Free Software and Free Media

by Eben Moglen

The speech

[Eben Moglen:]

Thank you, it’s a pleasure to be here. Given all the friends and experts I see around the room I’m gonna try to be not at all basic. If I go too quickly over something that needs more explanation, please don’t hesitate to yell out and stop me.

The free software movement’s contribution to free media and free culture is, I think at this point, possible to describe very simply. We have moved more rapidly than most people thought possible to a world of the replacement of analog forms of culture and industrial forms of cultural distribution with digital forms of manufacture and distribution of culture. And therefore the rules, both formal and informal, about cultural opportunity—who makes, who sells, who gets, and under what circumstances—are now essentially rules which—as my colleague and friend Larry Lessig pointed out a long time ago—are capable of being done by code, rather than law.

That is to say, switching is now what determines who gets what on which terms and what they can do with it, and switches are run by the software that runs the switch. Free software, in other words, is to the cultural system of creation and distribution the rules that refuse to be made in a user‐disabling fashion. They are the rules of agility in the market or in society, and they are the rules of non‐exclusivity in control of cultural distribution.

A system of non‐exclusivity in the making and implementing of the rules for cultural distribution also touches on a second great phenomenon in 21st century culture. The replacement of the analog by the digital is also the replacement of the consumer by the “prosumer”. That is to say, the roles of making and absorbing culture have come closer together as a consequence of technological change. And they do so in pursuit of a general principle of 21st century political economy.

Marx, Engels, and their colleagues in 19th century experimental political economy observed the worsening character of what Marx called, in a technical term, “alienation”; the distance opening between the worker and the product of his labor. That distance, the distance in particular between the cultural worker and his product, was maximized—as it turns out, a global maximum—by the inventions of Thomas Edison which turned a series of cultural phenomena, such as music, into commodities capable of alienation in the narrow Marxian sense. They could be put in a can and moved long distances such that the relationship between the person who made them and the person who heard them—those notes, those vibrations in space—was entirely theoretical. There had been somewhere, once, a musician. And there was somewhere, now, an audience.

But what connected the audience and the musician after Edison was, as Marx would have said, the cash nexus. The market. Not the social phenomena of playing and listening in the combined form that even those of us who grew up in the 20th century vestigially knew as “live performance”. But digital forms reverse, to some important extent, alienation.

We were talking before this formal portion of the event began about photography, which is a pretty good example. The digital camera has not just changed the technical basis of photography, it has changed the social meaning of the process of capturing images. It has changed the relation of the producer of images to the consumer of images by merging them.

To a greater extent, then, the 20th century experiment with photographic prosumption, which I suppose we would call the Brownie camera, the whole Kodak experiment in populist photography. The digital photography revolution which makes the camera disappear, the darkroom disappear, the photo album disappear. It’s all virtual, right? it all exists solely in the sense that pretty much anywhere a solvent human being in one of the developed societies is, is a place where photographs can be taken, and everywhere anybody is, is a place where photographs can be viewed.

Images, then, become truly part of the ordinary give and take of social life, they enable vast business models that never existed in the age of consumption photography. The digital camera itself has sparked hundreds of business models or community of heirs models, or structures of organization that nobody had ever thought of, and that weren’t reachable in social space before the digital camera, but which are now, well, not to be too cliché about it, MySpace.

In other words, then, this process of reintegrating the consumer and the producer, the YouTubeization of television, the Flickrization of the photograph, the Facebookization of the process of making records of students in connection with their places of employment or whatever you want to call schools, all of that focuses attention on the same geometrical tendency in 21st century political economy to superimpose the act of making and the act of viewing, hearing, watching, remixing. In this sense again, Lessig is correct, I think, to emphasize the recycling aspect of 21st century culture. As you move the producer and the consumer close together, what happens is that constant exchange of virtual particles between these merging entities, which is Lessig’s “remix”.

The cultural forms of the late 20th century already pre‐assumed this technological condition. It was interesting, the extent to which the forms began to behave with that sort of plasticity even before the technology was there to make good on it. Hip hop predated the total digitization of music and the available mashup of everything with everything else, as though music knew what technology was coming. MTV did to the process of making video what makes it possible for prosumer video to be good for the eyes; it made it jumpy, ragged, it intercut in tiny high‐speed significant trains of merely adjunct images, so that the human eye was training itself to accept what it is easy for us to make by way of mashup video, which is a long way from those beautifully framed five minute or ten minute shots, which seemed often, in 20th century cinematography, to be where the art was.

So, in all these ways, cultural production and the technology of cultural distribution point downhill into pretty much the same, pleasant, dale, where there is a great deal of indistinctness about who makes and who consumes. Where there is a great deal of sharing, remix, mashup, a great deal of do‐it‐yourself recombination, very little respect for “the integrity of the work”—a concept which is now revealed largely to be the publisher’s right to fend off everybody else—and where, after all, we have recognized, production for the market got so ruthless and so cynical that in fact we can no longer tell whether it is a 19 year old who has plagiarized the novel, or just the hidden ghost writers working for her book packager.

In that situation not even the model—currently proposed by the other side—of “stealing” and “property” makes sense anymore to the very people announcing it. Who has stolen from whom when one piece of work for hire chick lit has been plagiarized by somebody else’s ghost writer? Has anybody stolen from anybody? And if they have, who’ve they stolen from, Shakespeare?

So, we find ourselves now watching the question of property problematized by the very same bozos who want to use that conception of property to interfere with the technologies of freedom, who want to see our attempt to build a network that self‐assembles in a prosumer basis where software is thing we make and share, rather than something we consume, who want to interfere with that structure for reasons of support of an ideology which is already perishing on all the fronts more or less simultaneously. Nonetheless, wish to interfere the do. And the need to interfere with the freedom of free software is more drastic all the time, rather than less.

When I first started doing this work about 15 years ago, I thought that there was a pretty clear sequence of events that we would need to follow in order to see freedom in the 21st century underwritten by, rather than crippled by, software.

The first step, as I saw it, in 1991 when I went to work for a character called Phil Zimmermann, was to restore accessibility to strong encryption in civil society. We needed that, I thought, for two reasons: First, in order to have ecommerce, and second, in order to have privacy in a world of ecommerce. We got the first and we narrowly missed having the second, but missed we did.

At any rate, from the reinstitution of something like the possibility of a private space in a digital marketplace, the next step was, it seemed to me quite clearly, to free the software layer, which is why, beginning in ’93, as the Zimmermann matter wound down, I went to work more or less full time—as much full time as a law professor can work for a client—for Richard Stallman. It seemed to me that his was obviously the next train leaving the station, and the most important. I don’t feel that any of the events between 1993 and now have changed the insight, I think we were right about that.

I thought that the process of freeing free software would inevitably, in the end, confront the owners of culture with a network that they could no longer control. And I assumed, when I began doing this work in the mid‐90s, that it would be at least 20 years before that was really obvious to everybody.

In 1999, with the sense that the free software movement had begun to achieve its strategic objectives and could legitimately take a victory lap around the block, I wrote a little piece called “Anarchism Triumphant: Free Software and the Death of Copyright”, in which I tried to make clear what it was that GNU/Linux was doing and why it was important, and I said then that the thing called the Secure Digital Music Initiative would inevitably fail before the first Internet President was inaugurated. I didn’t understand, however, though I knew SDMI would fail, how deep the recording industry’s need to lock up music would go, and how quickly and devastatingly it would fall apart. I didn’t know, I suppose, that Shawn Fanning was gonna turn out to be as important in that part of the story as Linus Torvalds. All the way along, out of the mouths of babes came the gems, right, as long as you think of college freshmen as babes.

We were, at any rate, by early in the 21st century, already experiencing the culture meltdown to a degree that had seemed to me likely not to occur for another decade or so, when I began the work. The relationship between Disney and freedom became hostile much earlier than I had expected. It was, after all, as early as 2002 that Mr. Eisner—that was Michael Eisner, that was the leader of the free world—testified before the United States Senate that the business models of IBM and Hewlett‐Packard rested upon “piracy”. It was then, at that moment, that one began to see that the, what shall we say, the contradictions inherent in capitalism of a certain kind were going to heat themselves up much more rapidly than I had expected.

