Re: GPLv3 comedy unfolding -- Eben: "after 18 months at GPL3, I find..."

[Alexander Terekhov]

Enjoy.

"Mathematics is primarily a language for ensuring reliable results in
human social activity. "

Goes to my "--" file.  LOL.

Here comes THE charlatan:

scl2007_eben_moglen

-------
   Program Eben Moglen giving the Annual Lecture of the Scottish Society
of
   Computers and Law of 2007-06-26
   Transcribed by James Eaton-Lee, version 6 of 070629

                                     report

  (no speaker)

     * <<Iain Mitchell>> Good evening everybody, and welcome to the
Scottish
       society for Computers and Law annual lecture for 2007.
     * And it's I think a testament to the drawing power of our speaker
this
       evening that we've got such a great turnout and there's an
enduring
       interest in the subject of course, and so we're very very pleased
to
       see not only lawyers, but real people as well.
     * Eben Moglen is a man who, for most of this audience, really
requires
       no introduction.
     * Eben is someone who, for a very long time, has taken an interest
in
       Free Software, and more broadly in the whole issue of freedom of
       information, freedom of artistic endeavour, and he brings to his
       subject a unique, challenging and positively exciting
perspective.
     * He's enthusiastic, I hope you'll agree with me by the end of this
       evening that he's very persuasive in his subject, and so
persuasive
       indeed that as well as being a Professor at Columbia Law School
in New
       York, he is also the founder of the Software Freedom Law Center.
The
       Software Freedom Law Center is something - a creature which I
think is
       relatively unknown in these islands - it's a law firm which is
also a
       charity, and it is seriously committed to public education.
     * He's going to talk to us tonight, I think, about the GPL 3, the
       General Public License number 3, which he has been instrumental
in
       drafting and preparing, and taking it through a long gestation to
it's
       birth, which is expected any day now. So, I think there's little
more
       for me to say, other than just to ask you to welcome Professor
Eben
       Moglen.
     * (applause)
     * <<Eben Moglen>> Thankyou, it's an honour to be here, I want to
thank
       Iain Mitchell and his colleagues at the Society for Computers and
Law,
       and I want to thank all of you for being willing to take a lovely
       evening to talk about a copyright license on software.
     * I'll try to make it worthwhile by going slightly beyond the
bounds of
       the discussion of a single copyright license on software, but
Iain is
       right in suggesting that after 18 months at GPL3, I find I'm
almost
       unable to at least begin talking anywhere else.
     * Nonetheless, I think just so we have a common basis for
consideration
       of what's about to happen, it would be good to take a little bit
of a
       look about where we have been.
     * What we're talking about are some legal rules that assist in the
       construction of communities that share knowledge.
     * The particular knowledge being shared is knowledge about how to
make
       computers do neat and useful things, but that process, that is
       constructing legal rules to facilitate communities that share, is
a
       process which goes far beyond the sharing of information about
how to
       make computers do neat and useful things. There are reasons that
       computer software was the first domain in which the process of
sharing
       knowledge inside communities enabled by technology arose.
     * Communities enabled by technology arose in the neighbourhood of
the
       technology that made them possible, that is to say in the
       neighbourhood of digital communications, and digital
communications
       technology is software in action, and so it's perhaps not
terribly
       surprising that the initial explorations of the possibility of
sharing
       knowledge at low friction occurred in the neighbourhood of the
       software that made digital communities possible. But we should
unroll
       that activity a little bit more carefully from its beginning in
order
       to understand the principles which are now transforming the
global
       economy.
     * Software knowledge, that is, knowledge about how computers can be
made
       to interact productively with human beings, can be very closely -
I
       don't mean from a legal point of view, but from a social point of
view
       - very closely correlated with the traditional social purposes of
       mathematics, by which I mean mostly arithmetic, trigonometry, and
       simple calculus.
     * Mathematics is primarily a language for ensuring reliable results
in
       human social activity. I say this, not withstanding the fact that
some
       mathematicians will object that mathematics is primarily a device
for
       creating beauty, which is of course true, pursued by its greatest
       devotees at it's highest level of skill and daring. But the
majority
       of mathematics is not a thing of beauty in itself, or at any rate
not
       a novel thing of beauty in itself, it's a boat. Or a house, or a
       pyramid, or a tomb, or in fact almost any other activity of human
       material collaboration, enabled by mathematics in the sense that
       mathematics as human beings have learned to use it enabled them
to
       achieve results that were reliable, reproducible, and certain.
     * Economic and safety-regarding activity in the material universe
       collaborating among people is extraordinarily difficult to
achieve
       without adequate quantities of mathematics, so I ask you to
imagine
       briefly a world in which arithmetic has become property.
     * Before beginning almost any useful socially collaborative
activity in
       the material world, you are compelled to begin by a stop at the
       arithmetic store, pretty much the way you are presently compelled
to
       begin with a stop at the petrol station, right?
     * It becomes a critical input to almost all other meaningful
economic
       activity to have a sufficient quantity of arithmetic to complete
the
       task. Without sufficient quantities of mathematics, bridges do
not
       stand up reliably when the wind blows, rail road schedules are
merely
       toilet paper, and all the other various forms of material social
       collaboration which require large numbers of people to predict
the
       behaviour of material for forces and groups of humans become
largely
       inoperable.
     * Once we have reduced arithmetic to property, you'll have only as
much
       arithmetic as you can afford. The consequence of which is that
the
       gateways to material collaboration in the world, successful
activity
       in relation to the physical and constructed environment will
depend
       very largely upon one's ability to acquire sufficient surplus
amounts
       of mathematics.
     * Most people will be compelled to a subsistence level interaction
with
       mathematics. Other peoples' mathematics will control them, but
they
       will not be able to accumulate a sufficient surplus of
mathematics to
       become enabled, autonomous actors in the creation of social
       collaboration.
     * Not with respect to mathematics, but with respect to its very
close
       cousin physics, the sixteenth century European social order
brought
       this subject very firmly to the top, and with the name Galileo
       Galilei, we associate two of the most important cultural
responses to
       the quandary of possessed physics.
