Moglen’s Socialist Revolution

by on March 17, 2009 · 41 comments

I recently subscribed to the Software Freedom Law Center’s podcast, and just finished listening to episode 5, in which SFLC director Eben Moglen talks about the history of copyright and patent law. It’s a bracing talk that’s bound to be controversial with a lot of people. And in particular, it’s framed in a way that’s not at all calculated to appeal to libertarians. With what I suspect is deliberate irony, he even uses the phrase “from each according to his ability, to each according to his needs” to describe what free software is all about.

Nevertheless, what struck me in listening to his talk was that even though Moglen’s rhetoric seems almost calculated to alienate libertarians used to aligning themselves with the political right, it’s awfully hard for libertarians to actually object to the substance of what the SFLC and the Free Software Foundation are doing. A quarter century ago, when Richard Stallman was upset with the trend toward away from free software, he didn’t run to Congress seeking legal changes. Rather, he sat down and started building an alternative. One that we know today as the GNU/Linux operating system. He did so without a penny of government support, and without expropriating any resources from his proprietary competitors.

And in the process, he provided a powerful counterexample to many of the standard tropes of copyright and patent debates. In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given monopoly rights in their creations. The rest of us can argue until they’re blue in the face about what a world with weaker copyright or patent protections would look like, but Stallman and company have bypassed that debate entirely by offering an existence proof of what an alternative world would look like. It’s awfully hard to argue something can’t happen when it obviously has.

Which I think is what gives Eben Moglen the credibility to deploy what I might otherwise regard as absurdly overwrought rhetoric. Most revolutionaries preach about the utopia that will exist in the future. In contrast, Moglen is talking about a utopia that’s being built as we speak. And happily for libertarians, it’s a utopia that’s being built without a shot being fired, or a tax dollar being spent.

  • mwendy

    Tim, I think I might agree with you if Eben and RMS took a more inclusive, holisitc view of the world of creativity – one which said “all models can get along.” But, sadly, they don't. They deny even the concept of intellectual property, decrying the so-called evil that private property regimes engender. Thus, I don't see them as joiners / builder. Rather, they're dividers – intolerant of ideas that have undeniably helped billions propser.

  • http://www.techliberation.com Adam Thierer

    It's certainly true that many great modern creations and inventions were achieved outside the realm of copyright and patent law. And I'm all for more of that. There's a reason I used a Creative Commons license for three of my recent books. And my online life is increasingly tied up with open source software and applications.

    Some of the neo-Marxists involved with the FSF, however, claim that because SOME creations and inventions come about this way that a world without intellectual property rights is feasible and justifiable. That just does not follow in my opinion.

    Finally, I know you think there is no connection between tangible and intangible property rights, but if you listen to the way Marxists like Moglen talk about these things, you quickly realize that there is zero difference in their minds. They'll get rid of whatever property regimes they can whenever they can. These battles are more connected than you think, Tim.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Mike,

    If anyone is trying to prevent all models from getting along, it's the Microsofts of the world that insist that no one may enter the software industry without first licensing their patents. Stallman and Moglen aren't trying to stop Microsoft from pursuing its business model, all they're asking for is the freedom to build their own alternative software without interference from the legal system. I don't think there's anything intolerant about that. Nor is it intolerant for Moglen to say things about proprietary software that might hurt Bill Gates's feelings.

    Also, it's false to say that copyrights and patents “undeniably helped billions propser.” In fact, a number of smart people do deny it. I don't agree with them (I'm in favor of software copyrights and pharma patents, among other things) but I certainly don't think Moglen's abolitionist stance is out of bounds of reasonable policy debate.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Some of the neo-Marxists involved with the FSF, however, claim that because SOME creations and inventions come about this way that a world without intellectual property rights is feasible and justifiable.

    I don't agree with this view, but I also think it's silly to call it neo-Marxist. You know there are plenty of hard-core libertarians (not including me) who do agree with it. One of them works down the hall from you.

    If you listen to the way Marxists like Moglen talk about these things, you quickly realize that there is zero difference in their minds.

