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Re: GPLv3 comedy unfolding -- Eben: "after 18 months at GPL3, I find..."
Re: GPLv3 comedy unfolding -- Eben: "after 18 months at GPL3, I find..."
Sat, 30 Jun 2007 19:33:53 +0200
"Mathematics is primarily a language for ensuring reliable results in
human social activity. "
Goes to my "--" file. LOL.
Here comes THE charlatan:
Program Eben Moglen giving the Annual Lecture of the Scottish Society
Computers and Law of 2007-06-26
Transcribed by James Eaton-Lee, version 6 of 070629
* <<Iain Mitchell>> Good evening everybody, and welcome to the
society for Computers and Law annual lecture for 2007.
* And it's I think a testament to the drawing power of our speaker
evening that we've got such a great turnout and there's an
interest in the subject of course, and so we're very very pleased
see not only lawyers, but real people as well.
* Eben Moglen is a man who, for most of this audience, really
* Eben is someone who, for a very long time, has taken an interest
Free Software, and more broadly in the whole issue of freedom of
information, freedom of artistic endeavour, and he brings to his
subject a unique, challenging and positively exciting
* He's enthusiastic, I hope you'll agree with me by the end of this
evening that he's very persuasive in his subject, and so
indeed that as well as being a Professor at Columbia Law School
York, he is also the founder of the Software Freedom Law Center.
Software Freedom Law Center is something - a creature which I
relatively unknown in these islands - it's a law firm which is
charity, and it is seriously committed to public education.
* He's going to talk to us tonight, I think, about the GPL 3, the
General Public License number 3, which he has been instrumental
drafting and preparing, and taking it through a long gestation to
birth, which is expected any day now. So, I think there's little
for me to say, other than just to ask you to welcome Professor
* <<Eben Moglen>> Thankyou, it's an honour to be here, I want to
Iain Mitchell and his colleagues at the Society for Computers and
and I want to thank all of you for being willing to take a lovely
evening to talk about a copyright license on software.
* I'll try to make it worthwhile by going slightly beyond the
the discussion of a single copyright license on software, but
right in suggesting that after 18 months at GPL3, I find I'm
unable to at least begin talking anywhere else.
* Nonetheless, I think just so we have a common basis for
of what's about to happen, it would be good to take a little bit
look about where we have been.
* What we're talking about are some legal rules that assist in the
construction of communities that share knowledge.
* The particular knowledge being shared is knowledge about how to
computers do neat and useful things, but that process, that is
constructing legal rules to facilitate communities that share, is
process which goes far beyond the sharing of information about
make computers do neat and useful things. There are reasons that
computer software was the first domain in which the process of
knowledge inside communities enabled by technology arose.
* Communities enabled by technology arose in the neighbourhood of
technology that made them possible, that is to say in the
neighbourhood of digital communications, and digital
technology is software in action, and so it's perhaps not
surprising that the initial explorations of the possibility of
knowledge at low friction occurred in the neighbourhood of the
software that made digital communities possible. But we should
that activity a little bit more carefully from its beginning in
to understand the principles which are now transforming the
* Software knowledge, that is, knowledge about how computers can be
to interact productively with human beings, can be very closely -
don't mean from a legal point of view, but from a social point of
- very closely correlated with the traditional social purposes of
mathematics, by which I mean mostly arithmetic, trigonometry, and
* Mathematics is primarily a language for ensuring reliable results
human social activity. I say this, not withstanding the fact that
mathematicians will object that mathematics is primarily a device
creating beauty, which is of course true, pursued by its greatest
devotees at it's highest level of skill and daring. But the
of mathematics is not a thing of beauty in itself, or at any rate
a novel thing of beauty in itself, it's a boat. Or a house, or a
pyramid, or a tomb, or in fact almost any other activity of human
material collaboration, enabled by mathematics in the sense that
mathematics as human beings have learned to use it enabled them
achieve results that were reliable, reproducible, and certain.
* Economic and safety-regarding activity in the material universe
collaborating among people is extraordinarily difficult to
without adequate quantities of mathematics, so I ask you to
briefly a world in which arithmetic has become property.
* Before beginning almost any useful socially collaborative
the material world, you are compelled to begin by a stop at the
arithmetic store, pretty much the way you are presently compelled
begin with a stop at the petrol station, right?
* It becomes a critical input to almost all other meaningful
activity to have a sufficient quantity of arithmetic to complete
task. Without sufficient quantities of mathematics, bridges do
stand up reliably when the wind blows, rail road schedules are
toilet paper, and all the other various forms of material social
collaboration which require large numbers of people to predict
behaviour of material for forces and groups of humans become
* Once we have reduced arithmetic to property, you'll have only as
arithmetic as you can afford. The consequence of which is that
gateways to material collaboration in the world, successful
in relation to the physical and constructed environment will
very largely upon one's ability to acquire sufficient surplus
* Most people will be compelled to a subsistence level interaction
mathematics. Other peoples' mathematics will control them, but
will not be able to accumulate a sufficient surplus of
become enabled, autonomous actors in the creation of social
* Not with respect to mathematics, but with respect to its very
cousin physics, the sixteenth century European social order
this subject very firmly to the top, and with the name Galileo
Galilei, we associate two of the most important cultural
the quandary of possessed physics.
* The first is an insistence upon freedom from censorship, that is
pur si muove", determination to prohibit the ownership of physics
an entity rich enough and powerful enough to define its physics
only permissible physics, the only available physics for most
people. And second, the first significant attempt in the history
the West to write scientific literature at the state of the art
vernacular language, accessible to everyone.
