Anonymous Comrade writes:

"... nabbed from Groklaw.... the original from Groklaw contains some other acknowledgements to those who produced the transcript. You canj find it (and 422 comments!) here.

Eben Moglen's Harvard Speech: A Transcript

Contributed by: PJ

[If accuracy is vital, do check with the Harvard video. If you wish to hear the talk to verify it or just to enjoy it, here it is. I am continuing to edit, so if you see any errors, can you please help me out by letting me know? I just didn't want you to have to wait for perfection on my part, as that might be a long wait indeed.

Moglen makes reference to two legal terms, dicta and holding, which I'll explain briefly, so you can follow his thought. Dicta, the plural of dictum, is, according to my law dictionary, "a statement, remark, or observation in a judicial opinion not necessary for the decision of the case. Dictum differs from the holding in that it is not binding on the courts in subsequent cases." You can extrapolate holding's meaning from the definition of dicta. So, with that introduction, here is the transcript.

Mike Zarren:

Can you hear me OK? All right, here we go.

Welcome, everyone, to tonight's event. I just have a couple of quick announcements. I'm Mike
Zarren, the editor-in-chief of the Harvard Journal of Law and Technology. Two quick
announcements. First is, if you don't know about our Journal, you should check out our web
page. It's jolt.law.harvard.edu. Our fall issue, which I know it's not the fall any more but it's just coming out now, has
some great articles in it which I won't repeat all the topics, but they're cool.

The second announcement is that our next big event is our symposium. It's our annual spring
symposium. This year the symposium is on innovations and ownership issues with regard to
media. The symposium is going to examine how technological innovation and the digitization
of print and broadcast media are impacting ownership and control of media distribution
channels, as well as consumer access and choice. So please look at our website for current
list of participants. There is a whole bunch of people coming and talking here, and that
event is also open to the public and will also be webcast.

Special thank you to those of you who are watching online. The last JOLT webcast was the
most watched webcast in the history of Harvard Law School, so that's exciting. I don't know
what that means but.... [laughs] Anyway, without further ado, I would like to introduce
Jonathan Zittrain, who's not only the co-director of the Berkman Center for
Internet and Society -- there we go --as well as one of the best professors here at Harvard Law School.

Jonathan Zittrain:

Hi, there. This session is something of a bookend to the session a couple of weeks ago.
Maybe we should just find out, right? How many of you were here at the last session? You know
what I mean, right? How many of you were here? How many of you were not here? All right,
so the not-heres have it over the heres from the last session. It's a bit of a bookend
from the presentation by . . . Problems? OK. OK, ma'am, turn down your radio.

OK, so this is a bookend to a session that started with Darl McBride of SCO, the Santa
Cruz Operation two, Santa Cruz Operation Jr., who presented a number of theories about their
ownership of UNIX and how that impacts Linux. I understand that there were people at the
event, handing out copies of Linux as a form of civil disobedience. I don't know how many
people made use of their copies to install Linux on their coffee makers or reinstall it on
their TiVos.

I was disappointed to see that there was no one, I guess, in converse fashion, frisking people
in their way in, looking for copies of Linux to seize, as a form of civil obedience by the
powers-that-be. But in some important respects, too, I am not sure this will be a bookend, and
that's because of who is speaking, Eben Moglen. Eben Moglen is a scholar of the first
order, somebody who thinks very big, and yet also very deep. And therefore, my guess is
he will not be looking at this problem solely as a lawsuit that has certain facts and
issues of law to be decided and here's how it ought to come out.

Of course, he is also looking at it that way, because he is, among other things, counsel to
the Free Software Foundation, and therefore, Richard Stallmans' lawyer, and somebody who
is the legal, and in other important respects, public face of the Free Software
Foundation and the Free Software Movement.

This is probably an appropriate job for him to hold. In other lives, he has been a computer
programmer. As early as 1973, at age 14, he was contributing to the development of VSAPL,
the little-known successor, APL II, and PASCAL, at IBM Santa Teresa Laboratory. He has since,
aside from being a historian, been a law professor at Columbia University, where in a way
that is truly scholarly, in the sense that it depicts that a true relish of knowledge and
of not just stockpiling knowledge but challenging conventional wisdom and making new
knowledge out of old, new analysis, he has taken on a number of sacred cows, including,
some of you may be chilled to find out, the law review establishment, which I think he
probably still thinks is overripe for change and renewal, to put it lightly.

How does Eben Moglen describe his own mode of scholarship? He says it is basically a two
step, purely experimental paradigm. Step 1: try to create freedom by destroying
illegitimate power sheltered behind intellectual property law. Right? What could step 2 be?
Step 2: See what happens.

