Windows at the desktop.

[24]- End User License Agreement. That's the legalese name that of the license to use proprietary software, like the one that comes with your copy of Windows, specifying that you can only install it on one computer, cannot move it to another (if it came preinstalled), and so on. The terms of the Vista EULA have been particularly contentious.

[25]- See, for example, this article in El Pais about Windows Vista and the NSA (in spanish), or this one in ComputerWorld (in English)


Authors and Author's rights

* Eben Moglen
Professor of Law at Columbia University,
Founding director of Software Freedom Law Center.
Presented this keynote speech at the '06 Plone Conference in Seattle, USA, on October 12, 2006.

** Grace Stahe
Producer of a digitized video recording of that speech,
published at http://www.youtube.com/watch?v=NorfgQlEJv8

*** Geof Glass
Programmer, graduate student in Communication.
Published an annotated transcript of that speech at http://www.geof.net/research/2006/moglen-notes

Copyright
This version, with corrections and extensions to that annotation, and translation to Portuguese by Pedro A D Rezende
These works, originals and derived, published under the license at http://creativecommons.org/licenses/by-sa/2.0/ca/