hydrarchist writes:

"Freeing the Mind:


Free Software and the Death of Proprietary Culture"

Eben Moglen, June 29, 2003

The subject matter we're going to talk about is variously named, and
the words have some resonances of importance. I'm going to use the
phrase "Free Software" to describe this material and I'm going to
suggest to you that the choice of words is relevant. We are talking
not merely about a form of production or a system of industrial
relations, but also about the beginning of a social movement with
specific political goals which will characterize not only the
production of software in the twenty-first century, but the production
and distribution of culture generally. My purpose this morning is to
put that process in large enough context so that the significance of
free software can be seen beyond the changes in the software industry
alone.

BUSINESS WEEK, we can assume, as Rita
Heimes suggested in her very gracious introduction, needs to hype its
material in order to make people want to read below the first
paragraph. But I think BUSINESS WEEK
here is probably guilty of low blood pressure. Earlier this week in
Brazil, the chief technology officer of the Microsoft Corporation,
Craig Mundie, made a public speech, in which he said that my client
the Free Software Foundation (the Free Software Foundation, and only
the Free Software Foundation) was destroying the global software
industry. Now, The Free Software Foundation, which I have represented
for ten years and on whose board I have the honor to sit, has an
annual budget in the neighborhood of $750,000, and total assets
slightly under two million dollars; it is supported entirely by
donative contributions, mostly from individuals. The Microsoft
Corporation, as some of you know, has a market capitalization of
several hundred billion dollars, and possesses fifty billion dollars
in cash at the moment. It is the single most profitable monopoly in
the history of the world. I am deeply grateful to Mr. Mundie for his
accurate assessment of the current state of affairs between his
organization and mine.

So why does he think that we're doing something important to him?
There is naturally a certain degree of partisan chagrin in what he's
saying. We're not destroying the global software industry, we're
destroying the monopoly, which has been exercised for quite some while
now by his employer, despite the best efforts (the temporary best
efforts) of the United States government, the European Union, and a
number of well-funded commercial competitors who have uniformly
failed. I would disagree with BUSINESS WEEK because I think
the Netscape Browser is a pretty greasy, unimportant little tool, of
no fundamental significance, whose challenge to Microsoft in the early
1990's in the so-called "middleware" market, was a comparatively
unimportant run even before AOL bought Netscape and began its
ambivalent relation to competition with Microsoft, an ambivalence
about which you have all been reading recently.

We are doing something else. We are changing what software is, not
just how its made, but how it works in relation to all the other
aspects of human intellectual production. Software, by which I here
mean executable bitstreams that instruct computers in what to do
(there are lots of other types of software and we will be discussing
them in the course of this hour: they include music, and movies, and
train schedules, and all other useful forms of information in the
twenty-first century) is becoming in the twenty-first century a public
utility, not a product. We are doing that for a reason. The reason,
which was sketched out by my colleague, friend, and client Richard
Stallman in the early nineteen eighties, is to protect the ethical
right to share information. This is properly understood as the
intellectual context of Western science and literature-not as an
invention of the nineteen eighties, not as a consequence of our
particular personal, intellectual or moral idiosyncrasies. It is the
received understanding of our common culture with regard to the
production of knowledge by collaborative effort. The free sharing of
scientific information is the essence of Western science. And without
the concept of the free sharing of information--Western scientists
have been pointing out since Galileo pointed it out to the church in
the mid 16th century--the advance of knowledge would be either
impossible or impossibly burdened.

