Eben Moglen: Public Policy in the “Free” World

July 25, 2007 § Leave a comment

Yesterday Eben Moglen made headlines during the O’Reilly Radar at OSCON with a (somewhat) surprising attack on “Open Source” in general, and (more surprisingly) Tim O’Reilly in particular:

Today Eben had the stage to himself, to share his thoughts on The Legal Policy of the Free World in the Age of Web 2.0. The following are my (copious, unedited) notes…
Pick up on theme from earlier remarks (explicitly: at Ubuntu live, not yesterday’s Radar :-).

Licensing is NOT where it is at in the “next little while.” Protecting free software’s right to be free is not a “licensing job”; what lawyers do at the SFLC is “keep communities strong.” Licenses are a type of “constitution” that shape the resulting community (cf. MIT vs. Apache).

The issue is not technical details of “copyleft” et al, but the nature of the “Republic” being established [place of both public and private community with certain rules/norms]. GPL has the most comprehensive view of such as a Republic — but licenses are merely the beginnings. Life of the community is much deeper and richer [than the written license].

Underlying 21st century political economy: neither factories nor individuals are the unit of production, but communities. No mass-market product is without its community (e.g., cola websites). Both producer and consumer communities need to be nurtured and protected from disruption (external competitors or internal stresses). GPL (inadvertently) addressed these very presciently.

GPLv3 discussions [with corporations] were more thorough than most outsider commentary, exemplary form of serious public policy development for the long-term viability of the community (cf. Apache 2.0, CDDL, MPLv2, etc.): recognize that community interests must be served.

Have we been successful? This year much easier to be us than Microsoft. 🙂 We have turned an eternally important corner: we will never go away now! Nothing can extirpate the free business model.
Yes, we are facing patent threats and competitive heat, but those are small compared to our fundamental engineering strengths, and we have taken steps to prepare for those challenges [cf. GPLv3’s “correct” solution to problematic patent covenants]. Not a big deal; we [SFLC lawyers] do this sort of “preventive medicine” all the time.

Winning in the court [as happened recently] is the second-best outcome; first-best is for the problem to not arrive. Note: Open Source “litigation rate” is far less than in the commercial world; time to celebrate rather than point fingers or monger fears. Large capital growth with low investment and huge social benefit, with “low friction/low confrontation” mechanisms.

If we have done well [which we have], we ought to understand why. Not to avoid disaster [not gonna happen], but because we are a “city on a hill”, setting an example, but not receiving enough credit or being emulated because of “ludicrous” narrative about relationship of ownership and innovation.

We have to be more attentive to the fact that this is a political achievement: building a good republic, more than a good store/school/product. Pragmatic business questions are important — spend a lot of time on it — but are short term/small beer compared to “fundamental issue of how we build the free community so it builds stronger and more efficient over time” as it becomes larger and (frankly) more unequal.

Why didn’t community fall apart (as widely predicted) when economic inequality increased as a consequence of success? Institutions of equalization (e.g. email) powerful democratizing force in “our” Republic. Meritocracy always a relevant question; sense of shared equality, self-reliance, Emersonian virtues. Almost, but not quite, Libertarian: still believe in community rather than individual as “atomic” unit of value.

Service provision in the GPL: not a matter of business strategy (Google-bashing), but fundamentally a question of rights [Ed: deductive vs. inductive]. Fundamental rule: persons right to run whatever they want wherever they want — including sovereign right to provide services! Ties into right of private modification, including right not to share (cf. freedom of speech includes right to not speak, not to be compelled).

Sometimes, of course, we find ourselves compromising among rights when such conflicts exist. In those cases, it is important to define those rights precisely in order to make a reasoned decision. In Eben’s experience, did not hear a compelling argument for overriding First Two Freedoms for compulsory release of modifications for SaaS; created bridge to “technical experimentation” (Affero?) without “lightly throwing aside long years of argument of principle”.

That’s as far as the license can take us; NOW is the time the interesting conversation can begun.

But, that’s only one. Patent threatening topical, but merely a “family squabble.” Bigger challenge is patent reform. We know something [Congress doesn’t] about the harm to innovation caused by patent system. Patent policy is at long last a subject of public discussion; up to us to do what we can to share our “knowledge and wisdom”. IT organizations are also “feeling skeptical”; but we need to stay engaged ourselves to ensure appropriate representation.

cf. ODF: Public data ought to be in a form the public can access, without any intermediary. We can as citizens to effect this issue for all our common good. This of fundamental relevance to what we have learned about how to build “peaceable kingdoms.”


Though democratic in principle, we hold no elections. We need to move as far/fast we can to institutions that are selected by voting. Not proposing how/when, but pointing out that need legitimacy that comes from representation. “My lawyers [and RMS!] work for you more than they work for me, or our donors.” We will work better as we recognize this and improve representation.

Nobody elected Gates either, but this is something we know in our communities: self-governing, legitimate leadership. Nothing more to say: “Republic is not going to be kept strong by speeches made by me… but by you.”

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