Tag Archives: Eben Moglen

Moglen, Eben - Keynote address to Linux Conference - 20150113



Good morning. It’s an honour to be here. I can’t thank the organizers enough, starting with Michael, Steve and Sharif, for their extremely persistent, kind, generous, determined effort to bring me back. I found it a little difficult to believe that it had been ten years. It felt to me as though it were a week or two ago that I was floating in a hot-air balloon over Canberra with Tridge and Jeremy Allison. And it had, indeed, been a decade. I think, in part, I found it hard to believe because I haven’t had much more than one or two days off since then. [Laughter] We have all been very busy changing the world. And it has been my pleasure to ride along. But ten years it has been, and I am deeply, deeply honoured to be back. I will also thank you in advance for putting up with my heavily-accented English.

The decade through which we have passed certainly involved an awful lot of making good software. There’s been no shortage of making good software in the last decade. And it has involved at least some good-enough lawyering - in the sense that we are in way less trouble than we were back then - except the trouble we have deliberately made for ourselves. And we have fewer, if any, real devoted enemies and they are weaker than they were in almost every respect. [Applause]

The problem we were confronting ten years ago with respect to patent law, which we had been worrying about already for fifteen years, blossomed into the full-scale patent war that we have been warning industry for a generation now that we’re going to have. And tens of billions of dollars in value have been burned up and thrown away. And the process of innovating in our industry has been deeply and unhappily distorted by the attempts to use state-created monopolies to slow down the path of innovation by incumbents who needed to slow the clock, if not stop it altogether. And yet, at the same time, precisely because industry found itself in the terrible conditions that we had warned them about, we also acquired an awful lot of help. And the worst of the law around the world began to change.

Richard Stallman and I spent many years discussing various improbable and, ultimately, inoperable plans to create a free-software-protecting patent pool which would allow us to sit at the table with at least some chips and to perform the task of negotiating for freedom’s right to invent and freedom to operate and, of course, as Tridge kept telling me, the freedom to invent around - which is the most important freedom, if you’re as good an inventor as he is.

So we thought, again and again, about how to accomplish it. But without the fear of God in industry, it could not be done. And now the Open Invention Network provides very much the kind of community patent-defense, based around pooled assets, to be used to defend friends in trouble, that we had always hoped we would find a way to create.

Similarly, as the patent war went on, judges began to figure out that there was something wrong with the patent system. It was performing pathologically in the United States in precisely the pathological ways that we had warned everybody that it would. And the judges began to lose their enthusiasm for the subject. In the course of the last three years, we have won three unanimous decisions in the United States Supreme Court significantly restricting the ability to patent algorithms and other forms of abstract ideas. [Applause]

And so we find ourselves in the very extraordinary condition that, although the patent war is still waging, and the effort to create state-created monopolies in the behavior of mobile devices is apparently inexhaustible in some people’s view, the likelihood that the most stressful patent systems in the world will ever be used against free software developers is disappearing.

The tools of self-defence are not automatic. We haven’t arrived at a condition in which nobody tries to apply the patent law to the sort of stuff we invent. But the playing field is much more level. Our community-building activities across the space between profit-making industrial parties and non-profit-making software experimenters have tightened substantially in very good ways. I’m not in a position to say that we have no problem. I am in a position to say that the nature of the problem in those ten years has altered because the world has altered.

I am much more interested this morning in talking about the ways in which the world has altered. But, as a sort of ten-year catch-up, I will tell you what the next decade will present in the way of difficulty for us in this connection. The largest economy in the world is not now the economy of the United States. And, in another ten years, the most important patent system in the world with respect to IT industries will be the patent system of the People’s Republic of China, which will contain enormous numbers of statutory monopolies in a society without the working rule of law - unless we manage to achieve the rule of law in the People’s Republic of China in the next ten years, which does not seem at present particularly likely. This problem will afflict us, that is to say, the people who actually make the technology, comparatively lightly. It will affect our industrial partners enormously. And their strategic responses to the problem they will face will be the most interesting of our challenges with respect to the patent system in the next ten years.

As was the case in the last round, we are thinking more about the nature of their problems than they are - because they are dealing day-to-day with the problems of running their businesses. But if we are all lucky enough to be standing here ten years from now, if we are talking about the patent system and its effect on our work, that’s what we will be talking about.

In the next decade, it will be very, very risky, probably too risky, for a shark to come and try to bite my clients or their comrades and friends throughout the community. We do get bit. I won’t tell you that we don’t. Every year now, we face a couple of opportunities for patent assertion by parties who think that stopping some free software project from doing something that it wants to do is in that business’s interest. But, in the world in which we now live, we have a baseball bat. We can swing it at the nose of the shark, and that does actually discourage biting quite substantially. Like every other thing in this world, it all happens in the dark, under the surface of the water. You can’t see it occurring. But the lawyers with whom I work - and I - we know. And we can say that, what used to feel radically unsafe to us, thanks to the businesses and the communities, which have pulled together over this last decade, has made an enormous difference.

So, in the last decade, we made a lot of wonderful software. And we did some good work around the world in abating nuisances that threatened us. But more important, I think, than the software that we made, the enormously important innovations in politics and society that we were creating alongside the software, began to take hold in the world.

Of course, it’s true, that everything from ice cream to weaponry is now described as “open source”. But, if that’s an indication of anything, it’s an indication, as usual, that Stallman was right. You should be careful what words you use, because other people might borrow them. And so, I’m going to continue to talk about this stuff as free software here this morning, if you don’t mind, and you can translate it into … [Applause] anything you please. But, the fact that people took some language, and went and applied it to their products, and certified themselves open source this or that - what was really important was that people started to understand what distinguishes twenty-first century social organizations from twentieth century ones.

Industrial society loved hierarchy. It had to love hierarchy. Its metaphors – the army of the unemployed or the industrial workforce. Hierarchy was intrinsic to twentieth century organizations at their strongest, as was secrecy (or, at least, obscurity). But the very forms of activity that we created - the ways in which we have done what we have done - came to be an important lesson to the world in how twenty-first century organizations work. They are distinguished by three elements:

  • transparency,
  • participation, and
  • non-hierarchical collaboration.

And these principles are not ones we imposed on the technical work we did. They are conditions that grew out of the technical work we did.

The relationship between our activity and transparency is, of course, so intimate that you can’t describe us without describing the concept of transparency. We don’t just let people see, we enable them to learn. And so our transparency is not merely that of a business with a big show-window. Rupert Murdoch puts a big glass wall in the front of a television studio in downtown Manhattan. It’s transparent in Mr. Murdoch’s sense - but not in ours.

Transparency, for us, means more than just a free show you can look at. It means a porous community that you can join, which is why participation also is not merely something that we have a value for, but something that makes all the value that we make. It is the ability to participate that’s the outcome of the determination to be transparent in the deep sense in which we are transparent.

And it is, of course, the case that we don’t merely do collaborative non-hierarchical structures, we invented them. A weekend project of Linus Torvald’s called Git. We remember the little tiff that created the need for Git. But we can ask ourselves a question, ten years haven’t gone by – “Where is BitKeeper now?” [Laughter]

The onset of real distributed version-control is the technology of non-hierarchical collaboration. It isn’t merely that we said we like non-hierarchical collaboration, or we believe in egalitarian access to technology. The technology we made has taken over the making of software, because it has demonstrated that non-hierarchical collaboration is how you have to make everything; otherwise, you are incurring inefficiency and setting up for failure.

So what we did over the past ten years – and, for me, that means not just Canberra in 2005, but where I was in Berlin, in the summer of 2004, talking about “Die Gedanken sind Frei” and the form of politics which we believe in – which isn’t Utopian revolution, it’s proof-of-concept plus running-code equals social and political progress. That has taken over the world in the past decade.

Sure, nobody can live without using our software. Sure, there isn’t any longer a business on earth that doesn’t need us. Sure, even Microsoft now recognizes that our way of software making won. [Applause]

But what is deeper, is that our structures of social engagement, our form of politics, that is, our question - “How do people live together in the cities?” – has also won. It is now clear, increasingly clear, to states and massive industrial organizations, and even the people who hold all the gold bars and would love to hold all the Bitcoins - it is now obvious to everybody, that the particular structures of twenty-first century politics -  what makes the world of now and our human future different - is the forms of social interaction and organization of enterprise in the sense of human invention and self-improvement that we have stood for. And this, more than anything else, I think, is what we have done for our colleagues, our communities, the rest of the human race in the last ten years.

If there has been good news about politics in the world in the last decade - we did it. And if there has been only bad news about politics in the last decade around the world - it’s not our fault, we tried.

However, what has also happened, because of the broad understanding that the route to better politics in the human future, the route to better, more efficient, more humane enterprise, lies in our form of sharing. Because, precisely because, of the breadth of our success, we now also begin to understand what our common values are about.

We are, after all, an exceedingly diverse community. We bridge the entire gap between vi and emacs, for example. [Laughter] We also, as it happens, speak every language, and are part of every faith, and play every sport, and climb everything that can be climbed, and dive under everything that can be dived under. And we are culturally extremely discrepant, including in the extent that we self-consciously believe that what we do is political as well as technical - a fact that some of us are immediately conscious of all the time, and another, equally important and powerfully inventive bunch of us, tend to keep a little bit further at a distance.

But, as I say, it doesn’t really matter how far you feel the political engagement that has been added to our work, because the forms of political engagement which grow organically and necessarily out of our technology, the way it works, and what that means about how people interact with one another - those principles of transparency, participation, non-hierarchical collaboration - they are themselves a social and political program.

And whether one thinks of it as - free software, free society - or not, the challenges in which we now live - are challenges which grow out of our own self-made, home-grown, DIY, we hacked it together, political aspirations, for transparency, for participation, and for collaborative, non-hierarchical self-government.

We face something now we are fortunate enough to be able to name in a word, and the word is “Snowden”.

For those of us who live in the United States, there is, of course, a complicated, dual-meaning concerning Mr. Snowden, because national security is a thing that worries people one nation at a time. And so, although I live in a global environment, in which the meaning of Mr. Snowden is untrammelled by any question of “Who was he spying on?” and “Did he do a bad thing?” - in my home society, of course, there is a lot of such discussion – which is why, when I want to write about Mr. Snowden, or the consequences of his activities I am so grateful to Alan Rusbridger of The Guardian for giving me a place in which to do the work. But outside the boundaries of my home society, the meaning of Mr. Snowden’s activities is far less complicated. What we have learned, as a result of what he has taught us in the past year and a half, is that, even in a very rare society, with strong legal controls – or, apparently strong legal controls – over listening, there is no longer any hope that we can directly prevent power - whether it is private power or public power - from turning the Net into a procedure for totalitarianism. [Applause]

We are now living in the question, for which people like my comrade, Mr. Stallman, and my former client, Phillip Zimmermann, have been trying to prepare us for a generation.

I walked in to Mr. Zimmermann’s life in an email message in the summer of 1991. I saw PGP appear on the Net on a July evening on a Fido bulletin board in New York City and I wrote him an email message and I said “Congratulations, you’ve done a wonderful thing. You’re going to change the world. You’re also going to get in a shitload of trouble [Laughter] and when it happens I can help you. Here is who I am.”

And it was because I was working for Mr. Zimmermann and a story appeared in The New York Times by John Markoff about what I was doing that Richard Stallman first got in touch with me. And that was how Richard and I professionally met.

Now let us take ourselves back to 1991. And let’s imagine that Mr. Zimmermann does not have adequate legal help and that PGP is intimidated out of existence by the United States government. We now live in a world without PGP - which means we also live in a world without SSH - which means we also live in a world without my client’s SSL, et cetera, et cetera, et cetera. And I think you would agree with me, that if that’s the world we lived in now, we would be facing the irreversible movement towards irresistible despotism, towards political power coming into existence in one or more places around the world that would have the power to predict the behavior of people, and to prevent the coalescence of political dissent, decapitate movements, and create a kind of immortality of un-freedom.

There are, of course, a lot of people who had nothing to do with making software to share who have helped us to prevent that from happening. But we must, I think, understand that we now live in the world we were afraid of. And that, what stands between us and the things which we were the most afraid of, is ourselves, our own inventions - which we have now a responsibility not only to use ourselves and to improve and to keep vital, but to spread as widely as we can, and as effectively as we can.

We are required, no question about it, to have the wisdom of serpents, if we are to use the technologies we have invented in order to prevent the fastening on the human race of a despotism it will not be able to shake.

We are moving towards a single exoskeletal nervous system embracing the whole of humanity. And the neuroanatomy of that system is constructed out of what we have called “the Internet” - and we will soon, in another generation, simply be able to call the nervous system of the human race. Whether it is built to be controlled at its endpoints by the things quaintly known as “individuals” - or whether it is built to be directed from centres of scrutiny and data mining and prediction - is the political decision we make for the future.

We, in this room, will not determine what happens to the climate of the planet. But we will determine the physiology of the nervous system of humanity – the functional behavior of the everything we are building.

And, as was foreseen by some of our most wonderful crackpot visionaries, at the beginning of this process – I need mention no names [Laughter] – but, as was foreseen by the most wonderful of our crackpot visionaries – freedom itself depends on how we make use of the technologies we are creating.

If the politics that we think about as characteristic of the ways we work – transparency, participation, enablement, non-hierarchical collaboration – are to survive the onset of the immense data society, with listeners inside everything – if that set of values is to survive, we must continue the process of building the political and social theory that emerges from our tech.

I’m not going to say we all, therefore, become primarily aware of the political significance of what we do - but it is part of the wisdom of every project. It is part of the skills that we all bring together to every group of which we are a part - that some of us are always thinking, “How do we turn this to the political advantage, the social advantage, of the desire of the human race for each individual mind to grow and invent freely?”

And we must understand that the forms of legal control, the forms of government power, that will now concern us most, are not the handing out of real estate in the patent offices. They’re not the questions of how much copyright law you can have over interface declarations.

(Though I must say that now that the Supreme Court has delayed for another period the decision to take Google against Oracle we could find ourselves in that situation once the Solicitor General of the United States has weighed in. But this is lawyers work. We do lawyer’s work, right. I train people to do lawyer’s work in this world. And we will handle all of that. But that is not where the real political, legal, and social action now is).

Mr. Snowden did for us crucial work. You see the numbers. Sixty-one percent of the part of the human race connected to the Internet is aware of Mr. Snowden and what he means. And between thirty-nine and forty-five percent of that nearly two-thirds of the human race connected to the Internet wants to do something to improve its privacy. Alright. They do. And that means they want to meet us - more badly than they ever did before. They didn’t want to meet us before because people who make proprietary IT showed them it was quote convenient close quote and they went for it. It was convenient. We, of course, were not convenient. I don’t remember why it was we weren’t convenient. I think it was the command line or something. But we weren’t convenient, OK. So lots of people - their eyes glazed over. They were our friends. They were our brothers and sisters. They were our parents. But their eyes glazed over when we talked about it. No more, no more. No more, no more. Everybody wants to meet us now. And we need to put on our nice vest and go out and politely explain to them how we save freedom together. “It’s very convenient to save freedom,” we’re going to tell them, right? “If you give away your freedom for convenience, we will have trouble getting it back for you. But now would be an awfully convenient time to help us embed freedom in the network we are building. Your children will thank you.”

We know about “network effects”. We don’t mean “Everybody has to use Office because everybody has to use Office because otherwise how will you open the Office documents.” We mean that it is hard to sustain freedom in a technological environment which has been engineered to take it away, and that there is strength in numbers. We can make even people who loving controlling their users decide to spoof MAC addresses, right? We can make people who used to be not-on-our-side about crypto encrypt the stuff on the flash memory in the phone. But what we cannot do, without the universalization of the way we work, is to prove to the rest of the human race that technology that anyone can copy, modify, and share is technology which preserves privacy, autonomy, and freedom - and that other software will not.

Nobody in business is going to use cybersecurity they can’t read anymore. Once again, as usual, it is not the expert opinion of the world that we can’t reach. When Mr. Snowden revealed the Bullrun program, that is, the effort by NSA to break commercially-significant crypto, I was having a conversation with an analyst who has been very much on the side of the three-letter agencies for decades. And I said to him, “You know, the problem with what Mr. Snowden has not just taught us, it’s not that he has proved that you were wrong for twenty years. That’s a tiny problem. The problem Mr. Snowden really poses for you is that he has proved that we were right for twenty years. And that’s a very different thing altogether.”

We were the people who said, “You can’t trust what you can’t read.” We thought we were making an obvious point. We didn’t quite understand why it was hard for other people to figure out that you can’t trust what you can’t read - but they figured it out now. If they’re in the business of trusting on behalf of tens of millions of customers or users, they’re in the business now of not trusting what they can’t read. And security through obscurity in the real-world of professional IT is over.

But that doesn’t mean that what has happened to the users - those disempowered users, whose technology sells them out all the time - nothing has happened for them yet. I said half a decade ago now that we needed the First Law of Robotics - and we needed it in a helluva hurry, because we’re all carrying robots around with us everywhere I go. And they don’t obey the First Law at all. They hurt us all the time. And so I have to say again, what I was saying there at HOPE, if we don’t make the First Law of Robotics, nobody is going to make it. If we don’t get it in the middle of everything, it won’t be there. And Big Power in the world - whether you think of it as Big Economic Power or you think of it as Big Government Power or you think of it as Big Listener Power - Big Power in the world is fundamentally committed against the First Law. Big Power in the world wants the devices to work for It. And if it weren’t for us, they’d succeed. And the human race would pay a price which might last for generations.

So, we have to take ourselves seriously. That’s hard for us, ‘cause we’re hackers, and intrinsically we don’t take ourselves seriously, anymore than we engage in hierarchical non-collaborative development, right? I mean, a sense of irony about self is what makes it possible to do the technical work. And I will tell you a secret, it makes it possible to do the lawyering, too. When we sit around the conference table on Wednesday afternoons, still having the firm lunch that Karen Sandler taught me that I ought to have, I tell the lawyers who work for me that the only indispensable part of our law practice is irony. Because it’s only irony that keeps us from doing stuff that’s dumb - like going and suing rich people and letting them grind us into power, regardless of the merits, and things like that. We have to hack our way to a form of legal engagement that works for us and only ironic ones will do. So naturally we don’t take ourselves terribly seriously. I’m probably the only one here who has the degree of un-self-conscious willingness to take myself seriously that causes me to get up every morning and put on a suit for heaven’s sake. And even that’s too much for the ironists in the room, by and large. But we do have to take ourselves seriously.

We have to take ourselves seriously. We’re not now in the prelude to the Star Wars we foresaw would happen - we’re in it. We’re in it. We have made what little it is that protected us against disaster already.

We are, why everything doesn’t consist of X.509 certificates issued by corrupt authorities.

We are, why not just distributed version-control but the web of trust, right.

We are, why non-hierarchical modes of communicating safely and securely and protecting people’s privacy against the data mungers.

We are, why all of that is possible at all.

And that’s terrific. It’s wonderful. We did a great job. And therefore, we are now in the middle of what we really feared. And we have to keep doing it.

When I read Jim Dwyer’s wonderful book about the young men who started making Diaspora called “More Awesome than Money” – the part that I was interested in, of course, was not the part about me – I knew the part about me. And it wasn’t really about Ilya and Raffi and Max and … because I knew them too. It was about the understanding that, when those four young men decided to try to go out there, and fix social networking, and make it behave ethically - they were immediately surrounded by communities of spirit and material help. It wasn’t just Kickstarter money, it wasn’t just hacker space they were offered, it wasn’t just the beauty of the Silicon Valley disruptor machine looking for young people to disrupt things with - it was the whole social order around them.

But Ilya was a wonderful young man and his death must not have been in vain. As Aaron Swartz’s death must not have been in vain. We have, in ten years, had casualties. We have let people hurt our people, because we needed to.

And so we have to take ourselves seriously - because we, too, now have gravestones to care for- and young heroes who gave their lives for stuff we care about, whose sacrifices we have to honour, as we have young people all around us who will need us soon.

There isn’t a lot of public opinion data in any society about the young teenagers. They’re not voters, so they’re not polled. And they don’t buy enough, in most societies, to be worth marketing to. But everywhere you look, at public opinion data around the world, attitudes about Mr. Snowden, in those under eighteen years old, are decisively more positive than those of older people in each society. Our youngest kin are deeply affected by Mr. Snowden and his message.

I kid my students by saying that this is in part because Edward Snowden bears a wonderful resemblance to Harry Potter. [Laughter] But it isn’t only that, of course. Young people are now inhabiting the planet who have watched what has happened to their older siblings. They have watched the Facebook-ization of human civilization. They have watched the crossing-the-street-while-texting-and-letting-everybody-else-take-your-text-straight-out-of-the-air behavior - and they’re not absolutely happy about it.

And so we have a crowd coming towards us. Ten years ago, I said in Berlin, that we were simply keeping dinner warm until the kids came home. The GNU Project was thirty years old last September 2013. And Edward Snowden was thirty years old in November. That was the first of our generation coming home. The beginning of the meaning of GNU.

Now we are in the second era - in which the larger world that does not make our software or understand why they should use our software - has come to an understanding of the principle that the freedom of the Net is the freedom of people. And that the Net is made of software and it works the way someone makes it work.

This is our big moment, ok. This is what we struggled for. I don’t mean, what we invented. When we struggle with code, we’re just struggling to make something neat. But when we go beyond the making something neat, this is what we’re in it for. We’re in it for the ability to help the people around us. We’ve known that, since we started taking our own temperatures fifteen years ago, and we began asking “Why do we make what we make?”

And it turned out that we make what we make in order to learn, and do neat stuff, and improve our skills - and to help other people.

And this is the big moment, where all the skill-making, and all the learning we have done, and all the neat stuff we have made - the rubber now meets the road with respect to whether we can use it to help humanity stay free.

This is what the last ten years did – they brought us here, to this intersection, to the moment when we can figure out whether, as the human race assembles its nervous system, it works for the data miners or it works for the people.

This is the moment, where we figure out whether we can deliver, not just for ourselves, but for everybody – whether we can turn the ability to have transparency, participation, non-hierarchical collaboration – whether we can turn that into not only a really good way of making software, but a really good way of confronting problems that people in the world are now sure are there – that they now understand, that they want help with, and that we, we alone, we are the people capable of delivering for them the freedom that they need. If we don’t, it will not happen.

We, through our own efforts, have narrowly escaped a couple of catastrophes for … in the past ten years. We have received, thanks to Mr. Snowden’s efforts, we have received a lot of information about what we did right. We have received a lot of information about where, even unlimited resources, devoted to breaking our view of the Net, have failed, because of what we made. We have received an awful lot of encouragement about our ability to survive an onslaught of capitalist aggressions, the patent wars, the bollocksing of copyright law by the entertainment industries and so on.

We have demonstrated our vitality. We need not demonstrate our inventiveness - that we demonstrate every single day. But we are now merging into the larger movement for the freedom of the Net. And we are about to demonstrate whether we can carry it. Not boss it. Not control it. Not even lead it from in front.

But we do have the opportunity to be the plumbing of the great Internet freedom movement of the twenty-first century. We have the opportunity to set its technological conditions of success. We have the opportunity to prevent it from achieving failure. And, of course, since every sysadmin here knows that she or he really runs the business and without them it won’t work – if we shouldn’t be too unwilling to recognize that this isn’t such an unusual position for us, right?

Everybody’s power runs on our plumbing. Whether it’s freedom running on our plumbing or un-freedom running on our plumbing isn’t up to them. It’s up to us.

We have plenty to do. We are going to gain plenty of help. Indian society is going to come very much in our direction over the next several years and with it we are going to gain power of numbers and demographic force beyond our previous wildest dreams. But 1.6 billion people will still live in China under conditions of un-freedom in a world in which the Net is assumed to be a system of social control. And the world’s most powerful constitutional democracy - possessing more force of listening than everybody else put together - has abandoned the rule of law over listening and has begun plunging humanity towards darkness. And the consumer economy has come to depend upon data mining for advertising - which means it depends upon surveillance to make its living. And it will do what it takes to make its living because that its right, its power and its glory. But not ours.

We’ve a great deal to do. If we don’t do it, everything stops. I don’t mean everything doesn’t run. It runs just fine. But freedom stops. You know what it will mean. You know what it is to have a listener inside every device, and everything in life inside every device, and every child hooked up to the monitor all the time - everywhere she goes, everything she learns, everything she reads, everything she listens to - all marked down and ready to be calculated and correlated and manipulated.

That’s not the human race we meant to have. That’s not the way we meant the Net to work. That’s not the way we run our own stuff. And it mustn’t be the way we let other people run it.

So here we are: free software, free societyfor real. We’re playing for keeps now. Humanity depends upon you.

Thanks. And good luck. [Applause]

Moglen, Eben - It’s a difficult moral problem, explaining why you deny others what you value highly and could provide to them for nothing

Excerpt from Moglen, Eben - Free and Open Software: Paradigm for a New Intellectual Commons - Law of the Commons Conference 20090313

The most important unchangeable reality about human societies heretofore is that every human society since the beginning, whenever that was, has wasted almost all the brains it possessed.

It is, of course, something so natural to us that it strikes us as an odd aperçu when we meet it, but of course we know that it is true. We know that it is true, and that there wasn’t any way to prevent it from being true, even as we know that it’s an injustice. A deep injustice.

So let’s begin by recognizing, as Laura Nader was urging us to do, that one of the great problems about injustice is that, like power, it is most effective when it can succeed in remaining invisible. And one of the best ways of being invisible is to be something that everybody knows, but you can’t do anything about it, so you might as well forget. And so we forget – as we tend to forget every day when the newspaper isn’t headlined with the 50,000 children who starved to death yesterday – we forget that one of the fundamental characteristics of human societies heretofore has been their wastage of human brains. And I go around, and I say to people “How many of the Einsteins who ever existed were permitted to learn physics?”. And people think “Well, maybe one, maybe two – maybe Isaac Newton was another Einstein…” but of course the answer is “Almost none”. So few, in fact, that we know the names of them.

Which, had we educated all the Einsteins in the world, in physics, since the beginning, we couldn’t do, because there would be so many of them. And what we think of as the extraordinary characteristics of genius are primarily merely the selection function applied to human diversity, through radical injustice in access to the ability to learn. Which means, of course, that we know that – smart guys as we all are – we are really only the fraction of the smart guys in the world who’ve been allowed to learn anything, in a world where there are six billion people, most of whom will never be able to go to school. And their brains will starve to death.

So the basic question – now that our attention is concentrated on one of those obvious things that we don’t think about very much – so the question now is “Can the network be used to change that, for the first time in the history of human societies, and if it were used to change that, what would it be like?”.

This is the introduction to the free software movement. This is the purpose of the free software movement. This is the aim not only of the free software movement, but of a large number of the other things we are doing that arise from the fact that the digital revolution means that knowledge no longer has a non-zero marginal cost, that when you have the first copy of any significant representation of knowledge – whatever the fixed cost of the production of that representation may have been – you have as many additional copies, everywhere, as you need, without any significant additional costs.

The non-zero marginal cost quality of all the things we digitize, which – in the society we are now building – is everything we value, because we digitize everything we can value, right down to how we fit in our jeans, right? In the world where we digitize everything of value and everything of value has been digitized, a moral question of significance arises:

When you can provide to everybody everything that you value, at the cost of providing it to any one body, what is the morality of excluding people who cannot afford to pay?

If you could make as much bread, or have as many fishes, as you needed to feed everyone, at the cost of the first loaf and the first fish plus a button press, what would be the morality for charging more for loaves and fishes than the poorest person could afford to pay?

It’s a difficult moral problem, explaining why you are excluding people from that which you yourself value highly and could provide to them for nothing.

The best way of solving this moral problem is not to acknowledge its existence, which is the current theory. Right? The current theory in force takes the view that industrial society lived in a world of non-zero marginal cost for information – information and the ability to learn had to be embedded in analog things: books, recordings, objects that cost non-zero amounts of money to make, move, and sell. Therefore, it was inevitable that representations of things we value would have significant marginal costs. And in economies operating efficiently and competitively, – or for that matter, efficiently and non-competitively – there would still be some cost that somebody has to pay at the other end to receive each copy of something of meaning or value, unless there is somebody available to provide a subsidy. And since that was the 20th century reality, it was appropriate to have moral theory which regarded exclusion as an inevitable necessity.

The discussion, of course, was about scale. “Ought we to find ways to subsidize more knowledge for more people?” And the United States became not merely the wealthiest and most powerful country, after the Second World War, not merely the indispensable or inevitable country, it became the intellectually most attractive country because it heavily subsidized the availability of sophisticated knowledge to people who could make use of it, even people who came elsewhere from poorer societies, or who had not the money to pay. And after the Second World War, in the G.I. Bill, the United States took a unique approach to the age-old problem of how to reduce social disorder after war time through the demobilization of a large number of young men trained to the efficient use of collective violence – a thing which is always worrisome to societies, and which typically produces repression movements post-war, as the society as a whole tries to get back its leverage over those young men – the G.I. Bill was a radical, and indeed productive approach to the problem, namely send everybody to as much education as they want to have, at the expense of the state, which is grateful to them for risking their lives in its defense. A splendid system; on the basis of that, and the provision of tertiary and quaternary education to the talented elite of the world, the United Stated government built a special place for its society in the world, as throwing away fewer brains than its power and importance would otherwise have tended to indicate it would do.

But we are no longer talking about whether we can save people, identified as the elite of other societies, from the ignorance to which they might otherwise fall prey, through enlightened federal spending. We are talking about eliminating ignorance. We’re talking about addressing the great deprivation of knowledge of everything of use and utility and beauty from everybody, by building out the network across humanity, and allowing everybody to have the knowledge and the culture that they wish to obtain. And we’re talking about doing that because the alternative to doing that is the persistence of an immoral condition.

Moglen, Eben - Free and Open Software: Paradigm for a New Intellectual Commons - Law of the Commons Conference 20090313

Moglen, Eben - Free and Open Software: Paradigm for a New Intellectual Commons - Law of the Commons Conference 20090313

[Steven A. Reisler:]

Our speaker this afternoon is Eben Moglen, who is a professor of law and legal history at Columbia University, but more importantly, he is a director of the Freedom of the Software Freedom Conservancy, and is a recipient of the Electronic Frontier Foundation’s Pioneer Award on behalf of freedom in electronic society. I want you to know that when we were putting this program together, we specifically targeted professor Moglen to come out here for this event, which is quite a chore, because he’s on the east coast and – as you might have gathered – we’re not. And so, he has made the Herculeanian effort to come out here to a different time zone, to a different part of the country, and indeed a different culture.


Those of us who believe in Ecotopia and believe that at one point we will secede and we will have our own government and our own nation, know that perhaps we will also have our own software regime, [Laughter] perhaps. I don’t think there’s much more I can do to abuse this gentleman, and I’m really not trying to, I’m just trying to add some levity to what I know is going to be a very good presentation, and as I’ve said before, I will not read people’s CVs; you have this information in the biographies that were provided to you and that I know you have committed to memory. So without further ado (ado, ado), I would like to give you professor Eben Moglen.


[Eben Moglen:]

Thank you, It’s a great honor to be here. I am very appreciative of the chance. It is sometimes a pleasure to be in Seattle. I’m usually here in war time rather than peace time. This week is something in between the two, but this afternoon, at any rate, is purely peace time.

The network is changing human society irreversibly in crucially important ways. It is now possible, I think, even for people who are loosely attached to the network, to feel the nature of those changes. I thought Laura’s example this morning – about indigenous people in Zapotec who have discovered that they need the network, not primarily in order to participate in the market economy but in order to resist the pathologies of the market economy as it may affect them – is an important story in that way. The network that now sustains the highly developed human societies also sustains less developed societies in their determinations to develop according to their own internal principles, as it sustains all other human activities, and becomes increasingly indispensable to them.

Networks are by nature commons of a particular kind, or rather of several particular kinds, and which kinds the networks are is a crucial subject. It is possible to counterfeit the phenomena of commons in a wholly-owned network completely controlled by a benevolent autocrat smart enough to pretend to be invisible, which is of course the smartest kind of autocracy, and I would suggest to you that both Facebook and the 3G cell phone networks are examples of autocratic networks under construction, in which the owners are trying to be, to one degree or another, invisible. The problem that besets them is that you must be at one and the same time invisible and also possessed of a brand that everybody on Earth recognizes, and that’s a little tricky. You do it by associating the brand with the idea of yourself, the user, rather than the power at the other end. But we’ll talk about that a little more shortly. All I wanted to do at the outset was to stress that the network is irreversibly changing human life. One of the important questions, then, is how it changes some of the hitherto unchangeable elements of human life.

The most important unchangeable reality about human societies heretofore is the every human society since the beginning, whenever that was, has wasted almost all the brains it possessed.


