Eben Moglen Keynote at Red Hat Summit 2006

Eben Moglen Keynote at Red Hat Summit 2006  (2006)  by Eben Moglen

June 1, 2006

[Eben Moglen:]

Thank you, good morning. It’s a pleasure and an honor to be here. I want to thank Matthew Szulik and all my friends at Red Hat for the invitation. I want to thank Dr. Spector for encouraging me to give a short talk.

I want to begin with a moment right after Red Hat’s enormously successful launch as a public company in ’99. I had to come down to the offices, the headquarters in Raleigh, as it then was, on a legal errand, and I walked in to the reception area to find that the transition to public financing and regulation in the securities markets had not changed the decor of the reception area, and up on the wall it still said, in large typical Red Hat typography:

“Every revolution begins as an idea in one man’s mind.”

And I was glad to see that the thought was still there. The historian part of me responds warmly to people who still remember enough Ralph Waldo Emerson to quote, but of course it wasn’t mostly that. Having spent most of the last 15 years as the lawyer for the man whose mind it was, I was glad to see the recognition.

It is, of course, a revolution. That’s the first thing. It’s a friendly revolution. You know, you’re the beneficiaries of it. It freed you.

The revolution was an idea about politics and society as well as technology. And there has been a feeling, I think, that if the politics were frankly and openly talked about, people wouldn’t like them, or it would be scary, or business would flee. All of which is wrong.

I understand in some sense where the idea came from. That the politics of the free software revolution that freed you would be undesirable to discuss. People spent good money creating that idea. In fact, if you were a Microsoft licensee, if was your money that they spent creating it. And that was understandable, in a way, because the revolution was, in some fundamental sense, directed against the interests that Microsoft represented.

It didn’t intend to be. The revolution was about protecting users’ rights. It never said it was against anybody’s business. It was in favor of protecting users’ rights.

The actual politics, I must say, are very American. They are distinctively American. If you work as much as I do in the globalization of the free software idea, and because I am at the moment spending a great deal of time on a bagatelle, a lawyer’s game, called GPL version 3, I am spending a lot of time globalizing what we do. If you globalize you discover the distinctively American nature of what we are about.

And that’s why I thought, and still think, that the Red Hat, Ralph Waldo Emerson philosophy deserves not to be pushed over to the side; “We’re doing business here, no serious politics, please.”, but instead summoned.

We live in a time when distinctive American invocations of a political or a social idea are often suspect. People are impatient with us about our distinctively American ideas; but not this one. What makes the free software idea distinctively American is that it is based on the idea that what individuals do by exercising their freedom can change their lives, and the world.

This had a technological side to it from the beginning of the United States. There was a time when the word “Yankee” was not usually followed by the word “out”. And certainly not preceded by the word “damn”. In that period, the word “Yankee” was most often followed by the word “ingenuity”. The inventiveness of Americans, in a technological sense, was conceived of as part of what it meant to be the United States from the beginning. The idea that one man might think up a better mousetrap, or a better way of combing the seeds out of cotton, or a better way to make a gun, was the idea that the rest of the world first noticed about what it meant that the United States was a new kind of republic.

There was an explosion of invention that accompanied freedom. And not only did the United States seem to contain a lot of inventors, it contained a lot of inventors who could generalize their invention. So it wasn’t just that a man in Connecticut had figured out how to make a better gun, he had figured out a way to change manufacturing, forever, in the process of making a better, cheaper, gun.

The free software revolution is in that sense distinctively a return to the tradition of the transformative result of individual ingenuity. It redressed a balance in the world of software, which had tilted too far away from the utility of individual ingenuity. It freed users to improve and share, and to benefit freely from other people’s improvements, but it also freed individuals to invent.

Not reinvent. Not invent over again something that somebody else had already done and locked up where you couldn’t get to it, or tinker with it, but to invent in the way that invention was done in the great spurt of 19th century inventiveness that was the trademark of the United States. A form of invention which depended upon taking resourceful advantage of everything there was already lying around. That’s what “Yankee ingenuity” meant; making resourceful use of everything that’s lying around. And North America was a continent that had much riches lying around, at the opening of the 19th century.