* Galileo Galilei's decision to publish in Italian is as important
his decision to risk confrontation with the Church, for what it
about the fundamental pillars of free science in the history of
West. Not merely, in other words, an insistence upon the freedom
ideas to work their will in skilled hands, but a determination
the ideas which motivate the world, which explain its behaviour,
which render it controllable, should be universally accessible to
people regardless of their ability to acquire enough social
* We have come, at the end of the 20th, and the beginning of the
centuries, to an equivalently important moment in the history of
civilisation. A moment at which the principle of the
of free knowledge becomes, for technical reasons, universally
fulfillable. Where it becomes, for technical reasons, possible
first time in the history of human beings, to bring all useful
beautiful knowledge to everybody without regard to the ability to
We are, to be sure, at a minimum a generation from the
that goal, but we have never in the history of human beings been
within one generation of the achievement of that goal before.
* The principle social alteration which brings about this epochal
in the nature of human society is the digitisation of knowledge.
onset of a frictionless mechanism for storing and forwarding
information, for switching it in any direction that it is desired
go, by either of the endpoints in any point-to-point transaction
knowledge. We have now learned, at the end of the 20th and
of the 21st centuries, how to use the common property in the
electromagnetic spectrum, and common physical materials, cheaply
integratable into mechanical and electro-mechanical devices, to
knowledge infinitely wide and infinitely thin.
* we can produce anything of value, utility, or beauty that can be
represented by a bitstream, which increasingly means all
useful human activity, anywhere, at any time, to anyone, at no
cost than the fixed cost which created the first copy of the
bitstream. That fixed cost may be, under certain circumstances,
substantial. There is no question that it continues to cost money
acquire knowledge and to represent it in beautiful and useful
* But what has changed is that the marginal cost of the additional
of each bitstream has gone to zero, and with that change
economic reordering begins in global society. By the end of the
quarter of the 21st century, almost everything which it has been
the past the purpose of industrial civilisation to put into
representations of information - music, video, art, useful
concerning the operation of the physical environment, political
comedy, drama - will all be universally represented in
forms that it costs nothing to make, move, and deliver.
* The consequence of those changes is the onset of a very powerful
question. If it is possible, easily possible, to give to each
being who wishes it, anything of utility or beauty in our world
civilisation, if it is possible to deliver any such entity
any time at low cost or at zero cost, why is it ever moral to
anyone from anything she wants?
* Why is it ever moral to deprive people of that which they could
for nothing and which they wish to have, and you already have
you could feed everyone by baking one loaf of bread, and pressing
button, what would be the moral case for permitting the price of
to be higher than the poorest hungry person could pay?
* The moral quandary of the validity of exclusion from knowledge
heretofore not been particularly sharp. Those who possessed had a
justification prepossessed for them: "But it costs money to make
book!" - and they were right. The book is the first and in many
the most important mass-produced article of western civilisation.
* Extraordinarily well-designed, beautifully evolved over hundreds
years of careful thinking and market determination of preference
the adoption of movable type printing in Europe in the late 15th
Century. But books are heavy, they cost a great deal of skilled
and time to print, and they are expensive to move and to deliver.
* The knowledge embedded in books, and all other such analogue
representation systems, therefore came at a necessary social
The cost required to produce each marginal copy, which we learned
ago when we began to explore mathematically the theory of the
meant that in a competitive market the price of knowledge
marginal cost of its production and distribution.
* Since the end of the 20th Century, a great deal of effort and
enterprise among economists seeking to justify the way we have
doing things has gone into explaining why their prior theory was
wrong. The Theory of the Firm demanded that under 20th Century
conditions, the price of information goods be equal to their
cost - that is, zero.
* A great deal of ingenuity was necessary to explain why that
actual price in a supposedly free economy. The answer, of course,
not long to seek - it was the presence of state-created
eliminating competitive markets in the distribution of
goods. What we came over time to came Intellectual Property
rules of Copyright and rules of Patent, rules of secrecy, which
established artificial barriers to the competitive economy's
to deliver information goods at their marginal cost - that is, at
- that is, the tendency of the market, if left free to itself, to
extirpate ignorance and cultural deprivation.
* Because that is the stake involved in the moral question now
21st Century society - ignorance and cultural deprivation are now
preventable. What is the moral case for their continuance?
* It is in this context that we spend our time worrying about the
minutiae of a license for the distribution of computer software.
goal of my client, my friend, and my more or less constant
interlocutor for the past 18 months, Mr. Richard Stallman, was to
a small point about the morality of computer program ownership
when conceived in 1982 was a question a little bit ahead of its
but it is a clear species in the genus of the larger moral issue
just laid before you. "Why is software property?" Stallman said,
should be knowledge to be shared, like math, like physics." "It's
unethical," he said, "to deprive people of information evidently
available to them about the artefacts of digital society with
they are daily in contact - it's evidently immoral to deprive
knowledge; you've given the knowledge to the computer sitting
them. They're using it - the knowledge is playing a potentially
determinative role in their lives, you've already delivered it to
- all you haven't done is to deliver them the ability to know."