It is, of course, something so natural to us that it strikes us as an odd aperçu when we meet it, but of course we know that it is true. We know that it is true, and that there wasn’t any way to prevent it from being true, even as we know that it’s an injustice. A deep injustice.

So let’s begin by recognizing, as Laura Nader was urging us to do, that one of the great problems about injustice is that, like power, it is most effective when it can succeed in remaining invisible. And one of the best ways of being invisible is to be something that everybody knows, but you can’t do anything about it, so you might as well forget. And so we forget – as we tend to forget every day when the newspaper isn’t headlined with the 50.000 children who starved to death yesterday – we forget that one of the fundamental characteristics of human societies heretofore has been their wastage of human brains. And I go around, and I say to people “How many of the Einsteins who ever existed were permitted to learn physics?”. And people think “Well, maybe one, maybe two – maybe Isaac Newton was another Einstein…” but of course the answer is “Almost none”; so few, in fact, that we know the names of them.


Which, had we educated all the Einsteins in the world, in physics, since the beginning, we couldn’t do, because there would be so many of them. And what we think of as the extraordinary characteristics of genius are primarily merely the selection function applied to human diversity, through radical injustice in access to the ability to learn. Which means, of course, that we know that – smart guys as we all are – we are really only the fraction of the smart guys in the world who’ve been allowed to learn anything, in a world where there are six billion people, most of whom will never be able to go to school. And their brains will starve to death.

So the basic question – now that our attention is concentrated on one of those obvious things that we don’t think about very much – so the question now is “Can the network be used to change that, for the first time in the history of human societies, and if it were used to change that, what would it be like?”.

This is the introduction to the free software movement. This is the purpose of the free software movement. This is the aim not only of the free software movement, but of a large number of the other things we are doing that arise from the fact that the digital revolution means that knowledge no longer has a non-zero marginal cost, that when you have the first copy of any significant representation of knowledge – whatever the fixed cost of the production of that representation may have been – you have as many additional copies, everywhere, as you need, without any significant additional costs.

The non-zero marginal cost quality of all the things we digitize, which – in the society we are now building – is everything we value, because we digitize everything we can value, right down to how we fit in our jeans, right? In the world where we digitize everything of value and everything of value has been digitized, a moral question of significance arises: When you can provide to everybody everything that you value, at the cost of providing it to any one body, what is the morality of excluding people who cannot afford to pay?

If you could make as much bread, or have as many fishes, as you needed to feed everyone, at the cost of the first loaf and the first fish plus a button press, what would be the morality for charging more for loaves and fishes than the poorest person could afford to pay? It’s a difficult moral problem, explaining why you are excluding people from that which you yourself value highly and could provide to them for nothing.in

The best way of solving this moral problem is not to acknowledge its existence, which is the current theory. [Laughter] Right? The current theory in force takes the view that industrial society lived in a world of non-zero marginal cost for information – information and the ability to learn had to be embedded in analog things: books, recordings, objects that cost non-zero amounts of money to make, move, and sell. Therefore, it was inevitable that representations of things we value would have significant marginal costs. And in economies operating efficiently and competitively, – or for that matter, efficiently and non-competitively – there would still be some cost that somebody has to pay at the other end to receive each copy of something of meaning or value, unless there is somebody available to provide a subsidy. And since that was the 20th century reality, it was appropriate to have moral theory which regarded exclusion as an inevitable necessity.

The discussion, of course, was about scale. “Ought we to find ways to subsidize more knowledge for more people?”, and the United States became not merely the wealthiest and most powerful country, after the second world war, not merely the indispensable or inevitable country, it became the intellectually most attractive country because it heavily subsidized the availability of sophisticated knowledge to people who could make use of it, even people who came elsewhere from poorer societies, or who had not the money to pay. And after the second world war, in the G.I. Bill, the United States took a unique approach to the age-old problem of how to reduce social disorder after war time through the demobilization of a large number of young men trained to the efficient use of collective violence – a thing which is always worrisome to societies, and which typically produces repression movements post-war, as the society as a whole tries to get back its leverage over those young men – the G.I. Bill was a radical, and indeed productive approach to the problem, namely send everybody to as much education as they want to have, at the expense of the state which is grateful to them for risking their lives in its defense. A splendid system; on the basis of that, and the provision of tertiary and quaternary education to the talented elite of the world, the United Stated government built a special place for its society in the world, as throwing away fewer brains than its power and importance would otherwise have tended to indicate it would do.

But we are no longer talking about whether we can save people, identified as the elite of other societies, from the ignorance to which they might otherwise fall prey, through enlightened federal spending. We are talking about eliminating ignorance. We’re talking about addressing the great deprivation of knowledge of everything of use and utility and beauty from everybody, by building out the network across humanity, and allowing everybody to have the knowledge and the culture that they wish to obtain. And we’re talking about doing that because the alternative to doing that is the persistence of an immoral condition.

All right. So the free software movement is dedicated to a crucial fractional part of that larger overall project. Or rather, it is dedicated to two fractional parts of that overarching project, because it’s the free software movement, and it has both technical and political aims. The technical aim of the free software movement was to ensure that the evolving network could not be biased at the invisible technical level, through the ownership of the software that made it.

All of these networks of information sharing are composed – at the bottom level, where the technicians think – of two propertied entities: pipes and switches. Pipes are things that move a signal from one end to the other without modifying it or changing its direction. They can be electromagnetic spectrum, they can be copper wire in the ground, they can be optical fibers thinner than a human hair carrying hundreds of millions of signals simultaneously, but whatever they are, their job is transport – they move a thing from A to B, and they don’t change it, and they don’t determine where either A and B are.

The other thing of which the network is constituted is switches. Switches are what determine who gets what, where, when, how and how much they pay for it. Switches are the things which determine which signals in the net go where, and why. Switches are computers, and they run by code, and, as my dear friend and colleague Larry Lessig pointed out in his first brilliant book “Code”, they are capable of imitating law, because they create reality. They determine who gets what, and in determining who gets what and at what price they determine access to knowledge and therefore power. Switches, in other words, in their role as technical decision makers in the net, determine many of the issues which bear on the moral question of which I am speaking to you. If switches run software which is produced by somebody, which other people have no right to copy, modify, understand, change, or share, then the person who makes the software that goes in the switches controls the network.

Everything which has happened in the last 20 years concerning Microsoft – the good things, the bad things, the up things, the down things, the places where they succeeded, the places where they failed, the places where their bribery was accepted and endorsed, and the places where their bribery was rejected and punished – are all about the question about who was willing to permit the switches to be monopolized. Almost everybody was willing to permit the switches to be monopolized to some extent, provided, usually, that they got a piece of the action.

We were unwilling to have the switches monopolized. We decided to do something about it, and the thing we decided to do about it was done before Mr. Gates decided to monopolize them. We are effectively a product of the very same world that produced the thing we were fighting against – the perception that something enormous was about to happen, and that we ought to decide how it would happen. And my friend and client Mr. Richard Stallman was the first human being to perceive, elegantly, an overall plan for what to do about it. He, and those of us who have worked with him over the course of the past generation – that is, 20 years or so – were basically struggling to achieve the first sequence in an overall plan to do something about the great moral issue of the wastage of brains through the presence of unfreedom in the evolving network.

The first step is: Make it possible for every switch – that is, every general purpose computer in the network – to operate solely in the interest of the the person who possesses that switch, using software which everybody has a right to copy, modify, and change. If everybody has the right to understand how software works, copy it, modify it, and change it, then everybody will be able to affect the performance of the network as it affects them. Sure, not everybody will be a hacker who takes it apart and rewrites it and puts it back the way she would like it to be, but everybody will be able to benefit from everybody else’s experiments and improvements – the network will be a place of science. That is, a place where knowledge is developed around a principle of free sharing and the verification of experiment by reproduction and the availability of all knowledge to anybody who wants it. That is, the network will be a place of science, not a place of power – that is, a place where somebody determines and other people must make their peace with the way it is. If you think for a moment about how often you in your daily lives have to make your peace with the way it is, with respect to something you can’t change the behavior of because the software inside it is unfree, you will understand the basic principle which was being invoked. If the thing refuses do do what I want it to do because it thinks I shouldn’t have the knowledge I am asking for, – either because that knowledge is forbidden me or because I cannot afford it – if the thing I am facing is making that decision , then changing the way that thing behaves will change what I can have; therefore will change who I can be, because what I can get determines who I will become.

So, that was the goal of a movement: To make software – and therefore, the operation of the network built out of software – free, as in freedom. That is to say, responsive to the need of people to have a nervous system for humanity – a global nervous system for humanity – that worked for them, that did not paralyze them, that did not render their brains the wholly-owned subsidiary of whoever it was who determined the behavior of the network that could educate them, or could refuse to.

In that respect, the free software movement was about making free software and giving it away. The technical problem to be resolved in that structure, for the lawyer, is to understand what kind of commons the software in such a network ought to be. And for these purposes I think it would be good to focus just for a little bit on some technical issues in the political structure of commons.

It was suggested in the talks this morning that there is a false dichotomy between what is “open” and what is “closed”, and we would agree. The problem is precisely that “open” is not a good enough word. “Free” is helpful, but a little deceptive in English, because in English the word “free” may be a statement about price, or it may be a statement about politics. But the important difference in discussing a free commons over a merely “open” commons has to do with the technical question of terms of appropriation.

A commons that is “open” may very well be a commons from which appropriation can be freely made, by anybody. If it is “open” in that sense, then, whether you are Garrett Hardin, or you are Karl Marx, or you are Adam Smith, you can perceive, and each of them does perceive, that there will be a problem of dealing with overappropriation. Things will be taken from the commons, and they won’t be refreshed, and eventually there is at least the risk that the commons will die.

Now, “open” digital commons – unlike natural resource commonses that are built around openness – digital commons that are “open” can, for a substantial period of time, resist tragic outcomes. The reason is the non-zero marginal cost nature of the goods they contain; appropriation is a form of free-riding, but in non-zero marginal cost digital commons, free-riding isn’t necessarily a fatal problem. Most of the people who use free software never return any patches to the system, or write any documentation, or support any programmers, and it doesn’t matter, because we can afford to produce for everybody at such tiny expenses that we can internalize them over a much smaller portion of the community than everybody in it.

So an “open” commons can provide, if you like, the subsidy naturally necessary to maintain orders of magnitude greater breadth than the traditional systems for publishing and disseminating knowledge, but they are still subject to monopolization.

In order to monopolize across an open commons you have to be very rich, very big, very deep, and have a long time scale. If you do, then you can take everything that is put into the open commons, pull it out, put it in your proprietary products, and compete against the commons advantageously. For years, we expected Microsoft to begin to do that. It was the ideal strategy. What primarily prevented Microsoft from doing that were collective corporate psychological factors that are now changing.

But a “free” commons, – a copyleft commons, if you want to be precise about its name in the world where the dominant structuring law around the commons is copyright law – a copyleft commons is a commons which says about appropriating: “You may do it freely, provided that you put everything that you make out of what you appropriate back into the commons.” In the world of copyright, this was easily done by a little hack to the way the exclusive rights work. The hack, which was first contained in the second version of theGNU General Public License, or GPL, and which now exists also in the third version of the GPL and other copyleft instruments in the world, like the Creative Commons “Share-Alike” license family – “SA” is the Creative Commons’ abbreviation for “copyleft” – copyleft commons say “Here, here’s wonderful stuff, we made it, it works, it’s good, take anything you want, just don’t try and reduce anybody’s rights in anything you make from materials in this commons, below the level guaranteed by this commons.”, and in copyright law, that can be done very simply: “Here’s a license that lets you do anything you want as long as you use this license for all works made from anything you got under this license.” Once you have taken that step, once you have decided to use the owner’s exclusive right in order to give the commons a principle of self-protection, you have achieved a commons which cannot be monopolized by any appropriator, no matter how strong, and no matter how rich.

This is the experiment now being pursued in the global software industry, which presently lives in a world of “open” commons, “free” commons, proprietary closed software, and mixtures of all the kinds permitted by all the legal terms available.

Those software commons and closures are also governed, at least to some extent, by a law of patent about software, most of it generated in the United States between 1990 and2008, and now perhaps also beginning to die, but a very serious complication, adding many Ptolemaic epicycles and many opportunities for politics for those of us who actually do this law as a technical subject.

But for purposes of those who aren’t specialists, let us just say that what happened over the course of the last 20 years is that those people who perceived what the networkcould be for the evolution of human equality, and who set out to make steps towards guaranteeing that the network would behave as a system for the production of more human equality, chose free software as a primary way of ensuring that the network would remain free, as a technical matter, that the external nervous system of humanity, which is going to grow very robust indeed, could not be distorted into a force that would be used to prevent rather than to further equality.

After 20 years our results are very good. Free software is embedded irremovably in the belly of all of the developed societies in all of everything they do. It’s not exclusivelyembedded there, but even the monopolists, which is the deepest funded and most powerful technological entity in the history of human beings, can no longer remove the free commons from the network. They cannot outcompete it. There is some significant question as to whether they can compete with it at all.

Now we are moving into a period in which that will be tested. Not, I think, in a series of one great war containing one immense battle, or even ten, but rather into a system of long, meditated, and pretty severe endgame. In which the commons has the advantage that we have been thinking about the endgame far longer than the monopoly has. We know how all this plays out – we’ve been thinking about it for twenty years.

But whatever is the fate of free software in that regard, whatever is the outcome with respect to the technical situation, for which the free software system was built, that is merely a necessary, not a sufficient condition to the larger goals of the free software movement, and of the collection of movements and ideas that we all here are part of.

We must have a network that makes it possible for us to share. We must prevent the activity of the network in supporting sharing from being biased by those people whose primary concern is preventing sharing as competition to ownership.

So far we have learned that it is possible to produce tens of billions of dollars’ worth of capital equipment with no significant capital investments. That’s because the resulting capital equipment has zero marginal cost, so only one copy needs to be made in order for everybody to be fully supplied. Those tens of billions of dollars in capital equipment that we made – that is, durable software capable of operating business entities – that durable capital equipment is now producing more than a hundred billion dollars in annualeconomic activity in the world economy, and it will produce more even though the world economy is about to shrink. That’s because the portion of the world economy which has zero marginal cost grows at the expense of that which has non-zero marginal cost, in economic hard times. We are going to do better as other things do worse, because we are what you can do to increase productivity when you don’t have more money.

So what is about to occur with respect to the system we were primarily concerned with, the soft goods inside the large-scale nervous system of humanity, that news is going to be good over the next several years. We are on the turf we made, we know how to defend it, indeed, we know how to grow it, it now the guys on the other side who do not know how to save their business, and indeed, in the end they’re going to fail. I recognize that that may not be good news for the municipal economy of Seattle, but it is very good news for the human race.


Now, the political goal, the redescription of most of what human beings do in the production of bitstreams, as places to consider sharing before you consider owning, and to do so on the basis of the global entitlement of people to understand, to learn, to modify, and to share, – the desire to make it possible for all Einsteins to learn physics – and, indeed, for everybody to know what time the train leaves, – and, for that matter, to experience Pissaro and Monet – the desire to make it possible for everybody to be exposed to that which makes brains larger, more powerful, more humane, more thoughtful, which decreases recourse to violence and the sense of desperation, the desire to do what we all know it is best to do for ourselves and therefore what we ought to know it is best to do for other people as well – that requires more than simply the success at preventing the monopolization of software.

Without success in preventing the monopolization of software, we can be sure that the larger entity will never come into existence the way that we intended, and what will happen instead is something that it is at least worth spending a moment thinking about. My friends – and they are friends, allies, thoughtful people with highly positive views of about a lot of the very questions I am now discussing with you – my friends at Google yesterday announced that they will be happy to reduce the cost of your telephone calls to zero, thus significantly assisting us in a very significant confrontation with the network operators – a very bad bunch of thugs who we are, in the end, going to have a serious rumble with.


So our allies at Google are significantly deploying effort designed to make it very difficult for the network operators to compete effectively in phone calls – they will give you free phone calls, our friends at Google will, provided that you allow them to put a pen register on your line that lasts forever, and which can be data mined by them along with everything else they know about you, which includes everything you type into the search box, which is pretty much everything you think about, care about, are planning on, are afraid of, are concerned with, right, as well as everything that can be bought by a very wealthy party interested in data mining about what you buy, and why you buy it, and what you tell the focus groups, and what you say to the people who call you on the telephone, and who your friends are.

This is one kind of freedom, or, [Laughter] perhaps i should say it’s one kind of free, talking about being one kind of freedom. But one of the things to keep in mind is that if what the network does is it centralizes services, and those services are things you haven’t got a right to copy, modify, understand, and share, then what has happened is that the effort at unfreedom has moved from the person who monopolized software, to the person who was merely the dominant provider of services. That’s not exactly the correct outcome, either. Whether it is a moral outcome depends upon whether the data miner can figure out any reason why it does not want every Einstein to learn physics. And this is a very tricky question, because the data miner wants to have good relations with governments, and the data miner wants to be in charge of the advertising business, and all sorts of other things.

Most of you have browsers, and most of those browsers show you advertisements, and I’m very puzzled about why. The advertisements are annoying most of the time, they slow you down, they injure the concentration that you bring to whatever task it is that you’re doing, and there’s no reason why they show you advertisements; my browser doesn’t showme any advertisements. I don’t see any ads when I read The New York Times, or go to wherever it is that you are happy going to, because my browser has Adblock in it, and that pretty much ends the story. Even in this town, many of you, indeed, I would guess, most of you are probably using the Firefox browser. That means you’re two clicks away from not having any advertising on the net anymore. All you need to do is google “Adblock Plus”, and say “I’m feeling lucky”, [Laughter] thank you very much. Now you know why my friends – and they are my friends – at the Mozilla Foundation are paid tens of millions of dollars every year by Google – basically, not to bundle Adblock Plus into the default distribution of Firefox.

But you also know why all the talk about advertising supported models on the web is just talk, and why it is that in the end, all of those models are fated not to work. Because in digital media, when you give people knowledge, you can’t force them to take advertising, because digital media are filterable – that’s the beauty of them.

So we live in a political economy in which the commitment to the freedom of the software is the beginning of a commitment to freedom of autonomy at the end points – that would mean you, you’re an end point. You’re a productive end point, as well as a consuming end point, but you’re an end point, unless you’re a network operator, in which case, please leave now. [Laughter] All right? So, we have at least now begun to appreciate why this little recondite corner in which I work might have something to contribute to the larger project, and all I have said is: I think it does have something to contribute to the larger project. But I want to be very clear that it isn’t the larger project.

The larger project is making the net the system of social relations which makes the development of each necessarily dependent upon the development of all. It’s funny how the word “commons” comes to us with that understanding that there is some deep, warm, fuzzy humanness behind it. It’s not merely that it comes to us with the idea of some kind of constitutional propriety – there’s a House of Commons. Behind the use of the phrase “The House of Commons” as a constitutional propriety, is the appeal of the unwritten British constitution to being the document, or the imaginary document, that secures the freedom of the English people; Peter Linebaugh will be talking about that.

The very idea of commons, in that sense, brings us back to a question which was considered to be an urgent moral question in the middle of the 14th century. Just to remind you of the context: half the world has died within the space of 36 months, everybody’s gone, the thing’s a wasteland, working people begin to understand that they have clout in a market which now needs their labor far more seriously than it needed it a moment ago in an overpopulated country, and parliament, and the king, and his servants, and the owners of the land have quickly bonded together to set strong maximums for what can be paid for a day’s work. They have chosen to pass laws which establish the maximum wage for a day’s work for working people at what it stood a generation ago, not even what it stood for at the onset of the black death. They have, in other words, attempted to legislate the role of the people in society backward at a time when advantageous conditions – regrettable to all, and painful mostly to ordinary people – have opened an opportunity for people to have a way towards freedom.

We are also talking about a society in which a large number of people are still tied to the land – they may not be bond slaves killable at the will of their owners, but they are serfs who cannot move and have no rights against their lords, in their lords’ own courts, thus making them essentially people outside the law. Now, the sudden moment of the depopulation of England has given them a moment of leverage, and they want to try to take it, and repression is coming fast. And the question which arises was in the form of a little poetic couplet which could be remembered by anybody, and it went: “When Adam delved and Eve span, who was then the gentleman?”, which is really just the question “How many of the Einsteins who ever existed were allowed to learn physics?”, but it’s presenting itself in a 14th century context: “We are all the children of two common parents; why is it that some of us are excluded, and how did that become moral?”, and it’s a hell of a good question. It was asked in the Peasants Rising in 1381. The problem, of course, is that the appeal to violence has inevitably tragic consequences.

Which is why – as I’ve pointed out, in 2004 in, of all places, Berlin – we’re a non-utopian political movement, we are not interested in going nowhere, we are not interested in going to some place we have never been, which we will get to after the revolution, because people will be different.

The crucial operating premise of the free software movement as a revolutionary politic is: proof of concept, plus running code. “Here, we did it already. It’s sort of working; if you take a copy and help us fix it, it could really be something. Here. You want it? Take it. We like it. It’s free.” That principle – the principle of building political change around instrumentalities that are already working in prototype – is also, of course, the ambition of the 20th century welfare state. It was what Lyndon Johnson called “The Great Society” which is, oddly enough, what the revolutionary movement that made the Peasant’s Rising in 1381 called itself, too. John Ball’s movement – John Ball was the radical preacher who first asked “When Adam delved and Eve span, who was then the gentleman?” – John Ball’s movement also called itself “The Great Society”. Lyndon Johnson’s “Great Society” was built around what was we thought was the best that rationalist government could do in the late 20th century: try a lot of experiments designed to create social equality, see what works, figure out how it scales, put it into practice.

The free software movement succeeds in doing that, not because we are smarter than the people who built the welfare state, but because the welfare state is made out of non-zero marginal cost parts, and it’s extremely difficult to make a hundred million good social workers by pressing a button. [Laughter] It is not easy to produce excellent pre-primary school teachers by forking. Right? You can’t just wrap them up into an appliance and ship them off to a Xen instance to be executed.

So what we are doing is demonstrating that, under certain political economic conditions, it is favorable to produce precisely the kind of social change which the 20th century by and large thought you might be able to produce in a very wealthy society if you had a lot of political commitment and worked very hard. That is, scalable change that can be shown to be operating in sufficient relation to the real world that people might want to show up and volunteer to finish it.

Jack Kennedy was thinking about this when making the Peace Corps. The Great Society depended upon the idea that, in the end, head start could be made that way. Even the alternative position in the United States – the thousand points of light and the heavy dependence upon the religiously motivated volunteer sector – assumed the very same thing: positive social change could be constructed by trying experiments and freely sharing their consequences in a scientifically informed way. So the free software movement lays no claim to having devised the process for the production of productive politics for social change, we merely recognize that it can be implemented now, across the world – through a variety of techniques also characteristic of the best that 20th century political science could produce – on much more favorable ground, and therefore with much more favorable outcomes.

Professor Lessig’s great contribution to our conspiracy was to perceive how, and in which way, and in short order, the creative communities of the world could be enlisted to begin participating in the same experiment, through the adoption of forms, and structures of thinking and sharing – which, as Lessig pointed out from the very beginning, were the ideas of Richard Stallman transported to other technical turf – to understanding what to do about people who produce culturally, and whose cultural production is not quite the same as software, for a whole variety of reasons that lie in the sociology and functionalism of the difference between collage art, music, the Wikipedia, operating system design, compiler construction, right, they are all different. They are all different. And those differences have involved a great deal of thought on the part of the producers – the primary workers – and also their lawyers – secondary producers whose job it has been to figure out ways to attain the same social results in somewhat different social contexts, using slightly different symbolic machinery.

But what we have seen, and what we know, and what our scientific results up to this point enable us to conclude upon confidently, go a little bit beyond where things were left this morning, and so I want, just quickly, to suggest a couple of propositions, and then we’ll all talk about them, I hope.

In the first place, then, I think we should understand that we are not posing a choice between “the public domain” and “the private ownership of ideas”. The arguments that were being offered against the public domain, this morning, are real arguments – it is why the free software movement doesn’t suggest just putting software in the public domain. The public domain is the most open of all open commonses, and it can be appropriated from in freedom-disrespecting ways. Margaret said that, and she’s quite right. But that’s the whole purpose of the copyleft commons.

The Wikipedia is not subject to appropriative destruction, because the Wikipedia is a copyleft entity. The GNU Free Document License – another Stallman-created license, or in this case I suppose I can legitimately say Stallman & Moglen-created license, because we made it together in the kitchen of his mother’s apartment on 89th street in Manhattan – the GNU Free Document License, and soon the new Wikimedia license for Wikipedia and similar organizations of knowledge, have the characteristic that they are built on copyleft principles: “Here, here’s the greatest secular convention of human knowledge ever created, you can do anything you want with it, copy it, modify it, share it, do whatever you please, but don’t try and take anything permanently out of the commons from it.” The consequence of which is, that the Wikipedia will actually do what Margaret was asking for, along with all the other entities that are coming along right behind it, it will replace publishing without losing the value of publishing, because it will not be appropriable in the ways that would lead to the kind of derogation of quality that was concerning her. On the contrary, the Wikipedia already beats many of, or perhaps all of, the world’s leading press associations in covering breaking news, where the stories are those which are within the reach of the Wikipedia’s cognitive framework. For an example of this, I would urge you to go back and look at its coverage on the terrible events surrounding a massacre at Virginia Tech. Wikipedia was hour by hour and minute by minute leading the world on the subject, which is what caused The New York Times, ten days after the events, to write a piece going back and looking over and saying “Gee, why was it that the Wikipedia did so much better than everybody else?”.

The Wikipedia is also, at one and a same time, doing a better job of preserving the 11th edition of the Encyclopædia Britannica than the Encyclopædia Britannica does. [Laughter]Britannica has been derogating from the quality of the 11th edition’s extraordinary luminosity for the whole 20th century. You can look, as you see articles from early 20th century, beautifully and literately dealing with subjects that were within the cognition of the early 20th century being reproduced as just horrible hash in later editions of the Britannica, made for commercial distribution to a market in the United States which didn’t care too much about 19th century German princelings, or, for that matter, great issues in 19th century English politics, let alone Samuel Johnson.

The Wikipedia, on the other hand, by virtue of its clear incentive to maximize the best that can be gotten out of what is in the public domain, turning it into new copylefted material which can not be successfully appropriated, is doing a wonderful job of blending the greatest of the English-speaking encyclopedias with all the up-to-dateness of the present, written hour by hour by people who are very close to the circumstances or thing about which they write, but who are learning, through their interaction with the Wikipedia, what we wish – I am speaking now as a professor of history – every undergraduate would learn: How to maintain a neutral point of view, how to weigh competing sources of evidence and relatively criticize the available sources, and how to edit one another for the purpose of increasing the coherence of their commitment to that neutral point of view, and that skillful weighing of competing sources. Von Ranke has not managed to teach many of my graduate students, for the simple reason that they don’t read von Ranke. But they can’t, anymore than the rest of us can, avoid going to the Wikipedia to learn about the things that they don’t know about, and it’s already in their handhelds.

So, the first thing I want to say is: We don’t have to be concerned about whether what we are doing in increasing the commons is harming the quality or fate of human culture, and we don’t have to waste any tears on the publishers. This is a royal funeral being thrown for itself by an aristocracy which wishes us to attend that funeral with a sense of despondency that the Sulzbergers and the Chandlers are passing from the scene. We needn’t worry about that. If it takes a loan sharking thug like Carlos Slim to keep The New York Times in business, then something is wrong at The New York Times; it’s not our problem. A great deal of worry is presently being cast on the question of “How are we going to save newspapers?” with no real question being raised on the question of why we should. [Laughter] It isn’t, in fact, that the owners of newspapers, whether you call themMurdoch, or you call them McCormick, or you call them Chandler, or even if you call them Pulitzer and Sulzberger, those sacred names, it isn’t very clear that the owners of newspapers actually did a very good job for human freedom, that’s why A. J. Liebling, the greatest writer on American newspapers said “Freedom of the press belongs to him, who owns one.”.

“When everybody owns the press, then freedom of the press belongs to everybody” seems to be the inevitable inference, and that’s where we are moving, and when the publishers get used to that, they’ll become us, and we’ll become them, and the first amendment will mean: “Congress shall make no law […] abridging freedom of speech, or of the press […].“, not – as they have tended to argue in the course of the 20th century – “Congress shall make no law infringing the sacred right of the Sulzbergers to be different.”. The freedom of the press – as the freedom of a few privileged businesses, in the public information business, when they weren’t in the entertainment or lingerie selling business – was not actually a freedom that we needed to fight to the very end to maintain. We maintained it faute de mieux , because we didn’t know how else the Einsteins were going to learn physics, and now we do.

The textbook publishers, too, are about to die. They know it. They are deeply afraid, because they understand that what they don’t see out there, they will see within a minute, which is the really cheap book scanner connected to OCR. And a minute is about how long it’s going to take. Within 12 to 15 months you’re going to see available everywhere self-made, cheap, under $100 devices that will scan a thousand-page book in less than an hour. And when those cheap devices are sitting in every dormitory and free OCR software is running against the backhaul of them, and everybody is sharing textbooks, then the textbook publishers, who are a very tightly oligopolized bunch of knowledge merchants, are going to have a scheduled heart attack. [Laughter] And they know it’s coming. And now they know that it’s going to happen in a society in which a lot of people are afraid that their children aren’t going to have the money to go to college with, and when the textbook publishers say “Oh, you must rise in defense of our sacred right to charge your children more than $1000 a year to get textbooks to go to college with.”, there is not going to be a lot of political support for them. [Laughter] Which means that not only are they about to face a significant technological challenge to the oligopoly, but they’re about to face it under terribly adverse political and economical conditions, in this country. I assure you that my friends who are the teenagers in Bangalore, who have never been allowed to go to school, never had anything very much to say in favor of textbook publishers. [Laughter]

Which is why what we ought to be asking for, and what we ought to expect to be able to make with our own hands, is universal access to all materials used in public education everywhere. There is no point [Applause] There is no point in reducing the demand below that. That will be technically within our reach very soon, and what we’re going to have to do is simply resist the resistance, as I first put it in a piece published now more than ten years ago. So we are resisting the resistance in the network. We are resisting those political, economic, and electronic factors which tend to inhibit sharing for the narrow purposes of those who wish to reestablish road blocks. A lot of that work is technical work in the software of the network, and in the law of the software of the network, also in the law of the cultural exchange within the network, also in the making of cultural exchange within the network, but that isn’t all. Because we do need to keep drawing the political consequences of all of this. We do need to keep pointing out exactly what the stakes are.

The backlash is always there, and it will get stronger from time to time. When we made our plans, which are plans that span more than half a century, and that were intended to last from the end of the 20th century well into the middle of the 21st, we did not plan on the global depression which begins now. Nobody did. We did plan to use the assets of capitalism to fund this change. Not only did we plan on it, we saw it as an essential portion of the work that we were doing; that was what free software was going to do, it was going to make itself something that the people who made money needed, and their need for it was going to keep it safe, was going to make it vital, was going to expand it, was going to do all the things which it has done. So much for the idea that we were intrinsically anti-business – the very point about the copyleft commonses that made some of the world’s largest IT distributors interested in the GPL was that it was friendly to their businesses, not hostile to them. It gave them an opportunity to pool research and development activities in a new and safe way.

A great deal of the work that I do in my practice as a lawyer is diplomacy among industrial parties who wish to get along with one another. But they are commercial parties, and they cannot trust one another, because the very essence of their nature is to be untrustworthy towards their competitors – a system in which they are trapped. And sometimes they know that that hurts them, because they are more than well enough schooled in political economy to be aware that that competition costs them significant deadweight losses. It requires them to reinvent, in requires them to relearn, it requires them to retrain, and catch up, it deprives them of the very opportunities which western science offered to western civilization – the opportunity to pool talent and knowledge in a structured, coherent, free to use way. And so the copyleft commonses have become very important to business, which pays hard – at least most business does – to keep those commons fresh, and bright, and working. My work, and the lawyers who work with me at the Software Freedom Law Center, is about making those commons effective for everybody.

The businesses may well see us as people who take care of the geese that laid golden eggs. The hackers don’t think of themselves as geese, and they don’t care whether the eggs are gold, they just care whether they work great. They want to be taken care of, because they don’t trust businesses for the very same reasons that businesses don’t trust one another; the odd thing is, you can all trust the hackers. [Laughter] And they know that. Right? The businesses know that; they understand. Our clients will never benefit from war. Our clients will never benefit from something which benefits the few at the expense of the many. Our clients can be guaranteed to be standing on the spot that businesses would like to arrive at but don’t know how to get to. So they need us. We knew that they would need us. We regarded their need for us as a very important part of a program that we were ultimately exceedingly trustworthy about declaring completely. We never kept anything secret from anyone – we couldn’t. We published all our plans as we made them. We showed people exactly what we were going to do, and we told them exactly why we were going to do it, and still they needed us.