     * The first is an insistence upon freedom from censorship, that is
"e
       pur si muove", determination to prohibit the ownership of physics
by
       an entity rich enough and powerful enough to define its physics
as the
       only permissible physics, the only available physics for most
ordinary
       people. And second, the first significant attempt in the history
of
       the West to write scientific literature at the state of the art
in a
       vernacular language, accessible to everyone.
     * Galileo Galilei's decision to publish in Italian is as important
as
       his decision to risk confrontation with the Church, for what it
says
       about the fundamental pillars of free science in the history of
the
       West. Not merely, in other words, an insistence upon the freedom
of
       ideas to work their will in skilled hands, but a determination
that
       the ideas which motivate the world, which explain its behaviour,
and
       which render it controllable, should be universally accessible to
       people regardless of their ability to acquire enough social
surplus to
       have Latin.
     * We have come, at the end of the 20th, and the beginning of the
21st
       centuries, to an equivalently important moment in the history of
human
       civilisation. A moment at which the principle of the
universalisation
       of free knowledge becomes, for technical reasons, universally
       fulfillable. Where it becomes, for technical reasons, possible
for the
       first time in the history of human beings, to bring all useful
and
       beautiful knowledge to everybody without regard to the ability to
pay.
       We are, to be sure, at a minimum a generation from the
achievement of
       that goal, but we have never in the history of human beings been
       within one generation of the achievement of that goal before.
     * The principle social alteration which brings about this epochal
change
       in the nature of human society is the digitisation of knowledge.
The
       onset of a frictionless mechanism for storing and forwarding
       information, for switching it in any direction that it is desired
to
       go, by either of the endpoints in any point-to-point transaction
for
       knowledge. We have now learned, at the end of the 20th and
beginning
       of the 21st centuries, how to use the common property in the
       electromagnetic spectrum, and common physical materials, cheaply
       integratable into mechanical and electro-mechanical devices, to
spread
       knowledge infinitely wide and infinitely thin.
     * we can produce anything of value, utility, or beauty that can be
       represented by a bitstream, which increasingly means all
beautiful and
       useful human activity, anywhere, at any time, to anyone, at no
more
       cost than the fixed cost which created the first copy of the
relevant
       bitstream. That fixed cost may be, under certain circumstances,
very
       substantial. There is no question that it continues to cost money
to
       acquire knowledge and to represent it in beautiful and useful
ways.
     * But what has changed is that the marginal cost of the additional
copy
       of each bitstream has gone to zero, and with that change
fundamental
       economic reordering begins in global society. By the end of the
first
       quarter of the 21st century, almost everything which it has been
in
       the past the purpose of industrial civilisation to put into
analogue
       representations of information - music, video, art, useful
information
       concerning the operation of the physical environment, political
ideas,
       comedy, drama - will all be universally represented in
dephysicalised
       forms that it costs nothing to make, move, and deliver.
     * The consequence of those changes is the onset of a very powerful
moral
       question. If it is possible, easily possible, to give to each
human
       being who wishes it, anything of utility or beauty in our world
of
       civilisation, if it is possible to deliver any such entity
anywhere at
       any time at low cost or at zero cost, why is it ever moral to
exclude
       anyone from anything she wants?
     * Why is it ever moral to deprive people of that which they could
have
       for nothing and which they wish to have, and you already have
made? If
       you could feed everyone by baking one loaf of bread, and pressing
a
       button, what would be the moral case for permitting the price of
bread
       to be higher than the poorest hungry person could pay?
     * The moral quandary of the validity of exclusion from knowledge
has
       heretofore not been particularly sharp. Those who possessed had a
       justification prepossessed for them: "But it costs money to make
a
       book!" - and they were right. The book is the first and in many
ways
       the most important mass-produced article of western civilisation.
     * Extraordinarily well-designed, beautifully evolved over hundreds
of
       years of careful thinking and market determination of preference
since
       the adoption of movable type printing in Europe in the late 15th
       Century. But books are heavy, they cost a great deal of skilled
labour
       and time to print, and they are expensive to move and to deliver.
     * The knowledge embedded in books, and all other such analogue
       representation systems, therefore came at a necessary social
premium.
       The cost required to produce each marginal copy, which we learned
long
       ago when we began to explore mathematically the theory of the
firm,
       meant that in a competitive market the price of knowledge
equalled the
       marginal cost of its production and distribution.
     * Since the end of the 20th Century, a great deal of effort and
       enterprise among economists seeking to justify the way we have
been
       doing things has gone into explaining why their prior theory was
       wrong. The Theory of the Firm demanded that under 20th Century
       conditions, the price of information goods be equal to their
marginal
       cost - that is, zero.
     * A great deal of ingenuity was necessary to explain why that
wasn't the
       actual price in a supposedly free economy. The answer, of course,
was
       not long to seek - it was the presence of state-created
monopolies,
       eliminating competitive markets in the distribution of
information
       goods. What we came over time to came Intellectual Property
rules,
       rules of Copyright and rules of Patent, rules of secrecy, which
       established artificial barriers to the competitive economy's
tendency
       to deliver information goods at their marginal cost - that is, at
zero
       - that is, the tendency of the market, if left free to itself, to
       extirpate ignorance and cultural deprivation.
     * Because that is the stake involved in the moral question now
posed to
       21st Century society - ignorance and cultural deprivation are now
       preventable. What is the moral case for their continuance?
     * It is in this context that we spend our time worrying about the
       minutiae of a license for the distribution of computer software.
The
       goal of my client, my friend, and my more or less constant
       interlocutor for the past 18 months, Mr. Richard Stallman, was to
make
       a small point about the morality of computer program ownership
which,
       when conceived in 1982 was a question a little bit ahead of its
time,
       but it is a clear species in the genus of the larger moral issue
I've
       just laid before you. "Why is software property?" Stallman said,
"It
       should be knowledge to be shared, like math, like physics." "It's
       unethical," he said, "to deprive people of information evidently
       available to them about the artefacts of digital society with
which
       they are daily in contact - it's evidently immoral to deprive
them of
       knowledge; you've given the knowledge to the computer sitting
next to
       them. They're using it - the knowledge is playing a potentially
       determinative role in their lives, you've already delivered it to
them
       - all you haven't done is to deliver them the ability to know."