There has been a lot of talk about immigration recently. And it probably would be helpful at this point to point out that the patent provision in the United States Constitution is an immigration encouragement device. The men who made the republic, constitutionally, legally, thought of the physical immigration of inventors as the only technology transfer program for the globe in the 18th century. You moved the people who knew how to do innovative things. And if you had a lot of real estate and too few people in your republic, you encouraged the immigration of inventors by promising them, for a limited time, exclusive use of their writings or discoveries, so long as that activity encouraged the diffusion of science and the useful arts. In other words, “Come here. If we build it, you will come.”

There was of course another technologically more and economically more advanced society, thinking about how to hold on to technically sophisticated people. In France, an idea was growing to hold the technical sophistication of society by creating an encyclopedia. A freely available encyclopedia, of all the technical knowledge that there was, of all the skills and all the trades. The Encyclopédie, like the Wikipedia, was phenomenally successful, and did the task of codifying skilled knowledge with enormous vigor. It also brought on, or rather, the men who made it helped to bring on, a revolution in France against unfreedom, against despotism, against political control of thought.

The relationship between inventive freedom and political freedom is in other words endemic – intrinsic to the American way of being.

Red Hat, in noticing the relation between Emerson and Stallman, between thought and action, between freedom to make and freedom to profit, Red Hat was merely observing what is deep in this; getting something fundamentally important right. Something that can be hard to see if a lot of your money is being used to advertise the idea that this is all about a cancer, or an anti-Americanism, or a way of killing off innovation, or an inferior form of encouraging invention. None of that is true.

[Applause]

It isn’t just that it wasn’t true when it was said, it wasn’t true 200 years before it was said, which is how the United States came to be the place in which the people who said that nonsense got so rich.

Instead something else was true. Dr. Spector’s numbers are absolutely devastating in their demonstration of the truth of it. We are having an immense spurt of invention. We’re having a powerful revival of ingenuity. We’re producing stock value for the society, in infrastructure, in skills, in ability to perform, that amounts to hundreds of trillions of dollars, apparently coming out of almost nowhere, and actually coming out of the very basic American idea of individual invention.

Something was damming up that inventiveness. Something was withholding that growth that is now being taken by double digit, thirty, thirtyfive, forty percent annual growth rates. In other words, monopoly was doing as one would expect, it was inhibiting innovation, it was raising prices, it was misallocating technical opportunities, and it has been removed, and inventiveness and innovation are rising as they should; the dam has burst.

All right. Those are the politics. There’s nothing scary about them. They belong to us as much as apple pie, or freedom of speech, or biannual elections to a competitively elected congress does. And when you consider the other parts of this story, we’re doing pretty well at producing what we promise.

The process of looking for the problems in freedom, and working out those problems, so that everybody gets to exercise ingenuity, is itself a job of technical design. Some of it is done by lawyers. It’s about making sure that the machinery of the politics of invention runs smoothly. That no one takes unfair advantage, that no one cheats on giving to others what they make out of what they got from others.

Some of it is about predicting and heading off the ways in which those who never fully accepted that this is the American way, too, might try to attack what from their point of view is apparently just an alternate business model.

On the good days, after all, that’s what they say, right? “There are many ways of doing this, and sometimes one and sometimes another.”

Actually we think it runs deeper than that, for the reasons I’ve just given you. It’s not just about one way of doing business or another way of doing business. It’s about how you help people to grow.

Think about all the people inside your organizations who experience a great deal of their lives being trapped, still. Their job is to help other people use technology. They want to be really good at it. As librarians have always wanted to be really good at helping people to use information. But they struggle all the time to help people inside your organization, because somebody’s got a problem, and with the best will in the world, they can’t solve it. There’s no way to solve it.

There’s only one organization in the world that can solve the problem. And it’s not listening right now. “Sorry, busy, working on the best release in ten years, come back to us next year or the year after that, or the year after that, or the year after that, and we’ll solve your problem. And if it’s a really bad problem, not from your point of view, but from our point of view, maybe we’ll release a binary patch and help take care of it for you.”

Which frustrates many, many, many, tens of thousands of really good workers who would really like to be able to get in there and just fix the damn problem, so that people won’t have it anymore and so they can share that outcome with the world.

That used to be a form of getting rich in America. That’s being Eli Whitney, you understand, and it’s not allowed. Can’t do it. It’s against the law, and it’s technically impossible. “Don’t try to be Samuel Colt, we won’t let you! Don’t try to be Samuel Morse, don’t try to be Andrew Carnegie, don’t try to go from sweeping the floor in the shop to owning your own business, because you can’t fix that problem, son, that’s our property you’re messing with.”

