Eben Moglen - Speech for Harvard Journal of Law & Technology
February 23, 2004 - Cambridge, MA, USA
Eben Moglen is a Professor of Law & Legal History at Columbia
Law School, and General Counsel for the Free Software Foundation
Thank you. It's a great pleasure to be here. I want to thank the
Journal of Law and Technology and Jonathan Zittrain for combining to
set things up for me in this delightful way. It is true that I feel
somewhat overwhelmed at the prospect of trying to talk for any
substantial length of time about a lawsuit that isn't going anywhere
very much. I am, however, going to mention the SCO lawsuit from time
to time in my remarks.
Mr. McBride, when he was here, was kind enough to mention me once or
twice, and I am going to do him the same favor. I hope you will feel,
those of you who followed the conversation, that I am responsive to
his remarks, though I don't think that doing it in the form of he
said, I say, would lead, as Jonathan suggests, to a particularly
intellectually challenging evening.
Free software, you will know, I am sure, that I didn't make this up,
is free as in freedom, not free as in beer. One of the primary
problems with the conversation we have been having about this lawsuit,
in your distinguished speaker series this year, is that at least so
far it had apparently been suggested that the goal of those of us who
believe in the free software movement was primarily to prevent people
from earning a profit in the computer industry.
This results, it is sometimes suggested, from some wild antipathy to
the idea of economic benefit or some particular antipathy to the idea
that people ought to have incentives to do what they do. I shall along
the way suggest that we believe very strongly in incentives, though we
see the problem of incentive perhaps a little bit differently than
Mr. McBride. But it isn't, after all, and we need to begin there, it
isn't, after all, about making things free as in beer. It is about
making things free as in freedom.
The goal of the Free Software Movement is to enable people to
understand, to learn from, to improve, to adapt, and to share the
technology that increasingly runs every human life.
The fundamental belief in fairness here is not that it is fair that
things should be free. It is that it is fair that we should be free
and that our thoughts should be free, that we should be able to know
as much about the world in which we live as possible, and that we
should be as little as possible captive to other people's knowledge,
beyond the appeal to our own understanding and initiative.
This idea lay behind my dear friend and colleague, Richard Stallman's,
intense desire, beginning in the early 1980's, to bring about a world in
which all the computer software needed by anybody to do anything
would be available on terms which permitted free access to the knowledge
that that software contained and a free opportunity to make more
knowledge and to improve on the existing technology by modification and
This is a desire for a free evolution of technical knowledge. A descent
by modification untrammeled by principles that forbid improvement,
access and sharing. If you think about it, it sounds rather like a commitment
to encourage the diffusion of science and the useful arts by promoting access to
In short, the idea of the Free Software Movement is neither hostile to,
nor in any sense at cross-purposes with, the 18th century ambition for
the improvement of society and the human being through access to
The copyrights clause in Article 1 Section 8 is only one of the many
ways in which those rather less realistic than usually pictured founding
parents of ours participated in the great 18th century belief in the
perfectability of the world and of human life.
The copyrights clause is an particular legal embrace of the idea of
perfectability through access to and the sharing of knowledge. We,
however, the 21st century inheritors of that promise, live in a world
in which there is some doubt as to whether property principles,
strongly enforced, with their inevitable corollary of exclusion
— this is mine, you cannot have it unless you pay me —
whether property principles best further that shared goal of the
perfectability of human life and society based around access to
Our position has been for twenty years that to the extent that existing
copyright rules encourage the diffusion of science and the useful arts,
they were good. And to the extent that they discouraged the diffusion of
knowledge and the useful arts, that they could be improved.
We have, pardon me for taking credit for something, we have improved
them, substantially, not by negating any of the existing rules of
copyright. On the contrary, we have been quite scrupulous about that.
One of the things which amuses me amidst the rhetoric that is now being
thrown around, is how oddly orthodox I seem to me when I consider my
weekly activities as a lawyer.
Though not necessarily welcome in Los Angeles, I find myself behaving
very much like an awful lot of lawyers in Los Angeles. I want my clients'
copyrights respected, and I spend a fairly large amount of tedious time
trying to get people to play by the very rules embodied in the Copyright
Act that I am supposedly so busy trying to destroy.
Free software is an attempt to use the 18th century principles for the
encouragement of the diffusion of knowledge to transform the technical
environment of human beings. And as Jonathan says, my own personal
opinion on the subject is that the early going in our experiment has worked
out pretty well.
It is because it has worked out pretty well that there is blowback from
it, and one of the little pieces of that blowback is the
controversy now roiling the world entitled SCO against IBM, which
apparently is supposed to become, Mr. McBride said it when he was here,
SCO against something called the Linux Community.
I don't think that's actually what's happening, but it is certainly what
Mr. McBride came here to say was happening.
So I'd best talk for a moment or two about how we see the situation that
Mr. McBride describes as a great test of whether free goods are somehow
going to drive out the incentive to produce in the net.
Free software, of which the operating system kernel called Linux is one
very important example among thousands, free software is the single
greatest technical reference library on Planet Earth, as of now.
The reason I say that is that free software is the only corpus of
information fixed in a tangible form, through which anyone, anywhere,
can go from naivete to the state of the art in a great technical
subject — what computers can be made to do — solely by
consulting material that is freely available for adaptation and reuse,
in any way that she or he may want.
We enable learning all over the world by permitting people to
experiment, not with toys, but with the actual real stuff on which all
the good work is done.
For that purpose, we are engaged in making an educational system and a
human capital improvement system which brings about the promise of
encouraging the diffusion of our science and useful art in a way which
contributes to the perfectability of human beings.
That's what we were trying to do, and we have done it. We are, as it
happens, driving out of business a firm called the Santa Cruz
Operation [sic] - or SCO Ltd. That was not our intention. That's a
result of something called the creative destruction potential of
capitalism, once upon a time identified by Joseph Schumpeter. We are
doing a thing better at lower cost than it is presently being done by
those people using other people's money to do it. The result -
celebrated everywhere that capitalism is actually believed in —
is that existing firms are going to have to change their way of
operation or leave the market. This is usually regarded as a positive
outcome, associated with enormous welfare increases of which
capitalism celebrates at every opportunity everywhere all the time in
the hope that the few defects that capitalism may possess will be less
prominently visible once that enormous benefit is carefully observed.
Mr. McBride does not want to go out of business. This is
understandable. Mr. Gates does not want to go out of business
either. But they are both on the wrong side of a problem in the
political economy of the 21st century. They see software as a
product. In order to make their quote “business model”
close quote work, software must be a thing which is scarce. And out
of the scarcity of software there will be a price which can be
extracted, which will include an economic rent, from which Mr. McBride
has suggested somebody will be enabled to buy a second home.