* And out of that fundamental ethical insight, there followed a
determination that there ought to be some freedoms in connection
peoples' use of computer software - they ought to have a right to
they shouldn't be required to get permission. They ought to have
right to understand, they shouldn't be required to pay extra in
* They ought to have a right to modify and experiment. Though
didn't give a traditional reason for this, didn't ground his
in any particular philosophical or ethical theory, he was in fact
Dewey-ite. He was in fact saying what John Dewey had said at the
beginning of the 20th Century, that the education and expansion
human mind depends upon the opportunity to experiment with the
That it is the ability to join forces with the material and
knowledge surrounding us in the planet which makes our minds grow
* You ought to have, Stallman said, the right to share. That is,
right to offer to anybody else the benefit of what you've learned
yourself - and with a series of homely metaphors in cooking, and
human activities of collaboration for shared psychological and
advantage, he made clearly enough the point that there was an
issue lurking in the determination to proprietise knowledge which
then delivered to people in forms that exercise power over their
* The result is the birth of the Free Software movement. It has a
technical objective, because its founder is a technical person,
technical objective is to reproduce in Freedom all of the best
existing computer technology not subject to production in freedom
knows how to do. To recreate all the knowledge not uniformly and
universally available in a form which will be guaranteed to
* It is an attempt to use the creative power of a community of
beings to free everybody else's ability to know in the area of
human specialisation. It is the motive which, transmuted to a
different area, keeps people making wikipedia entries and
them and improving them and sharing knowledge with one another
day, in every language around the net, with which you are now
familiar and upon which most of us are to one degree or another
intellectually dependent. This is its beginning, historically
* The principal that this is limited to computer software is a
opening limitation. At a time when neither the moral nor the
consequences of this idea were fully grasped by anybody, even by
Stallman, the limitation to concern with computer software served
extraordinarily useful purpose: it permitted work to get done.
kinds of work got done - software got made. A man who had never
a course in compiler design, who had never studied the design of
compiler, who had no particular experience with the compilation
in particular, but who was a very gifted technological designer,
an indefatigable implementer, sat down and wrote from the light
natural reason a C compiler meant to be portable.
* Stallman wrote the entire first version of gcc by himself. There
now more than four dozen people at IBM and some several dozen
at Hewlett Packard working full-time on gcc, and that's just two
the many places around the world where the compiler is constantly
worked on. A community of people now maintains one man's shared
I haven't mentioned emacs, gdb, glibc, or any of the rest of
GNU, but you all know that it is lurking there on the same
* In addition to the software which got made some early versions of
rules for sharing got made too. A first version of the GNU
Public License in 1985, and a second in 1992. At the moment that
licenses were written, the rules regarding the sharing, or for
matter the ownership of computer software in the world's legal
were indistinct at best.
* The United States Government, where Stallman lived and worked,
where almost all the users or writers of the freely shareable
then existed, the United States had great uncertainty about the
treatment of software through the end of the 1970s. It was
conceded, given the words of the United States Supreme Court,
could not be patented. It was doubtful in many minds whether -
misunderstanding went - software being purely functional, it
copyrighted. Though many thought some sui generis protection in
would be a good idea, nobody knew what it ought to be, and no
legislature had taken any step in that direction, and to leave it
unprotected, save only to the rules of ordinary commercial trade
secrecy, though it was the course actively pursued before 1976,
to many businesses inadequate.
* By 1979, a compromise consensus had seemed to have been reached
United States, and on the basis of a Blue Ribbon Commission, the
Commission, it became the general tendency, trend, or step in
legal thinking to assume that software was protected, if that's
correct word, by the law of copyright.
* Thus, the initial rules for sharing undertaken by the Free
community, Mr. Stallman and his allies, the initial rules for
assumed that only the law of copyright need fundamentally to be
considered. And what was achieved was, within the vocabulary of
community, a very pretty hack.
* A hack in the sense that the word is ordinarily employed in our,
may call it, our community, an unexpected result achieved by
deployment of existing parts in an unexpected or unusual
configuration. The hack to copyright law was the recognition that
purposes of free software could be achieved by subtracting from
rights exclusively given to the author by the law of copyright as
applied to computer software.
* What the free software author wanted was actually simply to
few pieces from the existing copyright machine. He didn't need to
anything to it - no additional obligations needed to be placed on
user of the software, no additional agreements needed to be
from anybody who had a copy of the software - all that was
was to remove some restrictions - by sharing.
* The copyright status accorded to each author of a computer
the exclusive right to control copying, modification, and initial
distribution of copies. Under US Copyright law, that's all there
exclusively vested in the author. What the author then wanted was
give the power to copy and modify away. To remove exclusivity,
provide to others what the statute gave exclusively to him or
With respect to distribution, the only principle necessary in
protect sharing was to say "if you redistribute, whether modified
unmodified, use these permissions and no other."
* The result of which was to ensure that downstream, if we may
adopt the riparian analogy, downstream from each maker,
would float, freely available for further copying and
and each party redistributing to the stream was compelled to
redistribute under those, and no other, rules. By honeycombing
copyright in other words, by returning to the user some, but not
absolutely all of the exclusive rights vested in the author under
copyright law, the social artefacts desired (the freedom to copy,
modify, and share) could be ensured at the full strength that
copyright law ever ensures the author's rights. No further
contractualisation, no further compulsion, no further form of
coercion is necessary but a determination to enforce copyright
benefit of sharing.
* This structure, the slightly honeycombed copyright law, serving
purpose of enabling sharing, came to be called "copyleft". "All
Reversed", Stallman said in the beginning. Later, my colleague
Lessig amended it to "Some Rights Reserved".
* The consequence was the creation of a social regime of sharing
unlocked in a very short period of time an explosive alteration
nature of software in the world. The quality of software between
and 1990 declined precipitously. There are few of us who worked
industry on either side of that decade who don't know exactly in
ways it was massively disimproved.
* But the situation is straight forward, the theory of the firm and
economic theory of the 1890s are sufficient to the explanation.
Monopolies, as we all know and were taught, produce inferior
high prices, and stifle innovation. The wealthiest and most
deeply-funded monopoly in the history of the world spends
billions of dollars over the last two decades trying to convince
and everybody else in the world that the laws of our economics
been repealed for the special benefit of Mr. Gates and Mr.