So far, he reports that early results are encouraging. So you are all part of the grand
experiment that is really just Eben Moglen's research agenda, but obviously there is
something a little more to it. There is a sense that this isn't just an economic or
financial issue, that there really are broad-brushed social and cultural things at stake,
and I'm sure that's what you are going to hear about today. So with that, please join me in
welcoming Professor Eben Moglen.

Eben Moglen:

Thank you. It's a great pleasure to be here. I want to thank the Journal of Law and Technology and
Jonathan Zittrain for combining to set things up for me in this delightful way. It is true
that I feel somewhat overwhelmed at the prospect of trying to talk for any substantial
length of time about a lawsuit that isn't going anywhere very much. I am, however, going to
mention the SCO lawsuit from time to time in my remarks.

Mr. McBride, when he was here, was kind enough to mention me once or twice, and I am going
to do him the same favor. I hope you will feel, those of you who followed the conversation,
that I am responsive to his remarks, though I don't think that doing it in the form of he
said, I say, would lead, as Jonathan suggests, to a particularly intellectually challenging
evening.

Free software, you will know, I am sure, that I didn't make this up, is free as in freedom, not
free as in beer. One of the primary problems with the conversation we have been having
about this lawsuit, in your distinguished speaker series this year, is that at least so far
it had apparently been suggested that the goal of those of us who believe in the free
software movement was primarily to prevent people from earning a profit in the computer
industry.

This results, it is sometimes suggested, from some wild antipathy to the idea of economic
benefit or some particular antipathy to the idea that people ought to have incentives to do
what they do. I shall along the way suggest that we believe very strongly in incentives,
though we see the problem of incentive perhaps a little bit differently than Mr. McBride.
But it isn't, after all, and we need to begin there, it isn't, after all, about making
things free as in beer. It is about making things free as in freedom.

[7:21]

The goal of the Free Software Movement is to enable people to
understand, to learn from, to improve, to adapt, and to share the
technology that increasingly runs every human life.

The fundamental belief in fairness here is not that it is fair that
things should be free. It is that it is fair that we should be free and
that our thoughts should be free, that we should be able to know as much about the world in which we live
as possible, and that we should be as little as possible captive to
other people's knowledge, beyond the appeal to our own understanding and
initiative.

This idea lay behind my dear friend and colleague, Richard Stallman's,
intense desire, beginning in the early 1980's, to bring about a world in
which all the computer software needed by anybody to do anything
would be available on terms which permitted free access to the knowledge
that that software contained and a free opportunity to make more
knowledge and to improve on the existing technology by modification and
sharing.

This is a desire for a free evolution of technical knowledge. A descent
by modification untrammeled by principles that forbid improvement,
access and sharing.

If you think about it, it sounds rather like a commitment to encourage
the diffusion of science and the useful arts by promoting access to
knowledge.

In short, the idea of the Free Software Movement is neither hostile to,
nor in any sense at cross-purposes with, the 18th century ambition for
the improvement of society and the human being through access to
knowledge.

The copyrights clause in Article 1 Section 8 is only one of the many
ways in which those rather less realistic than usually pictured founding
parents of ours participated in the great 18th century belief in the
perfectability of the world and of human life.

The copyrights clause is an particular legal embrace of the idea of
perfectability through access to and the sharing of knowledge. We,
however, the 21st century inheritors of that promise, live in a world in
which there is some doubt as to whether property principles, strongly
enforced, with their inevitable corollary of exclusion -- this is mine,
you cannot have it unless you pay me -- whether property principles best
further that shared goal of the perfectability of human life and society
based around access to knowledge.

Our position has been for twenty years that to the extent that existing
copyright rules encourage the diffusion of science and the useful arts,
they were good. And to the extent that they discouraged the diffusion of
knowledge and the useful arts, that they could be improved.

We have, pardon me for taking credit for something, we have improved
them, substantially, not by negating any of the existing rules of
copyright. On the contrary, we have been quite scrupulous about that.

One of the things which amuses me amidst the rhetoric that is now being
thrown around, is how oddly orthodox I seem to me when I consider my
weekly activities as a lawyer.

Though not necessarily welcome in Los Angeles, I find myself behaving
very much like an awful lot of lawyers in Los Angeles. I want my clients'
copyrights respected, and I spend a fairly large amount of tedious time
trying to get people to play by the very rules embodied in the Copyright
Act that I am supposedly so busy trying to destroy.