Mr. McBride thought it was the programmers who would be able to buy a
second home but people who actually understand the current state of
the software industry recognize that programmers are not buying second
homes these days. I think Mr McBride means the executives who employ
programmers and the financiers who employ executives to employ
programmers will buy a second home on the software-is-product business
model for a little while longer.
We think that software is not a product, because we do not believe in
excluding people from it. We think that software is a form of knowledge.
The International Business Machines Corporation, the Hewlett Packard
Corporation, and a number of other organizations either represented here
in body or in spirit this evening have another theory, which is that
software in the 21st century is a service, a form of public utility
combined with knowledge about how to make best use of the utility, which
enables economic growth in peoples' enterprises generally, from which
there is a surplus to be used to pay the people who help you produce the
surplus, by making the best possible use of the public utility.
I think it would be appropriate to suggest, if you like, that where we
now are is in a world, where, if I may employ a metaphor, Mr. McBride
and his colleagues — I do mean those in Redmond, as well as
those in Utah — think that roads should all be toll roads. The
ability to get from here to there's a product. Buy it, or we exclude
you from it. Others believe that highways should be public
utilities. Let us figure out how to use the public highways best, so
that everybody can profit from them - from the reduction of the costs
of transportations of goods and the provisions of services — and
by the by, there will be plenty of money to pay traffic engineers and
the people who fix the pot holes.
We believe, for what little our view of the economics of the software
market may be worth in the 21st century — after all we are the
people who transformed it — we believe that the public utility
service conception of software better reflects economic actuality in
the 21st century. We are not surprised that Mr. McBride is going out
of business on the other business model.
Mr. McBride's claim is that he is going out of business because somebody
has taken what belongs to him. That's a lawsuit. As it turns out,
however, the people he believes have taken what don't belong to him
aren't us. His theory is that various people promised AT&T at various
times that they would do or refrain from doing various things, that some of
the people who promised AT&T in the old days to do or refrain from doing
various things broke those promises, and that out of the breaking of
those promises, Linux, a computer program distributed under free terms,
Mr. McBride may be right about that or he may be wrong. We do not know
what the contents of those contracts are in general terms, and we do not
even know, as Mr. McBride pointed out to you when he was here, that he is
the beneficiary of those contracts. He is presently in litigation trying
to prove that he has what he claims to have — certain contract rights
which he claims were conveyed to him by Novell. I have no opinion about whose
rights those are, and I wish Mr. McBride luck in his litigation over that
But what Mr. McBride has also claimed is that our creative works are
somehow dominated by those contract disputes, dominated in the sense
that he has claimed, though so far not behaved in concert with the
claim, that users of free software are liable to him, or to his firm, on
the basis of claims that grow out of the contractual relations between
AT&T, Sequent, IBM, and others, over time.
I have spent a fair amount of time tediously reflecting on whether each
piece of the story, as Mr. McBride and his colleagues have told it, could
amount to a copyright claim against third parties.
I have spent that time because there were lots of third parties out
there in the world who were concerned about assertions of copyright
problems that Mr. McBride was making. I have confronted wraithlike
examples of what were said to be derivative work but weren't derivative work
under copyright law, or asserted copyright claims that turned out to be
based on code that nobody owned ascertainably and had been in the public
domain for a lengthy period of time, or code that Mr. McBride claimed he
was entitled to prevent people to stop using long after he had
deliberately given to people that very code under promises that
they could use it, copy, modify it and distribute any way that they want.
And bit by bit, I have found myself unable to discover a single way in
which Mr. McBride's firm could claim against third parties, not those who
had ever been in privity of contract with AT&T or its successors over
code in the Unix operating system, anything that could force them to pay
damages or stop them from using free software.
This is the thing we call SCO, not a lawsuit actually brought on the
basis of promises exchanged between IBM and AT&T, but a mysterious
belief that somewhere out in the world tens of thousands of people might
have to stop using billions of dollars worth of software that we made
it possible for them to have at marginal cost solely because of some
agreement between AT&T and somebody else to which Mr McBride's firm is a
successor in interest.
I see no substance to that claim. And I am prepared, under the guidance
of your searching and hostile questioning, to explain bit by bit why I
think that's true. But I have published those various inquiries, and I don't
want to recapitulate them here this evening. I think that that would be a poor
use of our time together.
At www.gnu.org/philosophy/sco, all of
it in lower case letters, you will find the various papers that I have
written and that Mr. Stallman has written on these subjects, and there
I hope we will have taken up in detail all the various points.
But it's hard to resist talking about the United States Supreme Court in
a classroom at Harvard Law School. And so, for just a moment, I do want to
engage in a little court watching with you.
Mr. McBride, when he was here, had much to say about a case called
Eldred against Ashcroft, in which Mr. McBride discovers that the
United States Supreme Court came out 7-2 against free software and in
favor of capitalism [laughter from audience]. The odd thing is that
on the very day when Mr. McBride was standing here discussing that
subject with you, I was in Los Angeles discussing the very same thing
with a fellow called Kevin McBride, Mr. McBride's brother and the
actual author of the document from which Mr. McBride was speaking.
Kevin McBride has the advantage in this discussion of being a lawyer,
which is a little bit of help in discussing the United States Supreme
Court. But it is not quite enough help.
The primary trick in discussing cases - I shrink from saying that even
in this room where I have taught first-year law students — the
primary trick in discussing cases is to separate holding from dicta, a
job with which many lugubrious Septembers and Octobers have been
occupied by lawyers all over the planet and by every single one of you
The McBrides, jointly — I feel sometimes as though I'm in a
Quentin Tarantino movie of some sort with them [laughter] — the
McBrides have failed to distinguish adequately between dicta and
I do not like Eldred against Ashcroft. I think it was wrongly
decided. I filed a brief in it, amicus curiae, and I assisted my
friend and colleague Larry Lessig in the presentation of the main
arguments which did not, regrettably, succeed.
Oddly enough, and I will take you through this just enough to show,
oddly enough, it is the position that we were taking in Eldred against
Ashcroft, which if you stick to holding rather than dicta, would be
favorable to the position now being urged by Mr. McBride. What
happened in Eldred against Ashcroft, as opposed to the window dressing
of it, is actually bad for the argument that Mr. McBride has been
presenting, whichever Mr. McBride it is. But they have not thought
this through enough.