We did not think that they were going to be stupid enough to destroy their world. They were. They have. We will have to cope with it. The world that we are moving into now is less good for us than the world they owned and controlled. That’s regrettable. The pain that is going to be suffered is going to be suffered by us, ordinary people, even more than it is going to be suffered by them, because they will use political power to get as much security for themselves as they can, and that will inevitably come at the expense of those whose taxes are used to do it.

So what is happening now is essentially: We have completed phase one of the most important plan we knew how to make, to bring about a world in which all the Einsteins learned physics. We are using cooperative mechanisms which depended very heavily on short term or medium term identifications of interest between the movement for freedom and the largest and most powerful and wealthiest technology companies in the world, except one. And we are now suffering mutual sharp and significant disappointment, as a consequence of the greed of the finance capitalists, who have upended everything and left us to reconstruct.

Of course, we’re the people who know how to make a great deal of capital equipment without capital investments, and so, as I have already pointed out, bad as things are going to get, we are going to do better than some other people, because we need less money. But we don’t need none.

What we do have at the moment is the opportunity for a political insistence upon the importance of the commons. We have a great opportunity which lies in the inevitable populist rising of annoyance, then irritation, then anger, at what has happened to the society in which we were all living in relative safety and prosperity only a few years ago. We have an opportunity to explain to people that too much ownership, and too much leverage, and too much exclusivity was the prevailing justification for and also the prevailing reason that what happened, happened. And we have an opportunity to explain to people how things could be different, which depends not on Utopia, not on some vision of a place we can’t get to from here, but rather on a thing already running on a USB thumb drive. “Here, take this, attach it to the frame of your machine – assuming that it’s not one made by Steve Jobs, who never wants you to boot from a USB key.”

Right? I mean, you can’t, right, you can’t, you’re not allowed. “Why would you ever need to boot an Apple box from a USB key?” “You don’t need any software except the software he gave you.”, right? Nobody has yet fully documented what everybody who isn’t part of the cult understands, which is that nobody has ever had more contempt for customers than Mr. Jobs. Nobody.

So, we say “All right, so here is our suggestion: Put it in the frame of your non-Apple machine, boot it, see if you like it. It works, it won’t change anything, do anything you want there, runs real fast, runs real sweet, does what you want, doesn’t spy on you. Anytime you feel like hitting ‘Install’, just go ahead. And by the way, if you do install, tell your congressman.” Right? That’s basically what we want to say.

Think about joining the commons. Think about joining the commons for your schoolbooks, think about joining the commons for what’s in your laptop, think about having a telephone with free software inside instead of spies-on-you secret police software inside, think about all the ways in which you can benefit by connecting your life to the things we share. There’s an immense amount of value out there which has been made by people for people, and which can make your life better and more productive even in these hard times. And as you make each of those decisions, as you attach yourself more fully to the commons, as you recognize that you don’t need a guy who owns a television station, because you have YouTube, that you don’t need a newspaper, because you have RSS feeds, that you don’t have to spend a lot on textbooks because there’s a copy in the library, and you’ve the right to rip it.

As you begin to go through those questions, as you begin to attach yourself to what the commons can do for you, remember to keep your congressman informed about what you need. Remember that everybody has to understand the extent to which the commons economy is now what you are resting the good things in your lives on. Because, people need to know what it is that really causes prosperity.

In the next five years, what causes prosperity in the United States is going to be rare enough to notice. You could be helping to show what prosperity can be. And don’t worry, there will be a lot of Indians doing the same. And Chinese people, and Africans, and Latin Americans, and Icelanders. Right?

In other words, we are getting to the point where we could now use the network which we built in commons to become the device which shows why the commons is essential to those who rule. We can explain why the public consent is not available to deteriorate the network. We can explain to our friends when they decide that what they want to do is go to 4G cell phones, living inside little captive networks made by people who don’t let you bring your own software in there, and who demand that your phone work exactly the way they want it to, which means if the GPS chip inside the phone is reporting where you are to KFC every minute so it can send you food advertisements when it thinks you’ll be hungry, that you don’t have to have a phone that does that. That you don’t have to have a phone which spies on you. That you don’t have to report to Google every call you dial. That you don’t have to see every advertisement. That it is possible, in the ecology of commons, to achieve the goal of acting locally and thinking globally about the commons. That your relationship to the commons is itself, now, a political act with public consequences that should be publicly shared and publicly known about.

We’ve been doing this a long time. A thousand years. What did we want? We wanted freedom of thought, we wanted freedom of personal development, we wanted not to be held in serfdom, we wanted not to be tied to the land, we wanted not to be told that we must pursue the trade of our fathers, we wanted not to be told that we had to labor in somebody else’s demesne six days a month. We wanted not to be told we couldn’t go to gymnasium because we were Jews. We wanted not to be sent to the school for colored children. We wanted not to go to confession – to have a responsibility to report to somebody corrupt about what it was we had done wrong. We wanted not to be told that we couldn’t be saved unless we agreed. We struggled, that is, for a thousand years, for some simple things: For the freedom of thought, for the freedom of self-development, to be allowed to become. It was an impossible task. Tens of thousands of people died. Lots of people starved. Lots of people never had the chance.

All the way along, there were opportunities, and we tried to take them, and often they led us to violence because we didn’t know how to avoid it, because we had to redistributestuff with non-zero marginal cost, because we had to take a thing away from a rich man to give it to a poor man, and the rich man resented it and he fought back, and you can’t win that fight, because even when you triumph the very thing you are trying to make gets killed in the struggle. And so, even when we won, we lost. And they wrote great stories about it, from both sides. And some excoriated us for the violence, and some wanted to make us noble for the ambition, and people learned that it was a great romantic episode that never went anywhere. And it’s different now.

Things have changed. Something is happening which has never happened before, and it changes the outcome of the game. We are exactly where we have always been, with respect to what we want, but the methods of gaining it have changed, and they are now possible in ways that they were never possible before. And the great riddle of romantic socialist politics, the great worry of the French revolution, the great difficulty that has presented itself to every struggle for human equality since the beginning of the struggle, has been lifted in substantial part. Because we now live in a world where we can make enough for everybody with our own hands. Because we are capable of achieving the relationship we needed to achieve: From each according to his ability, and to each according to his need.

I have heard all of this vehemently objected to because Karl Marx thought it was a good idea. [Laughter] This is a very peculiar form of argument, characteristic of the United States in the era of the cold war: “You cannot want this, because the guy the other fellow likes also wanted it.” Right? A very peculiar strategy, one we should no longer take theslightest concern for, for which we ought to be as scornful as it deserves. We are ready now.

That doesn’t mean there isn’t any work to do. Fortunately there is plenty of work to do. For lawyers, moreover.

But there is good news about it. Because we have been doing it for a very long time, and it has wearied many a loyal person, and it has worn out many a strong one. The difference is: This time we win.

Thank you very much.

No, let’s take one, at least. Maybe two. There are two at the microphones, let’s take ’em.

[Unknown audience member #1:]

Okay, thank you very much for a fine and provocative presentation, and I am from Seattle, so I do have to comment on the fact that we now have two newspapers, and within a year we may well not have any. For decades, I’ve gained my spiritual and moral and intellectual sustenance from reading investigative journalists – onerecent example would probably be Pratap Chatterjee who wrote about Halliburton’s cultivation and personal harvesting from the Iraq war. What’s going to happento those investigative journalists if we don’t have those newspapers?

[Eben Moglen:]

We’re going to pay them voluntarily. We value their work, and we’re going to pay them, in a world in which paying people is easy. You have forgotten that the cognitive distortion that we need to keep in mind about all this, is all the good investigative journalism that went on the spike over the years because the publisher didn’t want it out. Which is, to the good stuff that healed your soul, as the palaces are to the hovel at the foot, right?

The experience of investigative journalism in the world of the Hearst press, or the Murdoch press, or the McCormick press wasn’t a good one. When we have figured out that coercive measures of payment – “I won’t give this to you unless you pay.” – are busted, newspapers will come back as non-profit entities that subsist on the voluntary contribution of the people who not only value their information, but wish to provide it to other people. Newspapers, in other words, will exist the way that National Public Radio exists, rather than the way the advertising handout in the free box at the corner exists, and that’s not a problem.

It’s not a problem for you and me, it’s a problem for the Sulzbergers because they won’t own it. If you look at all of the heartburn about the press as it goes through this transformation, from autocratic entities owned by aristocrats of virtue, to democratic entities owned by all the people who voluntarily support them, you will notice that what is really being lamented is the power of some owner to determine what Seattle knows. I am not troubled about that. [It’s not that] I’m not troubled about that because Seattle hadbad newspapers – I’m not troubled about that because all of us will support what it is we all value. And what we won’t do is spike it ’cause it’s unpopular with somebody who goes to the same country club as the publisher.

[Unknown audience member #2:]

Yeah, they’ll probably wind up writing for The Stranger.


I’d like to thank you for coming – it’s an honor to be in the same room with you. I’m one of the hackers – of the technical nature, not the law nature – of the system administrator breed, and we don’t make code, we just make sure that the machines that run the free code keep running so that the coders can, you know, keep writing it. But, it’s funny to me; in the technical world, people really like to demonize Microsoft, but it’s a lot of you know, “Who cares, their software has nothing to do with what I do, so they’re not really a part…”, but I always wondered, what would Microsoft call their Linux distribution? If they decided, you know, “Okay, we can’t beat them, let’s join them.”, and they came out with “Microsoft Linux”, would that hurt?

[Eben Moglen:]

I haven’t seen my dear friend Ron Hovsepian for some weeks, so I’m going to get on his nerves by saying to you: They will call it “Novell”.


Whatever they do, they will do a lot of work not to call it anything, because to be a distributor of GPL’d software – particularly of that GPL’d software – would have collateral legal consequences for Microsoft it doesn’t want. The real reason for all the patent threatening is in order to be able to use our features, in BSD licenced and other permissively licensed works, to gaudily decorate their own failing software for the next two product cycles, while at the same time getting paid for software they don’t make, through patent revenue requests, okay? The real goal is to get paid for software they don’t make, because software they do make is not selling at a very great advantage over the immensity of their costs.

I’m not going to spend a lot of time here, on camera, talking about Microsoft’s strategy and our strategy, this week of all weeks, but catch me somewhere out there and I’ll say something more about it.


Thank you all very much for your time, I appreciate it.

Moglen, Eben - "Die Gedanken Sind Frei": Free Software and the Struggle for Free Thought - 20040610

Moglen, Eben - "Die Gedanken Sind Frei": Free Software and the Struggle for Free Thought - 20040610

Transcript Version 1.0, 2005-06-14, by Marcus Brinkmann, marcus@gnu.org.

Volker Grassmück: It is a great pleasure to introduce the first speaker, who will give you the opening keynote, it is Eben Moglen, who is a professor for law and history of law at Columbia Law School. He is also a Board Member of the Free Software Foundation and the long standing General Counsel to the Free Software Foundation, very active in enforcing and in keeping the GNU General Public License the wonderful tool that it is.

Please welcome Eben Moglen.


Eben Moglen: Thank you. Thank you to Volker and to all of his colleagues for making this event possible for all of us. [Volker Grassmück passes Eben Moglen a glass of water.] Ah, it's good, thank you. That's perfect.

Die Gedanken sind frei: it's a very old phrase from the 12th century, you can find it in a Minne song in the 13th century. At the beginning of the 19th it again became a popular song, which many of you have heard and some of us have sung. As reflective of a certain moment in the history of the west as Beethoven's third symphony, whose contemporary it approximately is.

The phrase travels down the European historical tradition as part of a struggle in which we too are engaged. The struggle for freedom of thought is as old as European politics and it underlies who all of us are today. It exists in relation to a long-standing struggle against various forms of control of thought each characteristic of the political and economic moment in which they temporarily triumphed. Whether it is the control of education and publication by the universal catholic church, the control of printing and censorship of learning by state power or the control of knowledge and culture by owners, capitalistically motivated and ideologically inclined--we have been struggling against power for the freedom of thought for a millenium.

The struggle for freedom of thought, which is universally admired, though not always actually supported, goes along with a much less universally admired struggle for economic justice and the equality of persons. "Die Gedanken sind frei:" what's its contemporary little phrase or verse? Well, I would nominate one: "When Adam delved and Eve span, who was then the gentleman?", the phrase attributed to John Ball, the leader of the peasants' revolt in England in 1381.

We have associated the struggle for human equality with the struggle for freedom of knowledge and we have associated them rightly: they belong together. Because the recognition of individual possibility, to allow each to be what she and he can be, rests inherently upon the availability of knowledge; the perpetuation of ignorance is the beginning of slavery. So we are part then of two struggles, whether we like it or not. A struggle for the freedom of thought and a struggle for justice to persons. That the ownership of culture, the commoditization of learning, poses a danger to a movement for equality and economic justice is obvious to all. This is, as Thomas Krueger just pointed out, I think, very eloquently, an inherent part of the problem of globalization, whose sunny side we are. For globalization otherwise means the impoverishment of workers through remorseless competition between the rich and poor parts of humanity. A struggle conducted for the benefit of the shareholders, that is the few, through limitations of knowledge available to the many. Accordingly, we meet the 21th century not as the inventors of something new, but as the latest generation struggling for ideals that are very old.

What differentiates us from those who have struggeled in the past, as Volker just identified for you, is a change from utopianism to practicality. From the moment at which that movement for freedom of thought and economic--or at least political--equality began to gain momentum in the middle of the 18th century, those struggeling for freedom where condemned to utopianism. The ideals of the American and French revolutions which brought what there was of freedom of thought and equality of persons into being at the end of the 18th century necessarily rested upon hopes, upon dreams and beliefs about what might be possible under conditions of tumultuous and unprecedented transformation.

The constitution of the United States, as one of its greatest interpreters has pointed out, is an experiment. To Justice Holmes and to all those lawyers and judges who over 200 years struggled to turn that experiment into practical reality much is due. But we must also recognize, as photographs from Iraq have shown this year, that it remains in substantial part a dream subject to political disruption by those operating under the control of power.

Utopianism has also the heavy drawback that the struggle to perfect a world never before experienced often turns violent as dreams confront unexpected realities and the dreamer has little choice but to lash out against the tyranny of fact. And so the struggle for freedom of thought and the struggle for economic equality has been substantially limited in prior generations by the inevitable reliance upon a dream of a perfect future never experienced before. And it is not insignificant that in all the European languages the phrase--the word--used to designate that perfection, "Utopia", means "nowhere". For it is, after all, a struggle to achieve what has never been achieved. A struggle to bring about conditions that would allow human beings to be what they have never been: new socialist man; the perfect citizen of the perfect republic. These were noble dreams, and the struggle to achieve them, even at its worst, has a nobility to which we aspire. But we are fortunate because ours is a movement built not on dreams but on actualities. Ours is an ideology of change which depends not on what might be but on what already is.

Practical revolution, the friends and colleagues with whom I have been working for the past 20 years have shown, practical revolution is based upon two things: proof of concept and running code. That is to say: do it first and allow the implications of what has been done to settle in. Technology, unlike the Hegelian or Marxian flow of history, technology itself is irreversible. That which we have is ours--not a dream--it belongs to us: it runs; we use it.

Having brought into being the tools of our liberation, it is now our privilege to use them to change the world around us. This is our special role in the long history of the struggle for freedom of thought. The conditions which brought about this unusual situation, a revolution based not on dreams about what might be but on recognition of the full implications of what is: this situation we owe to the industrial capitalism of the 20th century. It will--it must--go down in history as having adroitly worked its own destruction.

The tools that we gained from the system of industrial ownership of information thrown up by the 20th century, those tools are the tools by which we undo unfreedom and return our communities, our loves, our friends, ourselves to the condition of liberation for which we have all and for which our ancestors too long hoped. The technology of the 20th century makes our liberation possible, because the technology of the 20th century turns solidity into digital air. "All that was solid," it was said, "would melt." And so it did.

The 20th century knew information as physical artifacts, stuff, that costs money to make, move and sell. More than at any moment in the prior history of human beings, die Gedanken sind nicht frei, by necessity because the stuff had costs. Thomas Edison made it possible for music, which had been for the whole history of human beings an act of communion, a thing inherently shared, that music turned into a product, an object, a commodity. And from the commoditization of art grew the belief that art could be owned. Which made sense even when art was bumps on a thin piece of tin foil in a plastic disc. But art has returned to the formlessness from which it came. It has returned to being what it was throughout the history of human beings until Edison: it has returned being something that must be shared to exist.

The technology of the late 20th century reversed the conditions of power that made it. This is not the first time that that system of social production called capitalism has had that effect. When I wrote a little thing called "The dotCommunist Manifesto" some while ago, I was doing it in order to show that a form of social analysis characteristic of those searching for freedom in the 19th century might bear some recognition in the 21st. Not as a matter of normative political analysis but as a comment on the actualities of the day. The struggle of Burgeoise technology towards ever greater functioning such that it undermines its own conditions of existance was an observation made by shrewd onlookers a hundred and fourty years ago, and we live in the fullfillment of its truth. Ownership struggled to reduce its costs, to hold down the costs of making the commodity, in order to free itself to greater profit. And in the end, as was so shrewdly noted in the 1860s: "All that was solid melted into air, and air was something that we all knew we could freely breath."

And so we found ourselves confronting a system of power based upon ideas of property relations that the technology of the owners was already making obsolete. It is not possible for industrial organizations to do a better job of distributing music than 12 year-olds can do. Hence the world in which the music industry confronts the children on the barricades, attempts to jail them, fine them, control them, and loses. The same is true for all the other forms of art given to us by the 20th century and being freed by the very technology that the controllers of artists hoped would control art even further. This, like the adoption of movable type printing at the end of the 15th century, constitutes a moment at which the powers of control have adopted technology which transforms their conditions of existance, will they, nil they. They do not will it but it happens to them anyway. And the technology that they have freed, like the sorcerer's apprentice, finds itself overwhelmed by its own implications.

The free software movement, with which I have had some slight association, the free software movement is the beginning of the recognition of the implications of the technology. A recognition based not on the idea, "I could write better software if I could share it with other people," but rather, as Mr. Stallman made clear from the beginning, a political recognition: Freedom is a good in itself. Inhibiting sharing, prohibiting people from teaching what they know to others, and from learning what they want to know themselves is wrong. The free software movement was not a technology movement; it was the face of the struggle for freedom of thought in technological guise. It took advantage of technological reality to bring about a deeper scrutiny of political possibilities. And we are here today because those political possibilities have sunk in.

There is not a government on earth any longer which fails to comprehend the social possibilities of the freedom of software as a development strategy for an economy, as an education strategy for a population, as a reassertion of the public's right to get what it pays for, in the public servants, whom it employs to think and devise and to improve the infrastructure of social life. There is not an enterprise on earth in the technology industries which fails to recognize the enormous constructive power of unleashed creativity in individual people. This very week, an organization, SUN Microsystems, which has shown in the past a belief that great software could be made in secret behind closed doors, has decided to reconsider that proposition with respect to the most important software asset that it possesses. There is not a culture business on earth which is unaware of the competition in which its distribution arm now finds itself with freedom as its most dire competitor.

Once upon a time that this was a political movement for freedom was a secret. I knew it. Stallman knew it. You knew it. It's not a secret anymore. Everybody knows it now. What we are struggeling for is clear. There are days of course upon which we prefer not to say it too loudly. We are engaged in negotiations, quiet please. We are respectable today. We are wearing suit. But we have not forgotten what we meant to do. We meant to make freedom and we are making it.

This puts us--happily in my case, I hope happily in yours--in contention with power. Some of that power is the power of monopoly. It is Mr. Gates and his billions. Some of it is contention with habit. It takes a lot of trouble to get people to change the word processing program that they use. [Applause] Some of it is contention over principle: is it free when it is "freedom from", or is it free when it is "freedom to?" Which words should we use? We struggle with one another as the movement for freedom of thought always does. We are divided internally over phraseology. We sing slightly different versions of the same song to slightly different music. And it's dissonant and it jars us. The contention is good. The struggle for freedom of thought is a struggle. It has, I regret to say, even casualties. Though the good news for us is that there will be no guillotines, no blood in the streets, no commune, and no suppression of the commune. Because freed of the burden of utopian assumptions, liberated from the need to dream of what has never been, we are able to pursue our struggle relentlessly and remorselessly on the basis of what there already is today and what we with our own hands can make out of it tomorrow: proof of concept plus running code equals revolution.

The network society, which has restored our sense of primary contact, unintermediated, not through Mr. Murdock, not by way of Mr. Gates, but directly with one another. By chat, by e-mail, by video exchange, by file sharing, we are connected to ourselves. That network society recapitulates contentions among classes, communities and groups, traditional in all society. But it recapitulates those contentions in a new form, precisely because we are allowed to share. We are not struggling for primacy in the market. We are not struggling over which class will possess the means of production. We know where the means of production are: they are inside our own heads. We are struggling to come into ourselves. We need not take anything away from anybody else. There will be losers. The losers are those who have proposed to own what we have made but we are not required to do more than to exist as creators and to share our works.

In December of 1989, when some very positive events had happened in Prague, I went down into the New York City subway one day and I found a man down there who plays the violin for money in the subway at his usual place. And in the back of his violin case, where he collected the dimes and the quarters, he had put a photograph of Vatslav Havel and underneath he had written: "Artists will rule." That's us, and he is right. It's a struggle; it has winners and losers; it is a velvet revolution; it is the fullfillment of long hopes and the deepest of dreams, and we are fortunate to carry it to fruition this time.

The network makes it possible for us. What we have done is what we build on. But we have to keep it safe. We require four things: Free software, free hardware, free culture and free spectrum. I mean by those four things to set before you the pillars of the revolution we have already made, as well as those things that we must build further on.

Free software, it needs hardly any definition. It means to create technology which everyone can change, everyone can improve and everyone can share. We've done it.

Free hardware is essentially a conservative cry. It means: keep the military occupation out of the net. Keep the hardware from obeying Mr. Eisner rather than the person who bought it. Make sure that hardware responds to the people to whom it belongs not to the people who send bitstreams through it. The war for free hardware will be sharp, short and inevitably successful, but we have to fight it. There are forces in our societies which believe that only if every single electronic device is under their control is their business model safe. They are correct. [Applause] Left to their own devices, they would recast the network in that mold to protect their businesses. But they are not going to be left to their own devices. We have the devices and they belong to us. So our goal is to conserve that property of the network, that it is made of things that we have bought, we have installed, we possess, and that respond to our demands not the demands of some third party who has got a movie temporarily moving through them. We will win that fight and we will have little to show for it beyond what we already have. Nonetheless we have to do it.

Free culture, to my dear colleague Prof. Lessig, who has trademarked the phrase, I owe an analysis so deep and so comprehensive that there is little left to say. We must have the ability to make our various arts collaboratively out of what we have already done by adding imagination untaxed to what already is. This is a promise for an acceleration of education throughout the globe. Billions of minds hungering for knowledge and for beauty, to whom everything can now be given. In a world where everything is a bitstream, where the marginal cost of culture is zero, where once one person has something, everything can be given to everybody at the same costs that it was given to its first possessor, it is immoral to exclude people from knowledge and from beauty. That is the great moral problem that the 20th century has be bequeathed to the 21st. We can eradicate ignorance at the expense of a few. We have to do it. We cannot permit the voluntary starvation of most of the minds on the planet. We have a duty; we have a joy; we are bringing to our colleagues, the human race, everything we know and everything we love; there is no higher pleasure than delivering what we love to those with whom we wish to share it, there is also no deeper moral obligation.


Free hardware and free software are two thirds of the platform for free culture but without bandwidth, boxes sit dumb. We must recapture for everyone the common property of the electromagnetic spectrum. Every legal system at its bottom agrees that the spectrum is common that it belongs to all, and every legal system denies as practical reality what it proposes as principle. Every system continues to maintain that government must control how spectrum is used. Sometimes quite explicitely for the purpose of remaining itself in power; sometimes in a claim of some civilizing mission on the belief that government and only government can really artfully determine who ought to speak to the masses in the interest of the expansion of knowledge; and sometimes, as in my society, out of sheer venality: "We, the politicans, have taken bribes from you, the media owners, and we will faithfully reflect the interests of our masters, who have put us in." But whatever the reason may be, whether venality or lust for power or a misguided belief in the superiority of government wisdom about who should speak to many, spectrum allocation is an evil whose time has come.


This is far more complicated than the problems that we have solved in freeing software. More complicated than the problem that we face in keeping hardware free. Far more complicated than the problem of inducing 12-year-olds to share music and help free culture. But it is not beyond our power on the basis of what we already have. We need dream no utopian dreams to achieve bandwidth for all on equal terms. We possess already working code and proof of concept: it is called WiFi. It is the attempt to use a small, not particularly desirable piece of spectrum, to model the possibility of self-organized, non-hierarchical, decentralized, equal-measure access to electromagnetic spectrum and we are showing what the alternative actually is. Those of us here who work on this issue are able to show to populations all around the globe the "telephone bill"-less future. The place where nobody pays to talk to anybody else by the zip, by the minute, by the tick, by the impulse, anymore. We can build that thick mesh that embraces all of us and add at communal expense the long-haul communications portions which tie that mesh together, and we can offer people equality of communication. Mr. Murdock will be disappointed. Deutsche Telekom will be heart-broken. Tough.

Because what is at stake is exactly that moment at which we make learning open. Like the recognition that science itself can be based only upon print that is within the reach of every scientist. In the very same way that western science depended in the 16th century on the movement for freedom of thought--what more noble proposition could we take for our movement than the simple words "epursi muove" with which Galileo pointed to the intrinsic relationship between freedom of thought and scientific progress--in the same way that the scientific revolution in the west first depended upon free information exchange, so now. In the next generation we will confront once again the recognition that without a movement for freedom of thought science is tied to ownership. Does anybody who inspects the current pharmaceutical industry or the forthcoming genetic revolution doubt me? Without the free exchange of ideas, science is the servant of inequality. And it is science, the ability to know, the ability to teach, the opportunity to learn everything that any human mind can reason out: it is science which is still at the root of the development of our societies.

So the movement for free spectrum, like the movement for unlicensed printing, is a movement to put beneath science the power of all the available human minds. Like the war against censorship in western Europe, the war for free spectrum is a war for the freedom of ideas in its most valuable sense: the ideas that changed society extend life, make human existance better. We have grown so accustomed to the idea that the power to communicate with one another is something we have to buy from someone else that we are in danger of forgetting just how much rests over the long history of human beings on the inherent virtue of untrammeled communication.

So out of those parts, free software, free hardware, free culture and free spectrum, we build a society of justice, of equality, of liberty. Not in the belief that if we somehow force the aristocrats out, later society will become perfect; not out of the belief that there is some class needing liquidation, and then we imagine human beings can change; not a dream about nowhere, but an attempt to move what we have within our appartments, within our work places, within our schools, out into the larger world where it can begin to fulfill its perfectly legitimate, necessary, inevitable work of liberation.

We have turned the freedom of ideas into an instrument of social change. We have become what all our ancestors have dreamed of becoming. People who can take what is and make it the method of liberation. We have been singing it for a thousand of years:

Die Gedanken sind frei
My thoughts freely flower
I think as I please
And this gives me power
No scholar can map them
No hunter can trap them
No man can deny
Die Gedanken sind frei

In a network that circles the globe, built of freedom and responsible to no master, humanity will at last be able to hear itself think. This is what we have dreamed for; this is what we have built for; this is what we have desiged; this is what we have coded; this is what we have licensed; this is what is out there in use already.

We live amids the tools of our own dream, and this rich, shining moment is the moment were we take them up and turn them deliberately in the struggle for freedom which we have long hoped to prevail in. This is another great moment in the long history of the search for liberation and the difference is this time we win. Freedom, now!

Thank you very much.


Volker Grassmück: Thank you very much Eben Moglen. And I would assume he is ready to take questions, comments as well, of course...

Eben Moglen: There should be at least some objections... ah, if you, yes, sorry.

Audience Member: Hello, my name is Daniel Pisano, I come from Darmstadt. I would like to point out that while we have a chance to win the war, there already is a new battle going on with TCPA, for instance, which is trying to control the hardware and the way that we compute and the way that we communicate, in the end, by cloaking it, with the excuse of making computing more secure. Which is not something new, we've seen it before also in politics and in warfare, even in the current days of our lives. My question is, how many battles will we have to endure until actually we will win the war, as you say, or as you have predicted? This is my first of three questions, and I will wait for the answer before asking the other two.

Eben Moglen: Trusted computing is one important aspect of the struggle for free hardware, right, that was what I meant to speak about. It is correct that there are, at any rate at the moment, for the moment, lots of manufacturers of hardware who see a possible advantage to them in the construction of hardware controlled not by the human being but by the bitstream that runs through it. You are right that security is one aspect of the claim made in support of such hardware; privacy, the control of personal data from inappropriate use is yet another; and of course the protection of the content manufacturers against distribution competition is the unspoken third.

My own personal belief, as somebody who works intimately on this subject all the time, is that the enthusiasm among the manufacturers for the construction of unfree hardware is not very durable. It is subject to consumer pressure: we are the consumers. It is our pressure which will determine what they try to make.

The free software movement will take some steps in the next few years to discourage the use of trusted computing hardware. Not, I hope, by sealing off the free software world from all examples of trusted hardware. That would go too far and give ground back, if you like, to the non-free side which would then have all the unfree hardware in the world to play inside. We will engage in a creative, occasionally ironic dialogue with unfree hardware. We will show that unfree hardware can be made free. And we will discourage the manufacturer of unfree hardware by helping consumers to choose freedom over slavery, wherever possible.

How many battles will there be? It remains to be seen. If we are not the last generation struggling about this, that won't be a terrible surprise. My point was: we have all been here for a very long time; we'll be here for a while longer.

What I think we can do is to use tools that are already in our possession and that dwarf anything that was ever possible before, self-consciously, determinedly, in favor of freedom. If we know that's what we are doing, if we are aware that we are running a rebellion here, we'll be are all-right. It's if we lose our way and forget what we are ultimately struggeling for, that we are in danger.

As long as you know, and I know, and everybody here knows, that we must have free hardware, we will have it. As long as we identify it as a tool of freedom; as long as we make clear to everyone we know that liberty depends upon it, we'll be all-right. But that's a teaching job we have to do.

I see this less as a struggle with the IBM corporation or the Hewlett Packard corporation or the Dell corporation as a struggle against ignorance. Less about: Can we make free hardware? Can we convince the hardware manufacturers to give up on "trusted computing?" Which my colleague Mr. Stallman rightly calls treacherous computing. "Trusted computing" it means: computers you can't trust. Right?

It is less about: can we make manufacturers do what we want? Than about whether we can make consumers demand what they need. When we have educated people, that particular problem will be a lot easier.

Did you want to follow up?

Daniel Pesano: Well, follow up question number three was already answered by, given the answer, by your mentioning of the education being the most important point in getting people, raising people's awareness about the problems they are heading right into.

Second question is more like a comment--half a comment--about the free telephone that you, or the free communication among the people that you mentioned.

I don't think that Deutsche Telekom or the MCI (do these still exist?) or any other communication company will lose in this game because they are already, well, you have flatrates for DSL and for broadband access and they already have understood that voice over IP will be the future and they are switching their telephone systems and their marketing strategies into that direction and they will be all placed in their business very well waiting for the people to pay the bills not for the minute but for the volume. So I don't think that will be a problem for them.

Eben Moglen: It is true that up until now we have dealt with unshrewd opposition. The Microsoft monopoly was not smart in its Bdealings with free software. More stupid than the recording industry it would be difficult to get. The telecoms companies have, I agree with you, a better strategy. They can pursue the task of convincing you that wireless access is something you should pay for; and they will have pretty good luck in doing so for a while.

Star Bucks Coffee, which I regret to see is also in Berlin, so I can speak about it as a thing in the neighborhood. Star Bucks Coffee, which has honeycombed the United States has a deal with T-Mobile: you can pay six dollars a day or thirty dollars a month and you can have wireless service in Star Bucks. So I built a little experiment, a piece of performance art in Manhatten Island, I found people who lived within a hundred meters of Star Bucks and I gave them wireless routers and got them high-speed service from a supplier who didn't care if they reused it and I put a costless hot spot inside the Star Bucks that way. So you walk into my liberated Star Bucks, and it just works if I'm not violating anybodies trademark in using that phrase.

So the problem for the telecoms companies is: they have very high costs for construction and we can build more cheaply than they can. This is the fundamental difficulty in their model. I grant you that their model is smarter than the recording industry model: they have not yet decided that the way to deal with this is to put children in jail. But we can make them go that way, you understand, by building over them and that's what we gonna do.