To the credit of the 2000‐year‐old man, Mr. Jack Valenti, his advisees in the movie industry kept their powder dry for a few crucial years. Had they been as intemperate as the thugs who ran the music industry, and had they gone all in on crummy strategy as early as the recording industry did, the war over cultural freedom might have ended sooner, might in fact already be over.

But they didn’t. They resisted the impulse to try and criminalize the Internet themselves, largely because they thought the Internet was too primitive to require criminalizing; it didn’t move gigabytes at customer command back then very effectively. And they knew what we knew, which was that a server‐client oriented Internet structure had the bandwidth costs in the wrong place for massive sharing of large data files on the gigabyte size scale, so that it would become very difficult for people voluntarily to give away enough bandwidth to share films in a client‐server structure.

Here, of course, their primary problem was that they had drunk Mr. Gates’ Kool‐Aid. He was the only person witless enough to believe that the net had been constructed as a client‐server place. And the only reason he believed that was that he had said so. It wasn’t what Vint Cerf or anybody else had said about the net, the people who actually built the net knew that they were building a peer‐to‐peer place. But by the time Mr. Gates woke up and discovered that there was an internet, it had become unclear to people what it was for, as all the newbies rushed in, and Mr. Gates was able to convince not just himself but everybody else that it was a communication zone for centralized big iron servers and thin—not to say non‐functional—clients, of a kind which Mr. Gates himself knew how to build.

That delayed somewhat the onset of understandings about how the bandwidth could be shared in a way that would make sharing large amounts of data economically feasible. Ian Clarke and Freenet of course began that work by 2001, but it was really Bram and the BitTorrent that changed this in a fundamental fashion.

There was, of course, always in there a political economy model for making the bandwidth costs of sharing sharable, and once we had found it, once we had remembered that that was the design being contemplated in the mid‐1970s, once people began to get to the point at which, if the rumors we now hear is true, Mr. Jobs can’t build a new operating system without BitTorrent inside, once we get to that point the political economy of sharing is sufficiently deep in the layers of the network that it makes sense to begin to talk about the business model of the net being what they are pleased to call “piracy” and we call “sharing”.

In other words, we are moving much tighter to the endpoint in the culture wars much more quickly than I had anticipated when I set out; I find myself pleasantly surprised at the degree to which even the Disney‐like parties are now on the run.

But I always thought there was a stage past there. It is, after all, the bandwidth which in the end is the hard part of the puzzle.

We got the electromagnetic spectrum in the course of the 19th century, we acquired, at the beginning of the 20th century, when radio broadcasting began to be thinkable, some sense of the public nature of the spectrum we had discovered was out there, but in fact, of course, we spent most of the 20th century mis‐allocating spectrum, and we misallocated it in the way that common resources are usually misallocated: Governments took almost everything for themselves and they left what fell off the table to be gobbled up by the biggest dogs underneath.

In different configurations government and media interpenetrated themselves at the end of the 20th century: Berlusconi is and proposed an unusual model of “media takes over state”, Putin offered a more traditional 20th century model of “state takes over media”, Roger Ailes and Karl Rove, I think, basically can now be seen as the pioneers of a third way, a softer route, in which media and state share figureheads and operations staff and always adjusted in that sort of zone of compromise which grew so accustomed to in the United States.

But in any of those ways, the relationship between media and state presupposed that common property was going to remain anything but sharable, that the bulk of it would be controlled by government agencies, some of them captured, some of them not, and that those who benefited from that form of crony capitalism or state socialism or whatever you care to call it, would be long term in possession of the power to control human communications.

So it’s particularly true, because 20th century technology offered us ubiquitous point‐to‐point wire line interpersonal communication called “the telephone”, and there was a very long period—three generations plus—in which the profits of treating that as a commodity for sale accrued to a few favored players who became enormously powerful.

I thought, in other words, in the mid‐’90s when it was possible to imagine Stallman’s victory and software being everywhere free to share, that the next round would be a long and complicated war against the owners of culture, terminating some time in the 2020s, only to precipitate the next and most problematic of all confrontations over the allocation of bandwidth in society in which the broadcasters on one hand and the telecoms operators on the other would be the overwhelmingly powerful adversaries, against whom we had to run our campaigns.

One worries about the combination of the broadcasters and the telecoms crew for obvious reasons, the broadcasters possessed the power to make image. Even if you leave out all of those Hollywood‐like structures of image making that depend upon the actual ownership of the movie, even if you only deal with the question of who has the route to many eyeballs, you can see how powerful image making is. Did Stephen Colbert give a crappy, unfunny, totally unimportant speech at the White House Correspondents’ Dinner last week, or was he instead a fearless fighter for freedom confronting power with truth, only to be ignored by the major media? I have no particular dog in that fight, I didn’t listen and wouldn’t if I could, but my own sense is that we are here facing the fact that even with respect to somebody that nobody can own, an event occuring in the public space in the public domain, the power of broadcast to determine what it means is still overwhelming. That is tied to the usable money of the telecoms operators, a form of usable money, which dwarfs the resources of the other bad guys we have been confronting.

Mr. Gates and his enterprise put together have somewhere in the neighborhood of 50 or 60 billion dollars in usable money, that’s quite a lot of money, and I wouldn’t want to suggest that it’s not dangerous, an adversary with 40 billion dollars is dangerous even if he’s stupid, but it is in itself—though it seems like a large pile of cash—nothing to what the telecoms operators have to feed into politics. The telecoms operators feed into politics in a more reliable—year in, year out, week in, year out—way than any other bunch of people except pharmaceuticals in the world, and then the politics of the west, not just this place, but all the developed societies, the operators of telecommunications have generations of accrued gains to spend keeping themselves in incumbency.

This looked, as I say, then, like the biggest problem of them all. A problem only solvable, I thought, a generation from now, and even then I think I was just putting off the depth of the problem rather than imagining that there would be a particularly good strategy for confronting it. All of which was true until I met Mark Spencer.

Asterisk, for those of you who haven’t met Asterisk yet, changes this part of the story just as fully as the Linux kernel and BitTorrent. What is happening to telecoms is probably less apparent to some of you than the BitTorrent, GNU/Linux revolutions are, but that’s because the structure of this particular unsettling of received incumbencies is distinctive in its geometry; this time the fish rots from the head.

The free software revolution is a revolution in which a bunch of technically sophisticated people, you know, I needn’t, I’m not being deprecatory when I say that you’re different from most other people, it was an acquired taste, a minority skill; it remains something which most of the people out there can’t possibly grasp when you try and tell it to them your way. And the sharing of culture without permission, though it seems like child’s play to children, as you know it doesn’t seem like anything except child’s play to adults.

Both, then, the free software movement and the movement to restore sharability to culture, come up from below. They begin in minority places where the least powerful citizens, such as children, hang out.

But the movement to abandon the telecoms operators, it doesn’t work like that. If you offer Deutsche Bank the opportunity to stop paying Deutsche Telekom, Deutsche Bank will take it, for all that they are creditors of Deutsche Telekom. The Bank of America doesn’t actually wish to turn over any money to Verizon that it doesn’t have to. When PBX and voice switching and all the pieces of intellect necessary to run a telephone system can be run on commodity white box hardware at no cost, and bandwidth can be bought in bulk by buyers with deep enough pockets to buy as much backbone time as they want, the telecommunications operators of the world are in a terrible jam.

What is currently happening is that commodity telecom switching is forcing the operators out of business, and they know it. The largest enterprises leave first. Which is a problem, because the largest enterprises have always paid, per unit of telecoms, the highest price in the system.

Within a very short period of time all the world’s major operators, Verizon, SBC, the Deutsche Telekom, Vodafone, BT, all of them will be watching as business gets out of the business of buying telecoms from them. And there will be almost nobody left to sell services to, except aunt Sally. When aunt Sally is being asked to spend a thousand bucks a month for her telephone, because there’s no other way to operate profitably for the shareholders, because the banks and the brokerages and the manufacturers have all stopped using the telephone system, state regulators are not going to offer the opportunity to rook aunt Sally at the relevant price levels.

That is to say, the operators are about to be caught between their theoretical role as regulated monopolies offering a public service and their actual role as inefficient competitors in a market transformed by lighter weight, higher quality goods that knowledgable consumers can replace them with. That’s going on right now.