Let me show you why. The grave difficulty that SCO has with free
software isn't their attack; it's the inadequacy of their defense. In
order to defend yourself in a case in which you are infringing the
freedom of free software, you have to be prepared to meet a call that I
make reasonably often with my colleagues at the Foundation who are here
tonight. That telephone call goes like this:
“Mr. Potential Defendant, you are distributing my client's copyrighted
work without permission. Please stop. And if you want to continue to
distribute it, we'll help you to get back your distribution rights,
which have terminated by your infringement, but you are going to have to
do it the right way.”
At the moment that I make that call, the potential defendant's lawyer
now has a choice. He can cooperate with us, or he can fight with
us. And if he goes to court and fights with us, he will have a second
choice before him. We will say to the judge, “Judge,
Mr. Defendant has used our copyrighted work, copied it, modified it
and distributed it without permission. Please make him stop.”
One thing that the defendant can say is, “You're right. I have
no license.” Defendants do not want to say that, because if they
say that they lose. So defendants, when they envision to themselves
what they will say in court, realize that what they will say is,
“But Judge, I do have a license. It's this here document, the
GNU GPL. General Public License,” at which point, because I know
the license reasonably well, and I'm aware in what respect he is
breaking it, I will say, “Well, Judge, he had that license but
he violated its terms and under Section 4 of it, when he violated its
terms, it stopped working for him.”
But notice that in order to survive moment one in a lawsuit over free
software, it is the defendant who must wave the GPL. It is his
permission, his master key to a lawsuit that lasts longer than a
nanosecond. This, quite simply, is the reason that lies behind the
statement you have heard — Mr. McBride made it here some weeks
ago — that there has never been a court test of the GPL.
To those who like to say there has never been a court test of the GPL, I
have one simple thing to say: Don't blame me. I was perfectly happy to
roll any time. It was the defendants who didn't want to do it. And when
for ten solid years, people have turned down an opportunity to make a
legal argument, guess what? It isn't any good.
The GPL has succeeded for the last decade, while I have been tending it,
because it worked, not because it failed or was in doubt. Mr. McBride and
his colleagues now face that very same difficulty, and the fellow on the
other side is IBM. A big, rich, powerful company that has no intention
of letting go.
They have distributed the operating system kernel program called Linux.
That is, SCO has. They continue to do so to their existing customers
because they have a contractual responsibility to provide maintenance.
When they distribute that program called Linux, they are distributing the
work of thousands of people, and they are doing so without a license,
because they burned their license down when they tried to add terms to
it, by charging additional license fees in violation of Sections 2 and 6
of the GPL.
Under Section 4 of the GPL, when they violated it, they lost their
right to distribute, and IBM has said as a counterclaim in its
lawsuit, “Judge, they're distributing our copyrighted work, and
they don't have any permission. Make them stop.”
If SCO played smart, they would have said, “But your Honor, we
do have a license. It's the GNU GPL.” Now for reasons that we
could get into but needn't, they didn't want to do that, possibly
because it would have affected adversely their other claims in their
lawsuit, or possibly because they had taken a 10 million dollar
investment from Microsoft, but we'll talk about that a little further,
I'm sure, in the question period.
At any rate, they didn't say that. What they said back is, “But
Judge, the GNU GPL is a violation of the United States Constitution,
the Copyright Law, the Export Control Law”, and I have now
forgotten whether or not they also said the United Nations Charter of
the Rights of Man. [laughter]
At the moment, we confine ourselves solely to the question whether the
GPL violates the United States Constitution. I am coming back to Eldred
against Ashcroft along the way.
In Eldred against Ashcroft, 435 Congressmen and a hundred Senators had
been bribed to make copyright eternal in a tricky way. The bribe, which
of course was perfectly legal and went by the name of campaign
contributions, was presented to the Congress for a copyright term
In 1929, “Steamboat Willy” first brought before the public
a creature called Mickey Mouse. The corporate authorship term under
copyright being then, as almost now, 75 years, had it not been for
action by Congress in the year 2004, Mickey Mouse would have escaped
control of ownership, at least under the Copyright Law. This, of
course, necessitated major legal reform to prevent the escape of
Mickey Mouse into the public domain.
Copyright term extension now provides that, whether or not a Sonny Bono
skis into a tree again in the next ten years or so, every once in a
while Congress will extend the term of copyrights a little while
longer. And then, as the ball approaches midnight in Times Square, they'll
extend it a little longer. And so on and so on. Nothing need ever escape
into the public domain again, least of all Mickey Mouse.
Professor Lessig, Eric Eldred, I and lots of other otherwise sensible
people in the United States thought that this did not actually conform
to the grand idea of the perfectability of human beings through the
sharing of information. We doubted that securing perpetual ownership a
slice at a time was actually a form of encouraging the diffusion of
science and the useful arts, and we suggested to the Supreme Court that
on this basis alone, the Copyright Term Extension Act should fall.
We were, as Mr. McBride rightly points out, soundly repudiated.
It turns out that there's no such thing as an unconstitutional copyright
rule, if Congress passes it, and if it observes the distinction between
expression and idea, which the Supreme Court says is the constitutional
guarantee that copyright does not violate the freedom of expression, and
provided that fair use rights are adequately maintained.
In short, the actual holding of Eldred against Ashcroft is, Congress can
make such copyright law as it wants, and all licenses issued under the
presumptively constitutional copyright law are beyond constitutional
I have news for Mr. McBride. The existing copyright law is constitutional
and our license, which fully observes all the requirements that the
copyright law places upon it, are also presumptively constitutional. Only
in the world in which we succeeded in Eldred against Ashcroft, in which
if you like there would be substantive due process review of copyright
licenses to see whether they met the form of copyright called for in
Article 1 Section 8, could Mr. McBride and friends even stand in a United
States courtroom and argue that a copyrights license is
Regrettably for Mr. McBride, in other words, we lost Eldred against
Ashcroft, and the very claim he now wishes to make perished, along
with some more worthwhile claims, at that moment, at least until such
time as the Supreme Court changes the holding in Eldred against
Mr. McBride takes a great deal of cold comfort from the pro-capitalist
rhetoric in which Justice Ginsberg announced the decision of the
Supreme Court. And, as yet another disgruntled observer of Eldred
against Ashcroft, I wish him luck with his cold comfort, but he and I
were on the same side of that case, little as he knows it, and the
legal arguments that he would now like to present unfortunately
failed. Mind you, even if he were allowed to present to the court the
idea that copyright licenses should be judged for their squareness
with constitutional policy, we would triumphantly prevail.
There is no copyright license in the United States today, I will lay
this down without further demonstration but we can talk about it if
you like, there is no copyright license in the United States today
more fitting to Thomas Jefferson's idea of copyright or indeed to the
conception of copyright contained in Article 1 Section 8, than ours.