     * And out of that fundamental ethical insight, there followed a
       determination that there ought to be some freedoms in connection
with
       peoples' use of computer software - they ought to have a right to
use,
       they shouldn't be required to get permission. They ought to have
a
       right to understand, they shouldn't be required to pay extra in
order
       to know.
     * They ought to have a right to modify and experiment. Though
Stallman
       didn't give a traditional reason for this, didn't ground his
position
       in any particular philosophical or ethical theory, he was in fact
a
       Dewey-ite. He was in fact saying what John Dewey had said at the
       beginning of the 20th Century, that the education and expansion
of the
       human mind depends upon the opportunity to experiment with the
world.
       That it is the ability to join forces with the material and
immaterial
       knowledge surrounding us in the planet which makes our minds grow
and
       develop.
     * You ought to have, Stallman said, the right to share. That is,
the
       right to offer to anybody else the benefit of what you've learned
       yourself - and with a series of homely metaphors in cooking, and
other
       human activities of collaboration for shared psychological and
social
       advantage, he made clearly enough the point that there was an
ethical
       issue lurking in the determination to proprietise knowledge which
is
       then delivered to people in forms that exercise power over their
       lives.
     * The result is the birth of the Free Software movement. It has a
       technical objective, because its founder is a technical person,
its
       technical objective is to reproduce in Freedom all of the best
that
       existing computer technology not subject to production in freedom
       knows how to do. To recreate all the knowledge not uniformly and
       universally available in a form which will be guaranteed to
remain
       free.
     * It is an attempt to use the creative power of a community of
human
       beings to free everybody else's ability to know in the area of
their
       human specialisation. It is the motive which, transmuted to a
       different area, keeps people making wikipedia entries and
updating
       them and improving them and sharing knowledge with one another
every
       day, in every language around the net, with which you are now
utterly
       familiar and upon which most of us are to one degree or another
       intellectually dependent. This is its beginning, historically
       speaking.
     * The principal that this is limited to computer software is a
useful
       opening limitation. At a time when neither the moral nor the
economic
       consequences of this idea were fully grasped by anybody, even by
       Stallman, the limitation to concern with computer software served
an
       extraordinarily useful purpose: it permitted work to get done.
Two
       kinds of work got done - software got made. A man who had never
taken
       a course in compiler design, who had never studied the design of
a
       compiler, who had no particular experience with the compilation
of C
       in particular, but who was a very gifted technological designer,
and
       an indefatigable implementer, sat down and wrote from the light
of
       natural reason a C compiler meant to be portable.
     * Stallman wrote the entire first version of gcc by himself. There
are
       now more than four dozen people at IBM and some several dozen
people
       at Hewlett Packard working full-time on gcc, and that's just two
of
       the many places around the world where the compiler is constantly
       worked on. A community of people now maintains one man's shared
idea.
       I haven't mentioned emacs, gdb, glibc, or any of the rest of
Project
       GNU, but you all know that it is lurking there on the same
principles.
     * In addition to the software which got made some early versions of
the
       rules for sharing got made too. A first version of the GNU
General
       Public License in 1985, and a second in 1992. At the moment that
these
       licenses were written, the rules regarding the sharing, or for
that
       matter the ownership of computer software in the world's legal
systems
       were indistinct at best.
     * The United States Government, where Stallman lived and worked,
and
       where almost all the users or writers of the freely shareable
software
       then existed, the United States had great uncertainty about the
legal
       treatment of software through the end of the 1970s. It was
generally
       conceded, given the words of the United States Supreme Court,
that it
       could not be patented. It was doubtful in many minds whether -
the
       misunderstanding went - software being purely functional, it
could be
       copyrighted. Though many thought some sui generis protection in
law
       would be a good idea, nobody knew what it ought to be, and no
       legislature had taken any step in that direction, and to leave it
       unprotected, save only to the rules of ordinary commercial trade
       secrecy, though it was the course actively pursued before 1976,
seemed
       to many businesses inadequate.
     * By 1979, a compromise consensus had seemed to have been reached
in the
       United States, and on the basis of a Blue Ribbon Commission, the
CONTU
       Commission, it became the general tendency, trend, or step in
American
       legal thinking to assume that software was protected, if that's
the
       correct word, by the law of copyright.
     * Thus, the initial rules for sharing undertaken by the Free
Software
       community, Mr. Stallman and his allies, the initial rules for
sharing
       assumed that only the law of copyright need fundamentally to be
       considered. And what was achieved was, within the vocabulary of
the
       community, a very pretty hack.
     * A hack in the sense that the word is ordinarily employed in our,
if I
       may call it, our community, an unexpected result achieved by
creative
       deployment of existing parts in an unexpected or unusual
       configuration. The hack to copyright law was the recognition that
the
       purposes of free software could be achieved by subtracting from
the
       rights exclusively given to the author by the law of copyright as
it
       applied to computer software.
     * What the free software author wanted was actually simply to
remove a
       few pieces from the existing copyright machine. He didn't need to
add
       anything to it - no additional obligations needed to be placed on
any
       user of the software, no additional agreements needed to be
gotten
       from anybody who had a copy of the software - all that was
necessary
       was to remove some restrictions - by sharing.
     * The copyright status accorded to each author of a computer
program,
       the exclusive right to control copying, modification, and initial
       distribution of copies. Under US Copyright law, that's all there
was,
       exclusively vested in the author. What the author then wanted was
to
       give the power to copy and modify away. To remove exclusivity,
and to
       provide to others what the statute gave exclusively to him or
her.
       With respect to distribution, the only principle necessary in
order to
       protect sharing was to say "if you redistribute, whether modified
or
       unmodified, use these permissions and no other."
     * The result of which was to ensure that downstream, if we may
begin to
       adopt the riparian analogy, downstream from each maker,
everything
       would float, freely available for further copying and
modification,
       and each party redistributing to the stream was compelled to
       redistribute under those, and no other, rules. By honeycombing
       copyright in other words, by returning to the user some, but not
       absolutely all of the exclusive rights vested in the author under
       copyright law, the social artefacts desired (the freedom to copy,
       modify, and share) could be ensured at the full strength that
       copyright law ever ensures the author's rights. No further
       contractualisation, no further compulsion, no further form of
legal
       coercion is necessary but a determination to enforce copyright
for the
       benefit of sharing.