And then they will face, ultimately, the same problem that is now faced by the dead distribution businesses: how much coercion can they get the state to apply in support of their business model? The liberalization movement of the 1980s and 90s consisted of the state saying: "We want to do less coercion on behalf of the telecoms giants than we did before." Pretty soon, the telecoms giants will be demanding the reintegration with the state, as the recording industry fundamentally is now demanding integration with the state in order to protect itself. It is a better game for them to play, but they will lose it anyway. Renting switching equipment is not a good business in a world where switching equipment is ubiquitous. And if we use the spectrum which belongs to us and leave them to use the copper wires and coaxial cables: we win.

Daniel Pisano: Thank you.

Volker Grassmück: The next question, please.

Eben Moglen: No, let's take the other mike.

Volker Grassmück: Is there, oh, sorry, I didn't see you... is the microphone...?

Eben Moglen: You are audible to me, so you are audible to everybody else I think.

Volker Grassmück: No, please, please use the, can, can this microphone be opened please? On the... thank you.

Eben Moglen: You have to use the microphone.

Audience Member:] [inaudible that the main issue here is education on how important freedom is in order to win the free hardware war. However, when we're fighting this war, when we are educating people, we are actually competing with media which is not exactly keen to get this message through and with their minions in government--I'm from Argentina, and I must apologize here for our government who recently suggested WIPO to create an agreement that would practically prohibit computers, because it would make it illegal to possess any kind of device that would be able to aid in the decryption of an encrypted stream or something like that, and so--when we must educate the general people who actually inform themselves through the channels of the enemy, it kinda makes it an uphill battle, doesn't it?

Eben Moglen: Well, let's reach into the history of the struggle for freedom of thought to think about that. The moment where we might want to is in the place we think of it now historically as religious reformation. Those who had dissenting views concerning the doctrine and orthodoxy of the one indivisible holy roman catholic church at the opening of the 16th century found themselves pretty much in the same place. And their answer was pretty much the answer we must come to which is that contact between individuals--personal contact, word of mouth--is fundamentally the best way to teach anybody anything.

It is for this reason that Lutheran and Calvinist theology made such an enormous point about the importance of hearing the preaching of the word, because to be in personal contact with the sound waves emitted by human beings is the best way to convert a system of orthodoxy to a new idea.

The power of the electronic media is undeniable. The world of the 20th century was a world in which it was proven that radio could cause mass-murder. But that does not mean that the power of one person to one person has vanished in any way at all.

I grant you the feeling of sadness at being an Argentine, you have to sympathize with my feeling as a citizen of the American empire, [Applause] but it's an interesting neighborhood, yours, isn't it. The Argentines are often disturbed to find that the Brazilians are their neighbors. It's going to be a strange place in the next ten years as word of mouth percolates back and forth, maybe through Uruguay, on the subject of what it is that we can have.

Remember that the fundamental problem of the revolutionary ideology is to explain to people what is possible and the great defect of the struggle for freedom heretofore has been that explaining to people what is possible meant pointing at Utopia, at no place, at a place that never was.

It will now be possible for us to point at things that are. Very soon there will be enough municipalities around the world where free municipal wireless networks exist; where everybody is connected all the time to everybody else, that it will be possible to say to people: "Why don't you want that?" and point around the corner.

It is true of course that Mr. Murdock will not be pointing with you. But people will listen to you. You are the Apostle of a new faith and it is a faith whose miracles can be seen in front of people. They can be proven; they can be tested, they can be tried. When you have that going for you, you have much. If you retain your own faith in the ability to get that message across, you will succeed.

Volker Grassmück: We have time for one more question. If you could be brief, please.

Audience Member: I'd like to first say that freedom is like a pyramid: it's about trying to upseat the few at the top with the many at the bottom. I come from Africa and I think that we can divide freedom into political, economic and then, finally, intellectual freedom. I believe you are talking about intellectual freedom. Africa only received this political freedom within the last half century.

Now, if we take the strugggle for freedom that you are considering and speaking about, which is removing the bonds of the few to the many, I think that the logical progression is going to be that the western hegemony over the world is going to change. I think the west is no longer going to rule the world and I want to know whether that is feasible or whether you believe that can happen. For example, nobody would ever dream of invading or bombing the smallest and weakest nation in Europe today: but we have Iraq.

So, I just want to pose this as a question for thought to find out whether freedom is real or it's only for a few people.

Eben Moglen: All questions of this kind depend upon an assessment of the time scale, right?

I have said here in the arrogance of wealth and in the comfort of my own life in the west that this is the generation in which at last we win. You are right in saying, "Maybe here, maybe for you." But what is changing, as you rightly suggest, is a fundamental shift in the global spaces of power.

Ask this question: at the moment when I began my talk in the 13th century, were the Europeans in charge of the world? No, not even close. A backwater. A place of low culture and low civilization as seen from a high civilization place take, for example, Baghdad.

What one might have said was that certain technologies, particularly the technologies of maritime commerce and naval armament, put Europeans in control of the world for five hundred years. We are now in the decay of that power. What comes next is what happens when human minds around the globe are liberated under conditions of equality. It will take generations to build that network out so that it embraces every human being who is here. But the process, once it begins, is hard to stop or reverse, as the march towards European domination of the world was hard to stop and to reverse for half a thousand years.

We, this generation, can achieve something which will change the long-term balance of power on the globe. We can't do more than that, but if we do that, we have done a good day's work and can go to rest, satisfied.

Volker Grassmück: Thank you very much, big hand to Eben Moglen again.


Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. He is the founder of the Software Freedom Law Center, softwarefreedom.org. You can read more of his writing at moglen.law.columbia.edu.


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Moglen, Eben - Why Free Beer Isn't So Good if your Data are Getting Drunk: How Free as in Freedom Businesses Help Prevent the Ultimate Privacy Catastrophe (MySQL Conference Keynote) - MySQL Conference, Santa Clara, CA 20070425

Moglen, Eben - Why Free Beer Isn't So Good if your Data are Getting Drunk: How Free as in Freedom Businesses Help Prevent the Ultimate Privacy Catastrophe (MySQL Conference Keynote) - MySQL Conference, Santa Clara, CA 20070425


Clint Smith

Good morning. I'm delighted to announce our first speaker this morning because he's someone I deeply admire. He's someone who has really defined the law of Free and Open Source Software and has been a great promoter and defender of it.

His first paid programming job came when he was 13 years old. After college, he was a programmer at IBM in the 1980s, and then decided to go to law school. He was a clerk for Supreme Court Justice Thurgood Marshall, and then joined the faculty at Columbia University in New York City, where he is now full professor of law and legal history.

He is also chairman of the Software Freedom Law Center, and in that role, he has a broad agenda to promote Free and Open Source Software, to protect us against software patents and the harms that they pose to us, and to help developers and programmers around the world. But unlike most high-powered New York lawyers, he doesn't charge by the hour. He doesn't charge us in ten minute increments. The Software Freedom Law Center does its work on a pro-bono basis helping people. But under the MySQL concept of quid pro quo, I wanted to think about ways that we could pay Eben for the billable hour that he is spending with us this morning, and really for the time he spends with us in the conference over the next couple days. If I were Guy Kawasaki, I'd offer you a top ten list of ways to pay Eben Moglen for his billable hours, but I'll offer just four:

The first is to do something each week to convince the corporate IT departments that GPL software is not scary or dangerous or risky; to make sure that they understand that it's actually more scary, risky and dangerous to click "I accept" to a one-sided EULA for a proprietary piece of code.

The second thing I'd recommend is when your bright niece or nephew decides to go to the dark side and go to law school, don't give up hope, but just insist that rather than go work for a large law firm each summer, they spend one summer as an intern at the Software Freedom Law Center.

Third, when it's time to sell your company to Google for 1.6 billion dollars, be generous: give 10% of the proceeds to the Software Freedom Law Center so that Eben and his colleagues have the resources to provide legal advice to the next generation of developers and entrepreneurs.

And fourth, when Eben Moglen comes up to the platform, please give him a warm round of applause for being with us today and for everything he does for Free and Open Source Software.


Eben Moglen

Thank you. Good morning. It's conventional to thank the introducer for the kind and generous introduction. That tradition of thanks is awkward here because I really want to thank Clint for the nicest and most effective introduction I've ever received with actual action items in it. I know I'm grateful for that. It's what everybody dreams of.

I want to talk this morning for the first time — in I can't remember how long — not about GPL 3. And although I am going to take questions, I hope that we will manage to preserve the "not about GPL 3" quality all the way through — a luxury I've thirsted for for longer than I can tell you, but certainly longer than you've been aware of what an amazingly complicated and socially aggressive process GPL 3 is for those of us who have been listening to everybody on earth, it seems some days, about what ought to be done with the license.

I want to talk instead about social policy and technology and freedom: all of them subjects admittedly I find myself addressing in the context of software licensing all the time, but subjects with other bearings and bearings which are particularly important to what we do here.

Let me back up a step and say as that kind of broad, general, professorial statement that goes along with teaching legal history, a thing I'll get back to with joy for the first time in two years this coming fall, that you could make a good case that the history of social life is about the history of the technology of memory; that social order and control, structure of governance, social cohesion in states or organizations larger than face-to-face society depends upon the nature of the technology of memory: both how it works and what it remembers.

Those historians who work on epigraphy, that is deciphering inscriptions chiseled into stone or baked clay, are aware of a commonplace fact which is almost everything written by human beings, from the invention of writing until the day before yesterday, was a list of cows, or of assets in the treasury, or of taxpayers and what they owed. The greatest work of medieval English public administration was undertaken one generation after the Norman Conquest, in 1086. It's the project we came to know as the Domesday Book. It's a memory book about English real estate. It asks of every square meter of terrain governed by the Norman kings of England "of whom is this land holden?" And it memorizes the responses.

In short, what societies value is what they memorize. And how they memorize it and who has access to its memorized form determines the structure of power that the society represents and acts from.

For almost the whole history of human beings, what was memorized was public fact: facts about who holds which land of whom, or how many cows, or who owes what taxes. It requires a substantial change in the technology of memory to begin to be a society based on the memory of private facts, about individuals in their private capacity, not as land owners, cattle owners or taxpayers, but as dreamers, wishers and thinkers. Early modern Europeans, that is Europeans of the 14th, 15th and 16th centuries, as the great historian of China Jonathan Spence pointed out in a classic book, early modern Europeans had a technology of memory that we have lost. Living largely in a world of expensive written material, and seeking to build a private database of things experienced and learned, early modern Europeans built in their mind what they called memory palaces: imaginary rooms furnished with complex bric-a-brac and interior decoration, in which each of the items in each room was a thing to be remembered. And by eidetic association, this jar means the Ptolemaic theory of the nature of the solar system. This window represents my experience in Paris, and so on. By walking through the rooms of the memory palace in their minds, early modern Europeans iconicly remembered things they needed to know versus facts, figures, and things they needed to retain to keep their personal identities whole; their experiences, the events, the places, and the times.

The memory palace of the early modern European bears a very substantial relationship to the idea of the photograph, not however to the technology of the photographing. It's with the introduction of photographic technology, in European life, that one can fundamentally talk about the memory of the private entering the technological stream of social control. With photography, there comes the ability to capture personal experience — factual and emotional — and to hold it for long periods of time in a form which can be both possessed, that is to say from which others can be excluded, and shared, that is to say, which others can be shown. So unlike the memory palace of Jonathan Spence's Jesuit missionary to China, Matteo Ricci, living far from the European world but possessing a vast repertoire of European learning locked up in an imagined palace by the waterside in Venice, the possessor of a photographic collection of experiences of life can possess both vast quantities of useful information (I first saw I think when I was in seventh grade, when I was twelve, a student take a picture of the blackboard in order to capture mathematics under construction), and also an emotional relationship — things wished for, things achieved, things tragically experienced captured in photographs. The last day of my father's life may be indelibly printed on my memory, but the photographs taken on that day contain the experience in some sense even more immediately than my own analog, biological carbon-based decaying memory of my own life [laughter].

With that photographic memory, that form of the interpenetration of the public and the private, goes the possibility of the evolution and amplification of social control. Others can take pictures of you. And as people in stone-age cultures have been trying to tell Europeans for some generations now, taking a picture of you can steal your soul. Surveillance, spying, the control of the population through the pictures of who they are and what they do, was a fact of twentieth century life, already growing rather irksome, sometimes burdensome, occasionally brutal. And there are now, I read last month, 1.6 CCTV cameras in Britain per unit of population. Some societies, in other words, at the beginning of the twenty-first century, have more surveilling powers than they have people to surveil. And if we took a look around the room at how many people are themselves carrying cameras, we would probably find the same is true: more cameras than people here. If I rummage my briefcase, that will surely be the case, and maybe yours.

Of course all of this stuff is stored personally, and therefore the structures of social control and power that arise from it are still under personal control, right?


If the photograph is the beginning of the technology of memory of private life in publishable form, then Flickr is the beginning of a third stage, because of course the private photograph isn't private anymore. The shared memory of where we've been and who we were with and what we were doing with a nice little indication of time and date and a GPS-equipped coordinate stamp on the photograph, is now a basic table row in a database about you being kept by someone else.

Of course, the reason that they're keeping it for you is you gave it to them. You asked them to hold it for you. You admired their technology of memory because once the digital revolution occurs, the technology of memory scales. There was no way to merge the memory palace of Matteo Ricci with the memory palace of anybody else he ran into in the course of his life. They could share a fact; they could share a story; they could build another artifact in each other's palace, but they couldn't link them together. There was no way to acquire wholesale the memories of one in the mind of another. Of course we do that all the time now by bluetooth, and we don't even think about it.

Human beings have heuristics about memory, and their heuristics now begin to fail in light of current technological realities. People assume — my students do it all the time — that when we talk about privacy, we're talking about the one big secret you have you wouldn't want other people to know. That's what privacy first comes to mean. Identity theft means someone who knows four facts about you: your birthday, your social security number, your mother's maiden name and your current address. That's identity theft in their world. A fixed number of secrets or semi-secrets, or in fact even not so secret details, which when aggregated somehow like a photograph can steal your soul. But even this understanding of the relation between memory and power is fatally defective, and we, the privileged, highly digitized, wealthy few, are also the first to experience what the loss of privacy really means, because our lives are largely recoverable through the technology of memory based on the information we voluntarily give away. And so far I'm only talking about individuals. I haven't yet talked about the ways in which the organizations of which individuals are members give away data for others to hold, remember and process. And I've talked about this so far as though it were just a matter of people looking at your photographs. And that in itself is part of the bad heuristic about memory, which governs people's first and sometimes even second impressions about privacy.

This isn't really about people looking at your photographs; this is really about people inferring, from the data of your life, what you are thinking and what you will do next. So let us ask ourselves: who will be the greatest and most powerful intelligence services in the twenty-first century? Governments? Secret police? Defense establishments? Or private market data miners, operating on the basis of extraordinarily deep repertoires of information you have voluntarily offered them, about what you think, and what you intend, and what you mean to do, and what you've just accomplished, and where you are in your plans. Wouldn't you like to know all the websites you've recently visited, and how to get back to them quickly in case you need something? That used to be a feature for a browser. A browser should remember where you were and store locally for you a memory of the virtual places you have recently been. Now it's a service. Wouldn't you like us to keep track of the history of everywhere you've been on the web recently, so we can do pretty amazing new stuff about making it convenient for you to figure out where you've been recently? Oh, and by the way, any inferences we may draw from that are our property for our commercial use; check here if you agree [laughter].

Consider for a moment just how much inferring, from the data you voluntarily give up, you permit at the moment of the assignment of custody of the information. The law of my stuff in your hands is deep and old; the Roman law goes on at great length about it as the English law does. We call it in the English legal tradition "bailment." My object in your care; my car in your garage; my television in your shop for repair; my goods in your safekeeping. But the bailee's ability to think about the thing given to him, that doesn't enter the story. You bring your musical instrument to the pawn shop, and you pawn it for the means to continue life between gigs. Well of course the pawn shop owner can look at the reeds of your saxophone; the assumption is he doesn't care. The assumption is he doesn't want to know. And even if he did want to know how you trim your reed, what difference does it make? There's nobody he can give that information to that matters.

But in the world of digital information, every bailee gets to think about everything you hand him to be handed back to you later, and the thinking that the bailee does is crucial to the bailee's success, and exercises social control over you. To build a working model of a human being, permitting at least theoretically effective prediction of future behavior, even just good for a point or two or three or four of additional leverage over your future commercial behavior, based upon information you have voluntarily supplied, is one of the most exciting business models of the twenty-first century. It promises to replace commercial broadcasting, for example, by well-targeted, highly useful, deeply appropriate advertising interleaved with your media stream in a way that you approve of because it brings you information that you need at the moment that you want it most, and therefore biases your choices and controls your conduct at a level of efficiency that twentieth century mass-market advertising only dreamed about: structures of social prediction based upon your click stream, your payment habits, your stored contact lists, your photographic libraries, your shared video preferences, your Amazon wish-lists, and all the rest. Structures of social prediction and control based upon mining that data offer opportunities for government or private market use, deployment for the control of human beings that are very exciting indeed.

Oh, but it's not real control; it's only control over what I eat or wear or smell like. It's only control over how I do my dating, and whether I have this or that or the other automobile in the parking lot, and so on. In other words, it's only really about the superficialities of my life, right? Ask yourself how deeply the political parties in the electoral democracies of the West are involving themselves in the same data mining. And ask what the consequences are of that kind of data mining applied to the actual movement of elections, through better targeting of effort and resource, in a fashion which we can think of as entrepreneurial democracy on the march, or for kinds of vote suppression and discouragement of voters, interferences with the effective use of the franchise, which we would have no difficulty characterizing as anti-democratic and largely despotic in intention.

All of those possibilities arise from the new technology of shared memory and voluntary commitment of your private data to servicers who offer you pretty amazing services and keep for themselves the right to infer. But of course the right to infer is a right. I spend a great deal of my life worrying about technological civil liberties, about the relation between old and established freedoms: to think, to believe, to speak, to learn in new technological environments. And I would be the last person I hope on earth to stand here and suggest to you that we control what people think. If you give them the data about you, they have a right to think about it. And they have a right to teach it to other people, unless you have previously constrained them, either by general-purpose law or by contractual provision. They have a right to collect, they have a right to evaluate, and they have a right to express. And those are powerful and important rights that must not be interfered with, or else we shall be interfering with our own rights drastically.

So the central moment in the construction of this form of social control is the moment of voluntary participation. Not the moment at which somebody else thinks constructively about what we voluntarily gave him, and not the moment in which he turns that information over to somebody who values it highly in return for payment. Both of those are legitimate and appropriate activities which we enable when we choose to collectivize the memory of our private lives.

But there is of course another possibility, which is why I'm choosing to talk about it here. You could put it briefly this way: store it yourself, right? [laughter] The fundamental question, after all, is oddly only a question of custody. Because let's face it, the pretty amazing new services are based on free software. You can data mine yourself just as effectively as they can data mine you. The way to do it, the code to do it, the technical capacity to do it, the ways to store and evaluate and consider information within voluntary collectives of people who want to share, those ways are the same whether they are being operated on the largest computer in the world by them, or on the smallest computer in the world by you. The technology of memory isn't the problem; the technology of memory is the solution. It's how we use it. It's where we put it. It's where we decide about how to share and what to keep to ourselves. It's what we mean by privacy, not what we do in technology, that creates our difficulty.

And, and this may be the most difficult proposition of all to deal with, it's an ecological problem. That is, the aggregation of individual decisions has nonlinear social consequences. Let us return to those great figures of email communication from the early 1990s: Bob and Carol and Ted and Alice. I spent a lot of time with them once upon a time. If Bob and Carol are using an email service which affords them pretty amazing new, endless amounts of storage searchable in a flat to keep their mail in, in return for data mining the content of that mail, then Ted and Alice are being data mined because they correspond with Bob and Carol, not because they've chosen anything at all. If Bob and Carol have chosen to open their email to data mining, and Ted and Alice have chosen to expose their click stream, and Bob and Carol and Ted and Alice are therefore involved in both the voluntary turning over for custodial purposes of email in two cases and click streams in two cases, and everybody's got a credit card. We might as well be talking about a movie filmed in a fishbowl. And that's a consequence not of the individual decisions made about who stores what, but the aggregate decisions to store a lot of things with people who will mine them and give you pretty amazing new services back.

The model — pretty amazing services in return for data aggregation and the right to mine — is a legitimate and appropriate model. I have no difficulty; I use them too. But we need to be thoughtful, not only about the first-order consequences to ourselves, but the second-order consequences to the community at large, of each of those individual decisions about whether to store it yourself or give it to a bailee who is pricing the storage cheap in order to retain the right to inspect and ponder and muse and express inferences on the basis of what he is storing.

There's no way to deal with this by setting a hard and fast bright-line rule. I have spent a good deal of my professional life with people who had the enormously refreshing characteristic that they knew the difference between good and evil and were very clear about expressing which was which and what was what and where the line fell, and I can't do that here. Maybe I shall in the course of my perambulations run into another Stallman with a clear and comprehensive and overarching theory of how to differentiate the good of this from the evil of it, and will find a way to create some elegant and clear and operable (but I said I wasn't going to talk about GPL3) [laughter].

Instead after all we're living in a world where law is not the answer to the problem. Social life is more complicated than the rules, and social good is more complicated than the question of "are you following the rules or breaking them?" The fundamental issue is: what are we building together, and why do we want it? Are we building an environment in which the process of knowing our insides is the commercial asset in highest demand for the next 100 years? Or are we building a culture in which the technology that we love enforces for us and helps us to preserve the privacy that we care for more deeply than we are aware about from moment to moment. Where privacy is defined not as our ability to keep the biggest of our secrets, but the smallest. Not the capacity to resist the intrusion of the state in the most brutal and overwhelming forms, but the capacity to resist the intrusion of the market in the most subtle, and the simplest, and the most difficult even to grasp once they have started to happen to you.

The spam I get is getting better all the time. It imitates things I might be interested in better and better as they are Bayesian and I am Bayesian and everybody's busy trying to figure out which words will work their way in through the screens. The relevance of that isn't that I am getting the spam, but that the spam is learning about what I think about far more successfully than it is encouraging to have to recognize. The spam is still the dandruff of the digital society; it's still just cruft. But the fact that even the dandruff manufacturers are gaining more insight into who I am than just broadcasting at me pennystock deals or genital enlargements is a sign that something important has happened to the ability to know us as well as we know ourselves. And beyond that, beyond the mere crudity of the spammers, are the people whose goal it is to know us better than we know ourselves. And they are making progress just as fast.

So could it actually be a social obligation to store it yourself? Could we really come to the conclusion that for ecological reasons, we ought to have a packet in, packet out view? That letting other people carry your stuff, that hiring the Sherpas of the digital society to get you to the top of Mount Everest might actually be to flatten the mountain in a way you don't even notice? The engines, thanks to our colleagues, are cheap and free both. The applications, thanks to all of you, are cheap and free too. The ability to store, to imagine, to consider, to refine, to guess, to improve the accuracy of what we do is in our hands also. We can't give the excuse for not constructing around our privacy that we require the facilities; we made the facilities, and we shared them among ourselves, and we can all have them. And those of us who understand that fact can help other people to have those facilities too.

The tendency to scale memory towards common platforms raises social questions that we have to force into visibility. We have to do it in part as a matter of social responsibility to other people who are going to live in the world that we make. I hear a lot of complaining from grown ups — that is gray-haired, alter cockers like myself, about some supposed absence of concern for privacy among teenagers at MySpace and Facebook. This puzzles me very much. I hear complaints about teenage driving, too, but complaints about teenage driving are always accompanied by a recognition that the kids are inexperienced, and that as they grow up, they should become better drivers. But the fact is that the adults I hear complaining about teenage disregard for privacy on MySpace and Facebook are the very people who are bringing about the primary privacy problem that I'm trying to talk about here. They're not becoming better drivers; they're just becoming better ignorers of the problem as time goes by. And as we begin longitudinally to study what young people do at MySpace and Facebook, it turns out they're not all that unconscious about privacy after all. This may yet turn out to be primarily an old-person's problem.

But whatever it is, we have to deal with it. We have to be aware that it's there; we have to think about its consequences; we have to imagine mixed social strategies for confronting it. Surely those strategies don't involve prohibiting memorizing things for other people, or thinking about what you know, or telling other people about what you've learned. We have to be respectful of the rights to learn, to know, to think, and to express. Surely the answer isn't to prohibit business models or get down on Google or be terrified at the empire of memory that is coming. Surely the answer is in our hands. That's why free software is so important: because the answer is in our hands, too.

Collectively we make this technology. Collectively we decide how it functions. Collectively we decide whether it saves our sense of internality or destroys it. We decide how much private power will know about us for the rest of the twenty-first century, and not just us, but everybody coming along behind. We are the people who decide what memory does in the next phase of human society, and how the technology of memory affects the imposition of social power. That's our work. We may not think of it as our work, but it is. And so I say, if we cared about the freedom of the software, if we care about the liberty of people to know, to think and to express, we have to take a look also at the question of the safety of the data. Is it wearing a seat belt, or is it going to be thrown out the window of the car in the accident and lie there bleeding on the highway?

Free beer is not so good, I said, if your data is getting drunk. Who's drinking it, and what's the hangover likely to be like when it's all over? I don't have answers. I know that there's a questioning here that collectively we need to think about. I recognize the simplicity of not thinking and just clicking, and I think we have to be aware that that simplicity is a trap, not a trap put forward for us by the evil. I concede that "do no evil" may be the motto of those who present the option to us, and they may be right: they may not be doing evil. It wasn't evil to put carbon dioxide in the atmosphere. It's evil not to notice that it has consequences and to consider them before we drown our kids' backyards. So let us think about this. Let us bring all of our good collective intellect to bear; let us see how this can be dealt with; let us imagine our ways out of the problem in several different directions; let's do what we usually do. Let's have proof of concept; let's have running code; let's let a hundred flowers bloom. Let's sort it out, so that when the kids go through the snapshots and the scrapbooks after we are gone, they don't find themselves saying this: "this is the snapshot of the day when privacy died," and the bitterness of that is in the photograph they took of themselves as they did it. Thank you very much.

Moglen, Eben - Patent Law at a Crossroads: Bilski and Beyond - Cardozo Law School 20091102

Moglen, Eben - Patent Law at a Crossroads: Bilski and Beyond - Cardozo Law School 20091102

A Speech given by Eben Moglen at Cardozo Law School on Nov 2, 2009


Thank you it’s a pleasure to be here. I want to thank Michael and Ryan and their colleagues for making this possible. I’m going to talk about patent law, not intellectual property in general or copyright in particular. I’m not going to talk primarily about why free software is or how it works in the world, but I am going to try to talk about freedom in the 21st century because patent law is a major problem if you want to have freedom in the 21st century. I’m going to try to talk about where we are now which is at a very interesting moment in the history of the patent system.

I need to begin by pointing out that the founders of the American constitutional republic that we live in saw the possibility of monopolies granted by government with extreme suspicion. The statutory monopoly is no 18th century British North American lawyer’s friend. The long common law history beginning in the late 16th century had already taught them the enormous danger of political corruption which arises from grants of statutory monopolies. In fact, the route of the statutory monopoly in English law, from there or any other English British N American lawyer’s point of view, the origin of the statutory monopoly is the crown’s desire to raise unconstitutional revenue. That is, revenue not appropriated by Parliament.

Elizabeth I learned, and her successors on the English throne imitated her success in learning, that a grant of a statutory monopoly is a way to get money out of those who buy the monopoly from you at the net present value of the royalties they can extract. That is, the rents they can extract from civil society, a form of tax farming. Because it is a form of tax farming and a form of tax farming which raises a revenue aside from Parliament it was considered from the very beginning in the late reign of Elizabeth I to be dangerous. That’s why the case of monopolies, so called, as reported by Edward Cook said that there could be no grant of a monopoly, in that particular instance a statutory monopoly on playing cards or an extra statutory monopoly, a prerogative monopoly on playing cards. There could be no monopoly on ordinary product by royal decree, by writ patent.

In 1620 after an outburst of patenting to raise extra Parliamentary revenue by James I, Parliament passed the Statute of Monopolies which enshrined in the statutory law of England the common law’s newly generated hostility to monopolies and stated that only Parliament might grant monopolies in statutory form and that only for new inventions. This principle that the only valid or legitimate use of the otherwise dangerous mechanism of the statutory monopoly - this principle was further endorsed by the first code of law written by British North American settlers in Massachusetts in 1648 - the so called laws and liberties of the Massachusetts Bay Colony, an alphabetical arrangement of all their law under subject headings which stated under monopolies “no monopolies are to be granted among us, save for new discoveries and that for a limited time.”

This of course you will recognize as the basic grammatical structure of the entitlement to the Imperial Congress made under the constitution of 1787 to grant statutory monopolies in the US. But the real purpose as in Massachusetts in 1648, the reason there was such interest in authorizing specifically the grant of statutory monopolies by Congress at the end of the 18th century the reasoning behind that impulse has been long lost. Patent law in the late 18th century setting of the foundation of the US is an incentive to skilled immigration.

I must ask you to remember that nowhere in the western world at the end of the 18th century and nowhere in the world at all was there any regular systematic structure for publicizing and writing down in reference form the technologies of ordinary industrial production in daily life.

The French encyclopédie of the late 1780s, almost coeval with the US Constitution, is the first systematic attempt to record how trades and industries perform their work. 17th century political economy had regarded such matters as national security secrets. How to make silk cloth or drinking glasses in marketable quantities cheaply or any other significant skilled industrial process was regarded as the property of the country in which is was being done.

The US benefited before it was the US from the broad emigration of oppressed Protestants from different parts of Catholic or near Catholic Europe and the first Congress and the Constitutional Convention that preceded it understood that one of the ways of developing the economy of a society with plentiful free natural resources but a very small skilled workforce was to encourage the immigration of skilled people on a deal which required the disclosure of their inventions in a publicly consult-able reference form.

The makers of the patent clause, then, are fishing to bring men to the US who know how. They are also, no doubt about it, attempting to reward those having come here continue to invent. But the goal is quite evident from the conversation, discussion, and correspondence of the period to make a society which benefits by disclosure and that disclosure to supplement the very weak technical literature of the world in which the founders lived.

We must remember that their assumption is that an invention is a thing with a working model. That a physical object constituting a reverse engineer-able example of the invention can be physically deposited in a place where anyone else can go and learn from the thing itself and the mechanical drawings accompanying the thing how it is made. This is the bargain they are thinking about - a limited term commercial monopoly for a new entrant to the country.

In effect, being subsidized for the burden of removing to the US in return for a full and complete teaching of the nature of the invention that produces the thing. And if we ask ourselves about the things that were the antebellum patent law of the US we would find ourselves talking about a cotton gin, an electric telegraph, a sewing machine, objects deposit-able in the patent office in working form from which anyone during the period of exclusivity could learn everything they had to teach and make any necessary modifications to be used elsewhere.

The patent law of the 19th century - that patent law of products - becomes a law which takes onto itself the ordinary procedural characteristics of 19th century administrative law. 19th century American Administrative law is a lost subject. We changed the nature of our administrative system fundamentally in the 20th century, in the mid 20th century when we created the administrative Procedure Act. 19th century patent law looks rather odd in the 21st century, because we still use 19th century patent law as far as process goes in the 21st century, but it looks entirely reasonable under 19th century administrative conditions.

19th century administrative law is the administrative law of the same country we were just talking about - one with a paucity of skilled people. 19th century administrative law doesn’t assume a permanent marriage between government and expertise as 20th century administrative law does. 19th century administrative law assumes that government resources for making deliberate calculations or evaluations of anything are few and far between. Rules to be administered by systems of government in the 19th century must be comparatively simple. They have bright lines and don’t require a great deal of expensive investigation in order to be made good. Patent law, therefore, is as sophisticated an administrative process as 19th century American society can manage. Heavily skilled clerks with technical knowledges are required to make a fine determinations by 19th century administrative standards. Is this invention novel? Is it non-obvious?

I would point out that the patent system of the 19th century therefore becomes expert at answering questions based on its own records. The assumption of the 19th century patent system is that everything that should be patented already is patented already; therefore, when you bring a physical invention to the office and deposit its working model the correct way to determine whether it is novel is to ask whether it is novel in light of the art already in the office and when asking whether it is obvious you are essentially asking whether the very semi-skilled form of art knowledge possessed by the patent examiner would have regarded this as a natural extension of the existing art deposited in the office. In other words, searching is about searching what the office knows. Like other 19th century administrative structures, the patent office assumes that all it can be expected to do is to look in its own files and to make rough binary determination - 0 or 1, novel or obvious or not - on the basis of the consultation of its own administrative record.

We still live there though the entire procedural structure of the administrative system we use for everything else has changed.