    I don't know, Moglen starts his talk by explicitly talking about the zero-marginal-cost property of information goods, which is what makes the economics of copyright fundamentally different from the economics of automobiles. I have no doubt that Moglen has lots of opinions I don't agree with outside of tech policy, but I've never seen him publicly promote those views, and I'm not going to discount his work on this subject because he happens to have opinions I don't agree with on other subjects.

  • http://bennett.com/blog Richard Bennett

    Let's face it, Moglen and Stallman are Marxists (, and it's sounding like Tim Lee is as well.) That's OK, Marxism is a legitimate political point of view which deserves a place at the table wherever property rights and control of the means of production are are discussed.

    I'd just like to post my objection to the use of the phrase “GNU/Linux operating system.” This term is Stallman's attempt to take credit for something he did not in fact create, the Linux operating system, simply because it was compiled with the one thing that he did create, the GNU C compiler. It's an insult to Linus Torvalds to use this term, especially in a discussion of GPL and all that nonsense. Torvalds and Stallman are consistently at odds with one another on ownership rights to software, and there's no sense papering over the differences.

    It's also disingenuous to pretend that Stallman and the FSF have not used IP law to advance their vision of “free” software. FSF software is licensed on very strict terms, not simply a free production for others to use as they will like software licensed under NetBSD terms. The FSF's licenses are designed to prohibit commercial software transactions from taking place when FSF software is involved.

    Whether you like FSF or hate it, there's no sense in distorting what it's about. Whether the costs of distributing software are zero or not, the costs of producing it in the first place are decidedly non-zero. Who pays for it and how are the crucial questions in a world that's increasingly software-dependent.

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  • dimitris

    I'd just like to post my objection to the use of the phrase “GNU/Linux operating system.” This term is Stallman's attempt to take credit for something he did not in fact create, the Linux operating system, simply because it was compiled with the one thing that he did create, the GNU C compiler. It's an insult to Linus Torvalds to use this term, especially in a discussion of GPL and all that nonsense.

    nonsense like the GCC didn't only let Torvalds create the original Linux kernel; it also provided thousands of people with a low-barrier-to-entry toolchain that allowed them to contribute. Hardly non-trivial.

    There's other GPL nonsense that functionally makes up what we think of as the Linux OS. Little things like a standard library. Things like that.

  • http://bennett.com/blog Richard Bennett

    So we're supposed to say “GNU/Firefox,” “GNU/Thunderbird,” “GNU/LAMP,” etc.? That's giving too much credit to the toolmaker, frankly. We don't identify furniture with the make of the saw that was used to make it, dimitris, that's simply encouraging Stallman's already large head to swell even more.

  • Brett Glass

    Richard is correct. Yes, the development of “GNU” software is managed by Richard Stallman’s “Free Software Foundation,” whose purpose is to destroy opportunities for commercial software developers (whom Stallman regards as evil; see Steven Levy’s book “Hackers” for the details).

    Linux, on the other hand, is an OS kernel written mostly by Linus Torvalds. And most “Linux distributions” are a pastiche of software written by many people. Quite a lot of the software in most of them is, in fact, taken from BSD UNIX, which, unlike Linux, is licensed on terms which are actually friendly to software developers.

    But the egocentric Stallman wants to take credit for the whole deal, so he frequently howls, “Call it GNU/Linux! GNOOOOOOOH Linux!”

  • MikeRT

    In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given monopoly rights in their creations.

    Without copyright law, there would be no protection for the LAMP stack, nor would there be appreciable protection for the assets of many of the businesses that depend on it.

  • mwendy

    Tim, let's add anarchist to the list, too. In research for a recent memo, I came across this paragraph from Eben as he spoke to some comrades in South America – I especially like the line “…my collaborators Marx and Engels” in his lengthy diatribe:

    “…Moreover, there are now many organizations around the world which have earned literally billions of dollars by taking advantage of anarchist production. They have brought their own state of economic dependency on anarchist production to such a high level, that they cannot actually continue operating their businesses without the anarchists’ products. They, therefore, now begin to serve as founders, mentors, and benefactors, for anarchism. They employ our programmers and pay them wages. They assist our programmers in gaining additional technical skill and applying that skill more broadly. They allow me to heavily fund a carefully constructed law firm in New York, to train only lawyers to represent only anarchists on only the payrolls of the big companies which produce the money to pay for the legal representation of anarchism. They have to do that. They need anarchism to be legally solid. They do not want it to fail. They want the anarchist legal institutions that we have created to become stronger over time, because now their businesses depend upon the success of anarchist production.