     * This structure, the slightly honeycombed copyright law, serving
the
       purpose of enabling sharing, came to be called "copyleft". "All
Rights
       Reversed", Stallman said in the beginning. Later, my colleague
Larry
       Lessig amended it to "Some Rights Reserved".
     * The consequence was the creation of a social regime of sharing
which
       unlocked in a very short period of time an explosive alteration
in the
       nature of software in the world. The quality of software between
1980
       and 1990 declined precipitously. There are few of us who worked
in the
       industry on either side of that decade who don't know exactly in
what
       ways it was massively disimproved.
     * But the situation is straight forward, the theory of the firm and
the
       economic theory of the 1890s are sufficient to the explanation.
       Monopolies, as we all know and were taught, produce inferior
goods at
       high prices, and stifle innovation. The wealthiest and most
       deeply-funded monopoly in the history of the world spends
literally
       billions of dollars over the last two decades trying to convince
you
       and everybody else in the world that the laws of our economics
had
       been repealed for the special benefit of Mr. Gates and Mr.
Ballmer.
     * This was, of course, false - like all other monopolies, they
obeyed
       the laws of the free market, they produced lousy goods at very
high
       prices and they stifled innovation - as they became more and more
       dominant in the world of software, quality enhancement in the
world of
       software first ceased, and then began to reverse itself.
     * The situation in the 1990s was decisively affected by the new
economy
       of sharing. As the two largest governments on earth were first
seeking
       to, and then largely abandoned any attempt to restore competition
to
       the global software market, as most of the commercial competitors
who
       had attempted a run at Microsoft in any comprehensive way gave up
and
       made peace, a small and largely disorganised community of people
       engaged in making software for sharing transformed the terms of
the
       debate, produced excellent goods at zero cost, and began the
process
       of dismantling the monopoly, which as you see is now beginning to
take
       full speed ahead.
     * But my purpose is not to speak primarily about what was
accomplished
       by free software in the first 15 to 20 years of its existence.
That's
       then, this is now. My purpose is instead to talk about what has
       recently happened in the legal evolution of the principles of
free
       software, and how that bears on the larger question of the
political
       economy of the 21st century.
     * We have been negotiating the third version of GPL for the last 18
       months. That is, for the first time since 1991, sixteen years
ago, the
       fundamental legal mechanisms which established copylefted
sharing, and
       which produced this outpouring of free and competitively superior
       software are now under revision. Unlike the definition of GPL2 in
       1991, or the definition of GPL1 in 1985, this was not an activity
       undertaken by Mr. Stallman and his lawyers in private. On the
       contrary, this was a vast and global negotiation. Vast, at any
rate,
       to me - I put in more than 200,000 miles on it.
     * The process of negotiating the content of the third version of
the GPL
       was the process of assembling a community. Physically, and
       technologically. Not a community which had not previously
existed, but
       a community which had not previously engaged itself in an act of
       common legislation.
     * What we learned during the first 20 years of the free software
       movement's existence is a style of construction - a style of
making,
       which can be defined, roughly speaking, in terms of three
essential
       components of any social and economic movement in the 21st
century
       economy - by movement I mean here including a business, a firm,
or a
       government - the three required components of 21st century
economic
       activity are: proof of concept, running code, and presence of
       community.
     * That's all that defines 21st century economic activity, in deep
       contrary distinction to the industrial economies that preceded
it.
       What the free software movement showed was that by proving a
concept
       within reach, and offering some working model, no matter how
       defective, partial or bad, in the presence of a community sharing
the
       objective defined by proof of concept, the achievement of the
outcome
       is simply a matter of allowing people to work freely with one
another.
     * In the world of software, which is low capital intensive in every
       sense, that's all that's taken - that's all that is required for
the
       output to take form. We built tens, and then hundreds of billions
of
       dollars, in valuable software using almost no venture capital
inputs.
     * Capital wasn't what the system required to operate. What it
required
       to operate was proof of concept: an itch could be scratched.
Running
       code - something that began scratching the itch, however badly,
and a
       community of people who wanted to see it through.
     * So what GPL3 meant was, proof of concept, plus running code, plus
       presence of community. The concept had been proven already, by
GPL2.
       That is, the substantive concept - we could make a set of rules
for
       sharing that would make it possible to produce software all
around the
       world that would be of ultimately high value, but could be
offered to
       anyone free of charge - and provided with immense freedom to
study,
       modify, and share.
     * There was running code - we worked very hard for almost 2 years
to
       produce a first discussion draft of GPL3, which we unveiled on
January
       18th of 2006 at MIT - and there was a community; many
communities, in
       fact. But their convocation for the purpose of legislation was a
       unique event. Every other week for the past 18 months, we've
convened
       a conference call of twenty-one of the largest IT vendors in the
       world. Those companies, whose names are household familiar in
every
       household and business familiar in every business.
     * Working in teams that varied from one person from some of the
       companies, to five or six in others. Carefully studying every
single
       word, commenting as though their lives depended upon it - as in
some
       of the businesses they did. On every detail of the license's
       functioning in the global IT economy. We also convened, every
other
       week, a conversation among twenty-four of the largest users of
       software in the world. Banks and brokerages, government agencies,
and
       the lawyers who acquire software on their behalf.
     * We consulted every single week with the leadership of large free
       software projects around the world, some of whom use GPL and some
of
       whom only interact with GPLd code. We spoke to hackers of
enormous
       influence in the community, influence they have gained by their
skill
       in programming and by their willingness to share. By their
       selflessness in helping others learn, and by the extraordinary
wit and
       intellect whereby they have produced miracles out of thin air for
all
       of us to use for years.
     * We conducted public meetings on every continent, save Antarctica.
We
       negotiated ceaselessly with people over what they needed, what
they
       wanted, what they doubted, what they feared, what their concerns
were,
       and in the end - that's now I'm speaking of, this week, between
now
       and Friday, the license gets itself finished and comes out the
door as
       a final product - in the end, we got agreement. We got consensus.