The US economy benefited, nobody should doubt that it benefited from the extraordinary technological inventiveness of Americans understood throughout the world by the middle of the 19th century to be the distinguishing characteristic of American civilization in the world - its technological inventiveness. And also understood throughout the world to be an adaptation to the American political economy condition. Lots of land, few skilled workers. Americans invented from the 19th century point of view, ways to use fewer skilled workers to achieve larger outputs. The most important such invention is a business model. It is manufacturing interchangeable parts. It is therefore not patentable or patented.

But the idea, the American system, the breaking down of physical object into parts that could be interchanged among units because they are manufactured in standard gages, sizes, and performances - that’s the central invention of the American seen from the world economy in the middle of the 19th century and that plus railroads, cheap iron and coal and the presence of an enormous land for agricultural and industrial production is the nature of the 19th century industrial superiority of the US.

But the very success of that economy, the American system pursuing industrial production in a new and more productive - that is, more output per hour of skilled work mode. The very success of that instrumentation altered the nature of industrial economy. By the second decade of the 20th century the economy that we actually had depended for its wealth and its power on industrial processes as much as products.

Geochemical discovery and development, the process of manufacturing chemical and electric goods out of the combination of material and skilled knowledge. Steinmetz’s great electric motors for the general electric company. You remember the one that was running Henry Ford’s assembly line in Deerborne and it broke and Steinmetz was brought from Schenectady to Deerborne to fix it and in the end, he added one coil of wire and the general electric company sent a 10,000 dollar bill to Ford and Ford asked for a specification of the items in the bill and Steinmetz wrote back “Wire. $1. Knowing where to use it. $9,999.”

The industrial processes of the 20th century did to time what the industrial processes of the 19th century did to matter. They broke everything down into slices of time. Frederick Winslow Taylor and Henry Ford produced the understanding of what it means to make something in American industrial life. It meant to organize activity in time. That was a process. A series of finely constructed steps precisely indicating how a thing could be manufactured at least cost in materials and labor in a finite way reproducible indefinitely. Whether it’s a motor car or a tire for a motor car or paint or a watch the proposition is the same one - the time necessary to use the machinery to make the ideal object is sliced into steps and those steps can be taught to a worker who can then be joined to the machinery under the supervision of someone with a brain that has been trained to think not about the job slice but about the process as a whole. This is not patentable.

These would be processes and the statute speaks in terms of products until 1953. Then, Congress adds the words under which we now struggle, “or process.” Let us be clear that the Congress that used those words had, in the usual synthetic sense, an intention.

We are reading a statute in light of what it is that the legislature that made it intended. And in the usual way we must reconstruct their intention from the dictionary and/or the committee reports and/or some common sense about the world, but no matter how you do it the process that they have in mind is the Fordist industrial process. A series of steps using specialized machines to produce outputs which are still in their essence products made by employing matter in new forms through processes that can be described precisely in relation to the work being done.

Shortly thereafter, that is shortly after 1953, the US patent office responds both to changes in statutory language and to the changing nature of the inventions being made by ending as an administrative matter the requirement for the deposit of a working model leaving behind, as we were taught in our childhoods if you have as much gray hair as I, that the only things that the patent office required working models of were the machines that violated the second law of thermodynamics. And that was how it was described in patent office propaganda in the early 1960s. From now on the only thing you need to bring us a working model of is anything you claim that reverses entropy. Perpetual motion machines you have to demonstrate. All other things the claims and drawings are sufficient.

Of course, this change, a change away from the idea that there is something you have to give the patent office to prove that somebody else can learn, that reduction to practice actually means giving a thing. That’s about the only change being made in the political economy of the patent office. What is not being changed is the basic administrative law structure which we now need to think about a little bit because by the time the 1953 Act said you could patent processes, we had changed the administrative law of the US completely.

The administrative Procedure Act of 1946 revolutionizes the way we think about government in any number of fashions but two that are crucial here are that it makes a permanent marriage between expertise and government. Government is not supposed any longer to be intervening in the economy or taking other administrative actions that affect private rights without consulting more than its own file cabinet. The theory of the APA is that through rule-making on a record construction of expertise, judicial review of factual bases for regulation, the theory of the APA is that government is responsible for having all the information that expertise can provide, not merely what happens to be in the files from last time around. Everything becomes subject to the rule of cost/benefit analysis, which is regarded as the fundamental technology of government. Understanding whether proposed government actions are more helpful than they are harmful and making a systematic and careful evaluation of the relationship between benefits and cost before deciding to intervene in the economy. This over the subsequent generation becomes the rule that everybody must follow when making marginal interventions in the market. Do you want to make an occupational safety and health rule that will change the way deli workers cut meat or machine shop operators use a drill press? Do you want to set standards for workplace exposures to chemicals of industrial significance but potentially also significant dangers to workers’ health? Do you want to make rules about nutritional labeling or advertising?

In all of those cases you must engage in cost/benefit analysis to demonstrate that the intervention is more helpful in the achievement in public purposes than it is harmful and that cost/benefit analysis is subject to judicial review. That’s the system of government we made in the 20th century and just about the only thing we didn’t change to conform with it was patent law. Patent law continues not just to elide the idea of cost/benefit analysis. Patent law flies in the face of cost/benefit analysis.

The patent law assumption is that the value of every invention is infinite. Show only that it is novel and un-obvious and you are entitled to a 20 year statutory monopoly without any consideration of the possibility that there are offsetting harms.

No need to consult the public interest of any kind. If the private party shows that he meets the definitions contained in the statute then there is no public interest to consult. Everything is assumed to be benefited purely by his taking rents on the basis of his invention.

This is increasingly undefensible. This is increasingly difficult to understand except that nobody is understanding or seeking that it be defended. It’s simply, like so many other things about the law, the consequence of the rule that you don’t ever have to do anything just because you’re obsolete.

Somebody has to come and do something about your obsoleteness. And nobody wants to do anything about the obsoleteness of the procedure - the administrative procedure of patent law because the change in the words process from product to product or process allowed so much new rent seeking. Remember, as I said Congress must have something in mind when it talks about processes and it is talking about processes that move natural materials around and make new things out of them. But within a generation in the change of a statute, the processes being generated are no longer processes that do anything in the real world. The processes involved are now things computers can be made to do and things that businesses can do using computers where they used to use people.

These are after all, the basic processes now at stake as we consider the scope of 21st century patent law. Computer programs and business methods based on the use of computer programs to do what skilled human beings used to do.

In the patent law before 1953, there would have been no issue of such things. They were unpatentable. That was everybody’s plain understanding. When the Supreme Court began to see such claims it made very clear in its own description of the meaning of patent law, that these were unpatentable inventions save in relation to their continued association with industrial processes. This is the great lesson of Diamond against Deer is it not? There’s rubber being vulcanized. Had there been no rubber being vulcanized the court’s completely clear. You could not have patented a computer program to vulcanize rubber. You had to be vulcanizing rubber.

The Court understood wherever it faced the question between 1953 and 1990, the Court understood that the situation had not changed. Patent law could not be used to convey government ownership of facts of nature, mathematical principles, mental steps purely mental in character, or algoriths. All of those represented categories evidently unsuitable for patenting under all previous understandings and began to trench upon the most dangerous aspect of the problem of the statutory monopoly because the statutory monopoly when applied to a pure idea that does nothing in the physical world comes into conflict with the very concept of the freedom of speech and thought. As the Supreme Court has directly shown in recent cases about copyright, there is an inherent potential tension between Article I Section 8 and the First Amendment and as the Supreme Court has said in Harper and Row, in Feist against Rural Telephone, in Eldred, in a line of copyright cases. The more or less simultaneous adoption of Article I Section 8 in the convention’s constitution and the First Amendment by the First Congress suggests that in the minds of those making the instruments, to the extent that you care about initial intention, there is no contradiction. Which means that one ought to interpret the statutes so as to avoid any possibility of the unintended contradiction between the law of statutory monopolies and the law of free expression.

Once you begin to present the possibility of a long-term statutory monopoly on something you can do altogether in your head, or using a language of technological communication between people, you’re trenching on the very distinction that makes patent law secure from First Amendment scrutiny in the first place. So this is the difficulty presented to the Supreme Court currently though it should not have any difficulty because the Supreme Court never created the difficulty because the Supreme Court never said you could patent purely mental operations or ideas.

What happened was that the US Congress in 1982 passed the single most misnamed statute in the history of the US - the Federal Courts Improvement Act, which massively dis-improved the federal courts. You remember that the difficulty that Congress was attending to is the terrible problem of butterflies in the tummy that overcomes district judges when they have to decide patent cases. There are few things that responsible district judges hate more than patent cases, they always did and for a simple reason. A lawyer has spent her entire career learning law and becoming a generalist district judge and she sits in a position of great responsibility and some honor from day to day making difficult decisions of every kind. And now in a trial in which she is going to be required to find facts and make decisions with significant consequences she’s going to be asked to learn about how to manufacture paint or how to make chips in large quantity by doping them with something a little mysterious every once in awhile in the middle of the gallium arsenide or well you understand of course. The problem is pregnant with the difficulty of humiliation. She or he is going to say something that knowledgeable people are going to regard as whacked out. Most likely because she’s been fooled by some fast talking patent lawyer who knew all about how to fool judges because that’s basically his job. Judges don’t like to be fooled by lawyers and most of the time they figure out how to avoid being fooled by lawyers but what can you do when some tassel-loafered guy is working all of his magic on you in regard to stuff that could as well have been written in Klingon for all you can do about it.

Congress, therefore solves the great problem of the tummy ruffling of the district judges by leaving the district judges alone to do the same job in exactly the same way they’ve always done it but to give them a court of appeal full of patent lawyers to do it for. This is insane. It doesn’t improve the quality of patent fact finding in the least. It doesn’t change the difficulty that the federal courts really have in conducting anything like judicial review of patent granting. It doesn’t do anything to assist the system titrating public interest questions in the way patents are actually employed, enforced, used for intimidation, or threat, or as leverage in other litigation. It does nothing beneficial at all but it provides a specialist court of appeals which will be guaranteed to like patents more than anybody else.

The results were deplorable in every other way. Had Judge Giles Rich not been apparently immortal and not gone on from year to year as Chief Judge of the CAFC inventing more and more ways to use patent law to get rents on everything. Had he not found the business method patent all by himself apparently on Mount Sinai some weekend.

Had he not discovered the broad gage patent availability of software, somebody else would have done it instead. But the CAFC was remarkably fertile in ways to take advantage of the fundamental understanding of the industrial world of patents in the post-industrial economy because we live now not in the industrial world where products are made by the jointure of skilled knowledge and high technology to material stratum. We live in the post-industrial information economy where services are enabled by the combination of skilled minds and high technology. Pharmaceutical development and discovery. Financial services. Information technology itself. Those are now the areas in which the patent system is employed. The industrial process users for whom in theory the statute was updated in 1953 have fundamentally abandoned the patent system. They are trade secret protectors of their products now because a 20 year statutory monopoly is useless when the product cycle is a year or two.

And where everybody can see what you are doing and invent around unless you keep it so secret that they can’t see what you’re doing.

So patent migrates to a world in which process now means mental steps. And in the areas where patenting has not traditionally been pursued before, like all the areas of post-industrial life where the CAFC afforded patent scope but there was no history of patenting, the performance of the patent office at reviewing the art was just purer.

Everything in our world, the world we practice in the world of computer software manufacture pure and simple, everything in that world has been patented 3 times. That’s our rule of thumb. Once in the mainframe era. Once in the mini computer era. And once in the micro computer era. But of course in the mainframe area you couldn’t actually patent it. So you defensively disclosed it. In the mini computer era you weren’t sure but you might be able to get system claims out of it so you begin to get a trickle of patents and then under the CAFC all hell breaks loose and the patent office begins to reward rent seekers everything they could possibly want for things that had been invented and disclosed already. But, they’re not in the files of the patent office because they weren’t patentable the first time they were discovered.

So searching the patent office itself is a poor way to find out whether this or that form of computer programming technology has been seen before. It is a poor way to understand whether inventions have been made before.

And of course, it makes very little sense to say about a business method well now it is patentable because it uses a computer when before it wasn’t patentable because it used a man’s mind.

So we have come to a position in which the Supreme Court must deal with a crowd of internal contradictions that the loose and lively patent system of the boom times made possible. Like so many other matters, this is a bubble that has burst. In the last half decade, the Supreme Court has, in a not so gently way, intimated to the CAFC and the patent office that they thought the whole thing had gone a little too far. Whether it was a solid march back towards some meaningful obviousness criterion in KSR or it was the intimation in ATT against Microsoft that software might not be altogether obviously inside patent scope and that the question might be open. The court has offered significant reasons for the parties which had scrambled off on their own in reconnaissance and rent seeking a good reason to come back and get on side.

In their last 2 to 2.5 years the CAFC and the PTO have behaved as though they got the message. Or at any rate, as though they got a message. That it might be a good idea to come a little closer to the mother-ship again.

Which leaves us with our friends Mr. Bilski and Mr. Warsaw. There’s nothing special about them, you know. They’re like a lot of other investors who didn’t have a chair when the music stopped on the bubble music of our time. Oops. A little too late for the party. They had been caught by the descending gates of something like a desire to come to Jesus in the patent office. Suddenly, it has been discovered that merely having a way to use a computer to hedge risk and commodities trading is not actually a patentable invention given that guys with electromechanical adding machines and before that, guys with slide rules and before that, guys with abacuses and checker boards, have been doing pretty much the same thing since the beginning of commodities trade. The “and a computer” just actually doesn’t cut it anymore. It didn’t really ever cut it right? It was an artifact of the combination of a statute meant to do something else with an administrative procedure left from before the black lagoon was drained.

It was only an artifact of bad procedure plus wonky statutory language meant for other purposes that anybody fooled themselves into thinking this could be an opportunity for rent seeking in the first place, and that only by dint of disregarding the obvious role of the First Amendment in making sure that ideas cannot be owned. So Mr. Warsaw and Mr. Bilski now find themselves in a lawsuit in the US Supreme Court in which, as a patent lawyer with whom I agree about absolutely noting else in this lawsuit reasonably said, what everybody knows for sure is this is a patent that shouldn’t be granted. It’s not their victory one way or another which is at stake. It’s whether the Supreme Court believes that the delicate and appropriate retreat of the PTO and the CAFC goes far enough.

What the CAFC has said is “Oh, let us find ourselves in our blacksmith shop a test which restores some similarity between our behavior and that of the statute as read by the Supreme Court.” What the patent office has said is more mysterious. The patent office may have indeed retreated all the way back to Diamond against Deer. It should do. But you know how it is. The logic of capitalism is remorseless. Our friends, who a year or two ago were sure that software patents were more trouble than their worth, have begun to realize that they have tens of thousands of patents on software and that each of those patents, worthless though they may appear to be to the skilled eye, is real estate carried on the balance sheet. It belongs to the shareholders. It is very difficult to go to the Supreme Court and say “Judge, you were always right. We knew you were always right, your Honor. We actually were pretty much on your side, but we have 95,000 building lots and we would not want to have to explain to our shareholders why we decided to agree with you that they should all be vaporized.”

So what has happened as we have proceeded closer to this crossroads is that enthusiasm for passing through them to the other side has begun to flag a little bit among those who have been our allies the past half decade. They were being murdered by the stupidity of the patent system - the large IT companies were.

It was in every way harming them. The trolls were taking random bites. The overhead of the constant dodging, ducking, and weaving was becoming unendurable. And the free software world was valuable to industry in part because it created, through its remorseless determination to have a system of goodwill and free knowledge exchange, it created a demilitarized zone to some extent, where almost all the IT firms in the world with one profound exception came to discover that they were better off agreeing not to engage in patent aggression within the team. The community became more important than the atomized idea. The patenting inventor after all, is no longer some skilled artisan in Moravia who might be persuaded to remove to Pennsylvania. The inventor is an employee of a company that works for a company with 7 other companies to create protocols to improve the NET which also happens to be protocols that are very heavily loved and admired and worked on and framed by our guys who are sitting in their bedrooms on their leave from high school or who are the very paid employees of those companies of themselves. We are making ideas in commons and the ownership of exclusionary rights hurts everybody equally.

So we stand now at a place in Bilski and beyond where patent law gets to decide how much it needs to change for the 21st century and it speaks through the mouths of the Supreme Court Justices. Are we going back to Diamond against Deer? At a minimum we surely should. That’s the law declared by the relevant 5 votes on the relevant court.

Might we beyond that glimpse the possibility that patent law needs a more thorough overhaul than merely a withdraw to the limits set by the First Amendment? No patenting of abstract ideas? No patenting of purely mental processes without specialized machinery? Or material being moved? Transformations of matter as the CAFC puts it?

To go beyond that, to withdraw from 1953 and say that you could only patent products rather than processes, would surely not be right. But to constrain processes within an understanding of the patent law that’s not inconsistent with the requirements of the First Amendment would make some sense and more than everything else some understanding that 20th century, let alone 21st century administrative law, offers a structured method for the consultation of the public interest, requires some structured method for consultation of the public interest. Surely, we ought to be thinking that far about patent law. The administrative procedure of 1850 has no justification in the world of 2015. There isn’t any reason for using 19th century approaches to administration of legal processes. This is not about the question of the substantive law. This is about the question of the improvement of the technology of government. We don’t use government power, we don’t use coercion to produce massive interventions in the private market without asking what the public interest is.

This is the libertarian case against patent law, copyright, and other statutory monopoly. Government is acting coercively in the economy. It’s not even asking what’s good for people. Perhaps from the libertarian point of view it shouldn’t ask what’s good for people. It simply shouldn’t interfere in the economy. It always puzzled me that as acute and longstanding devotee of Ayn Rand as our immortal central banker Alan Greenspan could say with apparent unconcern that government should constrict itself to its proper roles, like protecting intellectual property. I always thought that he must have been absent on the one day when she talked about that during their 30 year association.

How could that not be government intervention in the economy? The handing out of 20 year statutory monopolies right left and upside down? So both the libertarian case and the communitarian case about the problem of patents rest primarily on the process. How come we don’t use a contemporary process for deciding whether to coerce the economy in big long swatches.

If the OCHA wanted to set a rule for a 20 year period then the court of appeals for the DC circuit would say what’s the cost/benefit analysis on your 20 year period? Why 20? Would 5 do 95% as much good for 50% less harm? What are those years there for?

Even the question of term in other words should be subject to some inquiry of a 20th century rational kind in the middle of the 21st rather than being relegated to some 19th century idea that all sizes must be the same because the agency wouldn’t know how to tell the difference.

We have a great deal of work we might do on the patent law in the aftermath of a retreat to the Supreme Court’s own intended lines.

And there really isn’t any case for underwriting the law of the bubble anymore. Everybody knows where we’ve just been. Everybody understands that the very financial industries which gamed the hell out of every other system gamed the hell out of this one. Everybody understands that parties have been maneuvering to use the power of the state to enrich themselves at the public expense. That’s where we’ve been. The religion of the time was greed and everybody sees it. So there isn’t any reason to underwrite that anymore. Nobody is benefited by a continuance of the fast and flashy fluzy-ism that was patent law between 1990 and the day before yesterday. Something will have to give.

Of course, there’s a lot of weight on the other side too. The modern pharmaceutical industry is entirely dependent upon this structure of patent law.

The deepest and best-funded monopoly in the history of the world, Microsoft, is still fundamentally of the belief that it can use arbitrary software patents based on “I have a rule for doing this and if you’re going to do this to interoperate with anybody else you’re going to have to pay me” kinds of threats against every form of the free exchange of technological information regarding software for computers commercially useful.

There’s no doubt about the level of the impacted stakes of those who have what they consider to be an equity interest in the rent stream. This is going to be a big political problem either way and maybe the Supreme Court isn’t the last stop which is why I would urge you to think particularly carefully about the role of the First Amendment here.

Whatever happens in Bilski somebody will go and ask the Congress to change it. Whatever happens in Bilski the assumption will be that if you have 60 votes in the US Senate, you can make any kind of rent seeking statute you want. But that’s not quite right. The First Amendment limits on what the patent law may do are un-described but visible for the same reasons that they are now described and visible with respect to copyright. Bilski may or may not be the case that speaks to that. The US Supreme Court tends not to get to such questions until it hasn’t any choice and perhaps it doesn’t think it hasn’t any choice right here.

But come there we will, because unless we lift this idea that the 21st century will permit the ownership of ideas, we will be living in a 21st century where some very fundamental ideas are owned. Ideas without which you cannot live and which you would have assumed to be merely the common property of human kind will become the property of a few and the rules of exclusion will begin to work. The world food supply, the death and life of every human being, once the genetic revolution comes to fruition, will either be patentable or not patentable and upon that basis, real meaning of political power and 21st century society will be determined. So something will happen. Patent law will come to play an enormous role - either oppressive or facilitative in the life of the US and global society in the 21st century as it came to play a crucial role in the 19th century society of the expansive US. Justice will be at stake, which means that those of you who care about justice, and I hope that’s every single one of you, will find that there is a conflict going on in which your view of justice - one side or the other will prevail.

I know which side I’m on. I know which side my colleagues are on. We come to this not as neutral scholars investigating but as people who believe that the civil rights of human beings depend upon the answers and we don’t mean to compromise. So what I have said comes, I would agree, under the umbrella of advocacy. But I urge you to review the case for yourselves, to check its weak places, and to press on it.

What lies below the surface of this crossroads in patent law is urgently important and how you think about it and what conclusions you come to and how you act on those conclusions will contain much of importance about whether there is justice or not in the 21st century. I’m happy to take your questions. Thank you very much.

Is somebody calling on people. Let me do it if I might. Who would like to ask a question?

Question: You mentioned one size fits all term for patents. Do you believe that if they were to change that for software would there be a one size fits all for software even?

Moglen: No, the proper way of thinking about this, Ryan, is that each intervention in the economy, like each rule made by a regulatory agency, requires a cost/benefit analysis appropriate to the rule not to some class of rules. The proper question would be where’s the crossover point between the good done by providing a monopoly here and the harm done by providing a monopoly here. That requires a little bit of inspection of the political economy of the change. The pharmaceutical patent system hands out 20 year monopolies on the use of molecules to treat disease. This is obviously a bad way to do things.

It’s why we have 3—count them 3—patented pharmaceuticals for the treatment of Alzheimer’s disease in dogs. And it’s why we have in the US and elsewhere in the world, no real interest in the Malaria treatments or trypanosomiasis.

The problem with a 20 year patent in software is what’s 20 years in software? This is not about some notion of the way things ought to be or how to incentivize. This is a rent seekers paradise. The correct answer with respect to term is what’s the product cycle in the business you’re in. What’s the nature of the recovery you’re trying to get for what degree of disclosure. How good are the disclosures in providing for real opportunities for others to grow the technology, and in relation to the quality of the disclosures and the nature of the costs you’re trying to recover from bringing about the invention, what is the period of time economically justifiable for the issuance of a monopoly? The patent office could, under the conditions that are imposed on every other administrative agency under the APA, make those determinations subject to judicial review. The consequences would be - I am anticipating your answer - fewer patents coming out more slowly. Only the things that really need to be patented would be patented. That would be a positive outcome. And it would correct the incentives of American universities- a very important secondary subject I haven’t had a chance to talk about here because time is short. An entire hour should be devoted, or at least an hour plus a lengthy discussion, in every university patent law class in the US about the consequences of the patent system for higher education.

All of which is about winning the 20 year monopoly and then winning it again once you figure out which infinitesimal portion of your university’s patents actually make money for you. At which point, like a pharma company you rush right out and try to re-patent that invention to get more and more time.

When the public patent foundation, headed by Mr. Daniel Ravicher who many of you know, went after the third patent on the world’s most profitable pharmaceutical, Lipitor, which resulted in $84 billion dollars in rent readjustment back from pharma to patients and insurers because 7 years of patent lifetime got lopped off the drug which now earns $12 billion with a “b” dollars a year for Pfizer. The patent we were attacking was a patent which said you know that chemical Litovistatan twice patented for use in clinical administration daily to reduce blood cholesterol. You know that one? The one that you’ve patented twice already? Well we’ve crystallized it. Can we have another 20 years please? And the patent office says, at least until asked under re-exam to consider its judgment, “oh you crystallized it? Really? Wow. We never thought of doing that to any chemical.” More shelf life, better stability. That’s worth another 20 years sure. And the reason we did it wasn’t just Lipitor, though that was plenty of good reason to do it. The reason we did it also was to say “You know how many tens of thousands of ‘we crystallized it’ patents there are?” Each of them renewing a 20 year monopoly on a molecule? A fact of nature? Added to the knowledge about where to use it and how? Wire. $1. Knowing where to use it: rent that makes your eyes bubble. Right?

The proper answer to the term is what are you recouping and why should we give it to you that way instead of some other way? Why shouldn’t you have a prize? Why shouldn’t you have a contract? Why shouldn’t you have some other form of subsidization which leaves the public interest in control? Why is private rent seeking the correct answer to how you should be paid for what you’ve made. Those questions are the questions judicial review of patenting should be about. If the patent system were just another branch of administrative law, that’s what they would be about.

Question:I agree with what you’ve said thus far. My name is Chris and I run a software company in the city. What are the things that software companies can do to protect their intellectual operating barring patents? Answer: But what is the intellectual property of the firm before we decide how to protect it? We better decide what it is. What is it? Other voice:Untangible goods that are considered assets to the public interest.

Moglen: Sure, but is it the secrecy of the source code? So keep the source code secret. We think that’s a really bad idea. We think you’d be way better off with 100 million people finding and fixing the bugs all by themselves. But if you’re convinced that the right way to do it is to bear all of the costs of maintenance internally and reduce your market drastically to the people you can actually provide the code to, then you’re really in a trade secret business and software turns out to be very much like most of the world’s industries in which trade secrecy is really what’s at stake.

If there’s something beyond the trade secrecy of your code that you think of as yours, as opposed to that of the human race in general, what is it? Is it knowing that you can exchange the content of two registers without an intermediate location using 3 consecutive exclusive “OR’s”? Is it the discovery that you can do linear programming problems by manipulating an idealized polyhedron in your head or in your machine? Is it the discovery that you could automate the accounting box chart into a spreadsheet? In other words, is it really the case that what the software industry needs in order to function well is ownership of ideas at all? You can of course copyright your code and give it to people on restrictive terms. Let them read it and think about it but not use it or copy it without your permission. Most people tend to think that’s sort of naked copyright isn’t much use to them. They’re really trying to keep secret what they’ve done. We really think that just under 21st century conditions produces less good software which is why we work with people to try to increase their productivity, their output and their wealth without requiring them to keep generally useful technical information secret.

But I’ll go along with you that the question you ought to be asking is what’s good for my business. The answer is what’s bad for your business is a troll with a patent. That should be your gravest concern - somebody who doesn’t make anything. He doesn’t want to work with you. He just wants you to work for him and the reason he wants you to work for him is computer programs have a lot of features and he owns some. That’s your real big problem and what we want to do is lift the ceiling on you for that. So why don’t we first do that and then we’ll figure out what else you need.

Question: I have a question about the First Amendment argument. I just think it’s really interesting wondering how far you can push it if I can easily see a completely abstract idea is that First Amendment argument. Did you really think you could push that into the realm of software?

Moglen: Well, here’s the question. If I have a patent that can be infringed entirely by some code without anything else - any machine or anything in nature- then what I’ve said is is you can infringe the patent by describing its claims, because computer program source code is a way we communicate ideas to one another. Most computer program source code has a lot more stuff in it meant to communicate with human beings than it has meant to communicate with computers. We use source code to express ideas. You could, for example, say - maybe you want to say - that the best mode of practicing any software invention is source code that describes the practicing of the claims directly in an executable form.

But once you’ve gone to that conclusion, you’ve concluded that you could infringe the patent by talking about the invention. Now you’ve got a problem. That’s the problem posed in Metamune. You go around and you say to doctors “Here, you could correlate this observed situation in the blood count with vitamin deficiency. You know, doc, you could use that to diagnose deficiencies in dietary necessary nutrients in your patients.” Oops, you’re infringing my patent on doing that. What did I do? I talked to a doctor and told him he could do a thing? My communication which is essentially the same thing as the disclosures, so tell me why if a computer program all by itself can infringe a patent it’s ok for me to circulate a copy of the patent but it’s not ok for me to circulate a copy of the program source code. Now, we’re beginning to get to why I do not think that it’s such a stretch to wonder whether the First Amendment has some role to play here. You ought not to grant patents for things that can be infringed solely by communicating an idea.

You never could before. Before 1953 you couldn’t because it wouldn’t have been a product and you wouldn’t have gotten it in the statute. Now the statute says process, meaning vulcanizing rubber and the Supreme Court says no algorithms unless there’s actually rubber vulcanization going on and some subordinate judges and administrators decide to ignore that very important point for 15 or 16 years building up a whole array of rents that are being taken somewhere in the economy creating a whole bunch of guys who’ve got an in-built stake in the existing system and now we’re going to have to do a little heavy lifting and clean it up. But the truth is there wouldn’t be anything so hard to imagine about why we shouldn’t have gotten ourselves into it. That’s why the Supreme Court didn’t go into it in the first place. The problem we now have is they bitched up for a long time, nobody did anything about it, now you’ve got a lot of guys with an equity stake and the wrong answer. What do we do from here? That’s what the Supreme Court faces in Bilski.

Question: My name’s Adam. I’m going to try to see how to get some clarification on what you actually think the Supreme Court should do..

Moglen: Well, the Supreme Court is 9 judges and what 5 say wins. If what you’re asking me is how each one of them ought to vote, there’s never any reason why it shouldn’t be 9–0 for whatever you think the world is really best at, but you know that’s not the way it really works right?

Adam: I guess my point is more to do you think that the Supreme Court should find the 1953 amendment…

Moglen: No, it’s plainly not unconstitutional. There’s nothing wrong with saying you can patent processes in which what goes on is materials are re-manufactured into something else using machinery and human wit. That’s a good patent - vulcanizing rubber however you do it, including with a computer. Digging iron out of the ground and making steel out of it, however you do it, no matter how many computers or how much software is involved, that’s fine. What the CAFC says the Supreme Court’s rule is may not be exactly the Supreme Court’s rule and it may not be exactly an emanation of the statute but what it is is an attempt to get back to a safe neighborhood and the Court ought to say “We meant by our prior cases what we meant by them.” They ought to say “We had a view of patent law and that was right. We understood the statute and we read it carefully and we read it in light of all the things that statute readers are supposed to do and our cases are correct.” Parker against Fluke is correct. Diamond against Deer is correct. There’s nothing wrong with those case. Now, unfortunately, we’ve got a bad situation cause those cases didn’t get followed for a long period of time. The specialist court that was supposed to do it didn’t do it. Now they’re trying to clean up and they’re right. That would be enough. Of course, that would be a cataclysm but there’s nothing complicated about it and it doesn’t require any heavy lifting from the Supreme Court. It requires nothing more than a decision by the Court to vindicate the correctness of its own prior judgments and to adhere to its own precedence.

Question: So the Court thinks that the CAFC has gone beyond what it should have done at State St. why didn’t they deal with this at State St.?

Moglen: The Supreme Court is not required to do anything. That’s its beauty and its problem. If what you mean is had the justices known what was coming might they have done something else in State St.? Maybe. But it is always the Supreme Court’s view that the development of the law is primarily for other courts. And the Supreme Court either wanted to or had no choice but to or decided without deciding to allow the horse to run and it ran.

Any other questions?

Question [Paraphrased]Is the US worried that international treaties would constrain it to support the patent policies of the last 15 years, regardless of the earlier precedents?

Moglen: No. We’re not. We are first of all the US. Would that we were more constrained by international agreements than we are. That somebody will take us to the WTO for not having done what we ordered the rest of the world to do is not how the game is usually played right? The US retreats from the high water mark of its oppressive behavior in the international law system recurrently. Nearly 20 years ago I was involved in fighting the US view that encryption could not be exported in idea form. It took a lot of work to get the US government to recognize that we had as much right to export source code implementing RSA as we had right to export source code implementing the Caesar cipher or the Vigeniere cipher. In 1995 at the high water mark of export controls over encryption, the US secured an agreement from all the other western European union that they were going to adopt the American approach to barring the exportation of encryption technologies. Three years later, the US government conceded that the whole thing had been wrong from the beginning and gave up. Wassenaar is still there. But once the US walks away from an absurd position, the rest of the world is usually content to allow them to do so. Under present circumstances I do not think that the US would find itself in any harm if it restored something like the previous balance in the patent law. We’ll see.

Question: Should the Supreme Court uphold Bilski what will happen next?

Moglen: Patent reform in the US Congress will happen next. What that will consist of remains to be seen. On the other hand, if the Supreme Court decides Bilski the other way, patent reform in the US Congress will happen too. The question will simply be which side has the fire underneath their feet when they get to Capitol Hill.