For we are pursuing an attempt at the diffusion of knowledge and the
useful arts which is already proving far more effective at diffusing
knowledge than all of the profit-motivated proprietary software
distribution being conducted by the grandest and best funded monopoly
in the history of the world.
But, sorrily for us all, Mr. McBride will not get us to the stage
where we are allowed to tell that to the United States Supreme Court,
where we would prevail gloriously, because the United States Supreme
Court's already decided that copyright law is presumptively
constitutional as soon as Congressmen have taken the campaign
contributions, held the vote, and passed the resulting gumball-like
statute to the White House for the obligatory stamping. But I welcome
Mr. McBride to the campaign for a less restrictive copyright in the
United States, as soon as he actually figures out, from the legal
point of view, which side his bread is buttered. Unfortunately, as
you all realize, we cannot hold our breaths waiting for enlightenment
to strike. If only Mr. McBride attended Harvard Law School.
That's, I think, enough about SCO, truly, though I am delighted to
answer your questions in due course about it. It's actually a
copyright lawsuit desert. There aren't any copyright claims in it.
There are some contract claims between IBM and SCO, and those will, in
due course, be adjusted by the courts, and I look forward with a
moderate degree of interest to the outcome. A threat to the freedom
of free software, it ain't. One hell of a nuisance it most certainly
is. And I, unfortunately, expect to continue to spend a good deal of
my time abating the nuisance, but without much sense of the presence
of a hovering threat to the things I really care about, of which this
is not a very good one.
So instead I want to talk about the legal future of free software as
it actually is, rather than as Mr. McBride sees it, some titanic clash
between the American way of life and whatever it is we're supposed to
be. I should say about that titanic clash between the American way of
life and whoever we are that it rings familiar to me. Increasingly I
listen to Mr. McBride and I hear Mr. Ballmer, as perhaps you do as
well. That is to say, I treat SCO now as press agentry for the
Microsoft monopoly, which has deeper pockets and a longer-term concern
with what we are doing.
Microsoft's a very wealthy corporation, and it could succeed on a
business model of software-as-a-public utility surrounded by services
in the 21st century. But for all the profound depth of Mr. Gates'
mind, the idea of human freedom is one of those things which doesn't
register very well with him. And the idea of transforming his
business into a service business, for reasons that are, I think,
accessible to us all, doesn't appeal. Therefore, for the survival of
the Microsoft monopoly, and I do actually mean its survival, the
theory being presented by Mr. McBride that we are doing something
horrid to the American way of life must prevail.
Microsoft, it won't, because what we are actually doing is more
apparent to the world than that propagandistic view will allow for.
We at any rate have to go on about our business, which is encouraging
the freedom of knowledge and in particular the freedom of technical
knowledge, and in doing that, we have to confront the actual
challenges presented to us by the world in which we live (which aren't
SCO), and so for just a few more moments I want to talk about those.
Software is, in our phrase, free, libre. That is to say, we now have
a body of software accessible to everybody on earth so robust and so
profound in its possibilities that we are a few man months away from
doing whatever it is that anybody wants to do with computers all the
time. And of course new things are constantly coming up that people
would like to do and they are doing them. In this respect — I
say this with enormous satisfaction — in this respect the Free
Software Movement has taken hold and is now ineradicably part of the
21st century. But there are challenges to the freedom of free software
which we need to deal with.
Patent law, unlike copyright law, presents certain features which are
egregious for the freedom of technical knowledge. If the copyright
law presents a workable form of the great 18th century ambition of the
perfectability of human kind, the patent law regrettably does not.
This is not surprising, 18th century thinkers were a little dubious
about the patent law as well. They had a concern for statutory
monopolies and a deep history of English law that made them worry
about them very much.
Patent law in the 21st century is a collection
of evil nuisances. There's no question about it. And in the world of
software where we exist, there are some particularly unfortunate
characteristics of the way that the patent law works. We are going to
have to work hard to make sure that the legitimate scope of patent,
which is present, but which is small, is not expanded by careless
administrators any further in the course of the 21st century to cover
the ownership of ideas merely because those ideas are expressed in
computer programming languages rather than in, say, English or
This is work for us, and it is work for us which a lot of smart
lawyers are doing, but they are doing it around the world in various
licenses and other legal structures connected with software in
inconsistent ways. And the inconsistency among the ways in which
lawyers are attempting to cope with the threats posed to software by
patents are a serious difficulty for us. We need to conduct a very
high-level seminar in the next five years around the world over the
relationship between patentability and free software ideas and get
square for ourselves what license terms and ways of working minimize
the risks posed by patents.
There is what I would characterize at the
moment as a constructive diversity of views on that subject. But the
diversity will have to be thinned a little bit through an improvement
of our thought processes if we are by the end of this decade to have
done what we need to do in subduing the growth of inappropriate
patenting and its effect on our particular form of human knowledge
As you are aware, and as I am spending a year writing a book about,
there are lots of other things going on in the Net about ownership.
Music and movies and various other forms of culture are being
distributed better by children than by people that are being paid to
do the work. Artists are beginning to discover that if they allow
children to distribute art in a freehanded sort of way, they will do
better than they do in the current slavery in which they are kept by
the culture vultures, who do, it is true, make a good deal of money
out of music, but they do so primarily by keeping ninety-four cents
out of every dollar and rendering six to the musicians, which isn't
very good for the musicians.
So there is a great deal of fuss going on about ownership in the Net,
and since I care about more than just free software, I care about that
fuss. I have a side over there too. But the important thing for us in
the conversation we're presently having is that the owners of culture
now recognize that if they are going to prop up their own methods of
distribution, a method of distribution in which distribution is bought
and sold and treated as property — and you can't distribute
unless you pay for the right to do so — unless they can prop up
that structure, they are done in their business models. And for them
that requires something which I truly believe amounts to the military
occupation of the Net. They have to control all the nodes in the Net
and make sure that the bitstreams that pass through those nodes check
in before they go some place that the right of distribution hasn't
been bought or sold in order to permit that bitstream to go.
It is precisely because software is free, that the owners of culture
have to occupy the hardware of the Net in order to make good their
business model. Free software, like, for example, Ian Clark's Freenet
or other forms of free software that engages in peer-to-peer sharing
of data, or for that matter just free software like TCP/IP which is
meant for sharing data, presents overwhelming obstacles to people who
want every single bitstream to bear requirements of ownership and
distribution inside it and to go only to the places that have paid to
receive it. The result is an increasing movement to create what is in
truly Orwellian fashion referred to as trusted computing, which means
computers that users can't trust.