The reason that we think this isn’t just about business models, is we think it’s also about human lives. That’s why saying “It’s about freedom” is right. It’s about people’s ability to grow. You are watching as the technical resurgence of invention liberates individual human beings to grow, to maximize their capacity.

So, what we have been watching was a revolution about users’ rights. About making you free, to get your service where you want, to get your software where you want, to get your technical advice and assistance where you want, to make the make or buy decisions for yourselves, all the time, to have control of your own destinies, to stop worrying if somebody’s going to go out of business or be put out of business, thus losing you the opportunity to continue to take advantage of innovation you want to keep and to allow your people to grow, technically, intellectually, with the concomitant benefit to you.

That was what this was—and is—for. It’s why we do what we do.

Beginning in the late ’90s, just about the time that Red Hat started to come to market, people decided that the politics shouldn’t be talked about so much. And so they started saying that this was “Open Source Software”, which it was, that was correct. They didn’t often say “It’s about freedom”, which is OK with me and not OK with some other people. I don’t think you have to say everything all the time, I don’t think you have to punctuate in ugly ways in order to say everything, all the time. But I do think that if you forget why, you don’t fully ever exactly grasp what, either. And why is a good and important, valuable story.

In fact, it’s a story that as Americans we ought to be telling more of. Because it’s the best of us. It’s the part of us that always gained the admiration of the world. It’s the part of us that was always distinctive, and it’s the part of us that made the smartest people on the earth’s surface come here, always. That drew them here to us. That magnet, the freedom to invent, to become who you are, to use your skills and to build all of that wealth and share in it, share in it, that was why people wanted to be here.

We should keep reminding people that that’s what we all do, together. There’s nothing wrong with that. That’s not against anybody’s business ethics, it’s not against anybody’s religion, it’s not a slur on anybody’s patriotism. We have to reclaim the notion that the freedom of software is a good thing for all of us and that’s what we’re in it for.

Now then there get to be issues, as there will be, in any free society. Questions about conflicts of rights. Questions about how to manage the structure of freedom so that it permits as much as possible and forbids or regulates only what is necessary to protect itself.

We used to live in a society in which the concept “freedom” was not to be limited, save for the most compelling public reasons. And to the extent that we still want to live there, we can’t just ask the Supreme Court to do it for us, we have to do it for ourselves.

[Applause]

I spend a fair amount of time now working with a very large number of people all around the world, trying to make a better GPL. That license, I certainly hope, is going to be applied to the kernel called Linux, and I know for sure that will be applied to vast amounts of other important software in the world. I want that license, as everybody else working on it does, to be a license which makes freedom powerful and important for the next 10 years, exactly as its predecessor GPL made freedom powerful and important in the last 15 years. And look back 15 years and see how that was.

But any such license, like any other structure that constrains freedom in order to protect freedom, has to be minimal in doing so. This is freedom we are talking about. This is a deep commitment in the community out of which Red Hat and the Free Software Foundation and the Software Freedom Law Center and the IBM corporation, and so many others, now all come.

Of course we represent different portions of this dream. Not all of us, by any means, are Americans, it’s not just an American thing. Freedom isn’t, either. But we are bringing to it a distinctive set of commitment, in which a sense of minimalism in restriction and the guidance of law for the defense of freedom comes naturally to us. That’s our culture. That’s our history. Working with others whose histories do not as deeply embrace that point of view, or whose courts can not have been as historically trustworthy in the protection of freedom, means bringing them to work to some inevitable extent on ground that we feel is natural to us.

And it isn’t surprising, in that context, that it is so easy, as Dr. Spector points out, for communities to grow among a large number of organizations in this country. Some of them public governmental organizations, some of them private manufacturers, some of them vendors of software and services, some of them private universities, you know the span, all the way down to garage inventors. They cooperate because it is natural to them to live within the sphere of what the supreme court calls “ordered liberty”. A regime of protection of freedom by rule, designed primarily to benefit the free, not the rules makers or the richest or most powerful among us.