The context of the transformation of society from analog to digital
means of information transmission posed a threat to the free exchange
of information, a threat which you all see becoming tangible around
you in every area of life from day to day. Information distribution,
from the adoption of movable type printing in the west at the end of
the fifteenth century until the end of the twentieth, was an
industrial process. Information was turned into physical artifacts
that it cost money to make, move and sell. Accordingly, an economy of
information distribution arose, which required payment streams to
recoup the cost of making, moving and selling physical artifacts
containing information. That process came to center around the
creation of property rights--through a logic of the raising of
streams of payment to recoup the costs of production familiar to
everybody--in every branch of Western economic thought. The morality
of that process, however, depended on the fact that there was no
alternative. Because this form of distribution inevitably resulted in
the exclusion of some people from information. Societies, as their
wealth increased, tended to attempt to offset that exclusionary
effect--the undesired, exclusionary effect--of property rights in
information production by socialized measures to ensure access: the
public library, the public university, and so on. Thus, by the middle
of the twentieth century it had become the dogma of the West that
information costs money to make move and sell, that information costs
must be recouped by exclusionary property rights (``you may not have
this information unless you pay for it'') and that the harshness of
coercive distribution of information goods could be ameliorated in the
familiar way--by semi-socialized institutions that offset the
distributive unfairness of coercive models of information production
and distribution. That, in a nutshell, is how to we got to the point
at which things threatened to become terrible, because the advance of
technology removed the barrier to universal access. But our minds did
not change with respect to the paradigms of information production and
distribution.

The conversion to digital technology means that every work of utility
or beauty, every computer program, every piece of music, every piece
of visual or literary art, every piece of video, every useful piece of
information--train schedule, university curriculum, map,
chart--every piece of useful or beautiful information can be
distributed to everybody at the same cost that it can be distributed
to anybody. For the first time in human history, we face an economy
in which the most important goods have zero marginal cost. And the
transformation to digital methods of production and distribution
therefore poses to the twenty-first century a fundamental moral
problem. If I can provide to everyone all goods of intellectual value
or beauty, for the same price that I can provide the first copy of
those works to anyone, why is it ever moral to exclude anyone from
anything? If you could feed everyone on earth at the cost of baking
one loaf and pressing a button, what would be the moral case for
charging more for bread than some people could afford to pay? This
represents the difficulty at which we find ourselves straining at the
opening of the twenty-first century.

Vast institutions are committed to the social philosophy that only
exclusionary practices inevitably involving the large-scale
continuance of unnecessary ignorance are essential to the production
of useful information. Vast economic rents are being extracted from
the world, and enormous numbers of people are going unfulfilled in
intellectual and aesthetic needs that we can provide for. One
inevitable consequence of the continuance of that approach is that
people are forbidden to share.

In 1993, the National Information Infrastructure Working Group on
Intellectual Property, led by the chair of the PTO, Bruce Lehman,
produced a green paper on intellectual property in the evolving
Internet, which became eventually a White House policy document in the
first Clinton administration. The IP Working Group report stated
that, although it would indeed be necessary to increase copyright
infringement penalties drastically, that measure would be inadequate
to change social behavior sufficiently to protect intellectual
property in the net. Accordingly, the IPWG suggested, every school
receiving federal funds should have a curriculum in grades K-12,
teaching children that it is wrong to share information. They
suggested--I am not fooling you--a slogan in the aftermath of
Mrs. Reagan's extraordinary success at ending drug abuse in America.
The slogan was: ``Just say 'yes' to licensing.'' What they did not
explain was what you called the institution in which you explained to
children that it is wrong to share information; it seemed improbable
that one would continue to call such a place a school. Nonetheless, I
thought that their intellectual honesty was extremely commendable.
They had come to the heart of the problem. Their goal was the
maintenance of existing social and economic relationships at the
expense of incurring the fundamental intellectual inconsistency
of their position: that we must teach people that they must not teach
others, or else.

Now, it is in that context that we have made a social network
committed to the proposition that the central executable elements of
human technology can be produced by sharing--without exclusionary
property relations. And that if the central executable elements of
technology can be made by sharing, without exclusionary
property relations, then the non-executable elements of culture--art,
useful information, and so on--can be distributed without
exclusionary property relations. It is this process that you are
presently witnessing.