Free software is an attempt to use the 18th century principles for the
encouragement of the diffusion of knowledge to transform the technical
environment of human beings. And as Jonathan says, my own personal
opinion on the subject is that the early going in our experiment has worked
out pretty well.

It is because it has worked out pretty well that there is blowback from
it, and one of the little pieces of that blowback is the
controversy now roiling the world entitled SCO against IBM, which
apparently is supposed to become, Mr. McBride said it when he was here,
SCO against something called the Linux Community.

I don't think that's actually what's happening, but it is certainly what
Mr. McBride came here to say was happening.

So I'd best talk for a moment or two about how we see the situation that
Mr. McBride describes as a great test of whether free goods are somehow
going to drive out the incentive to produce in the net.

Free software, of which the operating system kernel called Linux is one
very important example among thousands, free software is the single
greatest technical reference library on Planet Earth, as of now.

The reason I say that is that free software is the only corpus of
information fixed in a tangible form, through which anyone, anywhere,
can go from naivete to the state
of the art in a great technical subject -- what computers can be made to
do -- solely by consulting material that is freely available for
adaptation and reuse, in any way that she or he may want.

We enable learning all over the world by permitting people to
experiment, not with toys, but with the actual real stuff on which all
the good work is done.

For that purpose, we are engaged in making an educational system and a
human capital improvement system which brings about the promise of
encouraging the diffusion of our science and useful art in a way which
contributes to the perfectability of human beings.

[15:02]

That's what we were trying to do, and we have done it. We are, as it
happens, driving out of business a firm called the Santa Cruz Operation [sic]
- or SCO Ltd. That was not our intention. That's a result of
something called the creative destruction potential of capitalism, once
upon a time identified by Joseph Schumpeter. We are doing a thing better at
lower cost than it is presently being done by those people using other
people's money to do it. The result - celebrated everywhere that
capitalism is actually believed in -- is that existing firms are going to
have to change their way of operation or leave the market. This is
usually regarded as a positive outcome, associated with enormous welfare
increases of which capitalism celebrates at every opportunity everywhere
all the time in the hope that the few defects that capitalism may
possess will be less prominently visible once that enormous benefit is
carefully observed.

Mr. McBride does not want to go out of business. This is understandable.
Mr. Gates does not want to go out of business either. But they are both
on the wrong side of a problem in the political economy of the
21st century. They see software as a product. In order to make
their quote "business model" close quote work, software must be a thing which is scarce.
And out of the scarcity of software there will be a price which can be
extracted, which will include an economic rent, from which Mr. McBride
has suggested somebody will be enabled to buy a second home.

Mr. McBride
thought it was the programmers who would be able to buy a second home
but people who actually understand the current state of the software
industry recognize that programmers are not buying second homes these
days. I think Mr McBride means the executives who employ programmers and
the financiers who employ executives to employ programmers will buy a
second home on the software-is-product business model for a little while
longer.

We think that software is not a product, because we do not believe in
excluding people from it. We think that software is a form of knowledge.
The International Business Machines Corporation, the Hewlett Packard
Corporation, and a number of other organizations either represented here
in body or in spirit this evening have another theory, which is that
software in the 21st century is a service, a form of public utility
combined with knowledge about how to make best use of the utility, which
enables economic growth in peoples' enterprises generally, from which
there is a surplus to be used to pay the people who help you produce the
surplus, by making the best possible use of the public utility.

I think it would be appropriate to suggest, if you like, that where we
now are is in a world, where, if I may employ a metaphor, Mr. McBride and
his colleagues -- I do mean those in Redmond, as well as those in Utah --
think that roads should all be toll roads. The ability to get from here
to there's a product. Buy it, or we exclude you from it. Others believe
that highways should be public utilities. Let us figure out how to use
the public highways best, so that everybody can profit from them - from
the reduction of the costs of transportations of goods and the
provisions of services -- and by the by, there will be plenty of money to
pay traffic engineers and the people who fix the pot holes.

We believe, for what little our view of the economics of the software
market may be worth in the 21st century -- after all we are the people who
transformed it -- we believe that the public utility service conception of
software better reflects economic actuality in the 21st century. We are
not surprised that Mr. McBride is going out of business on the other
business model.

Mr. McBride's claim is that he is going out of business because somebody
has taken what belongs to him. That's a lawsuit. As it turns out,
however, the people he believes have taken what don't belong to him
aren't us. His theory is that various people promised AT&T at various
times that they would do or refrain from doing various things, that some of
the people who promised AT&T in the old days to do or refrain from doing
various things broke those promises, and that out of the breaking of
those promises, Linux, a computer program distributed under free terms,
benefitted.