* This was, of course, false - like all other monopolies, they
the laws of the free market, they produced lousy goods at very
prices and they stifled innovation - as they became more and more
dominant in the world of software, quality enhancement in the
software first ceased, and then began to reverse itself.
* The situation in the 1990s was decisively affected by the new
of sharing. As the two largest governments on earth were first
to, and then largely abandoned any attempt to restore competition
the global software market, as most of the commercial competitors
had attempted a run at Microsoft in any comprehensive way gave up
made peace, a small and largely disorganised community of people
engaged in making software for sharing transformed the terms of
debate, produced excellent goods at zero cost, and began the
of dismantling the monopoly, which as you see is now beginning to
full speed ahead.
* But my purpose is not to speak primarily about what was
by free software in the first 15 to 20 years of its existence.
then, this is now. My purpose is instead to talk about what has
recently happened in the legal evolution of the principles of
software, and how that bears on the larger question of the
economy of the 21st century.
* We have been negotiating the third version of GPL for the last 18
months. That is, for the first time since 1991, sixteen years
fundamental legal mechanisms which established copylefted
which produced this outpouring of free and competitively superior
software are now under revision. Unlike the definition of GPL2 in
1991, or the definition of GPL1 in 1985, this was not an activity
undertaken by Mr. Stallman and his lawyers in private. On the
contrary, this was a vast and global negotiation. Vast, at any
to me - I put in more than 200,000 miles on it.
* The process of negotiating the content of the third version of
was the process of assembling a community. Physically, and
technologically. Not a community which had not previously
a community which had not previously engaged itself in an act of
* What we learned during the first 20 years of the free software
movement's existence is a style of construction - a style of
which can be defined, roughly speaking, in terms of three
components of any social and economic movement in the 21st
economy - by movement I mean here including a business, a firm,
government - the three required components of 21st century
activity are: proof of concept, running code, and presence of
* That's all that defines 21st century economic activity, in deep
contrary distinction to the industrial economies that preceded
What the free software movement showed was that by proving a
within reach, and offering some working model, no matter how
defective, partial or bad, in the presence of a community sharing
objective defined by proof of concept, the achievement of the
is simply a matter of allowing people to work freely with one
* In the world of software, which is low capital intensive in every
sense, that's all that's taken - that's all that is required for
output to take form. We built tens, and then hundreds of billions
dollars, in valuable software using almost no venture capital
* Capital wasn't what the system required to operate. What it
to operate was proof of concept: an itch could be scratched.
code - something that began scratching the itch, however badly,
community of people who wanted to see it through.
* So what GPL3 meant was, proof of concept, plus running code, plus
presence of community. The concept had been proven already, by
That is, the substantive concept - we could make a set of rules
sharing that would make it possible to produce software all
world that would be of ultimately high value, but could be
anyone free of charge - and provided with immense freedom to
modify, and share.
* There was running code - we worked very hard for almost 2 years
produce a first discussion draft of GPL3, which we unveiled on
18th of 2006 at MIT - and there was a community; many
fact. But their convocation for the purpose of legislation was a
unique event. Every other week for the past 18 months, we've
a conference call of twenty-one of the largest IT vendors in the
world. Those companies, whose names are household familiar in
household and business familiar in every business.
* Working in teams that varied from one person from some of the
companies, to five or six in others. Carefully studying every
word, commenting as though their lives depended upon it - as in
of the businesses they did. On every detail of the license's
functioning in the global IT economy. We also convened, every
week, a conversation among twenty-four of the largest users of
software in the world. Banks and brokerages, government agencies,
the lawyers who acquire software on their behalf.
* We consulted every single week with the leadership of large free
software projects around the world, some of whom use GPL and some
whom only interact with GPLd code. We spoke to hackers of
influence in the community, influence they have gained by their
in programming and by their willingness to share. By their
selflessness in helping others learn, and by the extraordinary
intellect whereby they have produced miracles out of thin air for
of us to use for years.
* We conducted public meetings on every continent, save Antarctica.
negotiated ceaselessly with people over what they needed, what
wanted, what they doubted, what they feared, what their concerns
and in the end - that's now I'm speaking of, this week, between
and Friday, the license gets itself finished and comes out the
a final product - in the end, we got agreement. We got consensus.
Those who predicted at the beginning of this process that it
dissolve into flame wars, or bad netiquette, or some screeching
meltdown benefiting only the monopolists, were wrong.
* I admit that there were days when I feared that they might be
it was no cakewalk - but everyone who engages in legislation
that it's never a cakewalk, and almost never pretty. What is
interesting about the legislative experience we've just gone
is how little of it, however, had the ultimate ugliness of
as we know it in the public sphere.
* There was very little by way of campaign donation in this
Very little by way of buying results. Very little by way of
decision-makers. I don't think anybody actually thought there was
point in offering Stallman money. (laughter) And I don't think
was anyone who thought there was any point in trying to scare
think people began by pretty much assuming that the conversation
being conducted for the benefit of a decision maker who could not
fooled, who would not be bought, and who could not be
we skipped a lot of bad legislative behaviour on that basis.
* Technology came to our defence. I began the process saying that
would not use any technology not off the shelf, and I was wrong.
needed, it turned out, a web tool for allowing large numbers of
to mark up a document held in common in such a way that they
and judge the intensity of one anothers' comments and participate
adding one more to a thread, but by seeing in a localised way
was that others had already said about language that concerned
and we required those making comments to anchor themselves in the
* The consequence was a much lower volume of public commentary than
had originally planned for, by a factor of between five and
the quality of the commentary was extraordinarily high. Because
parties had to anchor their public commentary in the text, had to
highlight a piece and say "here, this is what bothers me, and
why." Because the tool made it inevitable that they would see
others had said before them on the same subject, because they
quickly visually identify the parts of the text that were already
with commentary from others, we arrived at a mechanism for
the flow of commentary, which made it very easy to route comments
one place to another within the process, to give them the
treatment that they deserved, and to track everybody's comment
give them back an opportunity to know exactly what was made of
idea that they presented.