When I began working as a computer programmer for pay, in the early
1970s, there was a goal. Software developers had a purpose. The
purpose was embodied in a four-word phrase: ``Write once, run
everywhere.'' It meant, develop software which can be made to run on
all of the hardware that even then rather heterogeneously populated
society. It was, from the point of view of venture-capital funded,
profit-making, investor-owned industries, an impossible goal, never
achieved. We did it. GNU, Linux, and all the other thousands of
programs in the free software world, run, as Rita correctly said, on
everything. From the palmtop, the cell phone, and the single-purpose
appliance--like the digital camera and the personal video
recorder--to the mainframe. There was one purpose to software
engineering overall throughout my lifetime, and we did it. The
best-funded monopoly in the history of the world does not even try.

There are reasons, which I have explored in my writing, including in
the piece ``Anarchism Triumphant,'' that production of executable
software without property relations inherently develops superior
software--not immediately, but over the long term. The analysis of
that proposition I leave in detail for further discussion. It's
essence is this: software (executable software) is an inherently
incremental intellectual product. This is an argument, by the way,
against the application of the patent system to it, not a
philosophical one, but a technical one. The appropriate invocation of
the principal of novelty and non-obviousness to software results in
zero software patents. All persons reasonably skilled in the art are
capable of achieving each result incrementally, from where the art is
at any given moment. But more importantly, for our purposes, the
process of making software is massively parallelizable, when the costs
of communication and coordination are reduced near zero.

The net is a superconductive medium for the creation of software. So,
as I wrote in 1999 when it was a little less obvious than it is today,
we are witnessing a phenomenon first noticed by Michael Faraday at the
beginning of the nineteenth century. Wrap a coil around a magnet;
spin the magnet. Electrical current flows in the wire. One does not
ask, ``what is the incentive for the electrons to leave home?'' It's
an inherent, emergent property of the system, we have a name for it:
we call it induction. The question we ask is, ``what is the
resistance of the wire?'' Moglen's corollary to Faraday's Law says,
wrap the Internet around every brain on the planet; spin the planet.
Software flows in the network. It is wrong to ask, ``What is the
incentive for people to create?'' It's an emergent property of
connected human minds that they do create. The forms in which they
create, like the evolution of spoken and written language, like the
disposition of memes, cultural forms, patterns of pottery, shapes of
musical endeavor, and so on, are structural characteristics of the
human mind. We are a social species, and we create together; that's
our nature. The question to ask is, ``What is the resistance of the
network?'' Moglen's Corollary to Ohlm's Law states that the
resistance of the network is directly proportional to the field
strength of the intellectual property system. The conclusion is:
Resist the resistance. Which is what we do. We have been doing it in
an exponential growth curve for slightly over twenty years. Now we
have forty percent of the server market. We're going to have a
hundred percent of the appliance market within five years. That's a
trivial economic deduction from the following simple fact: when you
sell a four-hundred dollar palm top, you can afford to pay a license
fee for its operating system, of $24.95, or $49.95, or incur
expensive in-house development activity and make a Palm OS. When the
box costs fifty bucks, there's no room left for paying $12.95 to
Mister Gates: we win. We win.

We all do it together, the software's a public utility; ``Write once,
run everywhere''; we're done. This is a noticeable proposition, not
just to us-though we understand why it is socially and politically
desirable that the world work this way. It is a noticeable
proposition for the International Business Machines Corporation, too.
You now have, after a mere twenty years of work on our part, the
largest, best-funded technology company on earth fundamentally on our
side with respect to how the information technology system will work
in the twenty-first century. San Palmisano, Irving Wladawski-Berger,
you read them all the time, there's a simple proposition: software's
a public utility, computing is an on-demand service provided by
service providers who handle the internalized cost of making computing
possible, and so on.