       Those who predicted at the beginning of this process that it
would
       dissolve into flame wars, or bad netiquette, or some screeching
       meltdown benefiting only the monopolists, were wrong.
     * I admit that there were days when I feared that they might be
right -
       it was no cakewalk - but everyone who engages in legislation
knows
       that it's never a cakewalk, and almost never pretty. What is
       interesting about the legislative experience we've just gone
through
       is how little of it, however, had the ultimate ugliness of
legislation
       as we know it in the public sphere.
     * There was very little by way of campaign donation in this
process.
       Very little by way of buying results. Very little by way of
corrupting
       decision-makers. I don't think anybody actually thought there was
any
       point in offering Stallman money. (laughter) And I don't think
there
       was anyone who thought there was any point in trying to scare
him. I
       think people began by pretty much assuming that the conversation
was
       being conducted for the benefit of a decision maker who could not
be
       fooled, who would not be bought, and who could not be
intimidated, and
       we skipped a lot of bad legislative behaviour on that basis.
     * Technology came to our defence. I began the process saying that
we
       would not use any technology not off the shelf, and I was wrong.
We
       needed, it turned out, a web tool for allowing large numbers of
people
       to mark up a document held in common in such a way that they
could see
       and judge the intensity of one anothers' comments and participate
not
       adding one more to a thread, but by seeing in a localised way
what it
       was that others had already said about language that concerned
them,
       and we required those making comments to anchor themselves in the
       text.
     * The consequence was a much lower volume of public commentary than
I
       had originally planned for, by a factor of between five and
eight. But
       the quality of the commentary was extraordinarily high. Because
       parties had to anchor their public commentary in the text, had to
       highlight a piece and say "here, this is what bothers me, and
here's
       why." Because the tool made it inevitable that they would see
what
       others had said before them on the same subject, because they
could
       quickly visually identify the parts of the text that were already
hot
       with commentary from others, we arrived at a mechanism for
controlling
       the flow of commentary, which made it very easy to route comments
from
       one place to another within the process, to give them the
analytical
       treatment that they deserved, and to track everybody's comment
and
       give them back an opportunity to know exactly what was made of
the
       idea that they presented.
     * Every other place in the process, where a particular comment was
       discussed, everything that was said about it, and what the final
       determination in the changing language of the license was, we
created
       a legislative process in which ordinarily people could
vernacularly
       participate on more or less equal terms with the best informed
lawyers
       and technologists on earth, and many people did so. Thousands of
       people did so.
     * In the end, the license bears in my judgement many of the marks
of
       legislation. It is a little too long, it is a little too complex.
It
       divides cases where they might with some analytical clarity have
been
       merged, and it merges cases that might with some analytical
clarity
       have been divided. It isn't one man's work of art, it's a
community's
       work of self-definition. And in that process, it replicates an
early
       version of a 21st century reality which is that if in the 21st
century
       what is produced is produced by communities, not by individuals
and
       not by factories, then under 21st century conditions, what
produces
       law is communities. Not individuals, and not the factories we
call
       legislatures.
     * One of the great legal innovations, as the Americans saw it, of
the
       20th century development of law in the United States was the 20th
       century design and implementation of a uniform commercial code
from
       scratch. Americans being as they are, a hasty people, full of a
desire
       for self-reinvention and little sense of history, they were
spared the
       blessing of a commercial code based primarily around the maritime
       commerce of the Mediterranean in the 1st Century AD. <laughter>
They
       were prevented from having to adopt a whole series of mind games
with
       which to bend the rules of particular commodity-based exchange in
Rome
       into a structure capable of manipulating a 20th Century
commercial
       economy, and thanks to Carl Llewellyn and his colleagues in the
       construction of the UCC a basic principle was always and
everywhere,
       unprinciply observed - "When in doubt, punt", and say whatever is
       commercially reasonable is what's the law.
     * The UCC's determination upon commercial reasonableness as the
       touchstone of activity is disgracefully imprecise, from the point
of
       view of the Roman lawyer, and we glory in the fact. The Worth
Street
       rules explain how to buy and sell cotton - after all, they're
doing it
       every day - do you really want to know what Papinian thought
about
       buying and selling cotton in Lower Manhattan? Well, much can be
said
       about why this is a terrible idea, and I wouldn't be offering
such a
       cartoon of it in Edinburgh if I didn't expect that there were
people
       in the audience much better at playing the other side of the game
than
       I can possibly be.
     * But I would present to you the possibility that the UCC and the
GPL3
       are in themselves a pair - a pair, organising an idea about the
method
       of the creation of 21st century law. 21st century law is born in
the
       street in the same way 21st century television is born in the
street.
       Not sent to you from the top of a broadcast tower, but upward
from the
       cellphone and the portable camera put through Youtube.
     * 21st century law is like 21st century music - not made in an
expensive
       recording studio or legislature, rented by the hour by people
with the
       power to rent studios and legislatures, but made in every laptop
in
       every den in every corner living room in every garage, where a
       musician and a computer are, which is pretty much everywhere a
       musician is.
     * Flickr, Youtube, and the other great distribution breakthroughs
in our
       time are not actually mechanisms for the distribution of
photographs
       or video. Flickr and Youtube and their equivalents are places for
       human beings to create communities through their shared
interaction
       with images or moving pictures. As Wikipedia is a place for
people to
       create communities around pretty much all the general knowledge
that
       all the people in any particular community possess. A place, it's
       true, for arguments and handwaving and pub-type disputation, as
well
       as learned discourse. But a place primarily where the whole point
is
       that we're all doing it together.
     * Of course, the idea that law might be something we all do
together,
       it's got a long history stretching back far beyond the Free
Software
       movement. Stretching, in fact, back to beyond democracy. One of
the
       characteristics that the continental Europeans noted of the
English
       speakers, North Britons and South Britons, similarly in the
course of
       the 16th, 17th, and 18th centuries, was that English-speaking
people
       had an almost personal relationship to the common law. A man
might be
       an artisan or a yeoman farmer, but he believed the law to be in
some
       sense his own. He was familiar with the courts, he served on
juries,
       the language of the law was in his mouth. Even beyond the
language of
       literature and religion, it was in his mouth. It was, if not folk
law
       in some forests of Germany sense, community law. The law of us,
and to
       be not of this law was to be not of us in some fundamental way.
