... among other things.
Professor Moglen is counsel for the Free Software Foundation and advisor to the Electronic Freedom Foundation, among others organizations. He is on the front lines of the legal battle affirming the GPL's robustness and validity.
And he's winning.
Professor Moglen was my favorite in all of law school. He's energized, opinionated, funny, arrogant, stimulating, thought provoking, acerbic, and utterly brilliant. People tend to either love or hate Mr. Moglen, and I fall into the former camp. He
spoke to the Harvard Journal of Law and Technology the other day, I thought his talk is, as ever, fascinating. It covers ground from SCO to Cal v. Eldred (boo! hssss!) to just how masterfully constructed the GPL is (and he would know, he wrote it, whatever RMS might say) to the legal future of
free as in speech software.
By utterly brilliant, I don't mean your average run-of-the-mill genius smartypants. Moglen is on a different intellectual plane from most of us. Speaking as someone who is pretty darn certain of my own intellectual credentials, Moglen smokes my intellect and then goes to have an NYU student or three for dessert. I've never met anyone quite like Moglen (who, in addition to being a lawyer and a professor, is a historian and a programmer) - and this is a good thing. Moglen's self-described mode of scholarship is:
Step 1: try to create freedom by destroying illegitimate power sheltered behind intellectual property law.
Step 2: See what happens.
That's a revolution I'm ready to join and fight for. Every open source argument I've ever made or concept I've thought of, he's probably already done. So, really, if you want to hear the scoop from the man himself, read
The Invisible Barbeque. If there were a cult of Moglen, I'd be a disciple, or perhaps a high priest. I like to think of myself as an individual carving my own path, but dammit, that guy's already doing it so we might as well climb aboard. Anyway all of this to here is beside the point, but I thought I should let you know of my respect and admiration for Moglen before continuing.
You may have heard about the SCO lawsuit against "Linux." Let me also get this out of the way: the case is without merit and SCO is going to get their asses handed to them should this ever make it to court, regardless of how many cash infusions they get from Microsoft (said cash infusions are
investments and have nothing - NOTHING! - whatsoever to do with the fact that SCO is trying to litigate the GPL (and by association, Linux) to its death. Nothing!). Moglen addresses that topic in depth in
his Q&A but I really don't want to cover that ground here.
Instead, I'd like to point out some of the highlights of what is meant by "Free Software," as stated by Moglen. Part of the ethos behind
free as in speech software is
educational:
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.
and an example of his humor and cutting wit, in addition to what I feel is an incredible grasp of the new economy and the true definition of the software world (the italicized part):
[SCO's CEO]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.
(note: he hates Disney as much as he hates Microsoft and SCO. He's a righteous mofo when his dander is up, like Gary Oldman after a bender, but he's always sarcastifunny. The paragraph above probably says more about why I like him (it's the wicked sardonic part) than anything else; that's right up my own alley. You should probably insert a mental sneer every time you read "Mr. McBride" in the Q&A). some more:
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.
That's at least three competing views of software (two revolutionary or at least non-mainstream), within the space of three oral paragraphs (I omitted the middle one). Software as a form of knowledge rather than a hybrid utility or a scarce good appeals most strongly to my sensibilities and worldview.
about 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.
the result of the misguided Supreme Court holding in Cal v. Eldred (boo! hisssss!):
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.
...
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 challenge
The true threat to libre software in the future (patents (boo! hiss!)):
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 mathematics.
on DRM, "trusted computing," and your datastream rights in the future:
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.
(emphasis added)
On distribution as knowledge rather than a product:
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.
Moglen also separately makes a compelling argument for the unconstitutionality of the parcelling of the airwaves to a few corporations (if the scarcity rationale no longer applies - which it doesn't - then the justification for broadcast licenses disappears). It's another great topic, with which I also agree (and trust me, I wish I disagreed with at least one of Moglen's fundamental positions, but I don't so I'm relegated to cheerleader status. Dangit, Moglen, quit being right!)
and, in sum:
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.
Bravo, Professor Moglen. Bravo.
Now, if you really want to be impressed, read his off-the-cuff responses during the Q&A session. Yowza.
) shills for the GOP (again) and threatens retirees and soon-to-be-retirees with their social security money. As