I built a law firm last spring for the first time in my life, I’ve always been a solo, having a law firm was an unusual thing for me, and when we started the Software Freedom Law Center Bradley Kuhn and I decided that we would do voice over IP as the primary telephone system of this law firm and that we would build it on bare metal using free software only, just to see how easy it would be, and it was shockingly easy, and profoundly good. I have the telephone service I’ve always dreamed of now, and the reason I have the telephone service I’ve always dreamed of is it runs inside a $400 low‐end server inside my office using free software, and by God, that’s the right way to do it.

We’re not the only medium sized or tiny business in the world to learn that lesson, but the big guys, they knew it already; by the time we got there, they were there too. Sure, they are overbuying Evia solutions, and other people’s proprietary voice over IP, but the technology transfer necessary to bring it in house and do it yourself is already well along, and they will be out of the hands of the proprietary solutions dealers very soon.

We are presently looking, inside my law firm, at rooftop microwave inside Manhattan island, and I will tell you that the economics of that are about to get incredibly cheap too. We will see people leaving behind large portions of the network very soon, even technically sophisticated businesses of 10 and 12 and 15 employees, let alone, again I say, the big boys.

So, the economic basis of telecoms is about to be transformed in a fashion deeply unsettling to them. It is causing, as you would expect, some irrational behavior. Mr. Ivan Seidenberg, the CEO of Verizon had a very bright idea a couple of years back, as you may recall; the goal was to convince people that Wi‐Fi is a thing you have to buy, right, not a thing that we can self‐construct for free. So Mr. Seidenberg had the bright idea of putting Wi‐Fi hotspots in all the public telephone booths, right? Which provided for pretty good coverage on the street in Verizon Wi‐Fi and made it appear to be a good idea, then, to sell hotspot coverage to Verizon customers.

Even that was considered too subversive of the core business model, and Verizon therefore went around and ripped out all those hotspots built into the telephone booths. It is an example of a situation in which infrastructure investment is secured by profitability right from the get‐go but they still don’t want to build the infrastructure ’cause it competes too hard against other infrastructure upon which they are more economically dependent.

As you may know, Southern Bell offered to mayor Ray Nagin of New Orleans a former Southern Bell building in New Orleans which had not been destroyed, for use as a new police headquarters, and mayor Nagin accepted. The city of New Orleans then announced that it was offering free Wi‐Fi everywhere as a way to bring back the infrastructure of business in New Orleans, and Southern Bell’s response is “If you do that, we’re taking back our building”, which they have now done.

When you’re clawing back your charitable contributions to government in trouble over the possibility of municipal Wi‐Fi you will understand the degree of panic that is involved in the business decisionmaking.

I assume you are as conscious as I of the fact that Manhattan is now pretty thick mesh everywhere below 96th street and, at least in my part of Manhattan, above 96th street too. We are, in other words, watching as the self‐assembled wireless net begins to cooperate thickly enough that even infrastructure builders may not have much work left to do. Combine that with ubiquitous SIP soft phones inside your PDAs, Internet tablets, laptops. Combine that with the reluctance of most people in the young generation to buy wire line telephone service anymore, and there’s a perfect storm being set up for the bandwidth merchants.

In other words, a whole lot of things which I thought as a beginning naive strategist ten years ago were going to be neatly spaced over time, are now lying pretty much athwart one another. Between 2006 and 2016, pretty much everything is going to happen all at once.

This is both an enormous opportunity and and enormous challenge. They are not ready for what is happening to them, and we are not ready for it either, even though we were the ones pushing this revolution along, in some sense, we’re being caught unaware. And we have the whole game to play out to its end now, rather than neatly staged “from this into that, from that into something else” kind of campaigning, which I had been looking forward to.

Government—not to forget government, which still exists as we all know—government is by no means out of this game, and since September of 2001 has acquired new enthusiasm for playing it. As the EFF was allowed to prove during a brief period of time when EFF against AT&T was the way we were finding out about warrantless interception in the United States, as EFF has already begun to show—and I feel we’re not going to get anything else, now that that lawsuit’s being shut down—as EFF’s already begun to show, the United States government went for broke in 2002 and began the process of taking the whole net.

It was clear enough that what Karl Rove so brilliantly referred to as a “terrorist surveillance program” could not exist. I suspect you thought, as those of us who walk this beat for a living thought, that that was a technical impossibility. The president said “If al‐Qaeda is calling you, we’d want to know why.”, but those of us who understand the degree of hide and seek in the 21st century network that there wasn’t any way to find out if al‐Qaeda was calling you unless it was by virtue of winnowing all the haystacks looking for all the needles simultaneously.

They did come in with that intention, mind you, it wasn’t September 11 which produced that intention, they came in, as you may recall, with a program called “Total Information Awareness”, which, in one of those games played in Washington, they gave to the most hated man in town. Admiral Poindexter, as I said at the time in my old classroom, wasn’t intended as the guy to run Total Information Awareness, he was intended as the guy to be caught, pretending to run Total Information Awareness, so after he had been lynched everything could be done much more quietly and much more efficiently, and as we are discovering now, at least the spore on the trail before they go and burn down the forest, to keep us from following it, that’s exactly what happened.

Total Information Awareness went away, oh, Terrorist Surveillance came in. Note that that was a very artful move, it was about the idea of specificity having been restored to searching which was exactly not what was being done.

Government, in other words, has acquired its own approach to these questions for the next ten years, and its approach is fundamentally to turn the civil society network into a surveillance system that can be used to build predictive models, not just of society in general but of individuals within society. Your cell phone, equipped with a GPS receiver by order of the FCC, allows a complete model of your movements to be built, beginning this year, for as long as you still carry a cell phone, along with your financial records, and the more or less complete interception of the whole packet traffic in most of the major parts of North America straight off the backbone, you can, if you’re a data miner, really go to town.

Government, in other words, has identified its role in this process as to have a very clear idea of what’s going on everywhere all the time, as the goal, not just of the Chinese Communist Party or the US Republican Party, but pretty much of all parties running pretty much all governments. The United States’ government has been particularly aggressive about keeping all that activity secret. As a guy walking that beat as a law professor, I knew way more about what the Germans and the Swiss and the Dutch and the French were up to between 2002 and 2006, than I knew about my own society, because the American government was so ham‐fisted in its determination for secrecy and retaliation against those who leaked. But we are catching up now, and the general bones of the system can be pretty thoroughly seen.

So, with that in mind then, what we have is a system in which a series of private parties who have used immense amounts of power over culture, over bandwidth, over communications, in the course of the 20th century are beginning to find themselves all simultaneously under threat from the free layer of the net. The software means the switches are run by their users, the switches themselves are ubiquitous and cheap, our use of wireless and even wire line communications for purposes way beyond any that were intended by the engineers of that infrastructure, allows us a whole range of social moves which are unprecedented in their nature, and we have a generation of children growing up who don’t understand why culture should be owned, why government should be involved in making them pay to communicate with one another, who take for granted the ubiquity of “I can reach anybody I want, anytime I want, anywhere I want, it’s my right”.

Those are our voters. Their politics as they grow up is the politics we are trying to help grownup people have. When those voters grow up and arrive, the state will have to conform to their attitudes about freedom or it will have to win a very tough battle against them. We are in essence, in my judgment, keeping dinner warm for those kids until they get home.

And keeping it warm for them at this point means both fighting out with the infrastructure brokers and the owners of culture the neutrality of the network, I have gotten to that phrase, the neutrality of the network, at the same time that we do whatever politics we can do to break the surveillance machine a little bit as it tries to complete the circle and turn the net into the mechanisms of a perfect police state.

Now, I don’t want to be accused of treating the police state as a present fact out of some form of left wing paranoia. I would point out that what the recording companies and the movie companies now want to do on university campuses is essentially what the spooks and the cops want to do in the civil society network as a whole. Universities have gone from being the place where a free speech movement might be conducted, for the dramatization benefits that it would have on society at large, to the actual front lines of the struggle over how much snooping is acceptable and who should be allowed to conduct it. This, more than anything else is what frightens me about the political passivity of the students in the universities where I work, where I teach, where I speak, where I visit.

They are, in fact, called upon to behave on the front lines of a very important struggle, and they don’t see that fully yet. Because like so many others they still have the impression that the network works for them that they have minimal privacy within it, that they’re not being spied on every move they make, and unfortunately they’re wrong.

So, the advertisement is, I would say, why we have to fight all these things all at once, and, I will say, how how will we win. So far I’ve plainly addressed only the first topic. I will say a little bit about why we win, but I’m not going to declare victory tonight, we’re a long way from there.