     * One of the problems faced by the monopoly, as its leadership now
well
       understands, is that any community that it can buy is weaker than
the
       community that we have built. In any given confrontation between
       empires, there will be one side whose spies are paid, and one
side
       whose spies act act of ideological conviction. The flow of the
Cold
       War is in some sense the flow from one hand to the other of that
       painful proof, and I ask you this: which side in the
confrontation
       between the free world and the monopoly do you think pays its
spies?
     * So the community that has grown up out of our acts of community
       legislation, the community which has grown up out of our ability
to
       define what it means to share, the community which has used those
       rules of sharing to drive its economics deep into the heart of
the
       global software industry, is now also beginning to model what the
       future of legal production is really like.
     * We have learned that the flashmob and the moveon and the peoples'
       revolution in the street facilitated by the internet are powerful
       forces in the politics of governmental change. New ways for
people to
       bring to bear the sheer political weight of their approval or
       disapproval with those who govern. And the lessons on that
subject
       taught so far in the history of the net are just the beginning.
     * What the net can do to politics in the Youtube, wifi, moveon,
       Facebook, Myspace, flashmob era remains to be written out in
full, but
       I am less concerned with political process than with political
       substance. What the GPL did to the law of copyright was not an
act of
       subversion, it was an act of evolutionary improvement. It was a
way to
       take the specialised law of the legislature - let us call it the
law
       of the publishers (which is what, to be fair about it, it really
was)
       - and to make it the law of creators by the joint unified act of
       creative people. What we've just finished is the demonstration
that
       that can be achieved even where the complexities of political,
       economic, and legal life embrace such additional concerns as the
       patent system, DRM on music and video entertainment, and many
other
       controversial propositions which the community was required to
discuss
       and reach consensus on, in order for the license we have just
finished
       making to come into broadly accepted, uniform effect.
     * The coming weeks and months will show whether I am overly
optimistic
       in believing that goal to have been attained. I will say that no
less
       than the fate of the monopoly depends upon whether we are right
that
       what we have done will be successful, and the monopoly knows it
too,
       as you have seen in recent statements. There is nothing left with
       which to threaten the monopoly's control of global technology but
one
       slight chance that the European Commission will remain in the
game,
       and GPL3.
     * But that's sufficient, I believe - we shall do their business as
we
       have meant for the longest time to do, and the world will be a
better
       place when we have done. That's just the beginning. That's only a
       matter of clearing brush away. The monopoly isn't in any
intellectual
       sense interesting, it isn't in any ethical sense tolerable, it
isn't
       in any economic sense necessary, it's simply a thing that
happened to
       happen, and that we will soon be finished making no longer there.
     * What is really important about what we are doing is that we are
       modelling other things that people can do for themselves. We are
not
       creating something that you have to take from us, you either like
or
       dislike, you either approve of or you disapprove of, you either
wish
       for or hate - we are only establishing proof of concept plus
running
       code plus community equals freedom. And that proposition applies
far
       beyond the domain of computer software, applies far beyond the
domain
       of freeing music from its owners, applies far beyond the domain
of
       making the children of the world the programmers and the
videographers
       and the producers and the directors, not the consumers of
culture.
       Those things this is about, no question, and the mighty will fall
in
       many directions, as communities begin to out-produce what
capitalism's
       deepest and intensest collections of power can presently do on
their
       own terms.
     * But this is the least of it, really, the least of it. The
fundamental
       improvement being reached here is an improvement in the
technology of
       self-government. An improvement in the technology of human
freedom
       through the substitution of words and ideas, for force. An
improvement
       of the substitution of community values for the single-minded
pursuit
       of individual, or aggregate profit at the expense of any other
       competitor that might get in the way. We have refashioned what
       competition and co-operation mean, as we have refashioned how
       production occurs in the digital economy. This, though large,
though
       some will say too grand to be real, is the actual valence of what
we
       have just lived through.
     * Seen backward through the end of the 21st Century, our
achievements
       will seem very primitive. "They thought that it was something
that
       they got a few tens of thousands of otherwise hierarchically
       disorganised people around the world to cooperate on a single act
of
       limited purpose legislation, regulating the share of software,"
the
       22nd century will say. "How quaint." But it was the beginning of
a
       joining-together of communities of affect in the global
organisation
       of power, the beginning of affiliation rather than territorial
       location or political domination, as the source of legitimacy for
       legislation. It was the beginning of the idea that cooperative
private
       agreement can substantially oust public law institutions without
       challenging the legitimacy of the Governments that participated
in
       making the public law. And it provides an escape from the moral
       dilemma presented by the myth of endlessly acquisitive homo
       economicus, the little homunculus of economic dream, the
independent
       entity with the exogenously derived preference schedule,
competing
       with sharp elbows in the market against every other homunculus
       economicus seeking only the same narrow benefit off the same
asocial
       schedule of what I need today.
     * A bad myth about human nature, dying now the death it has now
deserved
       since the middle of the 19th century. A bad myth about the nature
of
       technology. A bad myth about the nature of the social production
of
       knowledge. And a doing-in of the primary obstacle to universal
       information and the end of ignorance. It's just as small and just
as
       large as that. Just as tiny a step in just as epochal a
direction.
       Just as small a project with just as large a set of consequences
as
       those. We were lucky to be there.
     * Generations of people have participated in the struggle for
liberty of
       thought. Crucial rounds in that struggle were fought here in this
       city, as they were fought in Rome, and in Paris, and in Berlin,
and
       even in New York and Los Angeles.
     * The difference between us and all of those who've struggled for
the
       freedom of thought in the past is of no particular credit to us.
We
       are not smarter, we are not stronger, we are not more
indefatigable.
       We are merely lucky. We are lucky because along the long scale of
the
       struggle to know and to share, and to improve humanity by the
control
       of nature for the benefit of all, in that long sequence of
people,
       many of whom died unlamented or unwished, because of their
adherence
       to our goals in all that long period what distinguishes us is
merely a
       contingent fact of our role - this time, we win.
     * Thankyou very much.