In order to continue to move for
the freedom of knowledge in 21st century society, we have to prevent
trusted computing and its various ancillary details from constituting
the occupation of the hardware of the Net, to prevent the hardware
from running free software that shares information freely with people
who want to share. Beating the trusted computing challenge is a
difficult legal problem, more difficult for the lawyer in dealing with
licensing and the putting together of software products than the
original problem presented by freeing free software in the first
place. This, more than the improvement of the free software
distribution structure as we currently know it, is the problem most
before my mind these days.
But I would take one more step with you to discuss the problem that
lies behind the problem of free hardware. We are living now in a
world in which hardware is cheap and software is free, and if all the
hardware continues to work pretty much the way it works now, our major
problem will be that bandwidth is now treated in the world also as a
product, rather than a public utility. And you are allowed to have, in
general, as much bandwidth as you can pay for. So then in the world
in which we now exist, though hardware is cheap and software is free,
there are major difficulties in disseminating knowledge and
encouraging the diffusion of science and the useful arts, because
people are too poor to pay for the bandwidth that they require in
order to learn.
This arises from the fact that the electromagnetic spectrum too has
been treated as property since the second quarter of the 20th century.
That was said to be technically necessary as a result of technical
problems with interference that are no longer relevant in the world of
intelligent devices. The single greatest free software problem in the
21st century is how to return the electromagnetic spectrum to use by
sharing rather than use-by-propertization. Here again, as you will
notice, free software itself, free executable software, has a major
role to play.
Because it is software-controlled radios, that is to
say devices whose operating characteristics are contained in software
and can be modified by their users, that reclaim the spectrum for
shared rather than propertarian use. Here is the central problem that
we will be dealing with, not at the end of this decade, but for the
two or three decades that follow, as we seek to improve access to
knowledge around the world for every human mind. We will be dealing
with the question of how to make the technical and legal tools under
our control free the spectrum.
In attempting that trick, we will be confronting a series of owners
far more powerful than Microsoft and Disney. You need only consider
the actual embedded power of the telecommunications oligopolists in
the society around you to recognize just what an uphill battle that
one will be. That's the one that we must win if we are to approach
the middle of the 21st century in a world in which knowledge is freely
available to be shared by everybody. We must see to it that everyone
has a birthright in bandwidth, a sufficient opportunity to
communicate, to be able to learn on the basis of access to all the
knowledge that is there. This is our greatest legal challenge. The
freedom of the software layer in the Net is an essential component in
that crusade. Our ability to prevent the devices that we use from
being controlled by other people is an essential element in that
But in the end, it is our ability to unify all of the elements of the
information society — software, hardware, and bandwidth —
in shared hands, that is in our own hands, that determines whether we
can succeed in carrying out the great 18th century dream, the one that
is found in Article 1 Section 8 of the United States Constitution, the
one that says that human beings and human society are infinitely
improvable if only we take the necessary steps to set the mind
free. That's where we are really going. Mr. McBride's company's fate,
whether it succeeds or fails, even the fate of the International
Business Machine corporation, is small compared to that. We are
running a civil rights movement. We're not trying to compete
everybody out of business, or anybody out of business. We don't care
who succeeds or fails in the marketplace. We have our eyes on the
prize. We know where we are going: Freedom. Now.
Thank you very much.
I'm delighted to take your questions:
Zarren: So, I've been asked by the media services people to
make sure that when people ask their questions, if they could speak
into the microphone, that would be good. There's a little button that
turns it on.
Q: I just wanted to ask a question clarifying and, well,
anyway… You seem to, or not, have expressed a dichotomy between
software and hardware, in the sense that software needs to be free,
software is a utility, a public good. Hardware you don't talk about
so much. And by hardware, initially I mean related to software but
then generalizable to machines, just any kind of machine. How do you
distinguish why should software be free and hardware not?
Moglen: The 21st century political economy is different from
the past economic history of the human beings because the economy is
full of goods that have zero marginal cost. Traditional microeconomic
reasoning depends upon the fact that goods in general have non-zero
marginal cost. It takes money to make, move, and sell each one. The
availability of freedom for all in the world of bitstreams hinges on
that non, on that zero marginal cost characteristic of digital
information. It is because the marginal cost of computer software is
zero that all we have to do is cover the fixed costs of its making in
order to make it free to everybody, free not just in the sense of
freedom, but also in the sense of beer.
Hardware, that is computers and, you know PDAs, as well as shoes and
tables and bricks in the wall and even seats in a Harvard Law School
classroom, has non-zero marginal cost. And the traditional
microeconomic reasoning still continues to apply to it in pretty much
the way that it did for Adam Smith, David Ricardo, or Karl Marx.
Reasoning about hardware is, in that sense, like reasoning about the
economy we grew up in and presents all of those questions of how you
actually cover the costs of each new unit that the market is designed
to help us solve.
It's precisely because so much of human knowledge
and culture in the 21st century no longer participates in the
traditional microeconomics of price, asymptotically reaching towards a
non-zero marginal cost, that we experience so much opportunity to give
people what they never had before. And when I speak to you about the
difference between hardware and software I'm implicitly observing the
distinction between the traditional non-zero marginal cost economy and
the wonderful and weird economics of bitstreams, in which the
traditional microeconomic theory gives the right answers, but
traditional microeconomic theorists don't like what they see when they
do the chalk work.
Q: Would you then advocate to, in other words, because
knowledge can be contained in hardware, and also hardware has this
additional marginal cost, would you advocate every, that for instance,
for every computer to come with chip diagrams so that the knowledge in
the hardware is free while you can still collect on the marginal cost?
Moglen: Sure, it would be a very good idea, and if you watch
and see what happens in the 21st century you'll see more and more
manufacturers deciding to do precisely that, because of the value of
empowered user innovation, which will drive down their costs of making
new and better products all the time. Indeed for reasons which are as
obvious to manufacturers as they are to us, the softwarization of
hardware in the 21st century is good for everybody. I'm writing a
little bit about that now. I don't mean to plug a book, but wait a
little bit and I'll try and show you what I actually think about all
of that in a disciplined sort of way.
Q: I was wondering if the SCO lawsuit might be the first of
what could become a series of lawsuits filed ad seriatim and in
parallel against free software? And wanted to get your view on two
possible types of lawsuits that could follow on the heels of SCO,
regardless of whether SCO won or lost.
The first would be a lawsuit
filed by a company that to its shock and amazement found that instead
of its programmers hoping for their first house, working on the stuff
they were supposed to work on by day, they were in fact spending most
of their time Slashdot and the rest of their time coding free
software, and then occasionally staying up late to do something for
the old man. If those programmers have signed, which is typical,
agreements with their company that says any software they write
actually is property of the company, maybe even a work for hire, what
is the prospect that a company could then say, Our code through that
coder has been worked in to something like Linux, and it is now
infringing unless we are paid damages?