Thus we observe the new political economy of software. If you have a
network and you share, you can achieve the ethical goal of allowing
everybody to understand, to improve, to find and fix bugs, to create
better software, and to share information in a way that allows them to
improve their technical skills. Free software is the single greatest
technical library on earth. I say that because free software is the
only field where a person can go from naiveté, to the state of the
art, in everything that a particular field contains, solely by reading
material that is universally available at no cost everywhere the
network exists. That is the single, greatest intellectual capital
development program in the world. The legal system that makes that
possible, the GNU General Public License, with which I have some intimate
experience, achieves the creation of a greater and more extensive
knowledge exchange program than any other in the world, at no cost.
When my colleagues at the Massachusetts Institute of Technology
decided to put their entire curriculum on the web--every course, every
teaching material, every problem set, every examination--they were
adopting the recognition that the principle of Western science, the
principle of free software, and the principle of non-exclusion are the
path of development for the twenty-first century, a proposition which
has its capitalist echo in the behavior of IBM. But for a moment, I
just want to concentrate your attention on the moral and political
dimension of that activity.

In the twenty-first century, power is the ability to change the
behavior of computers. If you can't change the behavior of computers,
you live within a Skinner box created by the people who can change the
behavior of computers. Every artifact around you responds by either
handing you a banana pellet or a shock, depending upon which button
you push and whether you are ``right,'' from the designer's point of
view. In the world in which I grew up, twelve-year-olds became
programmers because they could read other people's code. Mr. Mundie,
speaking in Brazil earlier this week in a speech I already referred
to, said--and I agree with him--``The health of the software
industry,'' (by which he means his software industry, not mine)
``depends upon one simple proposition: never show anybody the source
code to anything.'' Right. More elegantly it cannot be put. And a
system which depends for its continuation upon the universalization of
ignorance for private profit is an immoral system. Destroying it is
merely one more step in the long history of struggling for freedom.

This is the free software movement. I want to be very clear about
that. The idea of ``Open Source Software'' is software that people
can read, and I am for that. But it is important to understand that
that inadequately describes what we were trying to do, or why. Dylan
Thomas refers in ``The Child's Christmas in Wales'' to the ideal
Christmas present of the book that told everything about the wasp,
except why. This is, from my point of view, the problem with the
discussion about Open Source: it tells you everything, except why. I
have now told you why.

Free software is an invocation for particular social purposes of the
ability to develop resources in commons. This is not, as I have
pointed out, an economic novelty. It is the single way in which we
have produced the most important works of Western intellectual
achievement since the Renaissance. It is also the way in which we
have managed for all time fisheries, surface water resources, and
large numbers of other forms of resource beyond human production.
Free software presents an attempt to construct a commons in cyberspace
with respect to executable computer code. It works. It works, with
one interesting subdivision of structural decision-making on how to
construct the commons. When we come to the technicalities of
licensing, we will observe that there are two philosophies in the
construction of the commons, one of which is characterized, oddly
enough, by a license with the three-letter name BSD, the Berkeley
Systems Division license, which originally covered the distribution of
a Unix-like operating system, written on free-sharing principles,
primarily at the University of California. The BSD license says: ``Here
is a commons. It is not defended by copyright against appropriation.
Everything in the commons may be taken and put into proprietary,
non-commons production as easily as it may be incorporated into
commons production. We encourage people to put material into commons,
and we are indifferent as to whether the appropriative use made of
commons resources is proprietary, or commons-reinforcing.''

The second philosophy for the production of software in commons is
embodied in the GNU General Public License of the Free Software
Foundation, known universally throughout the world by another
three-letter abbreviation, GPL. The GPL says: We construct a
protected commons, in which by a trick, an irony, the phenomena of
commons are adduced through the phenomena of copyright, restricted
ownership is employed to create non-restricted, self-protected
commons. The GPL, whose language you've been referred to, is not
quite as elegant a license as I would like but it is pretty short; yet
I can put it more simply for you. It says: ``Take this software; do
what you want with it--copy, modify, redistribute. But if you
distribute, modified or unmodified, do not attempt to give anybody to
whom you distribute fewer rights than you had in the material with
which you began. Have a nice day.'' That's all. It requires no
acceptance, it requires no contractual obligation. It says, you are
permitted to do, just don't try to reduce anybody else's rights. The
result is a commons that protects itself: Appropriation may be made in
an unlimited way, providing that each modification of goods in commons
are returned to commons. Anyone making non-commons use of the
material is infringing. One says, simply, ``You're distributing.
Where's your license?'' The defendant has two choices: ``I have no
license,'' which is not a good answer, or ``I have a license. It's the
GPL,'' which is not a good answer unless you are giving everyone else
the rights you had in what you started with.