On the subject on the freedom of software, however, we are pretty close. The end of Microsoft is apparent, I think. When you cannot ship your own products anymore, because your engineering system is falling apart of its own weight, even with 40 billion dollars in hand, your dangerousness has been much reduced. Everybody knows that now, I think.

If you consider the Mini‐Microsoft blog, that place where microsofties rails against their managers, and if you take a look at what is said in Mini‐Microsoft, you recognize that the microsofties by and large think that their primary adversary is a company that has three and a half percent of the hardware market and which looks good running a proprietized FreeBSD because they only have to run it on hardware they totally control and design, and they never have to test it on any device that they didn’t make first.

This is not actually the big technical challenge to the microsofties, the big technical challenge is us. We make free software that runs on every device in the world, runs better, cheaper, faster, for everybody on everything, and which is the only thing that can be relied upon by engineers to do that job with no muss, no fuss, at a unit price of zero.

I was talking in Boston at the LinuxWorld Expo to an engineer from Nokia, who works on their tablets, you know, the little wireless Internet PDA in landscape mode. And the engineer said to me: “We’ve gotten so comfortable with the kernel and its toolchain. that we change the kernel version in the most recent version of our product a month before we ship. We just go to kernel.org, we take the vanilla kernel off the top, we add our drivers, and we ship the box out the door. It’s transformative of engineering expects.” he said, which is, if you think about it, an engineer’s understatement.

“What, no test, no back, no complex business of ‘What, you can’t change the kernel a month before you ship!’?” No, total confidence: “It’ll just work, let’s go.” And now we’re talking about heterogeneous hardware being manufactured at the bleeding edge of nowhere, changing chips on the real estate to accommodate whatever the market is making cheap this month, and all the rest. Right?

The game is almost over for software engineering, there isn’t any other way to do it. And this is the more true as you talk about embedding stuff, which is of course where the frontier really is at the moment. If you make devices, you have an agile, robust, superportable, completely reliable, zero cost per unit raw material that consists of our software. This is why we’re going to flex a little bit of muscle with respect to the social policy that those pieces of hardware invoke.

We’re taking a lot of hell, Stallman and me and our colleagues about anti‐DRM provisions in the draft GPL3. I can assure you that what we hear in private is far stronger than what you have been seeing in the public commentary, there is overwhelming annoyance that we are pressing this problem on people who would just as soon forget about it. But soon you will begin to see the solid wall of anti‐anti‐DRM positions in the industry begin to crack. They cannot afford to do without the software, and we will force that question on them very firmly now, because we know what the economics of their business are; there is no other place to get their chromium, we make the uranium, that’s how it is, get used to it.

So, what I want, then, to say about the software layer is that it begins to have the power over the political economy of culture that it needs to have in order to make real changes. When Mr. Murdoch has to rush out and buy MySpace, in order to sustain the profitability of his media empire, you know that something very important has happened. MySpace is to media consumption the prosumer revolution made big, right? What we are watching is the world’s greatest believer in the producer/consumer distinction buying prosumer properties ’cause that’s where the profits is in the next 10 years. I think Mr. Murdoch is to be congratulated for his foresight in seeing that about MySpace, but it is also bad news for Mr. Murdoch and whichever one of his children wants to inherit the business, because there’s less or no business to inherit, precisely because MySpace is the way of the future.

Nothing will save the recording industry now, and even the recording industry knows it. What won’t save them won’t save them because musicians have begun to desert, which was always the problem, it was never that the audience would steal, it was that the musicians would escape slavery, and the deenslavement of the musicians is now becoming a reality.

The freeing of the video culture is a much more complex economically difficult process, and the movie industry remains a better player. But they are doing some of our work for us, they have pissed off every movie viewer in North America with constant propagandizing in the theater, a mistake that they will pay large for when the time comes, and which they are still so proud of that they can’t stop themselves from doing it. It’s a kind of Reefer Madness, showing before every flick, which you would think they would know better than to perpetrate.

But in any event, we are watching as we get joined on those subjects, the attempt to get the Congress involved, the attempt to use clout in Washington on their behalf is now increasingly, I think, costly. I don’t mean just that they will pay large this election cycle to replace Fritz Hollings by a better senator—they will, there’s no question about that— but more that there’s a gradient built in against them on the Hill now. Lots and lots of staffers who understand perfectly well what this game is about and who do not want to play. More and more people have to be convinced and whose bosses now have to be convinced that it is smart politics to disempower consumers.

Congress is not a reliable place to get that work done. The WIPO and the bilateral trade agreement may be good for dictating to people elsewhere in the world, but it is not very effective at dictating to the population of the United States, and as I say, they read the public marketing information much more closely than we do. They know that every year that goes by there are more Americans of voting age who don’t agree with them about fundamentals, and that time is therefore not on their side; as strategists, that’s our best hope.

But the most important part of the story is the bandwidth wars. And the reason that that is so important is it was politically the toughest nut to crack in the beginning, and is now in some ways the easiest nut to crack at the end. Business will take care of itself. Enterprise is leaving the telecom system because there’s money in it for them to do so. What we have on our side is all those wireless routers. What we have on our side is the low cost of mesh. What we have on our side is the extraordinary economic change that makes infrastructure recomposition an easy game for us to play.

Note that all those cheap wireless routers could not exist without the free software inside. That’s the reason they’re so cheap. That, in other words, is a working demonstration of the proposition that freeing the software layer first frees all the surrounding layers in due course.

But in a world where it is now feasible to say “While you city councilmen are talking about municipal wireless, we already did it. It’s done. It’s all those $50 boxes in everybody’s house, tuned, opened, and let’er rip.” When we have gotten to the point where the cloud is growing faster than Verizon can pretend it isn’t there, it’s gonna be the case that the bandwidth part of our problem will be hit from above by businesses deserting pay‐per‐service telecoms, and the community building mesh clouds, both at the same time.

We can do parts of both jobs. In our day lives we do know enterprises that need to get out of the telephone system. That will reward us munificently for being the geeks who came in and say: “You know, you could save 10 million dollars a year if you get out of the telephone system and go to voice over IP.” We will win a certain number of dinners out on the boss for that activity, but far more importantly, we will buy routers and give them to people who would benefit from them, we will teach children how to set up clouds, and the kids will grow up and set up the clouds, and that will be the end of that.

That’s where I think the primary next round of victories happens. It happens precisely because the political economy now does not require large venture capital funded institutions to confront the political economy changes. From here, we can do it pretty much by ourselves; as we got here we can go on.

I suspect, in other words, that in the next 10 years we have all of our battles to win, all at the same time. We have battles about culture, we have battles about software, we have battles about bandwidth. But we have come far enough that the tools of those confrontations now favor us. Time’s on our side. And the building of the infrastructure for 21st century freedom that we need is an infrastructure we can build.

Government will represent, at the end of this, no small nut to crack. This is not gonna be the simple part. If it looked at the end of the PGP crisis as though we had actually beaten back government’s desire for control, that was an illusion. The empire has fully struck back. And when we are done with the private powers we will still have civil liberties problems of the very gravest kind to deal with.

This was path‐dependent. Had we had anonymous digital cash at a moment when all we had was credit cards, had we insisted upon anonymity in surfing, had we taken seriously the question of the traceability of reading in the web, things would have been different. But, path dependency awarded to governments a network built for surveillance. And now we have some problems that we’re going to have to solve; when the private parties have reduced their grip we will still have a great deal to accomplish by way of making political freedom.

We will have a lot of voters. There’s no question that we will have a lot of voters. The kids growing up will be very largely on our side, and that’s a help, but they will be just as subject to terrorization, fear, undervaluing their own civil liberties against their security and all the other tricks that we have watched government play around the world in the past 5 years.

This will not be a small lift for us. On the other hand, we will be feeling our oats by then. We will have bumped off a lot of powerful and nasty businesses. We will have changed very substantially the structure of three of the 20th century’s dominant industries. We will have restored competition to places where oligopoly if not monopoly was the rule, we will have created a lot of openness, and we will have built a lot of power, and I hope that we will be confident and calm and reasonable as we go about the job of reconstructing the net ten years from now so that it supports freedom against the state as firmly as it supports freedom against Murdoch.