The second possible way in
which you could see this kind of lawsuit come up would be, oddly
enough, through the thirty-five year termination rule, something that
normally would be heralded by people in your position, to say
copyright law allows musicians and artists who stupidly signed
agreements when they were but small peons, without legal assistance
with big companies, thirty-five years later can take it all back, no
matter what. They can reset the clock to zero and re- negotiate. I
call this the Rod Stewart Salvation Act. [laughter] And while that
might be helpful for the artists, much as the music industry hates it,
couldn't that also mean that free software coders, who willingly
contributed, weren't even blocked by their employers, to contribute to
Free Software Movement, could — down the line — and
thirty-five years isn't that long in the history of Unix, say,
“We take it all back?”
Moglen: So, those are two very good questions. If I answer
each one of them fully, I'm going to take too long. Let me concentrate
on the first one, because I think it's really quite important. What
Jonathan's question does is point out to you that the great legal
issues in the freedom of free software have less to do with the
license than with the process of assembly by which the original
product is put together. One of the legal consequences of the SCO
affair is that people are going to start to pay closer attention all
the time to how free software products are put together. They are
going to discover that what really matters is how you deal with the
questions of, for example, possible lurking work-for-hire claims
against free software. They're going to discover that in this respect,
too, Mr. Stallman was quite prescient, because they are going to
recognize that the way they want their free software put together is
the way the Free Software Foundation put it together since now more
than twenty years.
The way we're going, they're going to discover that
they really would like to have it, is for each individual contribution
of code to a free software project, if the guy who contributed the
code was working in the industry, they would really like to have a
work-for-hire disclaimer from the guy's employer, executed at the same
time that the contribution was made. And the filing cabinets at the
Free Software Foundation are going to look to them like an oasis in a
desert of possible problems. We saw that problem coming. We have tried
in our act as stewards over a large part of the free software in the
world to deal with it. People are going to want to have that up front
for everything that they can possibly, and they're going to be much
more reluctant to rely on software that wasn't assembled in those
If you are thinking about working in the law of free software, and
gosh, I hope you are, one of the things you might want to be thinking
about working on is the software conservation trusts that are going to
be growing up around this economy in the next five years. I'll help
you make one, or you can come to work in one of mine. We're going to
need to spend a lot of time doing work which is associated with
trustees. We're going to be spending a lot of time making sure that
things are put together and they are built well. And we are going to
be doing that on behalf of a third-party insurance industry which is
going to be growing up, is growing up before our very eyes now, which
is learning that it really cares how the free software is assembled.
When you go to an insurance company and ask for fire insurance on your
house, they don't want to know how your house is licensed. They want to
know how your house is built. And the questions you are asking about how
the free software is built are about to become really important
questions. What will abate those lawsuits is that we did our work well
or that we are doing our work well as lawyers, assisting programmers to
put projects together in defensible ways that protect freedom.
Up until the day before yesterday, there were probably three
lawyers on earth who cared a lot about that, and two of them are in this room.
There will be more in the near future. I will say quickly about your
second question, Jonathan, that the problem presented is a serious
problem, but, at least from my point of view, a manageable one, and I'm
willing to talk more about why, but I think we ought to get more voices
into the conversation.
Q: Without disputing the importance or difficulty of the
spectrum battle, or the … clearly the copyright battle and
progress is very immediate, but it seems to me that most worrisome
right now is the patent battle that I expect to come next. Compared to
that, the whole thing with SCO, well, SCO is a paper dragon, a hollow
threat. Can you say anything about what you expect that battle to look
like? And how it will be fought? How it can be?
Moglen: Sure. Patents are about politics. I thought that the
pharmaceuticals companies did my side a favor by buying us 12 trillion
dollars in free publicity in the last half decade by teaching every
literate twelve year old on earth that “intellectual
property” means people dying of preventable diseases because the
drugs are too expensive because patents cover them.
Patents are politics. Patents are about how we distribute wealth over
very long periods of time, in quite absolute ways. We're not going to
have an answer to our patent problem which lies in courtrooms or in
laboratories. We're going to have an answer to our patent problems which
lies in the actual conduct of politics.
You saw the beginning of it this past summer when the European
Parliament decided, in a very unusual move, to refuse, and to refuse
promulgation to the European Commission's preferences with respect to
changes in patent law in Europe regarding inventions practiceable in
The European Commission put forward a suggestion for change and
harmonization in European patent law which would have made the
issuance of patents for inventions practiceable in software very much
easier. The European parliament after a lengthy campaign, led in part
by the Free Software Movement in Europe — that's Euro Linux and
the Free Software Foundation Europe and a lot of small software houses
in Europe benefitting substantially from the new mode of software as a
public utility — a campaign which involved in the end 250,000
petition signatories, the European Parliament decided to say no. And
two parties, Greens and Social Democrats, in the European Parliament
now understand that patent policy in Europe is a partisan issue. That
is to say that there are sides, and that electoral politics and party
organization can be conducted around those sides.
Our society is a much less aware one on that subject. For those of us
who live here, the task of getting to the standard set for us by our
colleagues in Europe this past summer is the first and most important
challenge. We must make our Congressmen understand that patent law is
not an administrative law subject to be decided in the
PTO, but a political
subject to be decided by our legislators. We may have to restore
actual democracy to the House of Representatives in the United States
in order to make that possible, and there are many other aspects to
the challenge involved.
But this is one of the primary respects in which technically
sophisticated people in the United States are going to have to get
wise to the mechanisms of politics, because we're not going to solve
this in the Supreme Court, and we're not going to solve this in the
work station. We are going to solve this in Congress, and we're going
to have to build our muscles up for doing that.
Q: Related to that point, I'm curious, this isn't so much a
legal point as a, maybe even a public relations point. You opened up
your talk by saying, This is about freedom not free beer. But when
you, I think, listen to people like Jack Valenti and the
you know, and, Mr. McBride, the constant drumbeat is of this idea of
free beer and teaching kids that they can't steal from, you know, Big
Music. How do you win that battle of public relations on the ground,
which ultimately will have ramifications in Congress? How do you, how
do you convey that message outside the technology community?
Moglen: Well, one of the things that I guess I would say about
that is that English language fights us on it, right? One of the
things that has happened over the course of time in our European
environments, where the word for free in the sense of costless and the
word for free in the sense of liberated are two different words, is
that people have twigged to the distinction much more easily.