* Every other place in the process, where a particular comment was
discussed, everything that was said about it, and what the final
determination in the changing language of the license was, we
a legislative process in which ordinarily people could
participate on more or less equal terms with the best informed
and technologists on earth, and many people did so. Thousands of
people did so.
* In the end, the license bears in my judgement many of the marks
legislation. It is a little too long, it is a little too complex.
divides cases where they might with some analytical clarity have
merged, and it merges cases that might with some analytical
have been divided. It isn't one man's work of art, it's a
work of self-definition. And in that process, it replicates an
version of a 21st century reality which is that if in the 21st
what is produced is produced by communities, not by individuals
not by factories, then under 21st century conditions, what
law is communities. Not individuals, and not the factories we
* One of the great legal innovations, as the Americans saw it, of
20th century development of law in the United States was the 20th
century design and implementation of a uniform commercial code
scratch. Americans being as they are, a hasty people, full of a
for self-reinvention and little sense of history, they were
blessing of a commercial code based primarily around the maritime
commerce of the Mediterranean in the 1st Century AD. <laughter>
were prevented from having to adopt a whole series of mind games
which to bend the rules of particular commodity-based exchange in
into a structure capable of manipulating a 20th Century
economy, and thanks to Carl Llewellyn and his colleagues in the
construction of the UCC a basic principle was always and
unprinciply observed - "When in doubt, punt", and say whatever is
commercially reasonable is what's the law.
* The UCC's determination upon commercial reasonableness as the
touchstone of activity is disgracefully imprecise, from the point
view of the Roman lawyer, and we glory in the fact. The Worth
rules explain how to buy and sell cotton - after all, they're
every day - do you really want to know what Papinian thought
buying and selling cotton in Lower Manhattan? Well, much can be
about why this is a terrible idea, and I wouldn't be offering
cartoon of it in Edinburgh if I didn't expect that there were
in the audience much better at playing the other side of the game
I can possibly be.
* But I would present to you the possibility that the UCC and the
are in themselves a pair - a pair, organising an idea about the
of the creation of 21st century law. 21st century law is born in
street in the same way 21st century television is born in the
Not sent to you from the top of a broadcast tower, but upward
cellphone and the portable camera put through Youtube.
* 21st century law is like 21st century music - not made in an
recording studio or legislature, rented by the hour by people
power to rent studios and legislatures, but made in every laptop
every den in every corner living room in every garage, where a
musician and a computer are, which is pretty much everywhere a
* Flickr, Youtube, and the other great distribution breakthroughs
time are not actually mechanisms for the distribution of
or video. Flickr and Youtube and their equivalents are places for
human beings to create communities through their shared
with images or moving pictures. As Wikipedia is a place for
create communities around pretty much all the general knowledge
all the people in any particular community possess. A place, it's
true, for arguments and handwaving and pub-type disputation, as
as learned discourse. But a place primarily where the whole point
that we're all doing it together.
* Of course, the idea that law might be something we all do
it's got a long history stretching back far beyond the Free
movement. Stretching, in fact, back to beyond democracy. One of
characteristics that the continental Europeans noted of the
speakers, North Britons and South Britons, similarly in the
the 16th, 17th, and 18th centuries, was that English-speaking
had an almost personal relationship to the common law. A man
an artisan or a yeoman farmer, but he believed the law to be in
sense his own. He was familiar with the courts, he served on
the language of the law was in his mouth. Even beyond the
literature and religion, it was in his mouth. It was, if not folk
in some forests of Germany sense, community law. The law of us,
be not of this law was to be not of us in some fundamental way.
* One of the problems faced by the monopoly, as its leadership now
understands, is that any community that it can buy is weaker than
community that we have built. In any given confrontation between
empires, there will be one side whose spies are paid, and one
whose spies act act of ideological conviction. The flow of the
War is in some sense the flow from one hand to the other of that
painful proof, and I ask you this: which side in the
between the free world and the monopoly do you think pays its
* So the community that has grown up out of our acts of community
legislation, the community which has grown up out of our ability
define what it means to share, the community which has used those
rules of sharing to drive its economics deep into the heart of
global software industry, is now also beginning to model what the
future of legal production is really like.
* We have learned that the flashmob and the moveon and the peoples'
revolution in the street facilitated by the internet are powerful
forces in the politics of governmental change. New ways for
bring to bear the sheer political weight of their approval or
disapproval with those who govern. And the lessons on that
taught so far in the history of the net are just the beginning.
* What the net can do to politics in the Youtube, wifi, moveon,
Facebook, Myspace, flashmob era remains to be written out in
I am less concerned with political process than with political
substance. What the GPL did to the law of copyright was not an
subversion, it was an act of evolutionary improvement. It was a
take the specialised law of the legislature - let us call it the
of the publishers (which is what, to be fair about it, it really
- and to make it the law of creators by the joint unified act of
creative people. What we've just finished is the demonstration
that can be achieved even where the complexities of political,
economic, and legal life embrace such additional concerns as the
patent system, DRM on music and video entertainment, and many
controversial propositions which the community was required to
and reach consensus on, in order for the license we have just
making to come into broadly accepted, uniform effect.