It won’t be simple, but I hope that all of the muscles we are building, in these little campaigns of ours, will make it possible for us to undertake. I don’t have anything else to say, but I’m delighted to take questions. Thank you.

Questions & Answers

[Unknown:]

[Unintelligible] But I have a question, two questions. So, you said about things which many of us probably shares feels and ideas. What is your vision about the, I mean, what is the, I don’t know whether it’s politically correct, but what’s the business model behind the free and open source software? Meaning, is this services? Is this support? Is this training and education?

[Eben Moglen:]

Suppose we say about the 21st century political economy again in a more general way, that there’s a phenomenon by which products in 20th century economic life become services in 21st century economic life. This happens not just with respect to the stuff we do, it happens in all variety of ways. Jeremy Rifkin wrote as usual an insightful if somewhat tendentious book on the subject and then went off to do something else.

The problem of the service as opposed to the product, it’s the product company. Like, say, Microsoft, or Verizon. But is has comparatively little effect on most of the businesses in any economic system who benefit from service improvement.

The most important form of service improvement, deproductizing if you like, in the course of western economic history is the transportation revolution first to water transport through canal‐building and then the work of the steam engine in changing costs of land transportation. That form of public utility transport which made the 19th century economy out of the 18th century one, which as the English labor historian E. P. Thompson called the move from the century of the scale to the century of the clock, where what you measure isn’t the weight of the output but the worker’s time in its production, that same structure happens in 21st century economic life as what had been seen as products, software, stuff you bought because it was useful to you and you couldn’t have unless you paid for, moves to being regarded as public utility enabling the delivery of services.

Software comes to be like public roadways or drinking water, a factor of production which is socialized. Which nobody has to pay for completely because everybody shares the cost of its production, and it enables various forms of economic activity that depend on the lowering of friction.

Go back to the digital camera. The digital cameras created a hundred business models, none of which could have been defined very well in the Kodak age of film photography. Services, yes, support, yes, training, yes, But also things whose name it wouldn’t be quite so easy to express, like combined artistic affiliation, or improved—or at any rate, altered—dating, or… Right?

So, the business model is in some sense recently become part of the infrastructure and life goes on.

We make software into a thing which is just knowledge, like arithmetic. Nobody pays for arithmetic by the unit. You want to build a house, you want to build a factory, you want to make a tower, you want to build a gas station, you need arithmetic. But we’ve long since abandoned any idea that you would go down to the arithmetic store and buy the units of arithmetic you need to get the job done, right? It’s just there, we know math, those of us who know math help provide the various mathematical inputs necessary to get the economy to work, and by God they do.

That’s, I think, where the business model is found.

[Unknown:]

Do you think that [Unintelligible] You mentioned before, something like that in, in reference to [Unintelligible] you know, at the FSF. I manage to say in the things in Spanish, I speak English but I can’t say the FSF in Spanish, I always think in Spanish, so, GNU, I don’t say GNU and other things.

Between those things comes my question: Eight years ago we started a movement in the Dominican Republic. of making free software a law. And we did it all wrong, because, there is no manual, there’s no how‐to that you download from one of these web pages that tells you how you go along doing this, so you see Peru doing it, and you see Venezuela doing it, and we’re all have done it wrong, and now Richard Stallman has to do something about this, you’ve all done it wrong in the sense of, I’ll tell you why we did it in free soft… free software in Rio Grande [Unintelligible] , right?

We went into free software because our politicians are so corrupt that they’re spending all our money on Mr. Gates, and our president said that Bill Gates is the greatest man that ever lived. His name is Leonel Fernández, he got on his web page and said that he’s the father of invention, he’s the father he is greater than Máo Zédōng, [Unintelligible] You know, this is our president, you know. And he tells congress, and they say, you can’t build a model around it.

And we built our own models. you know what I mean, we, you read things and you read open source and you read free software and you read BSD and OpenBSD and all these things, and all these confusing things got down to us, and the question really is what is GNU gonna do about [Unintelligible] , as predicated, no it’s wrong, maybe with the wrong conceptions.

[Eben Moglen:]

I actually would want to be a little bit doubtful about the likelihood that a couple of guys from the Upper West Side of Manhattan, where Stallman and I grew up, do actually know how to do Brazilian politics better than Brazilians. In fact, I think it’s the other way around.

That wrong/right business is tricky and I don’t want to either deny your sense that stuff doesn’t always work perfectly the first time, nor mine that we wouldn’t have done any better the first time in the Dominican Republic than you did.

I’m actually struck by the diversity of attitude, South of Rio Grande, if you like, let’s just start there and then move around. I’ve got a lot of air miles accumulating around GPL3, and the thing that strikes me is how culturally different the modes are by which nations and societies are coming to free software.

If you think about the Brazilian approach, which is really Gilberto Gil’s approach, he and Claudio Prado have created what I guess I think of as the, the tropicalismo reason for free software, right? And If you look at the speeches that Gilberto Gil and Claudio have given around the world, you see all this talk about sex, and the melting pot, and people come to Brazil and we all have sex, and there’s all this coming together, and new stuff being made, right?

Now if you compare that to the sort of neo‐bolívarite rhetoric of Hugo Chávez, right, it’s not very sexy, the Venezuelan idea about why to use free software, right? It’s a much more hard‐edged, “PDVSA was screwed by INTESA and the CIA, it’s a national security demand to get El Norte off our backs by shifting to free software.”

Now, step around the corner to India, where a much more Satyagraha, Gandhi and self‐reliance argument is coming to prevail among free software activists.

Look at the South African situation, which again has a whole other cultural wrapping, and if you want to get the deepest about it, look at the Chinese Communist Party’s extraordinary attempt to do free software without the freedom, right, which is the whole game, right, “it’s not ‘open source’, it’s ‘free software’”, with no freedom. This is gonna be the biggest and most complicated problem for us, 10 years out, as the current marriage of convenience between the Chinese Communist Party and the free software movement begins to go sour, and we have to maintain some principled approach in the midst of what is gonna be a fairly ugly scene.

So, my view about this is that there’s in fact a great deal of re‐cultural narration of this story, that it works in different ways in different cultural settings, that we’re watching the politics generate themselves.

If anything would be wrong, my guess is that “wrong” would be to take the fairly narrow slice of the possible political points of view represented up here in the United States, where a kind of libertarian BSD structure and a kind of communitarian GPL structure have been having a very American political argument for the past 10 years, and try to reproduce that elsewhere in the world.

On the contrary, the thing that’s exciting to me is how much of this get retold in local cultural terms. The end result—if you’re a materialist—is everybody converges to the same material realizations, if you’re not a materialist—if you’re a person who believes in the primacy of culture over economics—then what you say is “Well, there’re a lot of contingent cultural developments occuring around the world, let’s watch and see how it all turns out.”

Having said which, I also agree with you about this: There was not a cadre of international political leaders for the free software movement, not yesterday, not the day before that, not the day before that. This was a very US and very slightly European thing, and it stayed that way too long. One of the reasons we envision the GPL3 process as a worldwide process, one of the reasons that all those miles are being added up, is precisely that I hoped, as I know Stallman did, that the process of talking about this license could be the beginning of one system of social experience that would bring a new cadre of people towards a sense of political maturity in this activity.

I don’t think it’s a political how‐to, I think it’s political “make the road by walking”. And I think we are at least all walking on that road now, so we will see who the political leaders are, and what the political propositions are that count.

I’ve expressed a set of strategic goals that I see on a landscape of companies and participants in the global marketplace, which I suspect are relevant to everybody. I’m enough of a Marxist that I actually do think that it matters what capitalists do, right?

Not all of my colleagues in the free software movement around the world think that’s true. They think that ignoring the multinationals is a better approach for their local conditions, and they may very well be right.

[Unknown:]

A question: You mentioned that this is the newest version of the general… of the GNU public license, which is version 3. What are the differences between GPL version 2 versus GPL version 3 that will make it more, like you say, accessible to the rest of the world?

[Eben Moglen:]

Well,

[Unknown:]

Can you clarify that?

[Eben Moglen:]

The problem of making a copyright license that works everywhere on earth is copyright systems don’t work the same way.

[Unknown:]

Right.

[Eben Moglen:]

Some broad general principles are established by the Berne Convention and in some sense therefore, copyright has grown up in the 20th century as a globally interoperable system. If anything, late 20th century developments hacked away at that a little bit.