I hear quite often that my license has not been tested in court. This
puzzles me. It is, because of the structure of my license, the
defendant's obligation affirmatively to plead it, if she wants to.
After all, if she is distributing, it is either without license, in
which case my license doesn't get tested--there's an unlicensed
distribution going on and it's enjoinable--or the license is pled by
the other side.... how interesting. There, if I may put it to you
briefly, is the trick. That's how it was done. That's how an
enormous commons came into existence throughout the world, not just
with zero cost of goods and movement and sales, but with near zero
cost of enforcement.

For ten years, I did all of the GPL enforcement work around the world
by myself, while teaching full time at a law school. It wasn't hard,
really; the defendant in court would have had no license, or had to
choose affirmatively to plead my license: they didn't choose that
route. Indeed, they didn't choose to go to court; they cooperated,
that was the better way. My client didn't want damages, my client
wanted compliance. My client didn't want publicity, my client wanted
compliance. We settled for compliance all the time. We got compliance
all the time.

The legal arrangements which defend these commons are elegant and
simple. They respond to the proposition that when the marginal cost
of goods is zero, any non-zero cost of barbed wire is too high.
That's a fact about the twenty-first century, and everybody had better
get used to it. Yet, as you know, there are enormous cultural
enterprises profoundly committed to the proposition that more and more
barbed wire is necessary. And their basic strategy is to get that
barbed wire paid for by the public everywhere. Not just through
higher cost of goods, of course, not just through oligopoly pricing,
but through direct government subsidies to the production of barbed
wire and the occasional removal of juvenile human beings who are
impaled upon it. Government should conduct a war on twelve-year-olds
all over the globe, for the benefit of Jack Valenti's employers. This
is their solution to the problem of the morality of distribution in
the twenty-first century. It's stupid, and it will fail.

Now, this brings us to the other part of the significance of free
software, which is proposed in my title. For it is not merely the
global software industry which is being altered, or--as Mr. Mundie
would have us believe--destroyed. What is happening is a more
complicated process, more favorable to human freedom and much more
amusing. The distribution of other cultural goods is changing because
the production of software is changing.

From my point of view, there are two classes of goods with zero
marginal cost in the twenty-first century. One class of goods is
functional; it performs either better or worse than another class of
goods at the same job. Executable computer software is a good,
central, but not the only, example of such functional information.
Maps, genome information and other examples could be equally invoked.
My proposition, as I have already put it before you, is that for
functional goods with zero marginal cost, production without property
relations produces superior goods. And this is true the more that
collaboration is necessary in order to produce. Hence, free software
and soon-as a result of the work that I and hundreds of other people
are doing around the world--free genetic information and machines,
represent the demonstration that this form of production, without
exclusion from the right to understand and produce oneself, produces
better goods. So everybody who wants to be a producer is, and
produces at the margin of the ever-expanding compact mass of existing
production, because nothing requires reinvention. What you have is a
system of Lamarckian evolution of functional goods, in which the
acquired characteristics of any one good can be inherited by all the
others. The result, as Lamarck and Darwin and other nineteenth
century evolutionary theorists noted, is the rapidest and most
positive kind of evolutionary change.