* The coming weeks and months will show whether I am overly
in believing that goal to have been attained. I will say that no
than the fate of the monopoly depends upon whether we are right
what we have done will be successful, and the monopoly knows it
as you have seen in recent statements. There is nothing left with
which to threaten the monopoly's control of global technology but
slight chance that the European Commission will remain in the
* But that's sufficient, I believe - we shall do their business as
have meant for the longest time to do, and the world will be a
place when we have done. That's just the beginning. That's only a
matter of clearing brush away. The monopoly isn't in any
sense interesting, it isn't in any ethical sense tolerable, it
in any economic sense necessary, it's simply a thing that
happen, and that we will soon be finished making no longer there.
* What is really important about what we are doing is that we are
modelling other things that people can do for themselves. We are
creating something that you have to take from us, you either like
dislike, you either approve of or you disapprove of, you either
for or hate - we are only establishing proof of concept plus
code plus community equals freedom. And that proposition applies
beyond the domain of computer software, applies far beyond the
of freeing music from its owners, applies far beyond the domain
making the children of the world the programmers and the
and the producers and the directors, not the consumers of
Those things this is about, no question, and the mighty will fall
many directions, as communities begin to out-produce what
deepest and intensest collections of power can presently do on
* But this is the least of it, really, the least of it. The
improvement being reached here is an improvement in the
self-government. An improvement in the technology of human
through the substitution of words and ideas, for force. An
of the substitution of community values for the single-minded
of individual, or aggregate profit at the expense of any other
competitor that might get in the way. We have refashioned what
competition and co-operation mean, as we have refashioned how
production occurs in the digital economy. This, though large,
some will say too grand to be real, is the actual valence of what
have just lived through.
* Seen backward through the end of the 21st Century, our
will seem very primitive. "They thought that it was something
they got a few tens of thousands of otherwise hierarchically
disorganised people around the world to cooperate on a single act
limited purpose legislation, regulating the share of software,"
22nd century will say. "How quaint." But it was the beginning of
joining-together of communities of affect in the global
of power, the beginning of affiliation rather than territorial
location or political domination, as the source of legitimacy for
legislation. It was the beginning of the idea that cooperative
agreement can substantially oust public law institutions without
challenging the legitimacy of the Governments that participated
making the public law. And it provides an escape from the moral
dilemma presented by the myth of endlessly acquisitive homo
economicus, the little homunculus of economic dream, the
entity with the exogenously derived preference schedule,
with sharp elbows in the market against every other homunculus
economicus seeking only the same narrow benefit off the same
schedule of what I need today.
* A bad myth about human nature, dying now the death it has now
since the middle of the 19th century. A bad myth about the nature
technology. A bad myth about the nature of the social production
knowledge. And a doing-in of the primary obstacle to universal
information and the end of ignorance. It's just as small and just
large as that. Just as tiny a step in just as epochal a
Just as small a project with just as large a set of consequences
those. We were lucky to be there.
* Generations of people have participated in the struggle for
thought. Crucial rounds in that struggle were fought here in this
city, as they were fought in Rome, and in Paris, and in Berlin,
even in New York and Los Angeles.
* The difference between us and all of those who've struggled for
freedom of thought in the past is of no particular credit to us.
are not smarter, we are not stronger, we are not more
We are merely lucky. We are lucky because along the long scale of
struggle to know and to share, and to improve humanity by the
of nature for the benefit of all, in that long sequence of
many of whom died unlamented or unwished, because of their
to our goals in all that long period what distinguishes us is
contingent fact of our role - this time, we win.
* Thankyou very much.
* (deafening applause)
* I'm happy to take your questions.
* Q: The role of Stallman almost looks a little bit like a king
very large council of advisors; do you think the process would
worked without him, or do you think the process would have worked
without him or a similar candidate?
* That's a very important question in my judgement - I think the
lie in two directions; first, Mr. Stallman's presence as an
decision-maker provided the necessary political will to get
finished. The difference between this negotiation and many
standards-like negotiations in which I have participated over the
years, is that the parties who usually find it desirable to
time indefinitely could not do so. We were very careful to
deadlines and structured guidelines to process before we began.
the purpose of making sure that all participants knew on what
things would be finished, when the transitions would be from
draft, so that it was possible to prevent the dilatory practice
would otherwise undoubtedly have run out any clock ever made. I
by the second month of the making of GPL3 that the first
of the publication of a draft of GPL3 was that GPL2 became
myself had some doubt that the license was perfect; it appeared
to have some flaws, it was a parochial American document, it had
little to say about the patent problem. It had done nothing that
could have done about problems it had not foreseen like lockdown
aid of DRM, and the growth of the web services controversy. It
to me plainly a license in need of some improvement, but the
published a draft, everybody loved it. Loved it to death, loved
more than ... human beings are afraid of change.
* In this respect, and probably in no other, Mr. Stallman's
essential to what happened, and the next time - that is, when one
repeats the experiment without this, I think you're quite right,
of enlightened despotism to it - one has to find a different
for ensuring that parties will face a similar necessity to get
done. The concentration of the mind does not depend upon the
of being hanged - Dr. Johnson only meant that it was a sufficient
condition, and not a necessary one. (laughter) In the same sense,
think Stallman's participation and the uniqueness of his role is
sufficient to achieve certain consequences, but not necessary.
process of democratising, in the fullest sense, collaborative
legislation is a difficult process. The history of wikipedia
just how difficult truly unhierarchical government of a
structure for production is. And solutions like rotation of
or debate over merit, or even just straight election will not do.
* I don't mean to suggest that I know exactly how to replace
Stallman. I don't know how to replace Richard Stallman, that's
you'll permit me to say so I've just been the lawyer for the last
years. If we'd known how to replace him I suppose there would've
an overwhelming public cry to do so. (laughter) But indispensable
thing that societies sometimes recognise, and Mr. Stallman has
the literalist sense indispensable to what it was that we were
to achieve. He was the party everybody trusted to be an honest
there was more to say beyond honest brokerage but that's
for the moment.