While the United States treated itself as coming closer to Berne, through the 1990s as it implemented legislation extending terms, and doing other convenient stuff on the ground that it was coming closer to the Berne Convention realities, we were also sort of messing up the interoperability of global copyright by adding new principles—the ones we’ve called paracopyright, the DMCA principles—into the mix.

But at the pure level of drafting, if you sat down with a bunch of copyright lawyers in software or soft goods—movies, textile designs—and said: “Let’s write one copyright license that your business can use everywhere on earth”, none of them would do it. They would all say “No, we write our licenses one country at a time, we hire local counsel, we write a license that’s good for Bulgaria and we don’t use it in Brazil. And if we did it would be a terrible mistake.”

The GPL is a license which has to work the same place everywhere, because we have no idea how the goods’ gonna move. In a world of basic Berne rules, BSD or X11 or some other license that just says “Here, take it, do what you want with it”, it works the same way everywhere because it never says “No”, so it doesn’t have to worry about how to say “No” in acceptable local terms.

Stallman’s basic principle about the GPL is “Sometimes you have to say ‘No’ in order to make ‘Yes’ permanent.” Right? And that means that the GPL naturally has to take on a little bit more of the teeth in the local copyright system.

Version 2 of the GPL—I will say as not a man who had anything to do writing it—version 2 of the GPL was a work of genius in that it accidentally achieved more or less global reach, having been designed by one hacker and a couple of lawyers. We were lucky that it worked as well as it did for 16 years. But the truth is it wasn’t designed for global use, and it doesn’t meet the demands of global use entirely, if any license can.

There are some things you can do in a license that will increase its availability for global use. Most of the things you can do, I hope we’ve tried to do in the first discussion draft of GPL3. You can build in a little flexibility about warranty and warranty disclaimers, for example, so that the license is a strong copyleft license, but every license all through the world doesn’t have to have the same warranty disclaimers in it, because there’s no uniform world rule of warranty around the world, and there’s no way that one set of disclaimers will do the job.

You can take some approaches for getting rid of US‐focused terms of art, so that instead of talking in terms of “derivative work” and “distribution”, in words which have a meaning in US copyright law but may not have a meaning elsewhere, you can try and use denationalized vocabulary.

You can be aware of the behavior of the major legal systems in the world, even if not aware in detail of the operation of every single one of them.

My work at this point for Stallman is very largely a practical, pro‐seminar in international comparative copyright law, right? I’m running a pretty big operation trying to keep track of the consequences hither and yon around the world of each possible change in drafting. An operation which oddly enough the multinationals, who have lots to say about lots of stuff in the GPL, aren’t much better on working on than the hackers are. Because they’re accustomed to getting their legalities conformed to country by country. When you say “OK, now let’s pull back to the 30,000 foot level and imagine how you can do it for both Germany, France, Argentina, the United States, Taiwan, and Canada all on one paragraph”, it gets kind of tricky.

We will do as much of that work as we can, that’s the most important internationalization work that we can do. There’s lots of other stuff the license needs, and I hope we’re stepping up to it, but that’s the primary way to do globalization.

[Unknown:]

You were talking about, really at the very beginning there, about the bad situation of the horrid telecom companies, if I’m understanding correctly, seeing them in decline. Can you see a scenario where their decline would occur faster than the ability of an alternative telecom backbone infrastructure to take the place…

[Eben Moglen:]

Yeah, they’re doing them already, which is why you have such crappy cell phone service. Right? The wire line telephone companies who tend to be bankrupt in the places where the copper is are busy going around the world selling other people low quality digital cell phone service in which a third of their calls get dropped and one half can’t be heard on the ones that don’t drop, because that’s the way they’re trying to copper, excuse me, their bets in a world where their core businesses are failing. If Deutsche Telekom were able to make money selling wire line telephone service to Germans, they wouldn’t be quite so determined to go around the world imitating T‐Mobile all the time, right?

But in fact what’s happening is, they’re trying to square two businesses in the hope that they can navigate through this bad patch, the only problem is that what we do threatens both of those businesses at once, and that’s the difficulty.

[Unknown:]

With that propaganda in the movies you mentioned,

[Eben Moglen:]

I’m sorry?

[Unknown:]

The propaganda in the movie theater that you…

[Eben Moglen:]

Oh! Those of you who actually do go to movie theaters will notice that one of the routines of movie going is now MPAA propaganda in the form of two and three minute shorts with guys who work in non‐talent roles in the movie industry, so a set painter earnestly adjures you not to share movies, because his livelihood will be destroyed if the movie business fails. One wonders whether the set painter’s concern for the continuity of his livelihood has more to do with his fear that if he doesn’t appear in the propaganda he’ll be fired. He probably—living as he does, inside the industry—is well aware that you could pack a lot of sign painter salaries into the 25 million bucks they pay Hanks or whoever to headline the movie for them.

The people that I see there are people behaving with an almost painful false consciousness; it’s like listening to policemen talk about the “War on Drugs”, you know, in which everything that is said in public is a thing disbelieved by everybody talking in private.

But if you haven’t run into a heap of these it’s just because you haven’t been going to movie theaters. Trust me, the people who buy movie tickets see this stuff all the time, and it burns their bridges, because they don’t like being lectured to in this phony‐ass way while they’d paid the money to watch the movie.

[Unknown:]

What do you think in term of, the impact in terms of the culture of the new idea of satellite radios, how you hear a recording and when you wish to, content not be able to resell, and iTunes, this is a license you know [Unintelligible] sale, you know.

[Eben Moglen:]

But all of this is just the tinfoil around the edges, right? I mean, this doesn’t change the actualities of the situation; you can listen to stuff grabbed off XM anytime you want, and guys sharing it every way you please. There are minor technical problems. And each one is only a minor technical problem, the problem is if they get the whole network to obey those rules, right?

They have always perceived that any mode of failure was total failure, which is why they set themself the objective of total unconditional victory. They know that anything less than total unconditional victory is defeat and so do we. So our goal as strategists is less about fighting them on any one little piece of this than making sure that they don’t succeed in universalizing it.

There are two possible modes of universalization, one is: Law gives it to you, right? Government uses its coercive power to lock down the whole network from the center to the edge. And the other is that capitalism negotiates its way to a disempowerment of users, right? All the way from the center to the edge, all businesses get together and they make a deal that sells you out. The problem with that is that there’s always some business that’s got more stake in your being happy with them than Disney’s being happy with them.

The question is whether they can be made to say that that’s their position. Right? Most of the time, it’s cheaper for them not to say anything and to hope that it all goes away, or to work against it behind the scenes.

This is the primary problem now with the thing they call trusted computing—computers you can’t trust, right? It might be a deal that you could globally make, if all the businesses got together and didn’t care about what their customers thought. And there are days when it looks as though they might. Just as there are days when it looks as though the United States government might be willing to step up to the task of militarizing the whole network for them from center to edge.

Our problem is to keep any of those maximalist dreams from coming true. If they don’t get the maximalist objectives, it doesn’t matter how many of these minimalist ones they get. If you go and shop in an electronics store in Tokyo at the moment, you will see shelf after shelf, row after row of stuff with Windows DRM built in.

So what? Not important. But, if the whole network were Windows DRM, if network neutrality perished, if there were a sense that packets aren’t equal in transmission and that somebody other than you and your friend has a right to determine what packets pass between you, that’s a problem.

So here’s my framing of the issue for this year:

In 2006, the home is real estate with some appliances in it. In 2016, the home is a digital entertainment and data processing network with some real estate wrapped around it. Who do you want to have the keys to your home? You? Or the people who deliver the movies and the pizza?

OK? Bring it to people that way. Show them that the real issue is that all the property, all the real estate, all the places in the world, will be just locations in the network very soon, and the question is, who has the key to your place? When you make that the issue, they will come your way.

I go to the businesses and I say: “When are you planning to allow on the network, in your business, machines that have software in it you can’t read, can’t control, can’t modify and which phones home to people on the network in ways you can’t read?” They say “Never.” “Of course, never, that, by definition that’s an intruder. That’s what you call a box with those properties, right?” So I say: “So are you going to take that intruder home under your arm and put it down on the desk next to the computer where your kid does his homework?” And the answer is “No, of course we’re not going to do that either.”