    “In other words, we have reached a very important moment, a moment noticed some hundred years ago by my collaborators Marx and Engels. We have reached the moment at which the bourgeois power sources have turned the crank on invention to the point in which they are actually fueling their own downfall. They have created the necessary structures for their replacement and the forces which are speeding up that replacement are their own forces, which they are deliberately applying because the logic of capitalism compels them to use those new forces to make more money, even though in the long run it speeds the social transition which puts them out of business altogether. This is a very beautiful feeling…”

  • mwendy

    Tim, I think FLOSS is a great idea. And some creat products / services have resulted from that model of development. And, I think that proprietary developers like IBM and Microsoft and others have made some great products, too. But let's be clear – Eben and RMS aren't about that dichotomy / dynamic. They see only one model as legitimate – the exceedingly restrictive GPL. They could just as easily give it away like BSD, but they don't. That can't achieve their divisive, social ends.

    As to copyrights / patents benefitting billions – well, just look at your modern airplane, with all its CII / patents in it; the drugs you take to stop your colds or hayfever, built on patents; the microwave you pop your popcorn in, built on patents; the movies and music that bring nation's together through common experiences, protected by copyright; and the GNU, built on copyright. IPR has enabled people to come to the table to take risk and deveop. And, we're better for it.

    Maybe what you meant to say is, “Many smart people want a different system of property protections”? I think it's a fools errand to suggest that IPR has not benefitted mankind.

  • MikeRT

    Let's face it, Moglen and Stallman are Marxists (, and it's sounding like Tim Lee is as well.) That's OK, Marxism is a legitimate political point of view which deserves a place at the table wherever property rights and control of the means of production are are discussed.

    Any economic system whose ideas can be dispatched in less than 2 pages of a science fiction novel (Starship Troopers by Robert Heinlein) in terms that a typical middle school student can understand is hardly respectable.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Moglen and RMS believe their model is better, and they're working hard to demonstrate that fact. That's entrepreneurship and competition in the best libertarian tradition.

    And again, I agree with everything you say about patents and copyrights. I just don't think it's “undeniable.” Smart, reasonable people think we'd be better off without patent and copyright protections, and I think we should engage their arguments rather than pretending they don't exist.

  • http://bennett.com/blog Richard Bennett

    When I click on the trackback to my blog at the end of these comments, I get redirected to a site selling boner pills. I don’t know if this hijack is something to do with this site, my site, or DISQUS. The captured traffic doesn’t provide much of a clue – my entry loads and then the browser runs off to the boner pill site, but don’t see a redirect in the HTTP stream. Very annoying.

    For testing purposes, here’s a link to the same post.

    Aha, it’s hijacked as well, but if I copy-paste the link, it’s not. That points to DISQUS.

  • http://bennett.com/blog Richard Bennett

    When I click on the trackback to my blog at the end of these comments, I get redirected to a site selling boner pills. I don’t know if this hijack is something to do with this site, my site, or DISQUS. The captured traffic doesn’t provide much of a clue – my entry loads and then the browser runs off to the boner pill site, but don’t see a redirect in the HTTP stream. Very annoying.

    For testing purposes, here’s a link to the same post.

    Aha, it’s hijacked as well, but if I copy-paste the link, it’s not. That points to DISQUS.

  • http://bennett.com/blog Richard Bennett

    When I click on the trackback to my blog at the end of these comments, I get redirected to a site selling boner pills. I don’t know if this hijack is something to do with this site, my site, or DISQUS. The captured traffic doesn’t provide much of a clue – my entry loads and then the browser runs off to the boner pill site, but don’t see a redirect in the HTTP stream. Very annoying.