* What I think that structurally means it that you will see in the
course of the 21st century the evolution of strength through
again. And I say again because if you think about the history of
last, there have been times when moral and political leadership
very strongly vested in organisations whose primary claim was
humility, and sanctity. It doesn't surprise me that we found
back in relation to a system not entirely unlike that at this
it's an evolutionary stage in the structuring of politics.
poor, powerfully honest, powerfully sad non-governmental
will play a very significant role in the voluntary construction
in the 21st Century. Look at it this way; who do you want making
international law of criminal rendition at the moment - the
States Supreme Court? The European Court of Human Rights? or
* I think that the fundamental truth presented by Stallman's role
GPL3 process is that human beings recognise that there is a need
intransigence in the pursuit of freedom. Which is more generally
construable as: when you have a community that is distinguishable
its values, those values need a personality to cluster around.
that needs them to be an ultimate decision-maker with complete
such that everything else is advisory I don't think follows. And
guess is that if you want to imagine the flow of the evolution of
those institutions over time, you'll see ones led rhetorically
intellectually, by people of unimpeachable honesty and poverty
humility, maybe something even approaching sanctity, but without
power of ultimate decision.
* Q: One of the most controversial parts of the GPL version 3 was
inclusion of technological protection measures. Seeing as it may
happening that technological protection measures of DRM may be
themselves by their own, let's say, unworkability, and
of the whole concept, is it a wise decision to include it in the
license, seeing that it generates so much discussion and so many
* No, but, you needn't think of the discussion in and of itself, or
the disagreement in and of itself as somehow a drawback in a
legislative process. The task I believe that I was set as the
negotiator in this area was a diplomatic task, to separate the IT
industry on planet earth from the entertainment industry on
earth. The entertainment industry on planet earth had decided
order to acquire Layer 7 data security, it was necessary to lock
layers 2, 3, 4, 5, and 6 so that no technological progress could
without their permission.
* This was known by the IT industry and the consumer electronics
industry on the planet to be offensive nonsense, but there was no
counterweight to it, and there was no organised consumer dissent
sufficient to require them to stand up for technical merit and
own right to run their own businesses without dictation from
a tenth their size.
* Not surprisingly, since it is part of the role we play in this
political power concentrated in poverty, humility, and sanctity,
brought them to a consensus they were unable to bring themselves
which is represented in the license by a rule which fundamentally
says: "If you want to experiment with locking down layer below 7
the pursuit of data networks inside businesses that keep the
business's data at home, you may do so freely, we have no
not only do we have no objection to you doing it, we've no
to your using our parts to do it with. But when you use our parts
build machines which control peoples' daily lives - which provide
with education and culture, build devices which are modifiable by
to the same extent that they're modifiable by you. That's all we
If you can modify the device after you give it to them, then they
be able to modify the device after you give it to them - that's a
price for using our parts." That's a deal which has been
* To think of this somehow as sorrows we shouldn't have had is to
the importance of the social agreement that results from it. And
you want to say, and I totally agree with you, that the
layer 7 data security locked down by layer-crossing technology of
superlative badness and stupidity is going out... yeah, that's
it's going out. It's going out because our friends have found
backbones. They don't wanna make the stuff, they don't wanna sell
stuff, because they don't wanna make and sell the stuff to people
don't wanna buy and use the stuff. So we're gonna win. You're
right. And that's very good, and the people who don't like it can
plain lump it. As they should. They were asking for something
whether you think of it as technical architecture or business
social competition policy, or a way of educating human beings in
culture was defective, bad, and wrong. And stopping them is for
public good, and we have done it. But it isn't right to say that
all would've happened anyway, and therefore we shouldn't have had
conversation. The conversation we had is part of the reason it
going to happen any more.
* <<Iain Mitchell>> I think we've time for probably about one more
* <<Moglen>> Yes.
* <<Q by Andrew McMillan>> The GPLv2 is frequently, or sometimes
a way that allows it to be succeeded by the GPLv3. Is that used
regularly enough, in your opinion, or..
* <<Moglen>> Is it used.. ? [Transcriber's Note: Prof. Moglen did
hear the word "frequently" and answered accordingly]
* <<Andrew McMillan>> That clause that allows the overriding by the
* <<Moglen>> When a program is labelled "GPLv2 or any later
after next week, when a program is labelled "GPLv3 or any later
version", the author is delegating to the users a part of the
authority to relicense.
* The decision to delegate to users a partial authority to
a policy decision by an author. Some will make it, some will not.
Linus Torvalds is a good example of a programmer who decided from
very beginning of the life of his project that he wanted to
power to determine what license would be used, not the users. Mr.
Stallman, and many other users of GPL 2 in general chose the
answer - and delegated to users, for purposes they thought good
sufficient, partial power to re-license the code. GPL 3, like GPL
will retain that flexibility. An author may decide to keep all
power to re-license in subsequent license revision to herself, or
can decide to share it with her users. GPL 3 adds a third
- she can decide to designate a proxy to make that decision at
time when a future license is issued. What we might call putting
re-licensing decision "in trust", to trustees.
