Free and Open Software: Paradigm for a New Intellectual Commons

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Free and Open Software: Paradigm for a New Intellectual Commons  (2009) 
by Eben Moglen
Talk given at the Law of the Commons Conference at Seattle University, 2009-03-13

[Steven A. Reisler:]

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

[Laughter]

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


[Applause]


[Eben Moglen:]

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

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

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

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

[Laughter]

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

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

[Laughter]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Those software commons and closures are also governed, at least to some extent, by a law of patent about software, most of it generated in the United States between 1990 and 2008, and now perhaps also beginning to die, but a very serious complication, adding many Ptolemaic epicycles and many opportunities for politics for those of us who actually do this law as a technical subject.

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

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

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

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

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

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

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

[Applause]

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

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

[Laughter]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you very much.


[Applause]

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

[Unknown audience member #1:]

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

[Eben Moglen:]

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

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

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

[Unknown audience member #2:]

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

[Laughter]

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

[Eben Moglen:]

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

[Laughter]

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

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

[Laughter]

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


[Applause]


Bluebook citation: Eben Moglen, Professor, Free and Open Software: Paradigm for a New Intellectual Commons, speech given at the Law of the Commons Conference at Seattle University (March 13, 2009) (transcript available at http://en.wikisource.org/wiki/Free_and_Open_Software:_Paradigm_for_a_New_Intellectual_Commons)