But there is no such thing with respect to non-functional goods. One
cannot say that anarchist music is inherently superior to proprietary
music. What one can say is that in the world of zero-marginal cost,
anarchist distribution--that is, distribution without exclusion from
the act of distributing--produces inherently superior distribution.
This is even easier to perceive than the first proposition. When the
right to distribute goods with zero marginal cost has to be bought and
sold, there are inefficiencies introduced in the social network of
distribution. When no such buying and selling, no such exclusion from
the power of distribution exists, distribution occurs at the native
speed of the social network itself.

The famous experiments of Stanley Milgram, now somewhat blown upon,
which gave us the amusing sociological result known as ``Six Degrees
of Separation'' was a demonstration of the inherent speed of social
distribution in the network. Let us concede six to be a number
predicated on only networks of privileged people with a certain degree
of wealth, and so on. As recent research has tended to show, it is
still true that the social distribution network is much deeper and
much richer than anybody previously understood in human history, and
that it is inherently superior to systems of distribution networking
constructed by the exclusion of most distributors. The result, as
everyone in this room is aware, is that twelve-year-olds do a better
job of distributing music than the music companies. The music company
continues to take ninety-four percent of the gross for promoting and
distributing music, and the twelve-year-olds who take zero off the top
do a better job. When bandwidth constraints are removed, the same
happens to video; without removal of bandwidth constraints the same
happens to publishable text, to poetry, to all forms of useful
knowledge and information. The model is: ``Here; I think you need
this: take it.'' The result is, let us say, that when music under the
present system leaves the production studio and passes through six
hands, it isn't in the store yet. Whereas, in Stanley Milgram's
United States, after six jumps, everybody who wants the music has it.
The systems for the proprietary distribution of culture--the systems
in which the right to distribute is bought and sold--are the Trabant
factories of the twenty-first century. They are hopelessly
inefficient, they are the outcome of a social philosophy that is
utterly defunct, they fail to respond to the existing presence of a
robust and superior competitor: they are through.

Of course, the coercive power of the state will be summoned in endless
quantity, to reassert the right of Trabant to make inferior
automobiles and force them on helpless consumers. And even then,
their days are numbered. Because you cannot put all the
twelve-year-olds in jail, and because you cannot teach them in school
that sharing information is wrong. That's it. End of game.

So, we now find ourselves, if you will permit me, projected
approximately twenty-five to thirty years into the future. Software
is a service, a public utility, being produced primarily by people we
presently call ``students,'' doing something we presently call
``learning.'' The primary services being sold in the Capitalist
economy with respect to software are project management,
indemnification, distributional customization, and tailoring, piece by
piece, to the individual needs of consumers. That work is being done
on a basis which is commons-reinforcing, so it has a tendency, as such
work should, to put itself out of business. And it is therefore a
much lighter and simpler industry than the present one. Governments
do not buy software at exclusionary prices. This is what is giving
Mr. Mundie the heart attack he is having, and why he is saying the
absurd things he is saying in Brazil.

Two years ago we began a campaign to point out to governments that
they ought not to subsidize monopolists by buying unfree software. I
was invited to speak at the Business Software Alliance last November,
and to Emery Simon I owe my continuing thanks for that experience. I
felt a little like Fidel in Miami, but in fact I was treated with a
warmth that belied the comparison. I said there, and I think it
represents a simple truth, that the government market is one in which
there should be free and open and unrestricted competition. Our
position is that every government employee, everywhere on earth,
should have a desktop fully compatible with all the data now in
existence, with which everything can be done that that government
official needs to do, that the price of acquisition to that government
should be zero, and that government should be free to make as many
copies of that software as it has public employees and to distribute
that software in any way it wants. Those are the terms on which we
propose to supply software to government, and we assume that anybody
intending to compete in that market will offer terms at least as
favorable to the public and to the public fisc, as our terms.