* All three choices seem to me beneficial choices to have - I don't
think there's any benefit to exercising any one of those choices
the architecture of the license. It's compatible with the
purposes to afford a rather broad range of delegation options,
none to complete. At the present time, my guess is that the
desirability of using GPLv3 or any later version is largely seen
the trade and in the industry as a question of "Do you trust the
Software Foundation?" And parties either will or won't use it
GPL3 according as they do or don't trust FSF. I actually think it
a little deeper than that, I think the question is, "Do you trust
community?" Which is not just FSF - but that whole GPL society we
* If I were myself working primarily on the construction of code
days instead of law, I would label my code GPLv3 or any later
because I trust the wisdom of the society I've just been working
Maybe I have a better view of that than anybody else on earth
now, because I've faced more parts of that society in more
contexts over the last 18 months than anyone else. But I think
as so many other issues, comes down to the value of trust. Trust
the hidden feature in the economy, as Henry George thought land
the hidden real single factor in the 19th century economy. When I
about "Proof of Concept plus Running Code plus Presence of
equals Freedom", you could do a parameterised substitution and
"Presence of Trust equals Freedom". Because what we're really
is, communities that we make on the basis of pure reciprocity are
communities held together by the power of trust.
* The decision to license code for downstream re-licensing is a
to trust the rest of the community with everything you've done.
remarkable how often that decision has been made in the past 20
and it is remarkable how high the returns on that investment have
been, in my judgement. Thank you all very much.
* <<Ian Mitchell>> Wow. I'd like to call on Paul Motion, my
as the Chairman of the Scottish Society for Computers and Law,
presently the Convenor of the Law Society of Scotland Technology
Committee, to give the Vote of Thanks.
* <<Paul Motion>> Thanks, Ian. Well, where to begin - how to follow
act? The vote of thanks, traditionally, has been three minutes of
self-conscious grovelling, and I'm going to try and avoid that if
all possible, just to introduce a wee bit of audience
there are 142 of you here tonight, which is an astonishing
for the Society - I think it's one of the biggest turnouts we've
had, and a tribute to the speaker; can I ask how many of you are
Lawyers, can we just have a show of hands?
* (many hands go up - laughter)l
* There you are, Eben, there are plenty of real people here
that's great. Thanks are due to a number of people in particular,
Ian Mitchell the Chairman of SSCL for organising tonight, to
Saunders of the Faculty of Advocates Training Organisation for
to muster the numbers and deal with the applications, to Valley
Technology behind the cameras and on the cans that are recording
event for posterity, I'm sure you'll all be downloading it
fastidiously. And to my competitors, MacLure & Naysmith, for
sponsoring the event tonight, nice to see you guys. And to
the University of Edinburgh, for helping with the organisation
* Open Source Software is becoming more relevant to unreal people,
lawyers like me; I'm currently having to get to gri
"Live cheaply," he said, offering some free advice. "Don't buy a house,
a car or have children. The problem is they're expensive and you have
to spend all your time making money to pay for them."
-- Free Software Foundation's Richard Stallman: 'Live Cheaply'
- Re: GPLv3 comedy unfolding -- Gardner: "GPL v3 due Friday don't trip over the lawyers at the Apple Store", (continued)
- Re: GPLv3 comedy unfolding -- Gardner: "GPL v3 due Friday don't trip over the lawyers at the Apple Store", Alexander Terekhov, 2007/06/29
- Re: GPLv3 comedy unfolding -- FSF: "iPhone restricts users, GPLv3 frees them", Alexander Terekhov, 2007/06/29
- Re: GPLv3 comedy unfolding -- FSF: "GNU GENERAL PUBLIC LICENSE Version 3, 29 June 2007", Alexander Terekhov, 2007/06/29
- Re: GPLv3 comedy unfolding -- FSF: "GNU LESSER GENERAL PUBLIC LICENSE Version 3, 29 June 2007", Alexander Terekhov, 2007/06/29
- Re: GPLv3 comedy unfolding -- FSF: "iPhone restricts users, GPLv3 frees them", amicus_curious, 2007/06/29
- Re: GPLv3 comedy unfolding -- linux-watch: "GPL version 3 arrives", Alexander Terekhov, 2007/06/29
- Re: GPLv3 comedy unfolding -- internetnews: "Stallman Urges Users to Upgrade to GPLv3", Alexander Terekhov, 2007/06/30
- Re: GPLv3 comedy unfolding -- linux-watch: "GPLv3 arrives, but nobody seems to care", Alexander Terekhov, 2007/06/30
- Re: GPLv3 comedy unfolding -- Gardner: "Sun demurs from adopting GPL v3 for OpenSolaris, keeps CDDL only", Alexander Terekhov, 2007/06/30
- Re: GPLv3 comedy unfolding -- The Jem Report: "GPLv3 license marks GNU's decline", Alexander Terekhov, 2007/06/30
- Re: GPLv3 comedy unfolding -- Eben: "after 18 months at GPL3, I find...",
Alexander Terekhov <=
- Re: GPLv3 comedy unfolding -- sheehantu: "Free Software Licenses in a Nutshell", Alexander Terekhov, 2007/06/30
- Re: GPLv3 comedy unfolding -- FSF: "iPhone restricts users, GPLv3 frees them", Alfred M. Szmidt, 2007/06/29
- Message not available
- Re: GPLv3 comedy unfolding -- IT Business Edge: "Rosen: GPL Is Good, but OSL Is Better", Alexander Terekhov, 2007/06/26
- Re: GPLv3 comedy unfolding -- IT Business Edge: "Rosen: GPL Is Good, but OSL Is Better", Alexander Terekhov, 2007/06/26
- Re: GPLv3 comedy unfolding -- Williams: "it's time to drop the GPL", Ciaran O'Riordan, 2007/06/19
- Re: GPLv3 comedy unfolding -- Williams: "it's time to drop the GPL", Rui Miguel Silva Seabra, 2007/06/19
- Re: GPLv3 comedy unfolding -- Williams: "it's time to drop the GPL", Alfred M. Szmidt, 2007/06/19
- Re: GPLv3 comedy unfolding -- Eben: "Lawyers licensed to practice in any country are invited", Ciaran O'Riordan, 2007/06/15