Moglen on the Moral Significance of Free Software

by on December 11, 2006 · 26 comments

This talk, by Eben Moglen, the lawyer who’s in charge of enforcing and revising the GPL, is fascinating:

There’s a trasnscript here. I thought this passage was especially interesting:

You and I, and the people who came before us, have been rolling a very large rock uphill a very long time. We wanted freedom of knowledge in a world that didn’t give it, which burned people for their scientific or religious beliefs. We wanted democracy, by which we meant originally the rule of the many by the many, and the subjection of today’s rulers to the force of law. And we wanted a world in which distinctions among persons were based not on the color of skin, or even the content of character, but just the choices that people make in their own lives. We wanted the poor to have enough, and the rich to cease to suffer from the diseases of too much. We wanted a world in which everybody had a roof, and everybody had enough to eat, and all the children went to school. And we were told, always, that it was impossible. And our efforts to make it happen turned violent on their side or on ours many more times than we can care to think for[?].

Now we’re in a different spot. Not because our aims have changed. Not because the objectives of what we do have changed. But because the nature of the world in which we inhabit technologically has altered so as to make our ideas functional in new and non-coercive ways.

We have never, in the history of free software, despite everything that has been said by lawyers, flaks, and propagandists on the other side–we have never forced anybody to free any code. I have enforced the GPL since 1993. Over most of that time I was the only lawyer in the world enforcing the GPL. I did not sue because the courts were not the place for the rag-tag revolution in its early stage to win pitched battles against the other side. On the contrary, in the world we lived in only ten or fifteen years ago, to have been forceful in the presentation of our legal claims would have meant failure even if we won. Because we would have been torn to pieces by the contending powers of the rich. On the contrary, we played very shrewdly, in my judgment now as I look back on the decisions that my clients made (I never made them). We played very shrewdly.

When I went to work for Richard Stallman in 1993, he said to me at the first instruction over enforcing the GPL, “I have a rule. You must never let a request for damages interfere with a settlement for compliance.” I thought about that for a moment and I decided that that instruction meant that I could begin every telephone conversation with a violator of the GPL with magic words: We don’t want money. When I spoke those words, life got simpler. The next thing I said was, We don’t want publicity. The third thing I said was, We want compliance. We won’t settle for anything less than compliance, and that’s all we want. Now I will show you how to make that ice in the wintertime. And so they gave me compliance. Which had been defined mutually as ice in the wintertime.

But as all of us who are about to live with less ice in the wintertime than we used to will soon know, ice in the wintertime can be good if you collect enough of it. And we did. We collected enough of it that people out there who had money to burn said: “Wait a minute. This software is good. We won’t have to burn money over it. And not only is this software good as software, these rules are good. Because they’re not about ambulance chasing. They’re not about a quick score. They’re not about holding up deep pockets. They’re about a real cooperation between people who have a lot and the people who have an idea. Why don’t we go in for that.” And within a very short period of time they had gone in for that. And that’s where we live now. In a world in which the resources of the wealthy came to us, not because we coerced them, not because we demanded, not because we taxed, but because we shared. Even with them, sharing worked better than suing or coercing. We were not afraid. We did not put up barbed wire, and so when they came to scoff, they remained to pray. And now, the force of what we are is too strong for a really committed, really adversarial, really cornered, really big monopoly to do anything about.

It seems to me that it’s a shame that it’s mostly folks on the left telling this story. It’s not too much of a stretch to say that the moral of Moglen’s story is that coercion is a poor means to the end of social justice. Progress is made by the voluntary cooperation of millions of people operating in a decentralized fashion. Coercion not only wasn’t necessary to accomplish the goals of the free software movement–it wasn’t even helpful. Far better to rely on persuasion and cooperation.

I didn’t agree with everything Moglen had to say, however. I think he’s wrong that in the future all software will be unowned. What I think you’ll see is that the basic software infrastructure–operating systems, web browsers, web servers, networking equipment, etc–will be free, while proprietary software will be concentrated in niche markets where there isn’t the critical mass for a free software solution. Free and proprietary software can peacefuly exist side by side, so long as the proprietary camp leaves the free software camp free to develop their software without legal interference.

  • Adam Thierer

    Tim… sounds like you drank a bit too much “DotCommunist” kool-aid at recent X-Mas party.

    http://emoglen.law.columbia.edu/publications/dc

  • Adam Thierer

    Tim… sounds like you drank a bit too much “DotCommunist” kool-aid at recent X-Mas party.

    http://emoglen.law.columbia.edu/publications/dcm.html

  • http://weblog.ipcentral.info/ Noel Le

    Adam, I’m not sure if that helps. Tim is farther left than EFF, or any other *leftists* groups in tech policy.