Oddly enough, that does not represent the terms on which the monopoly
proposes to offer software to the public, and therefore there is a
continuing assumption that governments around the world will continue
to pour billions of dollars of subsidy into the continuance of the
proprietary production of software. Emery will explain in due course
why that is good. I will only point out that so long as that is good,
the system of distribution of culture by means that are efficient for
the distribution of all cultural goods will be to some extent
inhibited, because the software which performs distribution will be
regarded as illegal or unavailable. The building of networks means
building the systems for sharing data. Industries that own data on
exclusionary terms then turn around and attempt to prevent networks
from working, because networks share data and the goal is not to
share. The result is that the owners of the technology are put under
pressure to facilitate a network which does not share data
efficiently. The attempt is to move the inefficiency of the
distribution system into the technology itself, and that of course
requires technology that the users cannot change. For if the users
can understand and change the technology, they will remove the
inefficiencies and resume using the networks for their intended
purpose, which is the sharing of information.

Accordingly, we now face a fundamental choice: whether we plan to
employ free software, with the inevitable corollaries that it presents
with respect to the replacement of a dead system of inefficient
distribution by a live, vital and important system of efficient
distribution, or to attempt to control every computer and appliance in
the network in the interest of a few small distributors of bitstreams,
who regard their bitstreams as their property.

For this reason, again I want to point out that the phrase "Open
Source" does not capture what is really happening. What we are
actually deciding is whether to free the network to be a network, or
to control the network as a form of broadcasting--a form of
proprietary distribution by a few favored individuals in which the
remaining individuals are regarded as--the phrase is so familiar it
rolls off the tongue without a second look--consumers. Meaning,
non-producers, non-creators. We have become so accustomed to that
model of that understanding of the human mind--that a few people
create and the others consume--that we do not even recognize when we
say it what it implies about the people in general. How
anti-democratic our basic assumption is: there are some creators, and
there are consumers. This is the moral question of the age. We mean
to solve it. By freeing the technology that runs the network, we
change the way the network operates as a connector of human minds.
That's the goal.

Eventually, we reach the question of the network infrastructure
itself. So, let us go back to that Motorola cellphone. Like every
other appliance, it will contain free software--it can't afford not
to. And as things are at present, I get calls from the manufacturers
of such radio communication appliances relatively frequently. ``We are
making an Open Source/Linux/free software architecture board inside
our enterprise.'' ``I'm surprised to hear it,'' I say. ``We would
like you to affiliate yourself with us, etc.'' ``I'm very interested
in the discussion,'' I say. ``By the way, you do have two chips in
that phone, don't you?'' ``Oh yes, of course we do, we must, one chip
that runs free software, that does the keypad, and the screen, and all
the user interface operations, and one chip which doesn't run free
software, which controls the radio. We have to do it that way. If we
don't, the regulators all over the world will beat us up and they
won't let us sell the appliance.'' ``Yes,'' I say. ``I know.'' And
then, as if by magic, the same phrase pops out of them each time:
``But it is so expensive.'' ``Yes,'' I say. ``And that's why, ten
years from now, you are going to be helping me destroy spectrum
regulation all over the world--because the logic of Capitalism compels
you to save that other fifteen dollars for that second chip.'' But of
course, once you have general software-controlled radio, under the
general control of free software, users make decisions about the
spectrum, not regulators. How odd! It's our spectrum--how strange
that we should be making decisions about it. How peculiar that
democracy might actually say, ``We decide how to use channel seven.
It doesn't belong to Mr. Murdoch, it belongs to us!''