Question: What changes do you see in legal education if Bilski is

Moglen: Nothing. Law professors don’t ever change. You know that. Thanks very much.

Moglen, Eben - When Software is in Everything: Future Liability Nightmares Free Software Helps Avoid - Scottish Society for Computers and Law 20100630

Moglen, Eben - When Software is in Everything: Future Liability Nightmares Free Software Helps Avoid - Scottish Society for Computers and Law 20100630

A Speech given by Eben Moglen at a meeting of the The Scottish Society for Computers and Law (SSCL) annual meeting on June 30, 2010

[Iain Mitchell]

We are very very privileged indeed to have Professor Eben Moglen speaking to us this evening. Last time he spoke in Edinburgh for our annual lecture a couple of years ago it was to mark the launch of the GPLv3. We haven’t gotten anything quite so headline-grabbing this evening. But we have something that I think is going to be very much an issue in the years to come, because the days when computers were merely just things that sat on your desktop have long since disappeared. The true nature of a computer is that a computer is in everything. Software is in everything. And when software is in everything, what are the future nightmares and liabilities and how can they be avoided? There is the theme of Eben’s talk this evening.

I don’t think I need to say very much about Professor Moglen, who is very well-known throughout the world. But for those of you who may be unfamiliar with him, he had in his earlier career the distinction of clerking for Justice Marshall of United States Supreme Court. And he has taught at Columbia Law School and holds visiting appointments at Harvard University, Tel Aviv University and the University of Virginia. He is the founder of the Software Freedom Law Center. He has achieved the Electronic Frontier Foundation’s pioneer award for efforts on behalf of freedom in the electronic society. He is admitted to practice in the state of New York and before the United States Supreme Court. Would you please join with me in welcoming Professor Moglen.


[Eben Moglen]

Thank you, Iain, thank you so much. It’s an honour and a very great pleasure to be here again among friends.

When I was here last year as Iain mentioned, I was coming to the end of a very long and complicated process of negotiating one particular matter of licensing free software. I spoke here partly out of desperation and partly out of hope.

I was desperate to begin thinking about something else after 16 months of the GPL all the time, and I was hopeful that we had done the job in a way which, although nobody was more conscious than I of the difficulties, the bumps and the primitiveness of our collaboration, might signal something good about the future.

I speak here today, I suppose, out of hope and desperation, which feels very different to me. I am concerned because one of the things I have been thinking about recently is the difficulties that we face when software is in everything, based on a little bit of the experience I have going around the world looking at all the places where software is.

And I speak out of hope because I do think it is possible that if we understand what is happening a little bit quicker than we usually do about large scale social change, we will avoid a lot of nastyness that is otherwise going to be pretty serious for us.

So the place I want to start, is with the definition of a problem. The problem that I would like to define, I did try to put in the title, but “everything” is of course a remarkably indistinct word. So let me begin where I think the moment tells us to begin by pointing out that software is in cars. Software is in medical devices. Software is in all other forms of vehicular transport and software is now and increasingly will be more and more fully represented in buildings themselves that are the fundamental constituents of the built environment where we dwell, work and take care of one another.

These aspects of softwares being in everything then, though they are merely reflective of everything (I don’t mean that is the exclusive list of everything,) let us just, because I don’t mean to talk all evening, talk about them as though they were enough of everything to make the point.

Let us begin then with the few, what shall I say, speculations. Not facts, which would take too long and require too much like proof. And all of us here will understand that when matters of large liabilities are at stake, proof is not a thing you can do lightly.

One of the things that we know this year in 2010, and I am going to stick to matters about now, is that sometimes cars mysteriously speed up and crash into things.

That is not a disputed statement. Why they mysteriously speed up and crash into things raises all the usual kinds of difficulties of causation and proof you would expect when liability is a serious social matter. But let us just say that we know that cars mysteriously speed up and crash into things and it is reasonable to wonder about software in relation to the cause of those accidents. And wondering about whether there is software behind some of those accidents raises some important questions.

There is software in the things that power peoples’ hearts, and it fails sometimes. That too is a fact. There is a lot more to be said and once again proof is an important subject and I don’t mean to do more than speculate. The rules about what software you can put in medical devices and how you test are not rules which would be regarded as sufficient to create safety in other industries whose liability profile is substantially lower than medical devices.

My organization, the Software Freedom Law Center, will next month be publishing a report on this particular subject and so I am going to limit myself to speculations here in knowledge that some facts will become publicly available shortly that will be illuminating.

Software flies airplanes. And sometimes software fails, perhaps, creating accidents. Once again, that is the most that one could say without entering into complicated discussion. But I think it would be useful to indicate the nature of the subject there a little more precisely. So let us give it an airline and a flight number: Air France, 447, which went down in the Atlantic Ocean on the First of June, 2009, killing 228 people. Today, 13 months after that accident, the flight data recorders have not been discovered. The problem has been posted by one crash investigator as locating an object the size of a shoebox, in an area the size of Paris, three thousands meters below the surface of the ocean, in terrain as rugged as the Alpes.

There is every reason to believe that those flight data recorders which have not been discovered in the last 13 months will never be discovered. And the only direct information available about the cause of the loss of Air France 447 will be the automated telemetry received from the plane in the last hour of its flight in thunder storm activity over the central south Atlantic.

The telemetry shows that the aircraft experienced the loss of trust in one of its inertial navigation guidance systems. It is hypothesized that may have occurred due to icing of a tube on outside the face of the plane which registers air pressure changes for inertial guidance input. We know that one of the two redundant inertial guidance systems had failed in the opinion of the software that determines whether or not to trust the system and that the standby air data system and the other inertial guidance inputs were disagreeing. Thus there was a disagreement between the two available sources of information and one had been ruled unreliable and not to be consulted, and in that condition the next thing registered was vertical falling of the passenger cabin which led to, we infer, powered flight into ground. In other words, the only thing we are ever likely to know about Air France 447 is that there was a multiple condition software failure in process on the airplane, after which it was lost.

So what I am talking about then, is the inevitable occurrence of what we would regard as significant liability issues surrounding software failure as amongst the significant causal possibilities throughout society.

That is the definition of the problem.

The parties affected by the problem, in addition to the human beings killed, injured or otherwise subjected to losses for which liability may rest with someone else, are manufacturers and regulators around the world who face serious issues about operation at the edge of their ability to foresee.

Manufacturers face obviously the problem of constructing devices which meet both regulatory demands and market conditions in which we may treat the avoidance of avoidable liabilities as among their regulatory demands.

But they experience some secondary difficulties from time to time, with relation to the software they embed in the products that they make whose failure may cause harm. One of the difficulties that they experience is that they acquire software from third parties with indemnities, or liability exclusions, which are extremely limited for them as purchasers. And more serious problem is sometimes they do not acquire software legitimately.

One of the difficulties one can speculate would be faced by an automobile manufacturer who learned that some of its fundamental control software is causing harm. One of the difficulties one might speculate, I at least would on the basis of my experience, is that the manufacturer might not be in a position to disclose about its software all of the matters one would expect them to know, like how they got it, because there is a lot of software in the world doing jobs that we might think of as quite legally important with respect to the possible incurring of liability by the manufacturer which was acquired through means that we would characterize as informal, if we were being exculpatory.

And if you are in a situation where you have software which you reasonably believe is malfunctioning, and which you may even be able to fix, but which had already caused very substantial harm, in your opinion, the last thing you would want to have to do is come forward and confess a sin in its acquisition because that would lead to problems that you cannot control very easily. And therefore it is much simply to fall upon the difficulty of proving the software had anything to do with it.

Now in the case of automobiles it is particularly easy, and in the case of aircraft crashes it is particularly hard. To suggest what the manufacturers mostly want to be able to suggest in a situation like that which is that the person operating the product probably caused the harm.

The aircraft passenger is among the most passively vulnerable forms of modern human experience, as we are made to remember every single time we go to the airport and somebody prods us as though we were criminals. Our vulnerability, at least if you travel as much as I do, is always reinforced to you by the behavior authority deals out to you in international air transport. But once you are belted in, if computers on the airplane begin to disagree about what information should be presented to the expert human beings, who are supposed to make the judgment, who have the fate of the aircraft, the passengers and the crew in their hands, would be something you can do nothing whatever about. And if the computers disagree, and the pilots don’t get to make expert judgment and the airplane falls out of the sky, which could conceivably have happened once already, at least, then obviously it would be very difficult for the manufacturer of the airplane to say that the passenger was in any way at fault and he would limit himself to say that the airline did not do with the airplane as it should. He would also fix anything that is wrong with the software. Which is why, oddly enough, the aircraft is not our biggest problem and I did not put it in the headline.

The automobile on the other hand is a very dangerous machine whose tendency to cause harm can always be blamed on the driver. And I would simply limit myself to pointing out to you that Toyota has had for many years both expert witnesses and as consultants a number of social physiologists with distinguished appointments at American Universities on the payroll in order to testify in lawsuits that people often press the accelerator pedal under the mistaken impression that they are pressing the brake, particularly under conditions of stress.

This is one of those beautiful counter-intuitive results of social psychology. Teaching you something about human beings which you are able then to marvel at because it is a property of human beings which is apparently universal but which has never happened to you in your own life. Where I wager with great certainty that you have never actually pressed the accelerator pedal accelerating down the highway and crashed into something under the impression that you were holding your foot on the brake.

This is what you do when software malfunctions, sometimes, I would suggest. And lawyers make money doing it and things that lawyers make money doing are unlikely to stop happening unless forced.

Regulators then have two problems. First they must have jurisdiction to regulate and second they must have competence. Jurisdiction to regulate is not merely a formal question. It is a practical one. Japanese administrative agencies have authority in the jurisdictional sense to regulate automobile safety. But it is famously the case that automobile safety in Japan is a self-regulatory matter as Internet privacy is in the United States, a subject I am not going to talk about today, but which would justify another visit to Edinburgh if you ever incline to invite me back.

Regulated jurisdiction in other words over software in particular would mean regulators deciding to go into businesses they have largely left, each and in their own way, to be adjusted by other people. If one could say only the best of regulatory conduct in this area, one would say that it had resulted in a lot of self-regulation. That is the good news. One of the other problems about regulation then, (I won’t get to the whole of the bad news all at once, because I wish to emphasize hope over desperation at least to some extent,) is the extraordinary difficulty that regulators have in maintaining competence to cover this portion of their jurisdiction, practically.

The National Highway Traffic Safety Administration in the United States, our chief automobile safety regulator, an agency which is comparatively active, extremely thorough, and from a technical point a view very well informed but which often loses battles over recalls due to the politics of regulation in the United States, NHTSA, an organization which rarely has the difficulty of getting its facts right, was compelled to admit in the course of discussion about Toyota’s automobiles in the United States this Spring, that it had no engineers capable of providing independent testing of Toyota’s relevant software in its relevant models of automobile. No capable engineers, because this is an area so far outside the practical jurisdiction of even a quite conscientious regulator.

And so NHTSA has borrowed 50 software engineers from NASA in order to thicken its ability to conduct a meaningful investigation in this incidence, which says nothing about how a continuing presence in this area would be managed if facts happened to justify the desire to look into the software in cars more thoroughly then has been done in the past. Similarly I am not going to restrict myself to beating up on North American regulators in this talk and I am not going to restrict myself by any means to beating up on regulators but, similarly, to offer another U.S. example the Food and Drug Administration in the United States which modulo again its difficulties in the politics of regulation, is also a highly factually competent agency with a comparatively deep technical understanding of its subject. That FDA long ago outsourced to private commercial parties the job of testing the safety of medical devices, under a devolution of government into the private sector activities that I could call by some name that would be familiar to you but which might sound deprecatory.

At any rate, what has happened is, that those organizations that contract to test the safety of medical devices and as we shall report in the next month, the protocols concerning how they test software for those purposes which are contractual in nature and which are therefore documented, the protocols they use would not be sufficient for testing software in a matter far less important than a pacemaker or an insulin pump.

Once again the fundamental difficulty will turn out to be that testing software is a complex activity. And simple testing of software, asserting that it manages under conditions of single cause of failure situations, is inadequate, even if the software cannot in its malfunction cause imminent death as some of the software can, and perhaps, has.

So once again what we shall discover is regulatory authorities face significant constraints on their cognitive capacity, and on their ability to conduct the kind of testing even if it is only sporadic spot testing which we assume assures the safety and quality of materials used in society where harm imminently results from failure.

In the hotel in which I was staying here, a lovely establishment, but which I shall not name for reasons that will be apparent in a moment, there was an accident last week in which an elevator cable parted and an elevator containing guests in the hotel plummeted from the second story into the basement. When you check in at the hotel you merely see a sign that says “We are sorry that this elevator is not working. And we are apologetic about any inconvenience it may cause.” I know that the accident occurred because a gentleman I met in the course of my journey from New York to Edinburgh earlier this week was the employer of the two people who were in the car. And in casual conversation waiting for a delayed airplane the matter came out. I have not, I admit, looked into the question of elevator safety regulation in the municipality. But in every city in the world where buildings are tall (and they have been tall here in proportion to the environment for longer than they have in most parts of the world) elevators safety is a regulated matter, and there are periodic inspections and people who are independent engineers, working at least in theory for the common good, are supposed to conduct such tasks as would allow them to predict statistically that there is a very low likelihood of a fatal accident until the next regular inspection.

With most of the software that causes harm if it fails in the world, there is no regular inspection. There is no requirement to make the materials inspectable. And there is great doubts about the capacity of regulators’ and the technicians they can reasonably expect to employ within budgetary constraints, to conduct the kind of investigation to assure safety which is characteristic of the simple physical stuff out of which the dangerous parts of our world are built.

That is the full explication of why we are going to have liability nightmares. I recognize that there may be people in the room for whom the phrase “liability nightmare” sounds like a good thing. And this is part of why I speak out of desperation. Because oddly enough there are a lot of smart people on the other side of what I’m about to say.

Some of those people have business interests in being allowed to determine the quantum of this risk all by themselves and to lay it off as silently as possible. Because of course there are pathologies of private governance just as there are pathologies of public governance.

Oddly enough, under late capitalism when financial industries are strong, businesses’ incentives to study and prevent the risks of catastrophic loss can be remarkably low. The reason those incentives can be so low is that the avoidance of catastrophic but low-probability risks with real costs in the present looks like expenses you can cut.

And if you are leveraging your business, avoidance of catastrophic risks of low probability with substantial present costs in either time or money will cause failures to go under-prevented routinely as a result of the gravity of the balance sheet.

Allow me to mention in this context Lord Brown, whose creation of the don’t-call-it-British-Petroleum Company as we know it now for a short while more, resulted from the leveraged acquisition of large numbers of oil companies building an immensity which then had to save money everywhere it could in order to manage the expenses against which it had to balance the costs of the immense leverage that had created it.

That BP became well understood throughout the world as a safety miser, and its record in every major jurisdiction where it functioned showed that its incentives had become to under-insure against low-frequency catastrophic risk because the avoidance of present expense was irrevocably determined by the gravity of the balance sheet. We had a refinery explosion in the United States; we had significant pipeline injury resulting from inadequate management in the United States; and now, I say no more.

So I am desperate because there are forces at work in all the places where justice must be made—that is, among the public regulators within the private businesses and even at the bar—there are forces that do not want to hear what I am going to say, which is that we can’t live this way.

This must not happen. This is another form of ecological harm resulting from our inability to understand the technological nature of our transformation of society shrewdly and rapidly enough to avoid serious human harms.

I said recently, I will admit, that Mr. Zuckerberg had done more harm to the human race than anybody else his age. And that’s an unfortunate fact about where we live now, but I need to point out to you that there are a lot of people in the world a lot older than Mr. [Zuckerberg]. Now we got a problem we must fix and the bad news, as I have pointed out, is that we are not socially aligned even to recognize it, let alone fix it.

The hopeful part of my talk is unfortunately rather short but it’s rather intense, because the good news is, freedom foresaw the problem, and we could fix it if we were let. You see, the fundamental difficulty is a difficulty which arises from the inadequacy of regimes of inspection. Manufacturers have incentives for non-transparency, including non-transparent ways of creating the code they put in things. Regulators have an incentive for transparency, but they cannot manage the expensive cognitive machinery necessary to understand and to repair the liabilities created by software.

And legal rules, though of course productive of an exacting and thorough sort of justice, as we all know, are at their very best effective in certain forms of post-harm redistribution, against which I have nothing bad to say, except that they don’t prevent the nightmare. All they do is, after long litigation, move money around between insurers, which is not really a sufficient response.

We do possess the answers necessary to implement a different way of thinking about things in the free world. First of all, we produce transparently. Second, we avail ourselves of what has come to be known in the free world as Linus’s Law, named after Linus Torvalds, that in the presence of enough eyeballs, all bugs are shallow.

This is not a necessarily correct technical statement, but it is, in this context, an important social proposition. The correct way to maximize the available inspection of software that can fail is to use civil society’s full width to conduct inspection. I don’t need to explain to you what can be accomplished in this world by a single motivated hacker.

I don’t need to explain to you why it is that if you tell everybody on Earth, “the software that could fail, killing your mother the next time she takes an airplane, is on the Web, you might want to have a look at it,” there is a remarkably high number of very talented and thoughtful people around the world who will do exactly that.

So what I’m going to say, oddly enough, reduces to a couple of rather simple principles, which could avoid a great deal of liability nightmare around the world. On the downside, some lawyers would get less rich doing those liability nightmares, and I acknowledge, in an audience such as this, the legitimacy of that consideration.

But the upside is more substantial. We would actually avoid a lot of deaths.

Proprietary software is an unsafe building material. You can’t inspect it. You can’t assess its complex failure modes easily, by simply poking at the finished article. And most important of all, if you were aware of a problem that was of a safety-enhancing kind, that you could fix, you couldn’t fix it.

If you were aware of a catastrophic failure mode, you couldn’t do anything about it, except ask the manufacturer to fix it, who of course sells almost all the software that it sells, if it sells to consumers, under a shrink-wrap with a Hadley against Baxandall-ization of the whole thing. Which basically says, if the software fails catastrophically and obliterates your town, we’ll give you your money back.

So proprietary software is an unsafe building material. We shouldn’t use it for purposes that could conceivably cause harm, like running personal computers. Let alone should we use it for things like anti-lock brakes, or throttle control in automobiles. We wouldn’t allow people to build black-box elevators, you know. They’ve got to be inspectable, and they have to be repairable by the people in whose buildings they are.

That’s a sensible rule, arrived at over a long period of experience with what can happen when things fall, which you would expect us to carry unchanged into our experience of the digital environment, but which is not. The basic principle of the difficulty that we face is we can’t see enough and we can’t modify it fast enough to avoid merely assessing in an extraordinarily complex way that the legal system, too, will be no good at, what went wrong after it fails. What we actually need is the ability to harness civil society to prevent failure. This is a problem, in other words, which can be prevented more easily than it can be coped with after the fact.

The obscurity of my principle, the fact that it hasn’t been widely endorsed around the world, well, I will leave the question why everybody hasn’t seen it already to be discussed by others.

Because, after all, I really am, however desperately, an optimist. I actually think what we ought to do is just recognize the truth of this and fix it. I can’t imagine that there’s anybody who wouldn’t want to—unless they had existing incentives already not to want to.

And, so what we have is a democracy problem, because that’s how we deal with things like this. In other words, we need regulation, but the regulation that we need is regulation that prevents harm, a not-difficult proposition, usually, to offer to a legislator.

We need to use inspectable and testable building materials in constructing the artifacts that run our lives.

Well, that’s not a terribly difficult proposition to put before a legislature. Every legislature in the twentieth century accepted that to a great extent, from the municipalities around us, to the national governments, and beyond. The European Commission prohibits, flatly, the use of user-modifiable software in medical devices. The European Commission’s view is that the presence of modifiable software in medical devices causes risk. I perfectly understand this point of view, but it’s precisely backward.

On the whole, over the entirety of the problem, the availability of software you can read, understand, and repair, which can be vetted thoroughly, which can be fully disclosed to civil society, which can be assured to work, though in which who installs modifications in which devices can be rigidly controlled by many forms of law, including criminal law, makes sense.

The determination that every medical device will be a black box, fully testable only by its manufacturer, does not make sense. The existing compromises, including the European Commission’s view, are, unfortunately, not working.

In the United States, at least in theory, regulation makes more room for the possibility of free software in medical devices, but practice is, of course, very much the other way.

I will state, as grounded speculation resulting from my experience, that there is at least one major manufacture in Europe who is out of compliance with GPL, concerning GPL’ed software embedded in the medical devices they sell here, because they believe that it is less risky to disobey the GPL and risk copyright infringement lawsuits than to risk the wrath of the European Commission for using that GPL’ed software in medical devices.

If you were a large manufacturer of medical devices in Europe and that’s the choice your regulatory masters put you to, that would be a bad thing, I say, happening to believe that violating the GPL is a bad idea for practical as well as moral reasons.

But what we really benefit from is the recognition that the more brains we harness to the process of making this extraordinarily complex and failure-prone technological environment around us safe, the better we will do.

Failures in software that cause security problems are not the biggest difficulty. They’re over-emphasized, by several orders of magnitude. But they’re not trivial, and I would be remiss if I didn’t say something about them, which is that they offer an excellent demonstration of why it’s better to have more eyeballs on the code.

I appreciate that there is strong controversy around the world of whether proprietary operating systems or free operating systems are more secure. But you appreciate that that controversy is like the controversy over whether people sometimes press the accelerator when they meant to press the brake and keep it there long enough to drive down the highway and crash into things, because you have more Windows computers in your life, in all likelihood, than I have in mine, and so you know.

What we really recognize ourselves is also recognized by the regulators, and, to some extent, is recognized by the manufacturers, though they adopt our software primarily because it’s cheap for them. They also know it works, and “works” includes “doesn’t send their devices up in smoke” and other such things, which are, after all, not good for you, and which they wish to avoid. If they didn’t believe they were avoiding those risks, which are catastrophic to them, if not to the human beings around them, they wouldn’t use our stuff.

Even the lawyers know this would be a good idea because, I’ve told you and, although I’m happy to answer hostile questions if anybody has any, the truth is, this is common sense, really. And, despite predictions on the subject by non-lawyers, lawyers listen to common sense.

So we’re going to have to do it. We’re going to have to do it. It’s going to take some trouble to get it done, because there are going to be a lot of people on the other side, for reasons we’ve just investigated. And each one of the catastrophes that ought to be the last straw, there’s going to be argument about. There’s going to be discussion about causation and proof, and it’s going to be immensely complicated.

And, some of the people in this room will be adding smoke, because that’s their job and they do it well. So, it’s not going to work the way it ought to work, namely, “look, we’ve got to do something about that.” Unless people are willing to synthesize the data for themselves, and put it together, and add common sense to it, and make a democratic demand, it won’t occur.

And a lot of other things will occur that we will feel bad about, that we should have avoided, that I just told you we could raise our odds of avoiding very drastically, and all we’d have to do is be for freedom, which is surely the most desperate kind of hope anybody could have offered under these circumstances. Thank you very much.

[Iain Mitchell]

Eben has very kindly agreed to answer questions, so I was wondering if we have somebody who might like to kick off the discussion.

[Audience member]

I have several questions. Thank you so much. You raise so many interesting points. I am Paula from the Open Knowledge Foundation in Scotland and, so a lot of questions. Is there a mailing list where we can ask them all, by the way.

[Eben Moglen]

So, there is a place called moglen@columbia.edu, and I’ll put a website up or add it to my blog, or do something. If it’s a useful conversation we’ll keep it around.

[Audience member]

There are several things, but I’m going to ask you just one.

We are learning how to use the “put a lot of eyeballs on the code.” I think, although there are issues, we can start. Would you recommend that we have many eyeballs on the license? My approach to open source licensing is that at the moment I see that there are limited lawyers who are experts and although the lawyers who are experts have been [inaudible]. So my approach would be why don’t we open the licensing process to a group of people, even with different opinions, to try to make these license more reliable. This is something that I don’t see happening now and I would like to have your opinion on your experience.

[Eben Moglen]

So, as F. Scott Fitzgerald says, so we beat on like boats against the current, borne back ceaselessly into the past. Well, that’s why GPL3 was done the way it was done, because I wanted to put together a process like that in which we could somehow model the social consequences of mixing in a deliberative process everybody who, regardless of the size of organization, or the geographic dispersion, or the nature of the technical or legal specialization of the parties, and we spent 16 months putting a license together in that way, and the last time I was here, the talk I gave, which is rattling around the net somewhere, was about what I thought we might have learned on the basis on that early experiment with the process of making better licenses that way.

The Mozilla Foundation is currently engaged in a process of revising the Mozilla Public License, which pretty much adopts that general approach to the making of free software licenses, and given that MPL and the Free Software Foundation copyleft licenses are the most complex licenses that are used in the free world for most purposes, I think we’ve pretty much tried in a conscientious way to fulfill your request. I don’t know what would happen if you tried to get together a lot of people around the world to reconsider the MIT X11 license, or BSD. My guess is that people would say, yes, well, they are simple things, and they work, why fix them, they ain’t broken. And they don’t have to be very adaptable to circumstances because they basically defer to downstream users’ decision-making.

I think Creative Commons is correct that the process of manufacturing software licenses doesn’t need to occur in the Creative Commons process. There are answers that are important where Diane Peters, the general counsel of Creative Commons and I work closely at the moment. Diane sits on the board of the Software Freedom Law Center, and we are, I hope, valued colleagues. She is

What we have been talking about recently is the world in which we live in, in which media objects are converging so that both software and non-executable media bitstreams—video, audio, texts, and graphics—are living inside a single object from the user’s point of view and we need to think about how multiple licenses exist and work together inside that barrel, one is for the code, and one is for the graphics, the text, the media of every kind.

There will be some adjustments around the edges and I have every reason to think that those, too, will occur in Wiki-like ways. We all are benefiting enormously from enhanced Web collaborations. I feel sure that license-making is going to go in that direction.

[Audience member]

I was just wondering, as well as having the software publicly available, do you think it would be useful if software had test suites that were publicly available?

[Eben Moglen]

Well, if you look at how most free world software works, that’s how it works. “make configure,” “./configure,” “make test,” “make install,” right? We do that. We’ve always done that, not just the free world, right?

[Audience member]

But should there be a regulator are defining that there should be certain tests in the test suite…

[Eben Moglen]

Why worry about whether regulators define it? In the free world we define it. Developers define tests because they want to test their software. Testing is part of the process of making.

[Audience member]

The whole idea of a regulator is to ensure that it doesn’t go wrong.

[Eben Moglen]

Let’s suppose that regulators try to be maximally parsimonious. Let’s suppose they operated either in libertarian political environments or under the rigid routine of having to explain to a political appointee everything they do, or in any of the other ways, have limited budgets, let’s suppose that for any of the reasons that regulators want to be parsimonious, they want to be parsimonious. The minimum set of regulations necessary is, you must make all parts available to inspection, and you must permit anybody to fix a safety problem at any time.

[Audience member]

There would be contentions.

[Iain Mitchell]

Coming from a European legal perspective, the difficulty, of course, you’ve got, is, that regulation can never be a silver bullet. Think of the mass of regulation that surrounded the banking industry, and think of where that got us. I think that the point is, that Eben’s point is very well made, that regulation might be necessary on some stratum, but essentially you’ve got to rely upon commercial and market pressures, you’ve got to rely on public opinion, you’ve got to rely upon persuading politicians. Don’t think that regulation is the silver bullet that will cure everything.

[Eben Moglen]

One of the elements of this that’s contentions is that what you have to rely upon is society, sometimes known as socialism, which is why it’s so contentious.

What the businesses have learned is that they could socialize research and development in software to the free world. We did it for them with enormous efficiency, both in order to demonstrate a theoretical proposition, namely that freedom is good, and a practical proposition, namely that we could make neat stuff if people would let us. And as a consequence, we altered the way the software industry around the world works because we proved to them that socialization of research and development was highly profitable.

Now even Lawrence Ellison, a man who never had a research division—because what good is a research division in a company that makes and sells software?—now even Lawrence Ellison participates in socialism heavily, because he bought a relationship with the free world of enormous value and he paid seven billion dollars for it, which to him is real money, even. You could raise a sailboat for that.

Now, the consequence of relying on society is that the regulator gets a free ride the same way that the capitalist does. In the same way that the manufacturer who sells at a profit has socialized his R&D to great efficiency gain, so the regulator socializes the process of testing and fixing. The reason that it gets done is people want it done, it’s got an itch, it gets scratched, and because we’re talking about software, when one guy fixes it everybody gets the benefit. We take advantage of the very same multiplicative effect in zero-marginal-cost economics that the manufacturers took advantage of. We use it for a different purpose, namely to achieve social good.

Well, that’s not an unprecedented activity. That’s what we did in the first place; that’s what we’re about. We use the socializ-ability of software knowledge in the zero-marginal-cost economy to produce social gains with very little apparent social input, because we harness the creativity and ingenuity of people and we free that to do the work. All I’m pointing to is that with tiny regulatory interactions you can harness that same process to make the environment safer, and you will get immense safety from it. But, it will be contentious, yes, my goodness it will.

[Audience member]

No, I’m saying that…

[Eben Moglen]

No, it would, you’re right, it will.

[Audience member]

No, what I’m saying is, let me paint out if you say to somebody, you say, “it’s not safe, let me fix it.” How do I know that you’re going to make it more safe, and on top of that, I cannot sue you or anybody else for [inaudible]…

[Eben Moglen]

Then don’t use the fix. That’s easy!

[Audience member]

But what I’m saying is I question the competence of anyone who comes up to me and says ’“hey, I’m gonna make it more safe.”

[Eben Moglen]

That’s odd, because that’s how we do it now. We say to people “I can make it safer, I can make it more secure, I can make it use less energy, I can make it work better,” and we’re right. And if we’re wrong, people don’t use the fix. That’s what we’ve already done. I understand your suspicion, I appreciate the point, I come to you on that subject with proof in hand. A quarter of a century of work.

[Audience member]

In your model, what is going to exist with quality assessment [inaudible]…

[Eben Moglen]

Well, you can do it any way you want, can’t you, because everybody participates equally in that process in the free world. Regulators would surely want to participate. I would rather imagine they would participate in a variety of ways, including by putting some of the people who successfully fix things on the technical advisory committees that are so important to the functioning of the regulatory entities.

There’s nothing to prevent us from issuing trumps to the regulators if we want to. There’s nothing, for example, that prevents us from coupling the system of ‘everybody’s got a right to inspect and everybody’s got a right to nominate patches’ with the idea that a regulatory entity produces authoritative versions of things which are safety-critical. If the German government wants to decide what the German automotive operating system consists of, which they might, given my experience, that wouldn’t be a problem for me.

The point is that the software’s free availability and everybody’s opportunity to read it, think about it, deal with it, poke it, test it, modify it, and compose patches for it, crucially advantages that national regulator. And I point to the national operating systems built on free software that occasionally are discussed by national governments, as the Russian government is discussing one now.

I don’t necessarily think at any given moment that that’s a good idea - I have views in particular contexts about it - but there would be nothing to prevent a society from doing it and I wouldn’t think it was a bad response, unless some practical detail suggested it was poorly implemented. The goal here isn’t to establish all that regulators might do, the goal here is to establish a minimum that every society ought to do because it’s a predicate to doing it right - whatever ‘doing it right’ turns out to mean.

[Audience member]

Let’s take a simple example we’re all familiar with, domestic heating boiler, which is controlled by British standards and European Union standards, and if you design a new pump, they have to approve it before you put it on the market.

Now let’s imagine you’ve got a bit of software in our pump and it’s gone free, as you’ve just described. Surely the only way that’s going to work in terms of the consumer is that there will then have to be a system for checking that the fixes are safe. And you’ll simply be putting the civically-enthusiastic fixer under the same burden as a manufacturer of pumps. And therefore people will not want to go and check our boilers because when they find a fix they won’t feel confident about the regulatory system.

[Eben Moglen]

No, not necessarily. I appreciate that that’s a possible difficulty, and if it arises it needs to be solved in one of several ways. Generally speaking, standardization doesn’t involve making it impossible for free software authors to work—we work heavily in standardized areas, in fact I should say we work heavily in heavily standardized areas. We work best, it is true, in heavily standardized areas where the standards are open, that is where everybody has an equal right to implement and therefore we took the area that we standardized the most in, namely the web, and we created at WC3 an extraordinarily important open standards manufacturing policy, which is now a model for open standards discussion in, among other things, government regulatory entities around the world. The Software Freedom Law Center was providing - is currently proving - some advice to the government of India on that subject, but the relationship between standardization and free development is not somehow one of incompatibility that would make it wrong to say that standards-making is a good way of doing, among other things, safety regulation, and the free world would be somehow disadvantaged by it.