     * (deafening applause)
     * I'm happy to take your questions.
     * Q: The role of Stallman almost looks a little bit like a king
with a
       very large council of advisors; do you think the process would
have
       worked without him, or do you think the process would have worked
       without him or a similar candidate?
     * That's a very important question in my judgement - I think the
answers
       lie in two directions; first, Mr. Stallman's presence as an
ultimate
       decision-maker provided the necessary political will to get
things
       finished. The difference between this negotiation and many
       standards-like negotiations in which I have participated over the
       years, is that the parties who usually find it desirable to
extend
       time indefinitely could not do so. We were very careful to
publish
       deadlines and structured guidelines to process before we began.
For
       the purpose of making sure that all participants knew on what
date
       things would be finished, when the transitions would be from
draft to
       draft, so that it was possible to prevent the dilatory practice
that
       would otherwise undoubtedly have run out any clock ever made. I
said
       by the second month of the making of GPL3 that the first
consequence
       of the publication of a draft of GPL3 was that GPL2 became
perfect. I
       myself had some doubt that the license was perfect; it appeared
to me
       to have some flaws, it was a parochial American document, it had
       little to say about the patent problem. It had done nothing that
it
       could have done about problems it had not foreseen like lockdown
in
       aid of DRM, and the growth of the web services controversy. It
seemed
       to me plainly a license in need of some improvement, but the
minute we
       published a draft, everybody loved it. Loved it to death, loved
it far
       more than ... human beings are afraid of change.
     * In this respect, and probably in no other, Mr. Stallman's
presence was
       essential to what happened, and the next time - that is, when one
       repeats the experiment without this, I think you're quite right,
whiff
       of enlightened despotism to it - one has to find a different
mechanism
       for ensuring that parties will face a similar necessity to get
things
       done. The concentration of the mind does not depend upon the
imminence
       of being hanged - Dr. Johnson only meant that it was a sufficient
       condition, and not a necessary one. (laughter) In the same sense,
I
       think Stallman's participation and the uniqueness of his role is
       sufficient to achieve certain consequences, but not necessary.
The
       process of democratising, in the fullest sense, collaborative
       legislation is a difficult process. The history of wikipedia
shows
       just how difficult truly unhierarchical government of a
collaborative
       structure for production is. And solutions like rotation of
authority
       or debate over merit, or even just straight election will not do.
     * I don't mean to suggest that I know exactly how to replace
Richard
       Stallman. I don't know how to replace Richard Stallman, that's
why if
       you'll permit me to say so I've just been the lawyer for the last
13
       years. If we'd known how to replace him I suppose there would've
been
       an overwhelming public cry to do so. (laughter) But indispensable
is a
       thing that societies sometimes recognise, and Mr. Stallman has
been in
       the literalist sense indispensable to what it was that we were
trying
       to achieve. He was the party everybody trusted to be an honest
broker,
       there was more to say beyond honest brokerage but that's
sufficient
       for the moment.
     * What I think that structurally means it that you will see in the
       course of the 21st century the evolution of strength through
poverty
       again. And I say again because if you think about the history of
the
       last, there have been times when moral and political leadership
was
       very strongly vested in organisations whose primary claim was
poverty,
       humility, and sanctity. It doesn't surprise me that we found
ourselves
       back in relation to a system not entirely unlike that at this
moment,
       it's an evolutionary stage in the structuring of politics.
Powerfully
       poor, powerfully honest, powerfully sad non-governmental
organisations
       will play a very significant role in the voluntary construction
of law
       in the 21st Century. Look at it this way; who do you want making
the
       international law of criminal rendition at the moment - the
United
       States Supreme Court? The European Court of Human Rights? or
Amnesty
       International?
     * I think that the fundamental truth presented by Stallman's role
in the
       GPL3 process is that human beings recognise that there is a need
for
       intransigence in the pursuit of freedom. Which is more generally
       construable as: when you have a community that is distinguishable
by
       its values, those values need a personality to cluster around.
That
       that needs them to be an ultimate decision-maker with complete
power,
       such that everything else is advisory I don't think follows. And
my
       guess is that if you want to imagine the flow of the evolution of
       those institutions over time, you'll see ones led rhetorically
and
       intellectually, by people of unimpeachable honesty and poverty
and
       humility, maybe something even approaching sanctity, but without
the
       power of ultimate decision.
     * Q: One of the most controversial parts of the GPL version 3 was
the
       inclusion of technological protection measures. Seeing as it may
be
       happening that technological protection measures of DRM may be
killing
       themselves by their own, let's say, unworkability, and
ineffectiveness
       of the whole concept, is it a wise decision to include it in the
       license, seeing that it generates so much discussion and so many
       problems?
     * No, but, you needn't think of the discussion in and of itself, or
even
       the disagreement in and of itself as somehow a drawback in a
       legislative process. The task I believe that I was set as the
lead
       negotiator in this area was a diplomatic task, to separate the IT
       industry on planet earth from the entertainment industry on
planet
       earth. The entertainment industry on planet earth had decided
that in
       order to acquire Layer 7 data security, it was necessary to lock
up
       layers 2, 3, 4, 5, and 6 so that no technological progress could
occur
       without their permission.
     * This was known by the IT industry and the consumer electronics
       industry on the planet to be offensive nonsense, but there was no
       counterweight to it, and there was no organised consumer dissent
       sufficient to require them to stand up for technical merit and
their
       own right to run their own businesses without dictation from
companies
       a tenth their size.
     * Not surprisingly, since it is part of the role we play in this
       political power concentrated in poverty, humility, and sanctity,
we
       brought them to a consensus they were unable to bring themselves
to -
       which is represented in the license by a rule which fundamentally
       says: "If you want to experiment with locking down layer below 7
in
       the pursuit of data networks inside businesses that keep the
       business's data at home, you may do so freely, we have no
objection -
       not only do we have no objection to you doing it, we've no
objection
       to your using our parts to do it with. But when you use our parts
to
       build machines which control peoples' daily lives - which provide
them
       with education and culture, build devices which are modifiable by
them
       to the same extent that they're modifiable by you. That's all we
want.
       If you can modify the device after you give it to them, then they
must
       be able to modify the device after you give it to them - that's a
       price for using our parts." That's a deal which has been
accepted.
