[DMCA-Activists] Moglen: Free SW Not Just about Software

[Seth Johnson]

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> http://www.groklaw.net/article.php?story=20040226003735733


Eben Moglen's Harvard Speech - The Transcript

Thursday, February 26 2004 @ 12:37 AM EST 


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. 

******************************************************

Mike Zarren: 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. 

Jonathan Zittrain: 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 their TiVos. 

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.

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 evening.

Free software, you will know, I am sure, that I didn't make this up, is free as 
in freedom, not free as in beer. One of the primary problems with the 
conversation we have been having about this lawsuit, in your distinguished 
speaker series this year, is that at least so far it had apparently been 
suggested that the goal of those of us who believe in the free software 
movement was primarily to prevent people from earning a profit in the computer 
industry.

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.

[7:21] 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 initiative.

This idea lay behind my dear friend and colleague, Richard Stallman's, intense 
desire, beginning in the early 1980's, to bring about a world in which all the 
computer software needed by anybody to do anything would be available on terms 
which permitted free access to the knowledge that that software contained and a 
free opportunity to make more knowledge and to improve on the existing 
technology by modification and sharing.

This is a desire for a free evolution of technical knowledge. A descent by 
modification untrammeled by principles that forbid improvement, access and 
sharing.

If you think about it, it sounds rather like a commitment to encourage the 
diffusion of science and the useful arts by promoting access to knowledge.

In short, the idea of the Free Software Movement is neither hostile to, nor in 
any sense at cross-purposes with, the 18th century ambition for the improvement 
of society and the human being through access to knowledge.

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.

[15:02]

That's what we were trying to do, and we have done it. We are, as it happens, 
driving out of business a firm called the Santa Cruz Operation [sic] - or SCO 
Ltd. That was not our intention. That's a result of something called the 
creative destruction potential of capitalism, once upon a time identified by 
Joseph Schumpeter. We are doing a thing better at lower cost than it is 
presently being done by those people using other people's money to do it. The 
result - celebrated everywhere that capitalism is actually believed in -- is 
that existing firms are going to have to change their way of operation or leave 
the market. This is usually regarded as a positive outcome, associated with 
enormous welfare increases of which capitalism celebrates at every opportunity 
everywhere all the time in the hope that the few defects that capitalism may 
possess will be less prominently visible once that enormous benefit is 
carefully observed.

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. 

Mr. McBride thought it was the programmers who would be able to buy a second 
home but people who actually understand the current state of the software 
industry recognize that programmers are not buying second homes these days. I 
think Mr McBride means the executives who employ programmers and the financiers 
who employ executives to employ programmers will buy a second home on the 
software-is-product business model for a little while longer.

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 business model.

Mr. McBride's claim is that he is going out of business because somebody has 
taken what belongs to him. That's a lawsuit. As it turns out, however, the 
people he believes have taken what don't belong to him aren't us. His theory is 
that various people promised AT&T at various times that they would do or 
refrain from doing various things, that some of the people who promised AT&T in 
the old days to do or refrain from doing various things broke those promises, 
and that out of the breaking of those promises, Linux, a computer program 
distributed under free terms, benefitted.

[20:09]

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 want.

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.

[25:08]

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 enough.

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.

[30:02]

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 extension.

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 challenge.

I have news for Mr. McBride. The existing copyright law is constitutional and 
our license, which fully observes all the requirements that the copyright law 
places upon it, are also presumptively constitutional. Only in the world in 
which we succeeded in Eldred against Ashcroft, in which if you like there would 
be substantive due process review of copyright licenses to see whether they met 
the form of copyright called for in Article 1 Section 8, could Mr. McBride and 
friends even stand in a United States courtroom and argue that a copyrights 
license is unconstitutional.

[35:17]

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 prevail. 

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. 

[39:38]

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 much. [applause]

[51:32]

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. 

[60:05]

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 can be?

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 software.

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.

[1:00:05]

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", which 
addresses this question, I hope comprehensively, or at least a little bit. Now, 
let me give you an answer.

[1:10:17]

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 improve immeasurably.

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.

[1:15]

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.

Q: 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.

Moglen: 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 itself.

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.

Q: Can you recommend any economists who have studied zero marginal cost 
economics?

Moglen: 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.

[79:57]

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 subjects.

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.

Q: 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?

Moglen: Well, the structure that we have constitutes what we call market 
forces. I wouldn't want to take the position that the market was a Newtonian 
mechanism that existed in the universe independent of human social interaction.

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.

Zarren: Please join me in thanking JOLT and Professor Eben Moglen.

[applause]

[85:30]