We’re meditating at the Free Software Foundation now, a campaign on this piece of the DRM stuff. We’ve been talking to marketing theorists; we think that it’s possible that what we want is to run a campaign called “Intruder inside”. And the question is, would that be a little too heavy in our relations with the Intel Corporation, whether they deserve to…

But that’s the aspect that you want the people you talk to to be thinking about. Where do these intruders, these boxes that don’t obey the orders of the people quaintly called the “owner”, where do these boxes come into this network of ours, which attempt to control the situation based on the needs of third parties who aren’t present in this space, neither the manufacturer who made, nor the user who used.

Jay?

[Unknown:]

One of the standard phrases that I use is the right and the practical power of private ownership of computers. And it is of course nowadays stuck together, because of advances in our ability to communicate, it’s stuck right together, with freedom of the net, free speech, and our rights on that side, so they’re two things.

[Eben Moglen:]

Yeah.

[Unknown:]

I’m glad that the FSF is moving toward…

[Eben Moglen:]

Yeah, but you understand, FSF resources to run such a campaign aren’t going to be very big, right?

[Unknown:]

FSF, naturally, is often the point. Right? And, of the spear, you need something behind it.

[Eben Moglen:]

Well, this is basically our selling point with the businesses. My statement to them has been: “Look, we were right about patents 15 years ago and you did bugger all about it. Now everybody knows it’s a serious problem.

If you walk away for 10 years, leaving rules on the table, that allow movie companies to determine what products you make and how we use them, when 15 years have gone by you’re not going to want to live in that world, let’s do something now.”

I think that we are at the moment where we can begin to make some progress, just keep pressing on the question: “Who has the keys?”. That will differentiate usefully the hospital security, the privacy of data records, the encrypted email setting, from the “Disney runs your home network for you when you’re not around” proposition, which is the one we’ve got to fight and win.

I think we should start wrapping up; let me just take questions from those who haven’t asked anything yet.

[Unknown:]

I wanted to ask if you could comment about Creative Commons, is this a credible cultural front, or is it sort of too easy for both the big players and everyone else to ignore as marginal?

[Eben Moglen:]

Creative Commons is an experiment in what to do with a teachable moment, on the global scale. Larry was entirely right in believing that a window was opening within which the creative populations around the world could be asked to rethink the ownership of culture and ideas. And Creative Commons is a non‐hierarchical, or weakly hierarchical, way of trying to build education on that question for the world’s creators.

It had a risk. A risk which Larry was perfectly aware of, I think, from the beginning. The risk is that by teaching in gradual, easy stages, you will convince people to stop too soon. And it is already becoming clear that Creative Commons is slowly converging the creative populations around the world to a form of licensing which treats commercial use distinctively differently from non‐commercial use. And for reasons that we in the free software movement can give, that’s a dangerous place to stop too short.

So, you are now watching as a heating develops between parties broadly sharing social objectives, over whether Creative Commons is ameliorist but not pressing the question firmly enough to conclusion, or a revolutionary organization making the whole social distance possible. You hear a kind of Menshevik/Bolshevik thing going on in the conversations sometimes, now.

That’s an inevitable problem. I, as a man with an opinion, have constantly taken the view that Creative Commons should be very careful not to open up a space to its left that would be occupied by more extreme or more uncompromising positions. I thought it was necessary that Creative Commons remain CC all the way to the wall on the left hand side. I don’t think that’s what now happening, and so I notice Mako Hill and Richard Stallman and various other stalwart, thoughtful serious uncompromising people from free software, from Indymedia, from other places, beginning to treat CC as part of the problem instead of part of the solution, because they’re concerned that the level of compromise that CC represents is a level which will run out of gas too soon.

I think there’s wisdom in that point of view, but I’m not sure that the political analysis is correct. I certainly don’t think it needs to be taken, for me, to the place where Richard has taken it, by saying “I can’t accept and support it, I’ve got to turn my back and say no to CC.”, I think it’s way too early. But I think those issues are important, I think they legitimately have to be thought through.

If CC winds up teaching artists “It’s OK to share, but you should limit commercial use of your work.”, then we will, in fact, lose, more than we can afford to, of the value that comes from restoring freedom to ideas.

I understand why artists are terrified at the thought that commerce is just going to rip them off and there’ll be nothing they can do about it. I understand why it is very difficult for people to take that last step and think “But they’re going to put my song in a Jaguar commercial and not pay me?”, “Mr. Gates is going to take ‘Start Me Up’ and not give me back anything?” Well, yeah, even Mick Jagger may resist the burglary of his apartment, I hear. And I understand why that’s a tough sell.

Nonetheless, it is CC’s responsibility, in my judgment, to continue to explain why it would be desirable to leave that commercial/non‐commercial distinction behind as we move to a freer cultural environment.

That’s where the heat’s gonna come. For the rest, I admire the hell out of it, and I am delighted it is there, and the work that it has done is enormously important. The Wikipedia alone is a demonstration of what Creative Commons needs to be about.

[Unknown:]

Didn’t Linux itself have at one point, someone put into it that it wouldn’t run software that wasn’t GNU licensed, or modules rather than [Unintelligible] licensed so that it [Unintelligible] ?

[Eben Moglen:]

The kernel developers have had a number of different theories about the role of proprietary code in and around the kernel, and they have spoken, as is their right, with a number of different voices out of a number of different mouths, about how they feel about the role of DRM in relation to the kernel.

I grant you that this is not just a technical issue, and it is not just a license issue, and it’s not just the Free Software Foundation against the heavies; it’s a communal discussion, which we are having, and it will result in some communal decisionmaking about how far we want to go and in what steps and with whom in front.

I’m not proposing that this is done and over; it isn’t. But this is the right moment to have that conversation. And it is the right moment to be very insistent that we can do what we want to do. It is now up to us to make our policy.

As a diplomat for the community, I will say that when we have framed our policy, I can make that policy good in the world. Because we have what it takes now to insist upon some degree of deference to our needs. We are meeting a lot of other people’s needs, in a price/performance package that nobody else in the world can offer them. And when you have that position with businessmen, you have to talk up what you want, ’cause you’ll get a big piece of it.

[Unknown:]

So, when you say you’re changing the license so DRM… You mean, you can’t include licensed code in code for software that is DRM? Or you can’t run it on software that…

[Eben Moglen:]

No, we will, I think, wind up in a place which is probably more confined than either of those two statements. I think we will wind up with provisions which say “DRM and other forms of ‘Trusted Computing’, meaning computers you can’t trust…”

We will protect our way of making software against those ways of making unfreedom. We will say only that the right to tinker has to be protected against hardware that resists it. I think that is both legitimately the scope of a free software license in everybody’s view, and also sufficient for the purpose.

Larger claims than that about what we are doing have been made by people who weren’t asking us, and larger claims than that have been suggested by some, as necessary in order to resist DRM. I think it is in fact the case that fairly restrained claims, if made good, will be sufficient to make our social policy real. Which is why I think there’s going to be a deal.

Because I think what we need is stuff that people will, in all justice, concede to us. And once we have it, I think the process of making good our policy in the world will be the natural outgrowth of the political economy changes that are going on.

[Unknown:]

Does that mean, like if Linux there was released under version 3, then DRM software could not run on Linux?

[Eben Moglen:]

I think that that’s not going to be the outcome, I don’t think that’s what I read in the first discussion draft, and I don’t think that’s what will eventuate in the long run. I think DRM in userland is a harmless nuisance. And I think that allowing the harmless nuisance to exist is smarter than trying to stamp it out.

Even if it were legitimate, to use a copyright license on an OS to prevent applications from running which have a different licensing model—which was never what the Free Software Foundation thought—even if we somehow were willing to relax our fundamental understanding of freedom ‘cause we dislike DRM so much, I still think that the extra step necessary to prevent user space DRM from existing would not be worth taking. The bright line should be on the remote attestation of the software running in a machine.

Hold firmly that nobody can ask the kernel “Are you my kernel?” and you’ll be fine. So run DRM in user space, and the kernel will cheat, and all will be well, right?

And that’s fundamentally where we’re headed, which is the kind of crappy, muddling through, position that device manufacturers have always accepted. Because device manufacturer don’t want to screw their customers, they don’t want an open war with Disney, what they want is a face‐saving solution whereby they can truckle to Disney and please their customers.

Hence all those beautiful Korean DVD players where, when you punch some unusual combinations, undocumented buttons, region coding dies, right? That’s the sort of solution the device manufacturers like; lip service to the big dog down the block, and actual service to the customers around the corner.