[20:09]

Mr. McBride may be right about that or he may be wrong. We do not know
what the contents of those contracts are in general terms, and we do not
even know, as Mr. McBride pointed out to you when he was here, that he is
the beneficiary of those contracts. He is presently in litigation trying
to prove that he has what he claims to have -- certain contract rights
which he claims were conveyed to him by Novell.

I have no opinion about whose rights those are, and I wish Mr. McBride
luck in his litigation over that question.

But what Mr. McBride has also claimed is that our creative works are
somehow dominated by those contract disputes, dominated in the sense
that he has claimed, though so far not behaved in concert with the
claim, that users of free software are liable to him, or to his firm, on
the basis of claims that grow out of the contractual relations between
AT&T, Sequent, IBM, and others, over time.

I have spent a fair amount of time tediously reflecting on whether each
piece of the story, as Mr. McBride and his colleagues have told it, could
amount to a copyright claim against third parties.

I have spent that time because there were lots of third parties out
there in the world who were concerned about assertions of copyright
problems that Mr. McBride was making. I have confronted wraithlike
examples of what were said to be derivative work but weren't derivative work
under copyright law, or asserted copyright claims that turned out to be
based on code that nobody owned ascertainably and had been in the public
domain for a lengthy period of time, or code that Mr. McBride claimed he
was entitled to prevent people to stop using long after he had
deliberately given to people that very code under promises that
they could use it, copy, modify it and distribute any way that they
want.

And bit by bit, I have found myself unable to discover a single way in
which Mr. McBride's firm could claim against third parties, not those who
had ever been in privity of contract with AT&T or its successors over
code in the Unix operating system, anything that could force them to pay
damages or stop them from using free software.

This is the thing we call SCO, not a lawsuit actually brought on the
basis of promises exchanged between IBM and AT&T, but a mysterious
belief that somewhere out in the world tens of thousands of people might
have to stop using billions of dollars worth of software that we made
it possible for them to have at marginal cost solely because of some
agreement between AT&T and somebody else to which Mr McBride's firm is a
successor in interest.

I see no substance to that claim. And I am prepared, under the guidance
of your searching and hostile questioning, to explain bit by bit why I
think that's true.

But I have published those various inquiries, and I don't want to
recapitulate them here this evening. I think that that would be a poor
use of our time together.

At www.gnu.org/philosophy/sco, all of it in lower case letters, you will
find the various papers that I have written and that Mr. Stallman has
written on these subjects, and there I hope we will have taken up in detail
all the various points.

But it's hard to resist talking about the United States Supreme Court in
a classroom at Harvard Law School. And so, for just a moment, I do want to
engage in a little court watching with you.

Mr. McBride, when he was here, had much to say about a case called Eldred
against Ashcroft, in which Mr. McBride discovers that the United States
Supreme Court came out 7-2 against free software and in favor of
capitalism [laughter from audience]. The odd thing is that on the very day when Mr. McBride was
standing here discussing that subject with you, I was in Los Angeles
discussing the very same thing with a fellow called Kevin McBride, Mr.
McBride's brother and the actual author of the document from which Mr.
McBride was speaking.

[25:08]

Kevin McBride has the advantage in this discussion of being a lawyer,
which is a little bit of help in discussing the United States Supreme
Court. But it is not quite enough help.

The primary trick in discussing cases - I shrink from saying that even
in this room where I have taught first-year law students -- the primary
trick in discussing cases is to separate holding from dicta, a job
with which many lugubrious Septembers and Octobers have been occupied by
lawyers all over the planet and by every single one of you here.

The McBrides, jointly -- I feel sometimes as though I'm in a Quentin
Tarantino movie of some sort with them [laughter] -- the McBrides have failed to
distinguish adequately between dicta and holding.

I do not like Eldred against Ashcroft. I think it was wrongly decided. I
filed a brief in it, amicus curiae, and I assisted my friend and colleague Larry Lessig in the presentation of the main arguments which did not, regrettably, succeed.

Oddly enough, and I will take you through this just enough to show,
oddly enough, it is the position that we were taking in Eldred against
Ashcroft, which if you stick to holding rather than dicta, would be
favorable to the position now being urged by Mr. McBride. What happened
in Eldred against Ashcroft, as opposed to the window dressing of it, is
actually bad for the argument that Mr. McBride has been presenting, whichever Mr. McBride it is. But they have not thought this through
enough.