Software libre works nicely, or logiciel libre if you have to
truckle to the Academie Francaise, in a way that free software
doesn't at making that distinction. It was in part for that reason that
some folks decided in the late 90's, that maybe they ought to try and find
another phrase and settled on open source. That turned out to have more
difficulties, I think, than benefits for the people who did it, though it
now works very nicely as a way for business to identify its interest in
what we do without committing itself to political or social philosophies
that businessmen may not share or at any rate don't need to trumpet just
in order to get their work done from day to day.
So one of the things that we do, for those who speak English, is we
actually have to reinforce from time to time — that is all the
time — the distinction between free beer and free speech. On the
other hand those of us who live in the United States and speak English
shouldn't have quite that much trouble because free speech is a way
more important part of the American cultural landscape than free beer
is. At least it was in the world that I grew up in, whatever Rupert
Murdoch may want to say about it now.
We are the party of free speech, and we need to point out to people that
if you allow anybody, including a well-dressed lobbyist of ancient,
ancient vintage, to declare that a love of free speech is like taking a
CD out of a record store under your arm, game's over. Not game about
free software, but game about liberty and life in a free society.
We stand for free speech. We're the free speech movement of the
moment. And that we have to insist upon, all the time,
uncompromisingly. My dear friend, Mr. Stallman, has caused a certain
amount of resistance in life by going around saying, “It's free
software, it's not open source”. He has a reason. This is the
reason. We need to keep reminding people that what's at stake here is
free speech. We need to keep reminding people that what we're doing is
trying to keep the freedom of ideas in the 21st century, in a world
where there are guys with little paste-it labels with price tags on it
who would stick it on every idea on earth if it would make value for
the shareholders. And what we have to do is to continue to reinforce
the recognition that free speech in a technological society means
technological free speech. I think we can do that. I think that's a
That's what I spend a good deal of my time doing, and while it's true
that I bore people occasionally, at least I think I manage, more or less,
to get the point across. We're just all going to have to be really
assiduous about doing it.
Q: I'll ask a question. You talked a lot about distribution and
how you think that ought to be free, and I think I see that argument
much better than I see the argument about how creators of
zero-marginal-cost distribution goods will necessarily be compensated
for what they create, and so I've heard a lot of, I don't think these
are any of your arguments, but I've heard, OK, well, that the
musicians will go on tour, so they'll make it back that way, you know,
whatever time they put in. Or people will keep creating whatever it is
they create — and this applies to more than just, you know,
movies or music — it applies to books, or even
non-entertainment-style knowledge-type things, there's gotta be, you
hear people will still do the same amount of it because they love to
do it or are interested to do it, but I don't think that quite
compensates for the compensation that many of those creators now
And so I was wondering if you would comment a little bit on
how the free distribution world, which differs from the current world
in that many of the current distribution regimes were created
specifically only to compensate people, will differ in terms of
Moglen: I will say a little bit now, and in the interests of
time also say that you can find in the Net where I put stuff which is
at http://moglen.law.columbia.edu a paper called
“Freeing the Mind”, which addresses this question, I
hope comprehensively, or at least a little bit. Now, let me give you
Historical perspective is useful here. Before Thomas Edison, there was no
way for culture to be commodity. Every musician, every artist, every
creator of anything before Thomas Edison was essentially in the business
of doing what we now have go back to doing, except those who lived in a
world of goods that could be distributed in print, for whom you only
have to step back to before Gutenberg. Right?
The commoditization of culture is a phenomenon of yesterday, with
respect to the deep history of human creativity. Whatever else we
believe, and the problems are serious, we have to remind ourselves that
there is no prospect that music would go away if it is ceased to be
commodifiable. Music is always there. It always was.
What you are asking about is, why do people pay for the things they care
about, in a way that will allow creators to go on making them? And the
answer that I need to give you is that people pay out of the personal
relationship that they have to the concept of making.
Musicians got paid by people who heard music, because they had a
personal relationship to musicians. This is what you mean by going on
tour or the Grateful Dead or anybody who uses the non-zero marginal cost
of the theatre seat as a way of getting back, just as people merchandise
as a way of getting back.
Think for a moment about the coffee house folk musician, the
singer/songwriter. The simplest case in a way of the transformation of
the music business. Here are people who are currently on tour 40, 45, 50
weeks a year. What happens is, they go to places and they perform and at
the back, CDs are on sale, but people don't buy those CDs as a kind of,
you know, I would otherwise be stealing the music; they buy it the way
they buy goods at a farmers market or a crafts fair, because of their
personal relationship to the artist.
So let me tell you what I think the owners of culture were doing in
the 20th century. It took them two generations from Edison to figure
out what their business was, and it wasn't music and it wasn't
movies. It was celebrity. They created very large artificial people,
you know, with navels eight feet high. And then we had these fantasy
personal relationships with the artificial big people. And those
personal relationships were manipulated to sell us lots and lots of
stuff — music and movies and T-shirts and toys and, you know,
sexual gratification, and heavens knows what else. All of that on the
basis of the underlying real economy of culture, which is that we pay
for that which we have relations with. We are human beings, social
animals. We have been socialized and evolved for life in the band for
a very long time. And when we are given things of beauty and utility
that we believe in, we actually do support them.
You think that this isn't true, because the current skin at the top of
social life says that that's not a robust enough mechanism to sustain
creation, and that the only mechanism that will sustain creation is
coercive exclusion — you can't have it, if you don't pay.
But they can't be historically right, because the ability to coerce
effectively is a thing of yesterday. And the longer, deeper history of
culture is the history of the non-coercive mechanisms for securing
compensation to artists, only some of which we are now in a position to
Q: But what about the software writer?
Moglen: Ah, the software…
Q: That's the kind of stuff I think I was more getting at with
my question. So you have somebody who creates something useful but it
has a zero distribution cost, and it's useful in a way that's not, not
useful like celebrity, though I'm not sure, I don't think that's
useful in some ways, but it's useful in the different sense that it
takes a long time to create well.
Moglen: See, the programmers I worked with all my life thought
of themselves as artisans, and it was very hard to unionize them. They
thought that they were individual creators. Software writers at the
moment have begun to lose that feeling, as the world proletarianizes
them much more severely than it used to. They're beginning to notice
that they're workers, and not only that, but if you pay attention to
the Presidential campaign currently going on around us, they are
becoming aware of the fact that they are workers whose jobs are
movable in international trade.
We are actually doing more to sustain the livelihood of programmers than
the proprietary people are. Mr. Gates has only so many jobs, and he will
move them to where the programming is cheapest. Just you watch. We, on
the other hand, are enabling people to gain technical knowledge which
they can customize and market in the world where they live. We are
making people programmers, right? And we are giving them a base upon
which to perform their service activity at every level in the economy,
from small to large.