There is an equality principle in this. For those who like to think of American equality as being about meritocracy, a fair playing field open to all, what could be more representative of that process than trying to get a patch into the kernel? “Who are you? What have you done before? How much good work have you done? Who are you compared to us? How do we know that you are thinking deeply about this? Answer some questions. Do some scutwork. Earn a way into this process by technical merit. And if you don’t want to do that, go around the corner and start up with another bunch of guys, we’ll be happy. The more the merrier. Everybody shares everything, anyway.”

That sense that equality is an opportunity to struggle for your own liberation on shared ground is again us at our best. Our licenses, our structures of organization in the free software world are designed to bring us to our best, to make possible the political and social environment which has done so much good for us.

Of course we have problems to face. The patent system is an unbridled and unnecessary headache. We knew that 15 years ago. Not everybody agreed with us back then, they are few who don’t agree with us now.

The problem is that the exclusive ownership of ideas is a policy to be adopted for a reason, and to be rejected when the reason no longer is served by the institution. But we are long past that now. The patent has become a real estate entitlement, not based on the social value it produces, but rather irrespective of the social harm it may induce. And this is causing everybody to worry, all the time, that the trolls are going to eat their lunch, and that there will come some emanation out of the darkness in the east, or in the west, or in the north, or in the south, that will knock over everybody’s business and enjoin their email every morning, until some tribute is paid, or until some monopolist has been propped up.

It would be nice if we could address this question in the full politics of the full society, but in the mean time we must do something to protect our freedoms more immediately. Oddly enough, precisely because everybody now understands the problem, I think that is now possible to do. Where the larger society is not yet prepared to see its way around the harm done by the patent system, I think within the domain in which we work, there is a growing consensus about the limitations of the existing patent system, and some ways of relieving some of the pain it imposes.

I think when GPL3 is done, and when other licenses begin to adjust themselves as well, to the consensus in the patent system, our mode of making software will be very much better protected against patent disruption than it is right now. Nothing perfect can be done; nothing can be done to solve the problem save at the level of societal politics, in which we all ought to be engaged. We know something about what freedom means, and we should help our fellow citizens to understand it. But for the moment there are useful steps that we can take.

We also live in a world in which the right to tinker is under some very substantial threat. This is said to be because movie and record companies must eat. I will concede that they must eat. Though like me, they should eat less.

[Applause]

But it isn’t about whether they should eat, at all. Not really. For us it is about the same question it’s always about: Can people harness their ingenuity freely? If you receive a computer in your house or in your office, in which neither you nor anybody else who lives there, nor anybody who owns the house or owns the business is allowed to tinker with the software inside, on pain of criminal sanctions, or failure to be able to use the device for its intended purposes, then your freedom has been truncated in a deeply powerfully economically harmful way. Without that tinkering, our ability to make software this way can not go on.

A sham of it can go on. In a few places, inside some kinds of institutions that can protect individual developers in the pursuit of what they do by swarming them with legal bodyguards, and licenses, and protections, and counterintimidations. But the ordinary hacker who just wants to build a better mousetrap, to invent the cotton gin, to change the world of manufacturing forever with a single bright idea, is likely to be scared away.

So we’re going to have to do something about that.

Now you all know something about entertainment and technology. You all know which is the form of entertainment which is quickest to take advantage of each new technology. You all know that the management of digital rights and restrictions is a subject about which those entertainers have the most significant stake, because they don’t want any of their stuff going around for free. They successfully charge for it.

So ask yourself this: “Are we going to allow the network to be locked down? Are we going to allow devices to stop giving root to their users, because the new rule is going to be that the only body who gets root on devices anymore is pornographers? People with bitstreams moving through, for the titillation of the customer, those are the people who get root on the box?” You know what ensues after that. You understand what a wild hell that creates.

There will be a lot of talk in coming months about how we are not actually defending freedom by squabbling about that. You know which side you’re on about that, and you’re going to have to make it known. It’s going to matter. Your voice is going to be heard about this. Your voice is going to determine what happens about this. Your voice is crucial to the maintenance of freedom in this.

We’re lucky. We live through a velvet revolution. We are building it every day with our own hands. We are making freedom. That’s a privilege in history. An extraordinary one.

I have been working for people making freedom for most of my life as a lawyer. I like doing it. They are honest, they are clean, and what they do changes our world for the better. My clients and you are engaged in the same activity, no matter where the pay check comes from.

I salute you.

I thank you.

I ask you to help keep freedom safe.

Thank you very much.

[Applause]