    For testing purposes, here’s a link to the same post.

    Aha, it’s hijacked as well, but if I copy-paste the link, it’s not. That points to DISQUS.

  • Anon

    The reason to call it GNU/Linux is not because the kernel was compiled
    with GCC it is because the utilities and libraries which, along with
    the kernel, form what is typically considered the “operating system”
    are under part of the GNU project (note that the GNU project is
    distinct from the GPL). See http://en.wikipedia.org/wiki/GNU. As an
    analogy you would not call a car a Yokohoma if it has a Yokohama
    engine but Ford exterior, chassis, drive-train, etc. An end user
    would probably be oblivious to a change in the kernel but not to its
    utilities and libraries which is what he normally interacts
    with. While technically correct, “GNU/Linux” over “Linux” it is a
    discussion which is ultimately distracting from the essentials of free
    software.

    The use of copyright by copyleft licenses is a means to end. What is
    wrong with “intellectual property” is that it is oppressive. Copyleft
    turns copyright on its head to make it non-oppressive (no, the
    restriction that “thou shalt not use this software to be oppressive”
    is not itself oppressive). So copyleft is not — in spirit –
    contradictory in its opposition of “intellectual property”. Neither is
    free software dependent on copyright for its existence, nor is it
    preferable to have a copyleft + copyright world than a copyright-free
    world: It is difficult to imagine that the loss of copyleft
    provisions outweigh the gains from the abolishment of “intellectual
    property”. In sum: given that copyright exists and is nigh impossible to
    diminish — never mind abolish — may as well usurp it to advance software
    freedom.

    Nothing in the GPL prohibits commercial transactions. However
    transactions that fundamentally depend on subjugating end users will
    not be able to use GPL software to do so. Those that insist on this
    dependence will have to rely on the rapidly shrinking pool of users
    who do not mind being subjugated nor the practical detriments of
    unfree software.

  • Tom Sydnor

    Tim, I realize that it is unlikely that anyone will be reading comments in this thread. After all, you have (again) created a new thread on the same topic when you were getting killed on the merits in the comments on this thread. But just in case, I will cross-post my comments here.

    And again, I take great comfort in the company you are keeping in order to find support for your views. In any case, there are profound flaws in the arguments that you are making. Specifically, your premise is false, and your conclusions do not follow.

    You say, “In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given [property] rights in their works.” Actually, it’s really easy.

    The LAMP stack consists of creativity that happened because creators were given property rights in their words. The works in that stack are copyrighted, their creators retain property/monopoly rights in them and they enforce them. FSF, in particular, aggressively enforces its copyrights in both GPL software and in the GPL itself. To be sure, developers of FOSS software may exercise their property rights differently than some developers of proprietary software, but the copyright system was intended to provide them with the freedom to do so.

    Indeed, that freedom is why Stallman never had to “run to Congress seeking legal changes” in order to create his compiler or the GPL: copyright laws were intended to let creators keep their creations secret, to sell copies for money, to cross-subsidize their production, etc., all the way down to dedicating them irrevocably and freely, to the public domain. As a result, copyright law requires creators to compete not only to create works, but also to administer and exercise their rights in those works. I think that you are mistaken to call Stallman’s retroactively imposed, TBD-vision of “freedom” a “utopia,” but existing law will empower and enforce at least most of it.

    Nor would your conclusions follow even were your premise valid. You seem to conclude that the “utopia” being built over at the FSF proves that copyright owners do not need any exclusive rights except those utilized in the GPL. For two reasons, that is wrong.

    First, even in the narrow context of application software development, Stallman and Moglen’s “utopia that’s being built has we speak” has hardly swept the field. Developers of proprietary software that license copies for cash are thriving. For example, Adobe’s Photoshop is doing just fine against its FOSS alternative, The GIMP. Why would we settle this ongoing and robust debate about application-software-development methods via Eben Moglen’s “bracing” podcast, rather than market competition between creators who made different choices about how to exercise their talents and administer the resulting rights?