The major difficulty with using standards regulation as safety regulation is that standards are by-and-large purchasable outcomes of pay-to-play organizations. That’s how standards are made around the world by-and-large, and the result is that if you expect standards-making in software to be effective at producing safety, there will be difficulty, that’s all that I would say.

The OOXML standard mess is a reasonable example of how tame standard making can cause industry pathologies. If you spend $150 million around the world in bribes, as Microsoft did, you can make anything a standard. I’m not sure that’s what you want out of the thing you want to make your safety regulations from, but I would agree that standardization is a deeply important component of how things ought to be made safe.

The problem with thinking of software failure as cured by standardization, which is the last comment I want to make, is that standards are very general things in the world of software. With respect to your boiler, it’s true that a standard can define how valves work in a way which is important to safety criticality, but software standards don’t define what will happen under multiple-failure conditions and things like that. They define how things work under normal circumstances, they define how protocols work when they are properly implemented - they don’t define what happens when tubes freeze over and arbitration software has to decide which navigational system is to be relied upon. That’s not the sort of stuff standards do. If we tried to use standards to do it, we’d have to revise how we make standards.

[Audience member]

It’s evident at the moment that most manufacturers do not release the source for embedded software currently. Is your impression that their current reason for doing this is because they think it’s good, some other people might take it, or because it’s bad and some other people might find this out?

[Eben Moglen]

Mostly it is the former. It’s not merely that it’s good and somebody else might take it, it’s that every standardization reduces a downstream service monopoly that they can control. For example, with respect to the diagnostic codes emitted by complex automotive systems and how to understand them, every manufacturer in the United States - and as far as I know, in the world economy - tries to control downstream access to the ability to access and interpret their codes. This despite the fact that the American Society of Automotive Engineers is supposed to standardize everything of importance about automobiles, and every couple of years, a guy calls me up and wants me to help him challenge the inactivity of the American Society of Automotive Engineers in requiring standardization of the diagnostic code scam in the automotive industry as they currently standardize the pitch and diameter of every screw and bolt in every automobile.

But standards structures don’t work well for that purpose in the area of software and they allow manufactures to derive various downstream anti-competitive advantages from the maintenance of their own proprietary software stacks. Whether there is any social good to balance that resulting from any increase in profitability to the manufacturer should at least be an explorable question. In my society regulatory interventions are supposed to occur on a cost-benefit basis, and I would abide the outcome of the cost-benefit investigation of that just as you were suggesting. My guess is that manufacturers derive substantially less value whatever it is from the harm caused.

[Audience member]

I’m just curious to think about where software ends, because we’ve kind of got the situation now that perhaps 20 years ago hardware was relatively simple but we have open software sitting on the most incredibly complicated hardware device, I can see that the sort of chip designs themselves are basically software now—we can classify it as software—but I’m just trying to think how far we can expand such a scheme. The chemistry of chip fabrication could be cause for a problem.

[Eben Moglen]

Well oddly enough, chip manufacturers worry a great deal about that already. We don’t experience a lot of hardware failure in the world, in that context. Hardware—computing hardware, digital use processing hardware—tends to fail catastrophically if it fails at all because manufacturers are very good at dealing with the things that would cause the kinds of failures—the multiple-condition peculiarities. We know that gamma-rays can distort unshielded hardware, and even so we worry about it very little because we add an extra bit that doesn’t cost us anything in the memory and we fix single bit errors when they happen.

So we take even physical limitations in hardware and we deal with it. Hardware engineering is orders of magnitude more sophisticated than software engineering. I’ve said this before—I’ll be quick about it now. When I went to work at the IBM Santa Teresa laboratory, in July of 1979, it was one of the largest clusters of hardware in the world, we had 330 professional programmers producing software used by IBM databases, programming languages, and all sorts of other stuff, we had acres, hectares of 3330 and 3350 disk drives. I have the spec sheet of the laboratory hardware from the day I joined, a little piece of employee bumf, 330 people 20 7168’s, the total capacity of that laboratory was 29 gigabytes and we thought that was big.

Okay? 32 gigabytes on a thing the size of your thumbnail that costs $129 or a terabyte hard drive that costs $79, right? Hardware builders have built machines that dwarf what we expected could be achieved when I was young, they reduced them to less than the size of your hand, they put them on a table top for $200. Software is arguably worse—surely not substantially better. The great mystery of our world, unless you understand the harm done by the proprietization of software, is why software engineering is so primitive compared to hardware engineering.

So I can’t stand here and tell you that you’re at risk from catastrophic hardware failure, that we can’t test and don’t diagnose, and that manufacturers don’t find. That would be untrue. Every once in a while, as you know, guys put out chips with some significant unexpected problem in them—Intel has had to fall on its sword twice in the personal computer era because there was some error in a floating-point box that didn’t do its job right. In one revision of one chip. But this is not a difficulty like software because software has been engineered differently, and although we in the free world would like to say we haven’t done it, and mostly we haven’t done it, the truth is software engineering had been held back for two generations by over-proprietization and we’ve just begun to fix the problem. But this would fix the problem in a bigger way.

Thank you all.

Moglen, Eben - Freedom In the Cloud: Software Freedom, Privacy, and Security for Web 2.0 and Cloud Computing - NYU 20100205

Freedom In the Cloud: Software Freedom, Privacy, and Security for Web 2.0 and Cloud Computing - NYU 20100205

It’s a pleasure to be here. I would love to think that the reason that we’re all here on a Friday night is that my speeches are so good. I actually have no idea why we’re all here on a Friday night but I’m very grateful for the invitation. I am the person who had no date tonight so it was particularly convenient that I was invited for now.

So, of course, I didn’t have any date tonight. Everybody knows that. My calendar’s on the web.

The problem is that problem. Our calendar is on the web. Our location is on the web. You have a cell phone and you have a cell phone network provider and if your cell phone network provider is Sprint then we can tell you that several million times last year, somebody who has a law enforcement ID card in his pocket somewhere went to the Sprint website and asked for the realtime location of somebody with a telephone number and was given it. Several million times. Just like that. We know that because Sprint admits that they have a website where anybody with a law enforcement ID can go and find the realtime location of anybody with a Sprint cellphone. We don’t know that about ATT and Verizon because they haven’t told us.

But that’s the only reason we don’t know, because they haven’t told us. That’s a service that you think of as a traditional service - telephony. But the deal that you get with the traditional service called telephony contains a thing you didn’t know, like spying. That’s not a service to you but it’s a service and you get it for free with your service contract for telephony. You get for free the service of advertising with your gmail which means of course there’s another service behind which is untouched by human hands, semantic analysis of your email. I still don’t understand why anybody wants that. I still don’t understand why anybody uses it but people do, including the very sophisticated and thoughtful people in this room.

And you get free email service and some storage which is worth exactly a penny and a half at the current price of storage and you get spying all the time.

And for free, too.

And your calendar is on the Web and everybody can see whether you have a date Friday night and you have a status - “looking” - and you get a service for free, of advertising “single: looking”. Spying with it for free. And it all sort of just grew up that way in a blink of an eye and here we are. What’s that got to do with open source? Well, in fact it doesn’t have anything to do with open source but it has a whole lot to do with free software. Yet, another reason why Stallman was right. It’s the freedom right?

So we need to back up a little bit and figure out where we actually are and how we actually got here and probably even more important, whether we can get out and if so, how? And it isn’t a pretty story, at all. David’s right. I can hardly begin by saying that we won given that spying comes free with everything now. But, we haven’t lost. We’ve just really bamboozled ourselves and we’re going to have to un-bamboozle ourselves really quickly or we’re going to bamboozle other innocent people who didn’t know that we were throwing away their privacy for them forever.

It begins of course with the Internet, which is why it’s really nice to be here talking to the Internet society - a society dedicated to the health, expansion, and theoretical elaboration of a peer-to-peer network called “the Internet” designed as a network of peers without any intrinsic need for hierarchical or structural control and assuming that every switch in the Net is an independent, free-standing entity whose volition is equivalent to the volition of the human beings who want to control it.

That’s the design of the NET, which, whether you’re thinking about it as glued together with IPv4 or that wonderful improvement IPv6 which we will never use apparently, still assumes peer communications.

OF course, it never really really really worked out that way. There was nothing in the technical design to prevent it. Not at any rate in the technical design interconnection of nodes and their communication. There was a software problem. It’s a simple software problem and it has a simple three syllable name. It’s name is Microsoft. Conceptually, there was a network which was designed as a system of peer nodes but the OS which occupied the network in an increasingly - I’ll use the word, they use it about us why can’t I use it back? - viral way over the course of a decade and a half. The software that came to occupy the network was built around a very clear idea that had nothing to do with peers. It was called “server client architecture”.

The idea that the network was a network of peers was hard to perceive after awhile, particularly if you were a, let us say, ordinary human being. That is, not a computer engineer, scientist, or researcher. Not a hacker, not a geek. If you were an ordinary human, it was hard to perceive that the underlying architecture of the Net was meant to be peerage because the OS software with which you interacted very strongly instantiated the idea of the server and client architecture.

In fact, of course, if you think about it, it was even worse than that. The thing called “Windows” was a degenerate version of a thing called “X Windows”. It, too, thought about the world in a server client architecture, but what we would now think of as now backwards. The server was the thing at the human being’s end. That was the basic X Windows conception of the world. it’s served communications with human beings at the end points of the Net to processes located at arbitrary places near the center in the middle, or at the edge of the NET. It was the great idea of Windows in an odd way to create a political archetype in the Net which reduced the human being to the client and produced a big, centralized computer, which we might have called a server, which now provided things to the human being on take-it-or-leave-it terms.

They were, of course, quite take-it or leave-it terms and unfortunately, everybody took it because they didn’t know how to leave once they got in. Now the Net was made of servers in the center and clients at the edge. Clients had rather little power and servers had quite a lot. As storage gets cheaper, as processing gets cheaper, and as complex services that scale in ways that are hard to use small computers for - or at any rate, these aggregated collections of small computers for - the most important of which is search. As services began to populate that net, the hierarchical nature of the Net came to seem like it was meant to be there. The Net was made of servers and clients and the clients were the guys at the edge representing humans and servers were the things in the middle with lots of power and lots of data.

Now, one more thing happened about that time. It didn’t happen in Microsoft Windows computers although it happened in Microsoft Windows servers and it happened more in sensible OSs like Unix and BSD and other ones. Namely, servers kept logs. That’s a good thing to do. Computers ought to keep logs. It’s a very wise decision when creating computer OS software to keep logs. It helps with debugging, makes efficiencies attainable, makes it possible to study the actual operations of computers in the real world. It’s a very good idea.

But if you have a system which centralizes servers and the servers centralize their logs, then you are creating vast repositories of hierarchically organized data about people at the edges of the network that they do not control and, unless they are experienced in the operation of servers, will not understand the comprehensiveness of, the meaningfulness of, will not understand the aggregatability of.

So we built a network out of a communications architecture design for peering which we defined in client-server style, which we then defined to be the dis-empowered client at the edge and the server in the middle. We aggregated processing and storage increasingly in the middle and we kept the logs - that is, info about the flows of info in the Net - in centralized places far from the human beings who controlled or thought they controlled the operation of the computers that increasingly dominated their lives. This was a recipe for disaster.

This was a recipe for disaster. Now, I haven’t mentioned yet the word “cloud” which I was dealt on the top of the deck when I received the news that I was talking here tonight about privacy and the cloud.

I haven’t mentioned the word “cloud” because the word “cloud” doesn’t really mean anything very much. In other words, the disaster we are having is not the catastrophe of the cloud. The disaster we are having is the catastrophe of the way we misunderstood the Net under the assistance of the un-free software that helped us to understand it. What “cloud” means is that servers have ceased to be made of iron. “Cloud” means virtualization of servers has occurred.

So, out here in the dusty edges of the galaxy where we live in dis-empowered clienthood, nothing very much has changed. As you walk inward towards the center of the galaxy, it gets more fuzzy than it used to. We resolve now halo where we used to see actual stars. Servers with switches and buttons you can push and such. Instead, what has happened is that iron no longer represents a single server. Iron is merely a place where servers could be. So “cloud” means servers have gained freedom, freedom to move, freedom to dance, freedom to combine and separate and re-aggregate and do all kinds of tricks. Servers have gained freedom. Clients have gained nothing. Welcome to the cloud.

It’s a minor modification of the recipe for disaster. It improves the operability for systems that control the clients out there who were meant to be peers in a Net made of equal things.

So that’s the architecture of the catastrophe. If you think about it, each step in that architectural revolution: from a network made of peers, to servers that serve the communication with humans, to clients which are programs running on heavy iron, to clients which are the computers that people actually use in a fairly dis-empowered state and servers with a high concentration of power in the Net, to servers as virtual processes running in clouds of iron at the center of an increasingly hot galaxy and the clients are out there in the dusty spiral arms.

All of those decisions architecturally were made without any discussion of the social consequences long-term, part of our general difficulty in talking about the social consequences of technology during the great period of invention of the Internet done by computer scientists who weren’t terribly interested in Sociology, Social Psychology, or, with a few shining exceptions - freedom. So we got an architecture which was very subject to misuse. Indeed, it was in a way begging to be misused and now we are getting the misuse that we set up. Because we have thinned the clients out further and further and further. In fact, we made them mobile. We put them in our pockets and we started strolling around with them.

There are a lot of reasons for making clients dis-empowered and there are even more reasons for dis-empowering the people who own the clients and who might quaintly be thought of the people who ought to control them. If you think for just a moment how many people have an interest in dis-empowering the clients that are the mobile telephones you will see what I mean. There are many overlapping rights owners as they think of themselves each of whom has a stake in dis-empowering a client at the edge of the network to prevent particular hardware from being moved from one network to another. To prevent particular hardware from playing music not bought at the great monopoly of music in the sky. To disable competing video delivery services in new chips I founded myself that won’t run popular video standards, good or bad. There are a lot of business models that are based around mucking with the control over client hardware and software at the edge to deprive the human that has quaintly thought that she purchased it from actually occupying the position that capitalism says owners are always in - that is, of total control.

In fact, what we have as I said a couple of years ago in between appearances here at another NYU function. In fact, what we have are things we call platforms. The word “platform” like the word “cloud” doesn’t inherently mean anything. It’s thrown around a lot in business talk. But, basically what platform means is places you can’t leave. Stuff you’re stuck to. Things that don’t let you off. That’s platforms. And the Net, once it became a hierarchically architected zone with servers in the center and increasingly dis-empowered clients at the edge, becomes the zone of platforms and platform making becomes the order of the day.

Some years ago a very shrewd lawyer who works in the industry said to me “Microsoft was never really a software company. Microsoft was a platform management company”. And I thought Yes, shot through the heart.

So we had a lot of platform managers in a hierarchically organized network and we began to evolve services. “Services” is a complicated word. It’s not meaningless by any means but it’s very tricky to describe it. We use it for a lot of different things. We badly need an analytical taxonomy of “services” as my friend and colleague Philippe Aigrain in Paris pointed out some 2 or 3 years ago. Taxonomies of “services” involve questions of simplicity, complexity, scale, and control.

To take an example, we might define a dichotomy between complex and simple services in which simple services are things that any computer can perform for any other computer if it wants to and complex services are things you can’t do with a computer. You must do with clusters or structures of some computational or administrative complexity. SEARCH is a complex service. Indeed, search is the archetypal complex service. Given the one way nature of links in the Web and other elements in the data architecture we are now living with (that’s another talk, another time) search is not a thing that we can easily distribute. The power in the market of our friends at Google depends entirely on the fact that search is not easily distributed. It is a complex service that must be centrally organized and centrally delivered. It must crawl the web in a unilateral direction, link by link, figuring out where everything is in order to help you find it when you need it. In order to do that, at least so far, we have not evolved good algorithmic and delivery structures for doing it in a decentralized way. So, search becomes an archetypal complex service and it draws onto itself a business model for its monetiztion.

Advertising in the 20th century was a random activity. You threw things out and hoped they worked. Advertising in the 21st century is an exquisitely precise activity. You wait for a guy to want something and then you send him advertisements about what he wants and bingo it works like magic. So of course on the underside of a complex service called search there is a theoretically simple service called advertising which, when unified to a complex service, increases its efficiency by orders of magnitude and the increase of the efficiency of the simple service when combined with the complex one produces an enormous surplus revenue flow which can be used to strengthen search even more.

But that’s the innocent part of the story and we don’t remain in the innocent part of the story for a variety of uses. I won’t be tedious on a Friday night and say it’s because the bourgeoisie is constantly engaged in destructively reinventing and improving its own activities and I won’t be moralistic on a Friday night that you can’t do that and say because sin is in-eradicable and human beings are fallen creatures and greed is one of the sins we cannot avoid committing. I will just say that as a sort of ordinary social process we don’t stop at innocent. We go on, which surely is the thing you should say on a Friday night. And so we went on.

Now, where we went on is really towards the discovery that all of this would be even better if you had all the logs of everything because once you have the logs of everything then every simple service is suddenly a goldmine waiting to happen and we blew it because the architecture of the Net put the logs in the wrong place. They put the logs where innocence would be tempted. They put the logs where the failed state of human beings implies eventually bad trouble and we got it.

The cloud means that we can’t even point in the direction of the server anymore and because we can’t even point in the direction of the server anymore we don’t have extra technical or non-technical means of reliable control over this disaster in slow motion. You can make a rule about logs or data flow or preservation or control or access or disclosure but your laws are human laws and they occupy particular territory and the server is in the cloud and that means the server is always one step ahead of any rule you make or two or three or six or poof! I just realized I’m subject to regulation, I think I’ll move to Oceana now.

Which means that in effect, we lost the ability to use either legal regulation or anything about the physical architecture of the network to interfere with the process of falling away from innocence that was now inevitable in the stage I’m talking about, what we might call late Google stage 1.

It is here, of course, that Mr. Zuckerberg enters.

The human race has susceptibility to harm but Mr. Zuckerberg has attained an unenviable record: he has done more harm to the human race than anybody else his age.

Because he harnessed Friday night. That is, everybody needs to get laid and he turned it into a structure for degenerating the integrity of human personality and he has to a remarkable extent succeeded with a very poor deal. Namely, “I will give you free web hosting and some PHP doodads and you get spying for free all the time”. And it works.

That’s the sad part, it works.

How could that have happened?

There was no architectural reason, really. There was no architectural reason really. Facebook is the Web with “I keep all the logs, how do you feel about that?” It’s a terrarium for what it feels like to live in a panopticon built out of web parts.

And it shouldn’t be allowed. It comes to that. It shouldn’t be allowed. That’s a very poor way to deliver those services. They are grossly overpriced at “spying all the time”. They are not technically innovative. They depend upon an architecture subject to misuse and the business model that supports them is misuse. There isn’t any other business model for them. This is bad.

I’m not suggesting it should be illegal. It should be obsolete. We’re technologists, we should fix it.

I’m glad I’m with you so far. When I come to how we should fix it later I hope you will still be with me because then we could get it done.

But let’s say, for now, that that’s a really good example of where we went wrong and what happened to us because. It’s trickier with gmail because of that magical untouched by human hands-iness. When I say to my students, “why do you let people read your email”, they say “but nobody is reading my email, no human being ever touched it. That would freak me out, I’d be creeped out if guys at Google were reading my email. But that’s not happening so I don’t have a problem.”

Now, this they cannot say about Facebook. Indeed, they know way too much about Facebook if they let themselves really know it. You have read the stuff and you know. Facebook workers know who’s about to have a love affair before the people do because they can see X obsessively checking the Facebook page of Y. There’s some very nice research done a couple of years ago at an MIT I shouldn’t name by students I’m not going to describe because they were a little denting to the Facebook terms of service in the course of their research. They were just scraping but the purpose of their scraping was the demonstrate that you could find closeted homosexuals on Facebook.

They don’t say anything about their sexual orientation. Their friends are out, their interests are the interests of their friends who are out. Their photos are tagged with their friends who are out and they’re out except they’re not out. They’re just out in Facebook if anybody looks, which is not what they had in mind surely and not what we had in mind for them, surely. In fact, the degree of potential information inequality and disruption and difficulty that arises from a misunderstanding, a heuristic error, in the minds of human beings about what is and what’s not discoverable about them is not our biggest privacy problem.

My students, and I suspect many of the students of teachers in this room too, show constantly in our dialog the difficulty. They still think of privacy as “the one secret I don’t want revealed” and that’s not the problem. Their problem is all the stuff that’s the cruft, the data dandruff of life, that they don’t think of as secret in any way but which aggregates to stuff that they don’t want anybody to know. Which aggregates, in fact, not just to stuff they don’t want people to know but to predictive models about them that they would be very creeped out could exist at all. The simplicity with which you can de-anonymize theoretically anonymized data, the ease with which, for multiple sources available to you through third and fourth party transactions, information you can assemble, data maps of people’s lives. The ease with which you begin constraining, with the few things you know about people, the data available to you, you can quickly infer immense amounts more.

My friend and colleague Bradley Kuhn who works at the Software Freedom Law Center is one of those archaic human beings who believes that a social security number is a private thing. And he goes to great lengths to make sure that his Social Security is not disclosed which is his right under our law, oddly enough. Though, try and get health insurance or get a safe deposit box, or in fact, operate the business at all. We bend over backwards sometimes in the operation of our business because Bradley’s Social Security number is a secret. I said to him one day “You know, it’s over now because Google knows your Social Security number”. He said “No they don’t, I never told it to anybody”. I said, “Yeah but they know the Social Security number of everybody else born in Baltimore that year. Yours is the other one”.

And as you know, that’s true. The data that we infer is the data in the holes between the data we already know if we know enough things.

So, where we live has become a place in which it would be very unwise to say about anything that it isn’t known. If you are pretty widely known in the Net and all of us for one reason or another are pretty widely known in the Net. We want to live there. It is our neighborhood. We just don’t want to live with a video camera on every tree and a mic on every bush and the data miner beneath our feet everywhere we walk and the NET is like that now. I’m not objecting to the presence of AOL newbies in Usenet news. This is not an aesthetic judgment from 1995 about how the neighborhood is now full of people who don’t share our ethnocentric techno geekery. I’m not lamenting progress of a sort of democratizing kind. On the contrary, I’m lamenting progress of a totalizing kind. I’m lamenting progress hostile to human freedom. We all know that it’s hostile to human freedom. We all understand it’s despotic possibilities because the distopias of which it is fertile were the stuff of the science fiction that we read when we were children. The Cold War was fertile in the fantastic invention of where we live now and it’s hard for us to accept that but it’s true. Fortunately, of course, it’s not owned by the government. Well, it is. It’s fortunate. It’s true. It’s fortunate that it’s owned by people that you can bribe to get the thing no matter who you are. If you’re the government you have easy ways of doing it. You fill out a subpoena blank and you mail it.

I spent two hours yesterday with a law school class explaining in detail why the 4th Amendment doesn’t exist anymore because that’s Thursday night and who would do that on a Friday night? But the 4th Amendment doesn’t exist anymore. I’ll put the audio on the Net and the FBI and you can listen to it anytime you want.

We have to fess up if we’re the people who care about freedom, it’s late in the game and we’re behind. We did a lot of good stuff and we have a lot of tools lying around that we built over the last 25 years. I helped people build those tools. I helped people keep those tools safe, I helped people prevent the monopoly from putting all those tools in its bag and walking off with them and I’m glad the tools are around but we do have to admit that we have not used them to protect freedom because freedom is decaying and that’s what David meant in his very kind introduction.

In fact, people who are investing in the new enterprises of unfreedom are also the people you will hear if you hang out in Silicon Valley these days that open source has become irrelevant. What’s their logic? Their logic is that software as a service is becoming the way of the world. Since nobody ever gets any software anymore, the licenses that say “if you give people software you have to give them freedom” don’t matter because you’re not giving anybody software. You’re only giving them services.

Well, that’s right. Open source doesn’t matter anymore. Free software matters a lot because of course, free software is open source software with freedom. Stallman was right. It’s the freedom that matters. The rest of it is just source code. Freedom still matters and what we need to do is to make free software matter to the problem that we have which is unfree services delivered in unfree ways really beginning to deteriorate the structure of human freedom.

Like a lot of unfreedom, the real underlying social process that forces this unfreedom along is nothing more than perceived convenience.

All sorts of freedom goes over perceived convenience. You know this. You’ve stopped paying for things with cash. You use a card that you can wave at an RFID reader.

Convenience is said to dictate that you need free web hosting and PHP doodads in return for spying all the time because web servers are so terrible to run. Who could run a web server of his own and keep the logs? It would be brutal. Well, it would if it were IIS. It was self-fulfilling, it was intended to be. It was designed to say “you’re a client, I’m a server. I invented Windows 7, It was my idea. I’ll keep the logs thank you very much.” That was the industry. We built another industry. It’s in here. But it’s not in. Well, yeah it is kind of in here. So where isn’t it? Well it’s not in the personal web server I don’t have that would prevent me from falling…well, why don’t we do something about that.

What do we need? We need a really good webserver you can put in your pocket and plug in any place. In other words, it shouldn’t be any larger than the charger for your cell phone and you should be able to plug it in to any power jack in the world and any wire near it or sync it up to any wifi router that happens to be in its neighborhood. It should have a couple of USB ports that attach it to things. It should know how to bring itself up. It should know how to start its web server, how to collect all your stuff out of the social networking places where you’ve got it. It should know how to send an encrypted backup of everything to your friends’ servers. It should know how to microblog. It should know how to make some noise that’s like tweet but not going to infringe anybody’s trademark. In other words, it should know how to be you …oh excuse me I need to use a dangerous word - avatar - in a free net that works for you and keeps the logs. You can always tell what’s happening in your server and if anybody wants to know what’s happening in your server they can get a search warrant.

And if you feel like moving your server to Oceana or Sealand or New Zealand or the North Pole, well buy a plane ticket and put it in your pocket. Take it there. Leave it behind. Now there’s a little more we need to do. It’s all trivial. We need some dynamic DNS and all stuff we’ve already invented. It’s all there, nobody needs anything special. Do we have the server you can put in your pocket? Indeed, we do. Off the shelf hardware now. Beautiful little wall warts made with ARM chips. Exactly what I specked for you. Plug them in, wire them up. How’s the software stack in there? Gee, I don’t know it’s any software stack you want to put in there.

In fact, they’ll send it to you with somebody’s top of the charts current distro in it, you just have to name which one you want. Which one do you want? Well you ought to want the Debian Gnu Linux social networking stack delivered to you free, free as in freedom I mean. Which does all the things I name - brings itself up, runs it’s little Apache or lighttpd or it’s tiny httpd, does all the things we need it to do - syncs up, gets your social network data from the places, slurps it down, does your backup searches, finds your friends, registers your dynamic DNS. All is trivial. All this is stuff we’ve got. We need to put this together. I’m not talking about a thing that’s hard for us. We need to make a free software distribution device. How many of those do we do?

We need to give a bunch to all our friends and we need to say, here fool around with this and make it better. We need to do the one thing we are really really really good at because all the rest of it is done, in the bag, cheap ready. Those wall wart servers are $99 now going to $79 when they’re five million of them they’ll be $29.99.

Then we go to people and we say $29.99 once for a lifetime, great social networking, updates automatically, software so strong you couldn’t knock it over it you kicked it, used in hundreds of millions of servers all over the planet doing a wonderful job. You know what? You get “no spying” for free. They want to know what’s going on in there? Let them get a search warrant for your home, your castle, the place where the 4th Amendment still sort of exists every other Tuesday or Thursday when the Supreme Court isn’t in session. We can do that. We can do that. That requires us to do only the stuff we’re really really good at. The rest of it we get for free. Mr. Zuckerberg? Not so much.

Because of course, when there is a competitor to “all spying all the time whether you like it or not”, the competition is going to do real well. Don’t expect Google to be the competitor. That’s our platform. What we need is to make a thing that’s so greasy there will never be a social network platform again. Can we do it? Yeah, absolutely. In fact, if you don’t have a date on Friday night, let’s just have a hackfest and get it done. It’s well within our reach.

We’re going to do it before the Facebook IPO? Or are we going to wait till after? Really? Honestly? Seriously. The problem that the law has very often in the world where we live and practice and work, the problem that the law has very often, the problem that technology can solve. And the problem that technology can solve is the place where we go to the law. That’s the free software movement. There’s software hacking over here and there’s legal hacking over there and you put them both together and the whole is bigger than the sum of the parts. So, it’s not like we have to live in the catastrophe. We don’t have to live in the catastrophe. It’s not like what we have to do to begin to reverse the catastrophe is hard for us. We need to re-architect services in the Net. We need to re-distribute services back towards the edge. We need to de-virtualize the servers where your life is stored and we need to restore some autonomy to you as the owner of the server.

The measures for taking those steps are technical. As usual, the box builders are ahead of us. The hardware isn’t the constraint. As usual, nowadays, the software isn’t really that deep a constraint either because we’ve made so much wonderful software which is in fact being used by all the guys on the bad architecture. They don’t want to do without our stuff. The bad architecture is enabled, powered by us. The re-architecture is too. And we have our usual magic benefit. If we had one copy of what I’m talking about, we’d have all the copies we need. We have no manufacturing or transport or logistics constraint. If we do the job, it’s done. We scale.

This is technical challenge for social reason. It’s a frontier for technical people to explore. There is enormous social pay-off for exploring it.

The payoff is plain because the harm being ameliorated is current and people you know are suffering from it. Everything we know about why we make free software says that’s when we come into our own. It’s a technical challenge incrementally attainable by extension from where we already are that makes the lives of the people around us and whom we care about immediately better. I have never in 25 years of doing this work, I have never seen us fail to rise to a challenge that could be defined in those terms. So I don’t think we’re going to fail this one either.

Mr. Zuckerberg richly deserves bankruptcy.

Let’s give it to him. For Free.

And I promise, and you should promise too, not to spy on the bankruptcy proceeding. It’s not any of our business. It’s private.

This is actually a story potentially happy. It is a story potentially happy and if we do it then we will have quelled one more rumor about the irrelevance of us and everybody in the Valley will have to go find another buzz word and all the guys who think that Sandhill Road is going to rise into new power and glory by spying on everybody and monetizing it will have to find another line of work too, all of which is purely on the side of the angels. Purely on the side of the angels.

We will not be rid of all our problems by any means, but just moving the logs from them to you is the single biggest step that we can take in resolving a whole range of social problems that I feel badly about what remains of my American constitution and that I would feel badly about if I were watching the failure of European data protection law from inside instead of outside and that I would feel kind of hopeful about if I were, oh say, a friend of mine in China. Because you know of course we really ought to put a VPN in that wall wart.

And probably we ought to put a Tor router in there.

And of course, we’ve got bittorrent, and by the time you get done with all of that, we have a freedom box. We have a box that not merely climbs us out of the hole we’re in, we have a box that actually puts a ladder up for people who are deeper in the hole than we are, which is another thing we love to do.

I do believe the US State Department will go slanging away at the Chinese communist party for a year or two about internet freedom and I believe the Chinese communist party is going to go slanging back and what they’re going to say is “You think you’ve got real good privacy and autonomy in the internet voyear in your neighborhood?” And every time they do that now as they have been doing that in the last 2 weeks, I would say ouch if I was Hilary Clinton and I knew anything about it because we don’t. Because we don’t. It’s true. We have a capitalist kind and they have a centralist vanguard of the party sort of Marxist kind or maybe Marxist or maybe just totalitarian kind but we’re not going to win the freedom of the net discussion carrying Facebook on our backs. We’re not.

But you screw those wall wart servers around pretty thickly in American society and start taking back the logs and you want to know who I talked to on a Friday night? Get a search warrant and stop reading my email. By the way there’s my GPG key in there and now we really are encrypting for a change and so on and so on and so on and it begins to look like something we might really want to go on a national crusade about. We really are making freedom here for other people too. For people who live in places where the web don’t work.

So there’s not a challenge we don’t want to rise to. It’s one we want to rise to plenty. In fact, we’re in a happy state in which all the benefits we can get are way bigger than the technical intricacy of doing what needs to be done, which isn’t much.

That’s where we came from. We came from our technology was more free than we understood and we gave away a bunch of the freedom before we really knew it was gone. We came from unfree software had bad social consequences further down the road than even the freedom agitators knew. We came from unfreedom’s metaphors tend to produce bad technology.

In other words, we came from the stuff that our movement was designed to confront from the beginning but we came from there. And we’re still living with the consequences of we didn’t do it quite right the first time, though we caught up thanks to Richard Stallman and moving on.

Where we live now is no place we’re going to have to see our grandchildren live. Where we live now is no place we would like to conduct guided tours of. I used to say to my students how many video cameras are there between where you live and the Law school? Count them. I now say to my students how many video cameras are there between the front door to the law school and this classroom? Count them.