    I’ve followed folks like von Loehman and Moglen for several years. They’re talented guys, and their organizations have long been a part of the techn policy landscape. Still, neither EFF, nor even the FSF, are as left as TLF can be at times.

  • http://weblog.ipcentral.info/ Noel Le

    Adam, I’m not sure if that helps. Tim is farther left than EFF, or any other *leftists* groups in tech policy.

    I’ve followed folks like von Loehman and Moglen for several years. They’re talented guys, and their organizations have long been a part of the techn policy landscape. Still, neither EFF, nor even the FSF, are as left as TLF can be at times.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Our culture is a summation of individual efforts. At a certain point it becomes nearly impossible to attribute certain advances to a specific person or firm. In fact why should we even attempt to create “ownership” where ownership may not even be wanted. There is nothing wrong with collaboration and altruism. Furthermore, collaboration is not intrinsically anti-capitalistic nor is necessarily pro-communist.

    I would even propose that collaboration should be considered pro-capitalistic and anti communist, not “DotCommunist kool-aid”. For example, I have been developing Microsoft Access database. The documentation provided by Microsoft is poor, Microsoft isn’t into providing support, and the learning curve is steep. To fill this void, a variety of websites have been established where users can share information to develop solutions on an interactive and collaborative basis. Many of the users, such as myself, are developing these databases to improve the operation of the companies that employ us. A few of the people may even be developing databases with the hope of selling (commercializing) them. This collaborative process fosters technological innovation, improves economic progress, and improves competition since it allows companies to develop solutions for less money.

  • http://www.blogger.com/profile/14019452 Steve R.

    Our culture is a summation of individual efforts. At a certain point it becomes nearly impossible to attribute certain advances to a specific person or firm. In fact why should we even attempt to create “ownership” where ownership may not even be wanted. There is nothing wrong with collaboration and altruism. Furthermore, collaboration is not intrinsically anti-capitalistic nor is necessarily pro-communist.

    I would even propose that collaboration should be considered pro-capitalistic and anti communist, not “DotCommunist kool-aid”. For example, I have been developing Microsoft Access database. The documentation provided by Microsoft is poor, Microsoft isn’t into providing support, and the learning curve is steep. To fill this void, a variety of websites have been established where users can share information to develop solutions on an interactive and collaborative basis. Many of the users, such as myself, are developing these databases to improve the operation of the companies that employ us. A few of the people may even be developing databases with the hope of selling (commercializing) them. This collaborative process fosters technological innovation, improves economic progress, and improves competition since it allows companies to develop solutions for less money.

  • eric

    I don’t think even Ayn Rand would object to people voluntarily cooperating to produce a program or algorithm, and then voluntarily releasing it to everyone under conditions set by those who created the program. And she was virulently anti-Communist. She was all about ownership and freedom, doing what you will with the fruits of your own labor. If you (or a group) made the code, then you (or the group) can keep it to yourselves, sell it, give it away under any conditions you choose, or destroy it if you choose. Wouldn’t that be her position? If someone else doesn’t like it, nuts to them.

    To call this communist is another in a line of irrational outbursts. Is this what it has come to? Hurling absurd epithets?

    Some persons continue a perpetual commentary against TLF, and in some cases it is probably because no one is commenting at all on their own blogs. I figure they must be lonely. If the shoe fits…

  • eric

    I don’t think even Ayn Rand would object to people voluntarily cooperating to produce a program or algorithm, and then voluntarily releasing it to everyone under conditions set by those who created the program. And she was virulently anti-Communist. She was all about ownership and freedom, doing what you will with the fruits of your own labor. If you (or a group) made the code, then you (or the group) can keep it to yourselves, sell it, give it away under any conditions you choose, or destroy it if you choose. Wouldn’t that be her position? If someone else doesn’t like it, nuts to them.

    To call this communist is another in a line of irrational outbursts. Is this what it has come to? Hurling absurd epithets?

    Some persons continue a perpetual commentary against TLF, and in some cases it is probably because no one is commenting at all on their own blogs. I figure they must be lonely. If the shoe fits…

  • http://weblog.ipcentral.info/ Noel Le

    Steve, you raise a good point about collaboration. I will note that collaboration occurs in the IP and *free* community.

    Eric, yes, I do often take issue with stuff on TLF (not TLF in general, and I do appreciate some of the writers on here like Adam, Braden and Hance).