    Second, the fact that the FOSS model still seems viable in the context of application software in no way implies that the same model will work for all the different types of works and industries encompassed by copyrights. Nor does it mean that this one model would remain viable and appropriate over time.

    And that latter point is critical: what works today may not work tomorrow. Were we having this debate in the 1970s, I would be hearing wonderful tales about how ingenious it was for newspapers to use classified advertising to cross-subsidize the production of local news. And that scheme was indeed ingenious—for a while.

    In conclusion, Stallman and Moglen surely do believe that “utopia” is being built right before our eyes at FSF. If so, that’s great: their “utopia” is being built by the “monopoly” provided by existing copyright law.

    But utopia has been built and rebuilt many times by many sincere people. Someone is always building or rebuilding New Harmony, and it usually even works—for a while. And that is why I favor copyright laws that provide creators with a broad array of practically enforceable options for exploiting the results of their own labor, including selling copies to businesses, selling copies to consumers, licensing copies for cash, cross-subsidizing, FOSS, etc.

    But I do not favor the approach championed by Messrs. Moglin and Stallman. They are all too eager to deny other creators the rights to choose and the flexibility that made the FSF vision of “utopia” possible. –Tom

  • Aim Here

    You need two whole pages of sciffy to discredit Marxism?

    Right-libertarianism is trashed in two sentences in Green Mars by Kim Stanley Robinson,thus:

    “The minimum that most minimalists want leaves in place just the institutions who protect their interests. That's libertarians for you — anarchists who want police protection from their slaves”

    Sorry, couldn't resist

  • Joker

    “And happily for libertarians, it’s a utopia that’s being built without a shot being fired, or a tax dollar being spent.”

    Indeed, more power to his elbow…(doh!)

  • http://hostilefork.com/ Hostile Fork

    In reply to Tom's comments:

    You say you “favor copyright laws that provide creators with a broad array of practically enforceable options for exploiting results of their own labor”.

    There's a constant struggle played out regarding the rights of the “creator” vs. the “greater good”. I often cut to the chase by asking how people feel about Ayn Rand and The Fountainhead. The story's central character (an arcihtect) destroys a public housing project he was contracted for when bureaucratic intervention degrades his design. She casts this as heroism.

    When FSF people go “all the way” extreme, nothing needs to be blown up. The horror story of their world is that maybe you write a program and someone makes a variation of it that you don't like–which becomes more popular than your own.

    To some developers, that's a nightmare—just as it was for Rand's architect. So they will avoid the FSF way, even if complexities like having food on the table and health care were to be solved. Moglen, Stallman, and a lot of other people (myself included) share a distaste for that kind of thinking, and don't have a lot of hope for what kind of future would result from it.

    So GPL is something where people who agree with us get to build shared infrastructure that applies to others who accept the premises. People are learning how to think of creation in new ways, learning from each other. We're going to have generations coming along that think of frictionless sharing of cool things, and want the friction pulled out of their tools as well.

    Speaking for myself, I think I'll be fine living without whatever it is that “Tom Sydnor Industries LLC ™ all rights reserved” makes, and join up with those other guys.

  • Monte

    Without

    Most interesting…however most all the comments follow well worn paths. Smells like conservative “better dead than red”, get your dirty hands off MY money/Bible/property, name calling BS and/or I've just read the manifesto for the fourteenth time, Dude, have a bite of my government cheese, free love!

    When something truly new comes along (software, the network) that embodies great potential/change for the entire world and everyone in it, could we not think of creative ways to deal with it?

    You're going to have to when the next however many billion show up…and yea I know they're not here now…but it's time to start…

  • Monte

    Without

    Most interesting…however most all the comments follow well worn paths. Smells like conservative “better dead than red”, get your dirty hands off MY money/Bible/property, name calling BS and/or I've just read the manifesto for the fourteenth time, Dude, have a bite of my government cheese, free love!

    When something truly new comes along (software, the network) that embodies great potential/change for the entire world and everyone in it, could we not think of creative ways to deal with it?

    You're going to have to when the next however many billion show up…and yea I know they're not here now…but it's time to start…

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