I now say to my students “can you find a place where there are no video cameras?” Now, what happened in that process was that we created immense cognitive auxiliaries for the state - enormous engines of listening. You know how it is if you live in an American university thanks to the movie and music companies which keep reminding you of living in the midst of an enormous surveillance network. We’re surrounded by stuff listening to and watching us. We’re surrounded by mine-able data.

Not all of that’s going to go away because we took Facebook and split it up and carried away our little shards of it. It’s not going to go away cause we won’t take free webhosting with spying inside anymore. We’ll have other work to do. And some of that work is lawyers work. I will admit that. Some of that work is law drafting and litigating and making trouble and doing lawyer stuff. That’s fine. I’m ready.

My friends an I will do the lawyers part. It would be way simpler to do the lawyer’s work if we were living in a society which had come to understand it’s privacy better. It would be way simpler to do the lawyer’s work if young people realize that when they grow up and start voting or start voting now that they’re grown up, this is an issue. That they need to get the rest of it done the way we fixed the big stuff when we were kids. We’ll have a much easier time with the enormous confusions of international interlocking of regimes when we have deteriorated the immense force of American capitalism forcing us to be less free and more surveilled for other people’s profit all the time. It isn’t that this gets all the problems solved but the easy work is very rich and rewarding right now.

The problems are really bad. Getting the easy ones out will improve the politics for solving the hard ones and it’s right up our alley. The solution is made of our parts. We’ve got to do it. That’s my message. It’s Friday night. Some people don’t want to go right back to coding I’m sure. We could put it off until Tuesday but how long do you really want to wait? You know everyday that goes by there’s more data we’ll never get back. Everyday that goes by there’s more data inferences we can’t undo. Everyday that goes by we pile up more stuff in the hands of the people who got too much. So it’s not like we should say “one of these days I’ll get around to that”. It’s not like we should say “I think I’d rather sort of spend my time browsing news about iPad”.

It’s way more urgent than that.

It’s that we haven’t given ourselves the direction in which to go so let’s give ourselves the direction in which to go. The direction in which to go is freedom using free software to make social justice.

But, you know this. That’s the problem with talking on a Friday night. You talk for an hour and all you tell people is what they know already.

So thanks a lot. I’m happy to take your questions.


Moglen, Eben - Why Political Liberty Depends on Software Freedom More Than Ever - FOSDEM, Brussels 20110205

Moglen, Eben - Why Political Liberty Depends on Software Freedom More Than Ever - FOSDEM, Brussels 20110205


Thank you, good morning. It is a great pleasure to be here. I want to thank the organizers for the miracle that FOSDEM is. You all know that only chaos could create an organization of this quality and power; it is an honor for me to play a little bit of a role in it. I know how eager you are to deal with technical matters and I am sorry to start with politics first thing in the morning, but it is urgent.

You’ve been watching it all around the world the past several weeks, haven’t you? It is about how politics actually works now for people actually seeking freedom now, for people trying to make change in their world now.

Software is what the 21st century is made of. What steel was to the economy of the 20th century, what steel was to the power of the 20th century, what steel was to the politics of the 20th century, software is now. It is the crucial building block, the component out of which everything else is made, and, when I speak of everything else, I mean of course freedom, as well as tyranny, as well as business as usual, as well as spying on everybody for free all the time.

In other words, the very composition of social life, the way it works or doesn’t work for us, the way it works or doesn’t work for those who own, the way it works or doesn’t work for those who oppress, all now depends on software.

At the other end of this hastening process, when we started our little conspiracy, you and me and everyone else, you remember how it worked, right? I mean, it was a simple idea. Make freedom, put freedom in everything, turn freedom on. Right? That was how the conspiracy was designed, that’s how the thing is supposed to work. We did pretty well with it and about half-way through stage one, my dear friend Larry Lessig figured out what was going on for us and he wrote his first, quite astonishing, book “Code”, in which he said that code was going to do the work of law in the 21st century. That was a crucial idea out of which much else got born, including Creative Commons and a bunch of other useful things. The really important point now is that code does the work of law and the work of the state. And code does the work of revolution against the state. And code does all the work that the state does trying to retain its power in revolutionary situations.

But code also organizes the people in the street. We’re having enormous demonstration around the world right now of the power of code, in both directions. The newspapers in the United States this past month have been full of the buzz around the book called “The Net Delusion” by Evgeny Morozov, a very interesting book taking a more pessimistic view of the political nature of the changes in the net. Mr. Morozov, who comes from Belarus, and therefore has a clear understanding of the mechanism of 21st century despotism, sees the ways in which the institutions of the net are increasingly being co-opted by the state in an effort to limit, control, or eliminate freedom.

And his summary of a half decade of policy papers on that subject in his book is a warning to the technological optimists, at least he says it is, about the nature of the net delusion, that the net brings freedom. I am, I guess, one of the technological optimists, because I do believe that the net brings freedom. I don’t think Mr. Morozov is wrong, however. The wrong net brings tyranny and the right net brings freedom, this is a version of the reason why I still have the buttons for distribution that say “Stallman was right.” The right net brings freedom and the wrong net brings tyranny because it all depends on how the code works.

Alright, so we all know that. We’ve spent a lot of time making free software, we’ve spent a lot of time putting free software in everything, and we have tried to turn freedom on. We have also joined forces with other elements of the free culture world that we helped to bring into existence. I’ve known Jimmy Wales a long time, and Julian Assange. And what we’ve all tried to be about, that changes the world. Wikipedia and Wikileaks are two sides of the same coin. They are the two sides of the same coin, the third side of which is FOSDEM, it is the power of ordinary people to organize to change the world. Without having to create hierarchy and without having to recapitulate the structures of power that are being challenged by the desire to make freedom.

Wikileaks was being treated everywhere around the world in a semi-criminal fashion, at Christmas time, and then events in Tunisia made it a little more complicated.

As it became clear that what was being reported on around the world as if it were primarily a conspiracy to injure the dignity of the US State department, or to embarrass the United States military, was actually, really, an attempt to allow people to learn about their world.

To learn about how power really operates, and therefore to do something about it.

And what happened in Tunisia was, I thought, an elegant rebuttal to the idea that the Wikileaks end of Free Culture and Free Software was primarily engaged in destruction, nihilism, or—I shrink from even employing the word in this context—terrorism. It was instead freedom, which is messy, complicated, potentially damaging in the short term, but salvational in the long term, the medicine for the human soul.

It’s hard, I know—because most of the time when we’re coding, it doesn’t feel like we’re doing anything that the human soul is very much involved in—to take with full seriousness the political and spiritual meaning of free software at the present hour. But there are a lot of Egyptians whose freedom now depends upon their ability to communicate with one another through a database owned for profit by a guy in California who obeys orders from governments who send orders to disclose to Facebook.

We are watching in real time the evolution of the kinds of politics of liberation and freedom in the 21st century that code can make, and we are watching in real time the discovery of the vulnerabilities that arise from the bad engineering of the current system.

Social networking—that is, the ability to use free form methods of communication from many to many, now, in an instantaneous fashion—changes the balance of power in society away from highly organized vehicles of state control towards people in their own lives.

What has happened in Iran, in Egypt, in Tunisia—and what will happen in other societies over the next few years—demonstrates the enormous political and social importance of social networking. But everything we know about technology tells us that the current forms of social network communication, despite their enormous current value for politics, are also intensely dangerous to use.

They are too centralized, they are too vulnerable to state retaliation and control. The design of their technology, like the design of almost all unfree software technology, is motivated more by business interests seeking profit than by technological interests seeking freedom.

As a result of which, we are watching political movements of enormous value, capable of transforming the lives of hundreds of millions of people, resting on a fragile basis, like, for example, the courage of Mr. Zuckerberg, or the willingness of Google to resist the state, where the state is a powerful business partner and a party Google cannot afford frequently to insult.

We are living in a world in which real-time information crucial to people in the street seeking to build their freedom depends on a commercial micro-blogging service in northern California, which much turn a profit in order to justify its existence to the people who design its technology and which we know is capable of deciding, all by itself, overnight, to donate the entire history of everything everyone said through it to the Library of Congress. Which means, I suppose, that in some other place, they could make a different style of donation.

We need to fix this.

We need to fix it quickly.

We are now behind the curve of the movements for freedom that depend on code. And every day that we don’t fix the problems created by the use of insecure, over-centralized, overcapitalized social network media to do the politics of freedom, the real politics of freedom, in the street, where the tanks are. The more we don’t fix this, the more we are becoming part of the system which will bring about a tragedy soon.

What has happened in Egypt is enormously inspiring but the Egyptian state was late to the attempt to control the net, and not ready to be as remorseless as it could have been.

It is not hard, when everybody is just in one big database controlled by Mr. Zuckerberg, to decapitate a revolution by sending an order to Mr. Zuckerberg that he cannot afford to refuse.

We need to think deeply, and rapidly, and to good technological effect, about the consequences of what we have built and what we haven’t built yet. I’ve pointed a couple of times already to the reason why centralized social networking and data distribution services should be replaced by federated services. I was talking about that intensively last year before this recent round of demonstrations in the street of the importance of the whole thing began, and I want to come back to the projects I have been advocating … but let me just say here again, from this other perspective, that the over-centralization of network services is a crucial political vulnerability. Friends of ours, people seeking freedom, are going to get arrested, beaten, tortured, and eventually killed somewhere on earth because they’re depending for their political survival in their movements for freedom on technology we know is built to sell them out.

If we care about freedom as much as we do, and if we’re as bright with technology as we are, we have to address that problem. We’re actually running out of time. Because people whose movements we care deeply about are already out there in harm’s way using stuff that can hurt you.

I don’t want anybody taking life or death risks to make freedom somewhere carrying an iPhone.

Because I know what the iPhone can be doing to him without our having any way to control it, stop it, help it, or even know it is going on.

We need to think infrastructurally about what we mean to freedom now.

And we need to learn the lessons of what we see happening around us in real time.

One thing that the Egyptian situation showed us, as we probably knew after the Iranian situation, when we watched the forces of the Iranian state buy the telecommunications carriers, as we learned when the Egyptians begin to lean on Vodaphone last week, we learn again why closed networks are so harmful to us. Why the ability to build a kill switch on the infrastructure by pressuring the for-profit communications carriers, who must have a way of life with government in order to survive, can harm our people seeking freedom using technology we understand well.

Now what can we do to help freedom under circumstances where the state has decided to try to clamp the network infrastructure?

Well we can go back to mesh networking. We’ve got to go back to mesh networking. We’ve got to understand how we can assist people, using the ordinary devices already available to them, or cheaply available to them, to build networking that resists centralized control.

Mesh networking in densely populated urban environments is capable of sustaining the kind of social action we saw in Cairo and in Alexandria this week.

Even without the centralized network services providers, if people have wireless routers that mesh up in their apartments, in their workplaces, in the places of public resort around them, they can continue to communicate despite attempts in central terms to shut them down.

We need to go back to ensuring people secure end-to-end communications over those local meshes.

We need to provide survivable conditions for the kinds of communications that people now depend upon outside the contexts of centralized networking environments that can be used to surveil, control, arrest, or shut them down.

Can we do this?


Are we gonna do this?

If we don’t, then the great social promise of the free software movement, that free software can lead to free society, will begin to be broken. Force will intervene somewhere, soon. And a demonstration will be offered to humanity that even with all that networking technology and all those young people seeking to build new lives for themselves, the state still wins.

This must not happen.

If you look at that map of the globe at night, the one where all the lights are, and imagine next time you look at it that you’re looking instead instead at a network graph, instead an electrical infrastructure graph, you will feel a kind of pulsing coming off of the North American continent, where all the world’s data mining is being done.

Think of it that way, alright? North America is becoming the heart of the global data mining industry. Its job is becoming knowing everything about everybody everywhere.

When Dwight Eisenhower was leaving the presidency in 1961 he made a famous farewell speech to the American people in which he warned them against the power of the military-industrial complex, a phrase that became so commonplace in discussion that people stopped thinking seriously about what it meant.

The general who had run the largest military activity of the 20th century, the invasion of Europe, the general who had become the President of America at the height of the cold war, was warning Americans about the permanent changes to their society that would result from the interaction of industrial capitalism with American military might. And since the time of that speech, as you all know, the United States has spent on defense more than the rest of the world combined.

Now, in the 21st century, which we can define as after the latter part of September 2001, the United States began to build a new thing, a surveillance-industrial-military complex.

The Washington Post produced the most importance piece of public journalism in the United States last year, a series available to you online called “Top Secret America,” in which the Washington Post not only wrote eight very lengthy analytic stories about the classified sector of American industrial life built around surveillance and data processing. The Post also produced an enormous database which is publicly available to everyone through the newspaper of all the classified contractors available to them in public record, what they do for the government, what they’re paid, and what can be know about them, a database which can be used to create all kinds of journalism beyond what the Post published itself. I would encourage everyone to take a look at “Top Secret America.” What it will show you is how many Googles there are under the direct control of the United States government, as well as how many Googles there are under the control of Google. In other words, the vast outspreading web, which joins the traditional post-Second World War US listening to everything everywhere on earth outside the United States, to the newly available listening to things inside the United States—that used to be against the law in my country as I knew its law—to all the data now available in all the commercial collection systems, which includes everything you type into search boxes about what you believe, hope, fear, or doubt, as well as every travel reservation you make, and every piece of tracking information coming off your friendly smart phone.

When governments talk about the future of the net these days, I have on decent authority from government officials in several countries, when governments talk about the future of the net these days, they talk almost entirely in terms of “cyber-war.”

A field in which I have never had much interest and which has a jargon all its own, but some current lessons from inter-governmental discussions about cyber-war are probably valuable to us here.

The three most powerful collections of states on Earth, the United States of America, the European Union, and the People’s Republic of China, discuss cyber-war at a fairly high intergovernmental level fairly regularly. Some of the people around that table have disagreements of policy, but there is a broad area of consensus. In the world of cyber-war they talk about “exfiltration”; we would call that “spying” they mean exflitrating our data off our networks into their pockets. Exfiltration, I am told by government officials here and there and everywhere, exfiltration is broadly considered by all governments to be a free fire zone; everybody may listen to everything everywhere all the time, we don’t believe in any governmental limits, and the reason is every government wants to listen and no government believes listening can be prevented.

On that later point I think they’re too pessimistic but let’s grant them that they’ve spent a lot of money trying and they think they know.

Where the disagreements currently exist, I am currently told by the government officials I talk to, concerns not exfiltration but what they call “network disruption,” by which they mean destroying freedom. The basic attitude here is of two parties in balanced speech. One side in that side says “what we want are clear rules. We want to know what we’re allowed to attack, what we have to defend, and what we do with the things that are neither friendly nor enemy.” The other side in that conversation says “we recognize no distinctions. Anywhere in the net where there is a threat to our national security or national interests, we claim the right to disrupt or destroy that threat, regardless of its geographical location.”

I needn’t characterize for you which among the governments—the United States of America, the European Union, or the People’s Republic of China—take those different positions and I should say that within all those governments there are differences of opinion on those points, dominant factions and less dominant factions. But all parties are increasingly aware that in North America is where the data mining is, and that’s either a benefit, a dubiousness, or a problem, depending on which state or collection of states you represent.

European data protection law has done this much: it has put your personal data almost exclusively in North America where it is uncontrolled.

To that extent European legislation succeed.

The data mining industries are concentrated outside the European Union, largely for reasons of legal policy. They operate, as any enterprise tends to operate, in the part of the world where there is least control over their behavior.

There is no prospect that the North American governments, particularly the government of the United States, whose national security policy now depends on listening to and data mining everything, are going to change that for you.

No possibility, no time soon.

When he was a candidate for President, at the beginning, in the Democratic primaries, Barack Obama was in favor of not immunizing American telecommunications giants for participation in spying domestically inside the United States without direct public legal authorization. By the time he was a candidate in the general election, he was no longer in favor of preventing immunization, indeed he as a Senator from Illinois did not filibuster the legislation immunizing the telecomms giants and it went through. As you are aware, the Obama administration’s policies with regard to data mining, surveillance, and domestic security in the net are hardly different from the predecessor administration’s, except where they are more aggressive about government control.

We can’t depend upon the pro-freedom bias in the ’listening to everybody everywhere about everything" culture now going on around the world. Profit motive will not produce privacy, let alone will it produce robust defense for freedom in the street.

If we are going to build systems of communication for future politics, we’re going to have to build them under the assumption that the network is not only untrusted, but untrustworthy. And we’re going to have to build under the assumption that centralized services can kill you.

We can’t fool around about this. We can’t let Facebook dance up and down about their privacy policy. That’s ludicrous,

We have to replace the things that create vulnerability and lure our colleagues around the world into using them to make freedom, only to discover that the promise is easily broken by a kill switch.

Fortunately, we actually do know how to engineer ourselves out of this situation.

Cheap, small, low-power plug servers are the form factor we need, and they exist everywhere now and they will get very cheap, very quick, very soon.

A small device the size of a cell phone charger—running a low power chip, with a wireless NIC or two and some other available ports, and some very sweet free software of our own—is a practicable device for creating significant personal privacy and freedom-based communications.

Think what it needs to have in it. Mesh networking. We’re not quite there but we should be. OpenBTS, Asterisk? Yeah, we could make telephone systems that are self-constructing out of parts that cost next to nothing.

Federated, rather than centralized, microblogging, social networking, photo exchange, anonymous publication platforms based around cloudy webservers—We can do all of that. Your data, at home, in your house, where they have to come and get it, facing whatever the legal restrictions are, if any, in your society about what goes on inside the precincts of the home. Encrypted email, just all the time, perimeter defense for all those wonky Windows computers and other bad devices that roll over every time they’re pushed at by a 12 year old.


Proxy services for climbing over national firewalls, smart tunneling to get around anti-neutrality activity by upstream ISPs and other network providers, all of that can be easily done on top of stuff we already make and use all the time. We have general purpose distributions of stacks more than robust enough for all of this and a little bit of application layer work to do on the top.

Yesterday in the United States, we formed the FreedomBox Foundation, which I plan to use as the temporary, or long term as the case may be, organizational headquarters to make free software that runs on small-format server boxes, free hardware wherever possible, unfree hardware where we must, in order to make available around the world, at low prices, appliances human beings will like interacting with that produce privacy and help to secure robust freedom.


We can make such objects cheaper than the chargers for smart phones. We can give people something that they can buy at very low cost that will go in their houses, that will run free software, to provide them services that make life better on the ordinary days and really come into their own on those not so ordinary days when we’re out in the street making freedom thank you for calling.

A Belarussian theater troupe that got arrested and heavily beaten on after the so-called elections in Minsk this winter, exfiltrated itself to New York City in January, did some performances of Harold Pinter and gave some interviews.

One of the Belarussian actors who was part of that troupe said in an interview with the New York Times, “The Belarussian KGB is the most honest organization on earth. After the Soviet Union fell apart, they saw no need to change anything they did, so they saw no need to change their name either.” And I thought that was a really quite useful comment.

We need to keep in mind that they are exactly the same people they always were, whether they’re in Cairo, or Moscow, or Belarus, or Los Angeles, or Jakarta, or anywhere else on earth. They’re exactly the same people they always were. So are we, exactly the same people we always were too. We set out a generation ago to make freedom and we’re still doing it.

But we have to pick up the pace now. We have to get more urgent now. We have to aim our engineering more directly at politics now.

Because we have friends in the street trying to create human freedom, and if we don’t help them, they’ll get hurt. We rise to challenges, this is one. We’ve got to do it. Thank you very much.

Moglen, Eben and Huttinger, R - Q & A on Facebook, Google and Government Surveillance - re:publica Berlin 2012

Moglen, Eben and Huttinger, R - Q & A on Facebook, Google and Government Surveillance - re:publica Berlin 201405

Following Moglen\'s address to re:publica in Berlin 2014.


My transcript:

What is the problem with sharing information online?

It's not a bad idea to share information with the people you want to share with. It's not a bad idea to use the open web. It's a really bad idea to share all your information in a system in which one guy gets a copy of everything. What we would call in cryptography a Man-in-the-Middle Attack. I want to share some things with my actual friends. I want to share some things with everybody in the world equally. But why would I want to share with my friends and Mr. Zuckerberg, or with the entire world and Mr. Zuckerberg? The other thing that we tend to forget is that there are two kinds of information. There's the information we share, and there's the information about who accesses what we share. The web server log is the most important data on most web servers. On the web server is pictures of my cats; on the log is pictures of who looks at me when I'm with my cats. At Facebook, if you run the place, you can tell who's going to have a love affair before the people know, because you know that girl is obsessively checking Facebook page of boy, or boy is obsessively checking Facebook page of boy. And so you know what is happening before it happens, because they think they're sharing with one another, but you're the one keeping the log. It's a really bad idea to share with people in a way that gives one person all the logs. I don't think there was ever anything wrong with living in the Soviet Union and distributing samizdat, but there was something really wrong with being in the Soviet Union and distributing samizdat through KGB. That's the difference.

Are you saying that Facebook is the new KGB?

Yes, that's correct. I gave a talk about Facebook to college students in America. I called it "From Lubyanka to Harvard Yard." Why do you build a prison and torture people? Why do you have informants? You build a social networking system, badly designed, and people bring you everything. They don't think they're bringing it to you. They think that they're bringing it to their friends, but they're actually bringing it to Lubyanka, and Lubyanka is giving it to their friends. This is not a good way to work. It's not bad to have social networking. Social networking is wonderful and important. It changes human life. It's bad to have it in a badly designed way.

Will Facebook still be around in 10 years from now?

Facebook will not have success for 10 more years. Facebook will have success until its membership starts dropping. Once its membership starts dropping, it will be in deep trouble. The theory of Facebook is, nobody can leave, because they have to leave their friends behind. Once we create federated social networking with soft migration, Facebook will not be able to say that anymore, and its death-cycle will begin. This was the importance of the software called Diaspora. Diaspora is correctly engineered with respect to the one essential question, How do I leave Facebook, Flickr, Twitter without leaving my friends and followers behind? This is the thing that, as an engineering matter, we need to understand. As people use more and more social networking, they don't just use one service, they don't just use Facebook, or Google +, they use that and Twitter, or Identica or this or that, so they pretty soon start using feed aggregators, because they need to aggregate the various social network feeds they get. The aggregator then is the crucial middleware in the same way the browser is the crucial middleware in the web. So you build an aggregator which is basically what Diaspora's front-side is. And so you say OK,so you have all these feeds from your friends, if your friends are also using Diaspora, then you're going to share in an encrypted way, privately, and for your friends who aren't using Diaspora yet you'll bounce off the public services - Facebook, Twitter,whatever. Over time, as more and more of your friends switch to Diaspora, you disappear from the public services, slowly and gracefully, so you never lose your friends, but you shift away. Why do they start using Diaspora? It's not even that they're worried about using Facebook privacy. It's just a good aggregator, and they need one, because for better social networking they need better aggregation. So in the same way that Firefox frees people from a net created by Microsoft to a web we own, Front Page does this, therefore the browser is broken if it doesn't do the same thing, and very softly they moved away, because Firefox meant if you got tired of IE security, or your IT guys got tired of IE security, the problems created by IE, then you could move. The same thing will happen will social networking, whether we succeed in Freedom Box, or Diaspora, or the new social, or a million other possible varieties, because we have many talented teams working on better social networking around the planet, many, many, many, one of them will begin to be an aggregation system that other people like to use. Maybe tied to a browser, maybe not tied to a browser. And as people begin to adopt that aggregation system, they will softly move to secure sharing. At some point there will come a day when Facebook has a maximum number of users. A billion, a billion five, a billion seven, I don't know. But once it starts to fall it will come apart quickly, because then people will realize that you don't have to leave your friends. Why do we stay with this Facebook? What is it that the service gives us that's worth the spying? And the numbers are not particularly impressive. We know now from the IPO documents for sure Facebook takes in $4.40 per year per user. Right. That's not very much money. They're not providing anything that's worth all that much once we have a good substitute and people don't lose touch with their friends by shifting they'll naturally shift. Ten years is a good outside bet about the maximum length of Facebook's lasting.

What threat is imposed by the massive federal data center the NSA is currently building in Bluffdale, Utah? Is the world heading towards an Orwellian future?

That Utah federal data center is not meant for tracking packets. It's meant for taking in databases that already exist. What will happen when that federal data center exists is that every day American Express, the other credit card companies, the travel records, all sorts of commercial databases will be duplicated in. In order to track packets you have to be somewhere where packets are stolen. You have to be on a US embassy roof, or inside a telecommunications operator. They will then bring back on those packet dumps and add them to all the other information they possess about everybody. So we will be looking at effectively a government that copies Google, that copies Facebook, instead of having to rely upon putting their code in over there. Think about it this way: There are a variety of databases around the world that you'd like to run BI code on top of. You'd like to data mine those databases. Google is really important. Facebook is really important. What you want to do is get code in. But if you're the United States government, you'll take the whole database. Other people will have to put code in Facebook, and Facebook will show that code to the US government. So if band A wants to look in Facebook, or the Turkish secret police want to look in Facebook, they'll be able to put code in by promising Facebook favours in return, and the US government will look over their shoulder to see what they're looking for. It however will not be showing Facebook what it is looking for, because it will duplicate the entire database and then run the BI code on top of it. That's what's happening here. Think of it as Echelon moves into Facebook, and into Google, and the United States government doesn't have Echelon anymore - it keeps all the data, and it doesn't show anybody what it's searching for. That's the real outcome of the Utah federal Google.

Is Google as much of a threat as Facebook in terms of surveillance?

Google is a very tricky proposition because the nature of the web as Tim built it involves making search difficult. It's a data structure problem. You have single-link lists, each thing points to the next thing in the chain. If you want to search such a list you have to exhaustively crawl the list. This was the right decision at the time, partly because Tim wasn't inventing, Tim was inventing the world wide web, he wasn't inventing the world. And partly because single-link lists have a real advantage. You don't need permission to get a single link back. So linking was something that anybody could do to anybody else. But in the process of making that data design we ensured that search would be hard, and that it wouldn't be a federate-able service easily. Google exists because of a computer science problem - How to federate search? - for which we don't have a current answer. Google recognizes that search leads to advertizing and it has one great big business which is changing how advertizing is done throughout the world. That relationship - where the front service is search, and the rear service is advertizing brokerage - is not a business in which competition will work well. So Google will remain, for the foreseeable future, that business. It has used hundreds of millions, probably billions of dollars looking for other businesses to be in and it hasn't found one yet. And if it never finds another one then that's the entity Google is - search on the front, advertizing on the back. What can be done about that? Larry and Sergei did it at the beginning. It's going to be evil. I begin to feel, after the last fews weeks, that a little fight is developing between Larry and Sergei. Maybe Larry wants to go out in the middle of the night and remove the word "Don't". But really what it is is competition with Facebook. And it seems to me pretty clear that Google has decided that it doesn't want for Facebook not to exist it wants Facebook to exist inside Google. That would be a really bad decision and I hope that doesn't stick. I hope Sergei wins. He's right. The open web cannot exist if Google and Facebook both are together doing what they do. So the correct solution is, don't do Facebook.

What is your take on movements like Wikileaks or Anonymous?

They seem to me fundamentally different. Wikileaks' question is, "Is anonymous publishing an important part of freedom?" The answer is, "It always has been and it always will be." It's always important to have the Netherlands or Neuchâtel or some place in Europe where you can publish the truth freely. It was not usually Vienna, it was not usually Paris. That's important. Anonymous is asking, it seems to me, a different question - a question to which we have repeatedly learned a bad answer. On the one hand, there is civil disobedience - Thoreau, Gandhi, Martin King - lots of other people of importance - they all understood that an essence of civil disobedience is a transparent taking of responsibility. I am coming to make protest. We thought that's what hacktivism was at the beginning - when Ricardo Domiquez was doing the first Pentagon hacktivism over the war in El Salvador there were rules. You tell the Pentagon, we are coming on Wednesday. This is the program code we are using for the DDoS attack on you on Wednesday. We're going to start at 2 o'clock and we're going to finish at 5 o'clock.  It's like a demonstration in the street. You tell people, We are coming. You take responsibility. If you want to hurt us, if you want to punish us for breaking the law, we are welcome to go to our trial and demand the most powerful sentence, as Gandhi did in India. But if you go out in a demonstration in the street and you put masks on, now it becomes a different story. Now you are not taking responsibility, now it is not civil disobedience. It's not crime - the state will say it's crime. You will say it's civil disobedience. It's actually something in between, it's neither one nor the other. And at the edge of such anarchism, there is always crime. There are criminals associated with every anarchist movement - and the quality of the anarchist movement is to decide, How does it feel about that? I think Anonymous is presently saying it is civil disobedience. I think that's non-transparent.

Are we currently witnessing the end of copyright as we know it?

We need copyright law to change. ...

And yes, people should have servers. A server should be no more complicated than a cellphone charger. You plug it into the mains power on the wall, you plug it in to the internet - the commodity internet provided to you by your ISP or your telecom and you're done. Then it's "just-works". If all the just-works-ness that Steve Jobs built in to his lovely things, if all that just-works-ness had been applied to the server, running free software operating systems, we would be finished. We made reading the web very easy, because we made the browser. We didn't make writing the web easy, because we never gave people a single, simple hit ON and you're done web server, and we never gave them tools for writing HTML, CSS, and Javascript, that were really good for ordinary people to use. This is why Mr. Zuckerberg temporarily succeeded, because he gave people cheap web hosting that they could actually use to get their web page up and running - and spying all the time for free. We should have done it for him. We should have already had as good a thing as the browser on the other side - appliances for web servers. There were complications. Server computer were big. They used lots of electricity. You had to have a place to put them. Apache was not hard to set up if you were a geek, but it was impossible to set up if you weren't. And when you  had a copy of Apache running, how did you actually put all this HTML together? What was there? There was Bluefish, there was Maya. There weren't good enough. Authoring tools again were good for hackers but they weren't good for ordinary people. What changes now is that the hardware form factor becomes available. The low-cost, low-power using plug-server is the crucial deal. This is why I said to the Debian guys in New York eighteen months ago, "The plug server is your iPhone." This is where your form factor is. You have the greatest universal server operating system in the world, runs on all architectures, thirty thousand packages, trivial to install, this is your iPhone, and you're the App Store for it. So now let's go and make that thing. We don't have to make the hardware even, all we have to do is make the software. So Freedom Box in my view is also Debian in privacy. It's the way we put all the good privacy tools together, with all the configurations into one simple stack, that is easy to install, and then we go out to look for all the hardware in the world to put it in. Plug servers, but also Android-power refrigerators. Also set-top boxes. Also coffee pots. Anything connected to the internet - with one, two, or three network adapters is our means, right, whatever it is. Put a Bluetooth keyboard on your coffee pot and send encrypted video to the world. Upload to your smartphone the stuff you just took in the street in Havana, and you can put it on a screen in New York or Moscow or Paris and nobody will know who you are. That's the goal. Use the tools we have in a new form that makes it easy for users who don't build software, who don't build websites, make it as simple as Facebook, but do it right, then we put new net on top of net. Once we have made tactical facts on the ground, politics will start to change, because we have facts now. So law must take account of our facts. Maybe law tries to make everything we do criminal, but it won't work. Just like putting every child in jail for sharing music doesn't work. So we make the facts and law must adapt, and behind that adaptation lies politics. In the same way that the Chancellor just discovered that the Green Party no longer needs to exist because she can be against nuclear power, and then she re-captures all those fourty-somethings who've been voting Green since they were twenty, sooner or later the major parties will bid for the Pirate Party vote. When the twenty-somethings currently powering the Pirate Party grow up to be fourty-somethings, SPD will be carrying their needs because they will  need their votes. And if we make the facts, the politics will follow. In every one of these issues I teach my students at Columbia there are always three legs of the chair - there's politics, there's technology, and law. At any given moment, one of them's in front. Right now we have to have technology in front. Politics won't solve our problems because states love surveillance. Law won't solve our problems because the parties that love surveillance most get impunity from the state - the rule of law does not apply to them. So first we must make technology.We have to re-institute privacy, then the politics and the law will come. In the meantime, those of us who don't make technology must do teaching. The biggest problem of the moment now is how many people do not know there is a question. This is what Gramsci called "hegemony". The power can make questions disappear so they're not questions anymore. We need to put the question back in people's minds. They say, I'm not doing anything wrong, why should I care? They say, I'm getting wonderful advertisements, selling me products I really need to have. They say, Privacy is over, get used to it. They don't know there's a question. We say, OK, there's a question. Are you living in The Matrix? Oh, that, that old legend? Legends are stories about the future that we don't know yet. The Matrix is a legend about the future, about what it means when the question disappears, what it means when the world is a screen pulled over your eyes. We need to teach people to ask the question. That's all. Then they will find the technology, which will change the law, which will make the politics.