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Berkman Briefing: Free Software, the Gospel


If Eben Moglen's recent address at Harvard could be condensed to bumper-sticker format, it might read: Free Software, It isn't just source code—It’s a way of life.  Moglen is a professor, a lawyer, and a programmer, but he spoke as a crusader for social justice in his lecture, "SCO and After SCO: The Future of Free Software," at Harvard Law School on February 23.  His speech offered a counterpoint to a presentation by Darl McBride, the CEO of the Santa Clara Organization, as the two men stand on opposite sides of the well-publicized legal fight, SCO v. IBM.

McBride and Moglen were both hosted by Harvard’s Journal of Law and Technology, appeared in suits, and mentioned SCO.  The similarities seem to end there.  McBride—young, tan, and California—opened his presentation with a straw poll to count Patriots fans.  Moglen—the scholarly, bespectacled New Yorker—began with a description of free software as a “human capital improvement system, which brings about the promise of encouraging the diffusion of science and useful arts in a way which contributes to the perfectibility of human beings.”  Their styles reflect the chasm of difference between their legal and ideological views about the case.

1.0 The Specifics

Moglen seemed torn about how to handle the SCO case.  On the one hand, dignifying it with an answer would give it legitimacy he considered unwarranted.  “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,” he explained.  On the other hand, he did spend a substantial portion of his speech discussing SCO and “Mr. McBride” -- as in, “what Mr. McBride has also claimed...” and “when I listen to Mr. McBride...."

Though Moglen distanced his cause, Free Software, from McBride's legal claims against IBM, the lawsuit raises serious questions about the licensing system that holds Free Software together – the General Public License (GPL).  Critics of the GPL note that it has never been certified by the courts as a legally enforceable document and that a lawsuit like SCO v. IBM capitalizes on this vulnerability.  As General Counsel to the Free Software Foundation, Moglen is no stranger to this argument, and he insisted that defendents have been the ones to decline a courtroom face-off, not him.  “I was perfectly happy to roll at any time,” he said confidently.  Depending on how the case unfolds, SCO v. IBM might give him that opportunity.

While it is too early to gauge the legal merits of SCO’s intellectual property claims, its case against IBM raises several thorny legal questions for Free Software.  If a company could prove copyright ownership over portions of the Linux kernel, how would the GPL be affected, who would be liable, and what would happen to derivative works?  Moglen downplayed the potential risk that SCO v. IBM posed to GNU/Linux software.  He conceded that, in the future, custodians of Free Software will have to monitor the way open-source software is assembled to ensure that patent-protected or copyrighted code does not contaminate the whole, but he portrayed this change as a humdrum administrative hassle, rather than a response to a fundamental threat to Free Software.2.0 The StakesMoglen reserved the status of "fundamental threat to Free Software" for more powerful entities than SCO -- entities like Microsoft, the LA-based “culture vultures,” and the “telecom oligopolists.”  And the biggest long-term threat comes from a recent trend in law and regulation that has expanded patents and authorized private ownership of the electromagnetic spectrum.  This lockdown on creative, communal resources threatens the fundamental beliefs of the Free Software movement.

Moglen remains committed.  The goal of his foundation is not simply to deliver Linux into the hands of potential users, but to effect social change.  As he closed his talk, “We are running a civil rights movement…  Freedom Now!"

3.0 The Difficulty

I have to admit that, sitting in the audience, I had trouble making this last leap.  What did open-source software have to do with civil rights?  Why did talk of the GPL involve so much ideology?  And how did any of this relate to the “perfectibility of humankind" (a phrase Moglen used at least three times)?

On reviewing my notes, I discovered the step I had missed: Moglen outlined an important distinction between believers in Free Software and supporters of the proprietary cause.  As he explained, proponents of proprietary software consider software a product – a scare commodity to be sold in the marketplace.  The Free Software Movement, on the other hand, considers software “a form of knowledge.”  Supporting Free Software means spreading information.  Patenting, restricting, and blocking access to software constrains the flow of information and limits progress of science and useful arts – the very foundation of copyright law in the first place.

While this point might be obvious in certain computer-savvy circles, it is not obvious to the pedestrian computer user.  I generally don’t think of my software as a vessel of knowledge; in fact, on an average day, I want my software to intrude in my projects as little as possible.  By contrast, Moglen has described digital technology as a catalyst for a  “profound liberation of the working classes, whose access to knowledge and information power now transcends their previous narrow role as consumers of mass culture” (see Moglen’s The dotCommunist Manifesto).

It’s easy to lose sight of this grand potential of technology in the daily hassles of spam, pop-ups, viruses, and garden-variety computer difficulties.  Reinvigorating the debate and showing people that more is at stake in a battle like SCO v. IBM is undoubtedly a cause worth trumpeting.  But from a communications standpoint, Moglen could benefit from McBride’s mistakes—fewer references to “Schumpeter,” “lugubrious Septembers,” and “human perfectibility” might make a leaner message for the bumper-sticker masses.

Further Reading

Background about the Event:

Background about the SCO v. IBM case:

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Berkman Briefings

Berkman Briefings is a reading series sponsored by the Berkman Center that provides background information about major questions related to Internet policy, technology, and law.