There is programming work for fourteen-year-olds in the world now
because they have the whole of GNU upon which to erect whatever it is
that somebody in their neighbourhood wants to buy, and we are making
enough value for the IBM corporation that it's worth putting billions
of dollars behind.
If I were an employee of the IBM corporation right this moment, I
would consider my job more secure where it is because of free software
than if free software disappeared from the face of the earth, and I
don't think most of the people who work at IBM would disagree with me.
Of all the people who participate in the economy of zero marginal cost,
I think the programmers can see most clearly where their benefits lie,
and if you just wait for a few more tens of thousands of programming
jobs to go from here to Bangalore, they'll see it even more clearly.
Q: So, author writes software. The moment the software is fixed
in a tangible medium, copyright attaches; others can't use it without
further action by author. Author chooses to adopt the General Public
License to govern what others can do with the software, and you made
the intriguing point then that the General Public License gives, with
certain limits, and that's why, you point out, nobody is really
wanting to challenge it all that much because it would be a Pyrrhic
challenge. If you win and the license evaporates, then it
rubber-bands back to the author.
That seems so persuasive, and almost
proves too much, doesn't it? Because, suppose another author writes
software, writes for now with the author and chooses to license it
under the Grand Old Party License, by which only Republicans may make
derivative works, and other, what would otherwise be
copyright-infringing uses of the software. One, do you think such a
license should be enforced by the courts? And two, couldn't you say
the same logic would apply, that nobody would dare to challenge it
because half a loaf is better than none? At least, let the
Republicans use the software.
Moglen: So, fundamentally I think the question that you asked
is, Has the law of copyright misuse evaporated entirely? And I think
the answer, notwithstanding the Supreme Court's current deference to
whatever Congress chooses to say, is no. I think there's still a
common law of going too far out there, and as a lawyer who works on
behalf of people who are fairly militant on behalf of sharing, I hear
proposals all the time about stuff that they think it would be really
neat to do that I don't think the copyright law, unalloyed by further
contractualization will permit them to do.
I think the actual tool set of Berne-harmonized copyright law has certain
limits on the power of the licensor, and I believe that those limits are
capacious enough to allow us to create the kind of self-healing commons
we have created, but I'm not sure that they would be strong enough
to permit the importation of lots of additional contractualizing
restrictions as though they were part of the body of copyright law
Moreover I'm pretty sure that if you tried to do it and succeeded in one
jurisdiction, you would find that the Berne Convention didn't actually
export all of those propositions around the world for you, and that
therefore you would have difficulty erecting a worldwide empire around
the GPL Public License.
But I think you're correct to say another thing, which is that if there
were a number of self-defending commons raised on different principles
around the world, that that would create undesirable dead weight
lawsuits, which is why I spend a fair amount of time trying to help
people see why the GPL is good and doesn't require to be turned into the
XPL and the YPL and the ZPL around the world. In fact I think in the
next few years, we're going to have a greater consolidation of licenses, not
a greater multiplication of them. But it's a conceptual issue of
importance, and it depends upon the belief that copyright law all by
itself permits some things and not others, and that you can only fill
those gaps with the kind of contract law that we try not to use.
Q: Can you recommend any economists who have studied zero
marginal cost economics?
Moglen: Well, see now, I sometimes joke with my dear colleague, Yochai
Benkler at Yale Law School, that Yochai is well-positioned now to win the final
Nobel Prize in economics. But I fear that that's not quite correct
and that people are beginning to flood in. I have a little bit this sort
of feeling that sooner or later I'm going to wake up and find out that
in Stockholm they've decided to award a prize to guys for teaching
economics that we have known for 25 years.
Eric von Hippel is doing very important work about that, if you want to
take just people living in the neighborhood. We are beginning to get in
our business schools a bunch of people who are actually trying to think
about these questions, because they see billions of dollars being bet
and in good business school tradition, they tend to figure out that
what rich businessmen and their investors are thinking about is
something they might want to pay attention to.
In the pure economics departments, unfortunately we remain a phenomenon
too disquieting to consult just yet. But PhD students, of course, do not
always do what their professors do, and my guess is that we are merely a
few years away from the beginning of some rocket science on these
It's an enormous, beautiful opportunity for the revision of a field. Even
in an economic, even in a discipline like economics, it is only so long
that people can be prevented from working on really interesting
problems. And the day is coming.
Q: Just a general question on market forces and the free
software economy. Even in an ideal world, wouldn't you say that, you
know, because of the market forces and then we, you know, a group of
players become especially successful, then they actually — even
though it's an ideal world — they actually become powerful
enough and they monopolize under standards again, and we come back to
the same system we have today. So, I guess the question is that
whether this product-type system economy we have, is that just a
function of the structure we have, or is that, you know, a result of
just market forces?
Moglen: Well, the structure that we have constitutes what we call
market forces. I wouldn't want to take the position that the market was a
Newtonian mechanism that existed in the universe independent of human social
Look, what we are doing is trying, through legal institutions
directed at the protection of a commons, to prevent that commons from
suffering tragedy. Because the content of that commons is capable of
renewal and has zero marginal cost, the tragedy we're trying to prevent
is not Garrett Hardin's one, which was based upon the inherent
exhaustibility of natural resources of certain kinds. But there is no
question that the commons that we are making is capable of being
appropriated and destroyed in the ways that you suggest.
Those of us who believe in the GNU GPL as a particularly valuable
license to use believe in that because we think that there are other
licenses which too weakly protect the commons and which are more
amenable to a form of appropriation that might be ultimately
destructive — this is our concern with the freedoms presented,
for example, by the BSD license — we are concerned that though
the freedoms in the short term seem even greater, that the longterm
result is more readily the one that you are pointing at, market
participants who are free to propriatize the content of the commons
may succeed in so effectively propriatizing it as to drive the commons
out of use altogether, thus, if you like, killing the goose that laid
the golden egg in the first place.
So, to some extent, I would say, avoidance of the tragedy of the commons
in our world depends upon the structuring of the commons. Institutions
alone, as I also pointed out earlier in this conversation however,
commons resources need active management.
You, as a lawyer, will either engage in assisting to protect the commons
or not protect the commons. This is a form of natural resources law for
the 21st century. It is about the recognition that no machine will go of
itself, that it will require assistance to achieve its goals precisely
in the way that you have in mind.
The best National Park Law on earth won't prevent the poaching of the
park if there are not committed people willing to defend it. So you
offer a general theory of the possibility of commons destruction and I
agree with you. I say two things. We can design a better commons, and we
can work our tails off to keep that commons in being healthy, strong and
well. That's what I'm up to. That's what I hope you'll be up to as well.