     * To think of this somehow as sorrows we shouldn't have had is to
miss
       the importance of the social agreement that results from it. And
if
       you want to say, and I totally agree with you, that the
possibility of
       layer 7 data security locked down by layer-crossing technology of
       superlative badness and stupidity is going out... yeah, that's
right,
       it's going out. It's going out because our friends have found
their
       backbones. They don't wanna make the stuff, they don't wanna sell
the
       stuff, because they don't wanna make and sell the stuff to people
who
       don't wanna buy and use the stuff. So we're gonna win. You're
quite
       right. And that's very good, and the people who don't like it can
just
       plain lump it. As they should. They were asking for something
which,
       whether you think of it as technical architecture or business
model or
       social competition policy, or a way of educating human beings in
their
       culture was defective, bad, and wrong. And stopping them is for
the
       public good, and we have done it. But it isn't right to say that
it
       all would've happened anyway, and therefore we shouldn't have had
the
       conversation. The conversation we had is part of the reason it
isn't
       going to happen any more.
     * <<Iain Mitchell>> I think we've time for probably about one more
       question.
     * <<Moglen>> Yes.
     * <<Q by Andrew McMillan>> The GPLv2 is frequently, or sometimes
used in
       a way that allows it to be succeeded by the GPLv3. Is that used
       regularly enough, in your opinion, or..
     * <<Moglen>> Is it used.. ? [Transcriber's Note: Prof. Moglen did
not
       hear the word "frequently" and answered accordingly]
     * <<Andrew McMillan>> That clause that allows the overriding by the
more
       recent versions..
     * <<Moglen>> When a program is labelled "GPLv2 or any later
version", or
       after next week, when a program is labelled "GPLv3 or any later
       version", the author is delegating to the users a part of the
       authority to relicense.
     * The decision to delegate to users a partial authority to
re-license is
       a policy decision by an author. Some will make it, some will not.
       Linus Torvalds is a good example of a programmer who decided from
the
       very beginning of the life of his project that he wanted to
retain the
       power to determine what license would be used, not the users. Mr.
       Stallman, and many other users of GPL 2 in general chose the
other
       answer - and delegated to users, for purposes they thought good
and
       sufficient, partial power to re-license the code. GPL 3, like GPL
2,
       will retain that flexibility. An author may decide to keep all
the
       power to re-license in subsequent license revision to herself, or
she
       can decide to share it with her users. GPL 3 adds a third
possibility
       - she can decide to designate a proxy to make that decision at
the
       time when a future license is issued. What we might call putting
the
       re-licensing decision "in trust", to trustees.
     * All three choices seem to me beneficial choices to have - I don't
       think there's any benefit to exercising any one of those choices
in
       the architecture of the license. It's compatible with the
license's
       purposes to afford a rather broad range of delegation options,
from
       none to complete. At the present time, my guess is that the
       desirability of using GPLv3 or any later version is largely seen
in
       the trade and in the industry as a question of "Do you trust the
Free
       Software Foundation?" And parties either will or won't use it
under
       GPL3 according as they do or don't trust FSF. I actually think it
goes
       a little deeper than that, I think the question is, "Do you trust
the
       community?" Which is not just FSF - but that whole GPL society we
just
       convoked.
     * If I were myself working primarily on the construction of code
these
       days instead of law, I would label my code GPLv3 or any later
version,
       because I trust the wisdom of the society I've just been working
with.
       Maybe I have a better view of that than anybody else on earth
right
       now, because I've faced more parts of that society in more
different
       contexts over the last 18 months than anyone else. But I think
this,
       as so many other issues, comes down to the value of trust. Trust
is
       the hidden feature in the economy, as Henry George thought land
was
       the hidden real single factor in the 19th century economy. When I
talk
       about "Proof of Concept plus Running Code plus Presence of
Community
       equals Freedom", you could do a parameterised substitution and
say
       "Presence of Trust equals Freedom". Because what we're really
saying
       is, communities that we make on the basis of pure reciprocity are
       communities held together by the power of trust.
     * The decision to license code for downstream re-licensing is a
decision
       to trust the rest of the community with everything you've done.
It is
       remarkable how often that decision has been made in the past 20
years,
       and it is remarkable how high the returns on that investment have
       been, in my judgement. Thank you all very much.
     * (applause)
     * <<Ian Mitchell>> Wow. I'd like to call on Paul Motion, my
predecessor
       as the Chairman of the Scottish Society for Computers and Law,
and
       presently the Convenor of the Law Society of Scotland Technology
       Committee, to give the Vote of Thanks.
     * <<Paul Motion>> Thanks, Ian. Well, where to begin - how to follow
that
       act? The vote of thanks, traditionally, has been three minutes of
       self-conscious grovelling, and I'm going to try and avoid that if
at
       all possible, just to introduce a wee bit of audience
participation,
       there are 142 of you here tonight, which is an astonishing
achievement
       for the Society - I think it's one of the biggest turnouts we've
ever
       had, and a tribute to the speaker; can I ask how many of you are
not
       Lawyers, can we just have a show of hands?
     * (many hands go up - laughter)l
     * There you are, Eben, there are plenty of real people here
tonight,
       that's great. Thanks are due to a number of people in particular,
to
       Ian Mitchell the Chairman of SSCL for organising tonight, to
Rosie
       Saunders of the Faculty of Advocates Training Organisation for
helping
       to muster the numbers and deal with the applications, to Valley
       Technology behind the cameras and on the cans that are recording
the
       event for posterity, I'm sure you'll all be downloading it
       fastidiously. And to my competitors, MacLure & Naysmith, for
       sponsoring the event tonight, nice to see you guys. And to
Script, of
       the University of Edinburgh, for helping with the organisation
       generally.
     * Open Source Software is becoming more relevant to unreal people,
       lawyers like me; I'm currently having to get to gri
-------

regards,
alexander.

--
"Live cheaply," he said, offering some free advice. "Don't buy a house,
a car or have children. The problem is they're expensive and you have
to spend all your time making money to pay for them."
 
         -- Free Software Foundation's Richard Stallman: 'Live Cheaply'