    Since I’ve seen citations to work by me and my friends on TLF that I would call mischaracterizations, and the ensuing discussions ad hominem rants, I’ll come here to discuss the issues. There is probably little guidance or accountability from those informed about tech policy supporting some of the work I disagree with.

  • http://weblog.ipcentral.info/ Noel Le

    Steve, you raise a good point about collaboration. I will note that collaboration occurs in the IP and *free* community.

    Eric, yes, I do often take issue with stuff on TLF (not TLF in general, and I do appreciate some of the writers on here like Adam, Braden and Hance).

    Since I’ve seen citations to work by me and my friends on TLF that I would call mischaracterizations, and the ensuing discussions ad hominem rants, I’ll come here to discuss the issues. There is probably little guidance or accountability from those informed about tech policy supporting some of the work I disagree with.

  • http://www.techliberation.com Tim Lee

    Adam, that’s precisely my point. I think that Moglen is trying to shoehorn the successes of the free software community into his goofy left-wing politics when, in fact, it’s far better explained by libertarian ideas of decentralized cooperation and spontaneous order.

    The fundamental disagreement between libertarians and leftists has always been that libertarians are opposed to coercion principle, whereas liberals believe that virtuous ends justify coercive means (at least if it’s coercion against peoples’ property). If Moglen now believes that his left-wing ends can be achieved by non-coercive means, that simply means that he’s becoming a libertarian despite himself. We should welcome him into the libertarian tent and educate him about how non-coercion works in other areas of society, not reject him out of hand because some of his other beliefs are stupid.

  • http://www.techliberation.com Tim Lee

    Adam, that’s precisely my point. I think that Moglen is trying to shoehorn the successes of the free software community into his goofy left-wing politics when, in fact, it’s far better explained by libertarian ideas of decentralized cooperation and spontaneous order.

    The fundamental disagreement between libertarians and leftists has always been that libertarians are opposed to coercion principle, whereas liberals believe that virtuous ends justify coercive means (at least if it’s coercion against peoples’ property). If Moglen now believes that his left-wing ends can be achieved by non-coercive means, that simply means that he’s becoming a libertarian despite himself. We should welcome him into the libertarian tent and educate him about how non-coercion works in other areas of society, not reject him out of hand because some of his other beliefs are stupid.

  • http://www.pff.org Noel Le

    Tim, Moglen and Stallman are terribly concerned with controlling how others about and speak. And their only standard is some fuzzy notion of community that is decided by Stallman’s antisocial tendancies. Also tell us Tim, how does the *IP* business model not reflect decentralization (of small specialty firms) who cooperate (through licensing and development collaboration). And, are your views against IP concerned about innovation. It seems like you see decentralization and non-coercion as goods in themselves with no regard to economic growth, technologial progress nor anything else.

  • http://www.pff.org Noel Le

    Tim, Moglen and Stallman are terribly concerned with controlling how others about and speak. And their only standard is some fuzzy notion of community that is decided by Stallman’s antisocial tendancies. Also tell us Tim, how does the *IP* business model not reflect decentralization (of small specialty firms) who cooperate (through licensing and development collaboration). And, are your views against IP concerned about innovation. It seems like you see decentralization and non-coercion as goods in themselves with no regard to economic growth, technologial progress nor anything else.

  • http://booksdofurnisharoom.blogspot.com X. Trapnel

    While Moglen’s speech is nice and warm and fuzzy, it’s important to remember that he was able to *get* compliance at least partly because he *could* have demanded money (coercively). When you bargain in the shadow of the law, the law helps determine bargaining power, even if neither person wants exactly what the law guarantees him as a matter of right.

    The GPL is a clever way to use the tools of copyright to subvert certain aspects of it, and I admire it in many ways, but its use is a distant 2nd best to a world without copyrights/patents.

    And Noel, obviously copyright is a more decentralized system than getting permission to write a song from the Creativity Clearing Council or something. It’s a LESS decentralized system than a world without copyright, though. This isn’t that hard.

  • http://booksdofurnisharoom.blogspot.com X. Trapnel

    While Moglen’s speech is nice and warm and fuzzy, it’s important to remember that he was able to *get* compliance at least partly because he *could* have demanded money (coercively). When you bargain in the shadow of the law, the law helps determine bargaining power, even if neither person wants exactly what the law guarantees him as a matter of right.

    The GPL is a clever way to use the tools of copyright to subvert certain aspects of it, and I admire it in many ways, but its use is a distant 2nd best to a world without copyrights/patents.