Now, of course, there was a time when we regarded it as absolutely
necessary for government coercively to decide who used channel seven.
The problem was interference, which was a real problem as severe as
recouping the cost of the industrial production and distribution of
information. Then, we went digital. Cellphones learned to share
spectrum. The problem of interference, as real and serious as it was,
like the problem of recouping the non-zero marginal cost of the book,
went away. But the underlying system of social relations did not
change. And we are not merely talking about Mr. Murdoch's interest in
the ability to reach one hundred and eighty million people, as opposed
to my ability to reach fifteen--we are also talking about Verizon's
view that the spectrum should be sold to us, by the sip, for personal
communications. What should we do instead? We should share the
spectrum. This is what the Wi-Fi revolution is beginning to suggest
to civil society. We should just build mesh networks and interconnect
them. And we should send our voice and data communications over those
networks, and we should do so in a decentralized way which does not
require us to rent our switching capacity from the telecommunications
oligopoly. We don't need them anymore, people are beginning to
recognize--and this is true. Free software will assist in the next
twenty years with both of those most extraordinary changes. Because
as the devices that use radio inevitably come to include software that
users can modify, and as the barbed wire civil war moves inside the
box (tamper-proof chips, laws against removing one chip and replacing
it with another, laws against reprogramming cellphones, etc.) it turns
out that you can't put every fifteen-year-old on earth in jail. And
when people realize that they are paying two hundred dollars a
month--this for the wired phone, that for the wireless, that for the
cable--or, they could put a fifteen dollar box in their pockets and
talk all the time, and have fast data communication everywhere for the
rest of their lives, it becomes a civil society issue. It becomes a
political issue. That means in the United States, it becomes an issue
of money. Of the twenty-five largest contributors to political
campaigns in the 2002 election cycle, eight were telecommunications
oligopolists. That's where we're heading.

Free software is, at the moment, about giving Mr. Mundie a headache.
We're going to spend the next two days at this conference talking
about that restricted part of what's going on: the transformation of
the software industry from commodity to service. The transformation
of the system of production from one which assumes exclusionary
production is superior, to one which discovers that non-exclusionary
production is superior. We're going to discuss how enterprises adjust
to that change, how individual researchers and programmers adjust to
that change, how the nuances of legal relationships affect the ways in
which that change works. This is a fascinating conversation, I've
been thinking about it for fifteen years, I have a lot of fun doing
it. I just want you to understand that such talk is the beginning of
something way more important, and that in order to understand why it
is important you have to understand why it is at all. It won't do to
say it's Open Source--you'll get a good idea about the software
business but you won't understand any of the rest of this because it
won't be clear why what is happening is happening, or why the
newspaper headlines read the way they do. What we are going through
is a fundamental alteration in the areas of intellectual
infrastructure and production all over the world. We're now talking
about just one little piece. You have got to understand that the
struggle is bigger than that. That it is more serious. That it
commits us to fundamental moral questions that we have to take a side
about. That the work we do as lawyers, and programmers and engineers
now is about the future of freedom of ideas all over everywhere. That
it means confrontations just as improbable in scale as the
confrontation between the Microsoft Corporation and the Free Software
Foundation, which I didn't name but which Mr. Mundie did. David and
Goliath? Hell no. Goliath was just a big human being, basically the
same as David but larger.

I was in Redmond recently, having a nice, pleasant conversation
in a little conference room with nine guys surrounding me on every
side. I said, ``Okay, it's time for another one of our recurrent talks
between the movement and the firm.'' We're not talking about things
that are parallel in scale, or size, or feature, or nature, or
composition. We're talking about a confrontation between two
fundamentally different forms of social organization. It doesn't
behave the way inter-firm competition behaves in a competitive market,
it doesn't have anything to do with what it looks like in
Microeconomics 101. There are features that can be put up on the two
axes that way: you can draw supply and demand curves, and you can get
real answers, I don't say otherwise, there are features of this
well studied that way. But it's important to get out past that in
order to understand what's happening. Two different philosophies
about the nature of human intellectual production are in
confrontation. One of them has all the chips; the other has all the
right answers. This is part of the long struggle in the history of
human beings for the creation of freedom. This time, we win.

Thank you very much.

*  Eben Moglen is professor of law
at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read
more of his writing at
moglen.law.columbia.edu. These remarks
were the keynote address at the University of Maine Law
School's Fourth Annual Technology and Law Conference,
Portland, Maine, June 29, 2003.