What we ought to do in the GPLed world, if we can, is to craft a solution which leaves them about in that place. Right? And I say that to you in a public place, knowing that this film will be seen in Los Angeles later this week, right?

[Unknown:]

I was wondering, can an artist actually go with the new license for, maybe the first creation of a little ditty of some sort and then after the game, some sort of fame, it got really, takes off. Then, more or less, make another creation that say “this one is, I would rather not be…”

[Eben Moglen:]

Yeah, you can do that, but you would want to ask whether, if an artist has experienced this fully, that will be her next thought.

Look, the 20th century’s structure was for artists to believe that nobody cared enough about art to pay for it voluntarily. 20th century political economy said: “If you don’t force them, you will starve.” From a Marxist point of view, this is just another way of making workers afraid of one another more than they are of the boss, right? Why did we take the view in the 20th century that people who love culture won’t pay for it unless you put a gun to their head?

The right answer is to say to artists: “Coercion was never your specialty. Artists have never lived by coercion. It was somebody else who imposed the idea of coercion on you. Now you don’t need it anymore, isn’t it nice to get out of the morally compromised position in which art temporarily survived in mass society, not on the goodwill of individual patrons, or on the goodwill of a mass of lovers, but rather in this rather uneasy position of ‘I will give you the music or I will shoot you.’?”

Now, that, I think, is why… I’m not sure that I believe that giving people the freedom to go back means that they will want to. Better to watch what happens as people learn that the don’t have to be coercive in order to succeed.

Take a look at magnatune.com. A post‐ownership recording company. Right? John Buckman’s basic deal with his musicians is: “I’ll merchandise your music on the web. You get 50% of whatever anybody voluntarily offers to pay for music they can listen to in full before they buy.” You download the music in as many different formats as you like, FLAC, Ogg, VBR MP3, whatever you please, and in fact, John will say to you: “Hey, you bought a copy of that record, take three more and give them to whomever you like.” Right? “Because even if I get paid for one eardrum in four, it’s still a bargain for me, and I’ll split 50/50 with the artist.”

Now, Buckman’s not doing running the studio, because he doesn’t have to; being a recording company in the 21st century is not running a studio. The artists bring the music already produced he’s just providing a way to merchandise it.

If you’ve succeeded in making money off Magnatune as an artist, why would you go back to coercing your listeners?

Andreas Haefliger, who I think is the most interesting Mozart pianist in the world at the moment, records for Magnatune, not for Deutsche Grammophon. Why should he go back to saying “I won’t give you Mozart unless you pay” when he’s making more money out of “Here, pay me when you want to and I’ll split it 50/50 with the guy doing the merchandising” than he would make on a Deutsche Grammophon contract with recoupments and all the rest? Right?

I think that the true answer is: “Of course you can imagine some people doing that, but as time goes by, fewer and fewer people need to restore coercion to their relationships with audiences and viewers, because they’ve discovered that coercion wasn’t ever good for the artist, it was only good for a certain kind of middle man.”

[Unknown:]

But isn’t iTunes the most successful service of that type right now with DRM?

[Eben Moglen:]

Now here’s the interesting thing, I’m sure you don’t know it, but we have wonderful replacement firmware for the iPod.

Take a look at Rockbox, take a look at rockbox.sourceforge.org. We have really nice replacement firmware for the iPod; it’s got much more features set, allows you to do much more in listening to the music, it’ll play Ogg and FLAC and VBR MP3s, there are just two things that our replacement firmware won’t do: it won’t play AAC, and it won’t talk to iTMS, and we did it for that reason, OK?

We’re gonna take the razor that he sells at a loss and we’re gonna make it work with our blades only. OK?

What is the Gillette business model, when the guy down the street can take your handle and make sure it only works on free blades? OK? I don’t think that in the end the iPod works out well for Steve. I think it works out well until people begin to discover that they love the handle, but they don’t like the blades so well.

A victory this week, right? If he had been driven off fixed pricing, he’d have been fought. If he had lost the battle over fixed pricing this week, and the record industry was beginning to make prices in the iTMS for him, there’d been an outflow from iTMS customers.

[Unknown:]

Right. It’s the simplicity of the model that’s the key of the success, but I mean, he’s losing the battle all the way to the bank at the moment, I mean, you know, because there are also people buying music from online, it’s…

[Eben Moglen:]

Maybe, but he has a really easy time selling 80 gigabyte iPods. Now explain to me how this is good for the iTMS? Is there really somebody out there who’s bought 80 gigabytes of stuff at 99¢ a song from the iTMS? It’s all MP3s, it’s all free music, It’s self‐ripped stuff, And if you say to the iPod owner: “Hey, we’ll do some stuff for you, we’ll give you more features, we’ll give you longer battery life, we’ll give you a less disposable box we’ll give it to you on free software you can download that just works, and all you have to give up is the iTunes Music Store.”, I don’t think it’s a big problem.

We’ll see, we’ll see. It’s gonna happen. The iPod is gonna be, itself, a zone of contestation between free software and unfree software very soon. And I think he loses that battle, but we’ll see.

Guys, we should be wrapping up. Alright, one more.

[Unknown:]

We have 15 minutes.

[Unknown:]

Do you know this, like, the Dominican Republic, like, with more countries, the GNU concentrates on Brazil and the big countries down south. Now we get repercussions of tyranny; every time you win a battle, they tighten us more, on us.

We pay 92 dollars, American dollars, for just Internet connection, 128 megabits, we’re paying the… It’s illegal to use, I don’t know how to pronounce it, voice over IP, I guess is right, voice over IP is illegal, it’s $500,000 fine. I have migrated, we have migrated various companies, like 750 million dollar companies and four Dominican Republic were migrated to voice over IP, and they had to go back to [Unintelligible] [Unintelligible] because they made it illegal you know, a law.

Verizon sat there, Bill Gates flew in, the guy from Venezuela, [Unintelligible] Hugo Chávez, now he got a new home, the Dominican Republic [Unintelligible] [Unintelligible] is associated with [Unintelligible] our country does anti‐virus concerts, I guess you would call them, they go to universities, [Unintelligible] virus CDs, and when we ask questions the police escort you out.

So what you call victory out here, is a big [Unintelligible] the more they squeeze us down there, and I think GNU should take responsibility for that in some way or another, in the sense of helping us out.

[Eben Moglen:]

It’s a non‐violent movement. It always was. I couldn’t have solved the Trujillo problem and I can’t solve this one.

Unfreedom is nasty. That’s what we think, OK? We think unfreedom is nasty. We think that technology can be used to help freedom and to inhibit unfreedom, but we don’t think it’s magic wand.

I will grant you the problem, OK? There’s no question about it. Dictatorship in the 21st century needs Mr. Gates, just like Disney needs Mr. Gates. A monopoly of technology is a very strong assistance, but don’t think of it as a big country/little country problem.

When Tony Blair finally throws in the towel, and Gordon Brown becomes the English prime minister, Mr. Gates’ closest governmental relation in the world will be with a fully purchased prime minister of the United Kingdom. Gordon Brown yields to nobody, in the degree to which he is owned by Mr. Gates, and the UK will become a very dangerous place for us in Europe generally, because Mr. Gates has already bought his aircraft carrier. And every day that Gordon Brown goes home steaming because Tony still hasn’t set a date, Mr. Gates goes home thinking “I will get mine yet.”

It isn’t about big and little, it’s about free and unfree. And that doesn’t mean democratic, non‐democr…, I can’t… You’ve got to take it the way it’s dealt to you and play the cards the way they are.

I see your point, I understand your point. Freeing islands is really hard, because the cable in and out belongs to somebody. Cable and wireless is not my friend.

The Icelanders are about to discover that the Internet looks a lot less good to them now that they don’t have dough anymore, because they’re gonna fall into the island situation where there aren’t a lot of ways in and out.

This is a hard problem, which is not going to be solved simply. In the end you’re gonna watch as the politics of comparatively geographically isolated places comes down to “What will it take to keep the population from getting really riled up?” And, on the island of Hispaniola that has a long, bad history too, right?

But I have no answer. I can’t… It’s not like Stallman and I get involved and we’ll fix it; we know nothing whatever about how to fix that problem.

I’m glad to end on a note I don’t know anything about.