    And Noel, obviously copyright is a more decentralized system than getting permission to write a song from the Creativity Clearing Council or something. It’s a LESS decentralized system than a world without copyright, though. This isn’t that hard.

  • http://www.techliberation.com Tim Lee

    X. Trapnel: That’s obviously true to some extent, but as has been discussed in the context of the Novell/Microsoft controversy, it’s not always obvious that people seeking to enforce the GPL would prevail in court. Obviously, it would depend on the specifics of each case, but in many cases, I suspect that peoples’ ability to marshal informal forms of social pressure has a greater impact than the threat of a lawsuit in and of itself.

  • http://www.techliberation.com Tim Lee

    X. Trapnel: That’s obviously true to some extent, but as has been discussed in the context of the Novell/Microsoft controversy, it’s not always obvious that people seeking to enforce the GPL would prevail in court. Obviously, it would depend on the specifics of each case, but in many cases, I suspect that peoples’ ability to marshal informal forms of social pressure has a greater impact than the threat of a lawsuit in and of itself.

  • http://weblog.ipcentral.info/ Noel Le

    XT, my point was that more decentralization is not necessary good. Tim talks about decentralization, but somehow he only ocnsiders the most extreme form as the preferable state of things. So Tim, what do you consider factors that would cause us to consider whether more/less decentralization as good. Obviously, you don’t, as you push fanatically for decentralizatoin as a good in itself.

    Also, Tim, what does it tell you that the FSF would have to resort to community pressure to enforce the GPL. Who decides whats right Stallman and Moglen? You advocate the views of 3 people over American legal standards?

    I’m skeptical of this new “social pressure” thing. Its a bit different from “market pressure” because usually a bunch of zealots have to paint the market as ineffective and unknowledgeable to make their point. For instance, Tim writes of users losing their *freedom* with DRM. That doesn’t seem to be stopping folks from buying the iPod nor songs from iTunes. Are these consumers suffering from loss of freedom now that they’vd bought the tech products of choice?

  • http://weblog.ipcentral.info/ Noel Le

    XT, my point was that more decentralization is not necessary good. Tim talks about decentralization, but somehow he only ocnsiders the most extreme form as the preferable state of things. So Tim, what do you consider factors that would cause us to consider whether more/less decentralization as good. Obviously, you don’t, as you push fanatically for decentralizatoin as a good in itself.

    Also, Tim, what does it tell you that the FSF would have to resort to community pressure to enforce the GPL. Who decides whats right Stallman and Moglen? You advocate the views of 3 people over American legal standards?

    I’m skeptical of this new “social pressure” thing. Its a bit different from “market pressure” because usually a bunch of zealots have to paint the market as ineffective and unknowledgeable to make their point. For instance, Tim writes of users losing their *freedom* with DRM. That doesn’t seem to be stopping folks from buying the iPod nor songs from iTunes. Are these consumers suffering from loss of freedom now that they’vd bought the tech products of choice?

  • http://www.techliberation.com Tim Lee

    You push fanatically for decentralizatoin as a good in itself.

    What on Earth are you talking about? Does merely discussing free software in a positive light count as “pushing fanatically for decentralization?” What part of “free and proprietary software can peacefuly exist side by side” do you not understand?

  • http://www.techliberation.com Tim Lee

    You push fanatically for decentralizatoin as a good in itself.

    What on Earth are you talking about? Does merely discussing free software in a positive light count as “pushing fanatically for decentralization?” What part of “free and proprietary software can peacefuly exist side by side” do you not understand?

  • Doug Lay

    Regardless of what you label Moglen, for a career activist to recognize and embrace a path to social justice that doesn’t involve state coercion, that’s unquestionably a good thing. I wonder if he’s familiar with any of De Soto’s work?

  • Doug Lay

    Regardless of what you label Moglen, for a career activist to recognize and embrace a path to social justice that doesn’t involve state coercion, that’s unquestionably a good thing. I wonder if he’s familiar with any of De Soto’s work?

  • http://weblog.ipcentral.info/ Noel Le

    Tim, when you see “decentralization” don’t you mean the most extreme form of it, whether or not you’re talking about free software? You’re right, I don’t understand how you can say that free and proprietary software can exist side by side, when you criticize every effort of IP firms to work with FOSS firms. What part of your own arguments on decentralization and IP do you not understand Tim.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, when you see “decentralization” don’t you mean the most extreme form of it, whether or not you’re talking about free software? You’re right, I don’t understand how you can say that free and proprietary software can exist side by side, when you criticize every effort of IP firms to work with FOSS firms. What part of your own arguments on decentralization and IP do you not understand Tim.

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