Let me show you why. The grave difficulty that SCO has with free
software isn't their attack; it's the inadequacy of their defense. In
order to defend yourself in a case in which you are infringing the
freedom of free software, you have to be prepared to meet a call that I
make reasonably often with my colleagues at the Foundation who are here
tonight. That telephone call goes like this.

"Mr. Potential Defendant, you are distributing my client's copyrighted
work without permission. Please stop. And if you want to continue to
distribute it, we'll help you to get back your distribution rights,
which have terminated by your infringement, but you are going to have to
do it the right way."

At the moment that I make that call, the potential defendant's lawyer
now has a choice. He can cooperate with us, or he can fight with us. And
if he goes to court and fights with us, he will have a second choice
before him. We will say to the judge, "Judge, Mr. Defendant has used our
copyrighted work, copied it, modified it and distributed it without
permission. Please make him stop."

One thing that the defendant can say is, "You're right. I have no
license." Defendants do not want to say that, because if they say that
they lose. So defendants, when they envision to themselves what they will
say in court, realize that what they will say is, "But Judge, I do have a
license. It's this here document, the GNU GPL. General Public License,"
at which point, because I know the license reasonably well, and I'm aware
in what respect he is breaking it, I will say, "Well, Judge, he had that
license but he violated its terms and under Section 4 of it, when he
violated its terms, it stopped working for him."

But notice that in order to survive moment one in a lawsuit over free
software, it is the defendant who must wave the GPL. It is his
permission, his master key to a lawsuit that lasts longer than a
nanosecond. This, quite simply, is the reason that lies behind the
statement you have heard -- Mr. McBride made it here some weeks ago -- that
there has never been a court test of the GPL.

To those who like to say there has never been a court test of the GPL, I
have one simple thing to say: Don't blame me. I was perfectly happy to
roll any time. It was the defendants who didn't want to do it. And when
for ten solid years, people have turned down an opportunity to make a
legal argument, guess what? It isn't any good.

The GPL has succeeded for the last decade, while I have been tending it,
because it worked, not because it failed or was in doubt. Mr. McBride and
his colleagues now face that very same difficulty, and the fellow on the
other side is IBM. A big, rich, powerful company that has no intention
of letting go.

[30:02]

They have distributed the operating system kernel program called Linux.
That is, SCO has. They continue to do so to their existing customers
because they have a contractual responsibility to provide maintenance.

When they distribute that program called Linux, they are distributing the
work of thousands of people, and they are doing so without a license,
because they burned their license down when they tried to add terms to
it, by charging additional license fees in violation of Sections 2 and 6
of the GPL.

Under Section 4 of the GPL, when they violated it, they lost
their right to distribute, and IBM has said as a counterclaim in its
lawsuit, "Judge, they're distributing our copyrighted work, and they don't
have any permission. Make them stop."

If SCO played smart, they would have said, "But your Honor, we do have a
license. It's the GNU GPL." Now for reasons that we could get into but
needn't, they didn't want to do that, possibly because it would have
affected adversely their other claims in their lawsuit, or possibly
because they had taken a 10 million dollar investment from Microsoft,
but we'll talk about that a little further, I'm sure, in the question period.

At any rate, they didn't say that. What they said back is, "But Judge,
the GNU GPL is a violation of the United States Constitution, the
Copyright Law, the Export Control Law", and I have now forgotten whether
or not they also said the United Nations Charter of the Rights of Man. [laughter]

At the moment, we confine ourselves solely to the question whether the
GPL violates the United States Constitution. I am coming back to Eldred
against Ashcroft along the way.

In Eldred against Ashcroft, 435 Congressmen and a hundred Senators had
been bribed to make copyright eternal in a tricky way. The bribe, which
of course was perfectly legal and went by the name of campaign
contributions, was presented to the Congress for a copyright term
extension.

In 1929, "Steamboat Willy" first brought before the public a creature
called Mickey Mouse. The corporate authorship term under copyright being
then, as almost now, 75 years, had it not been for action by Congress in
the year 2004, Mickey Mouse would have escaped control of ownership, at
least under the Copyright Law. This, of course, necessitated major legal
reform to prevent the escape of Mickey Mouse into the public domain.

Copyright term extension now provides that, whether or not a Sonny Bono
skis into a tree again in the next ten years or so, every once in a
while Congress will extend the term of copyrights a little while
longer. And then, as the ball approaches midnight in Times Square, they'll
extend it a little longer. And so on and so on. Nothing need ever escape
into the public domain again, least of all Mickey Mouse.

Professor Lessig, Eric Eldred, I and lots of other otherwise sensible
people in the United States thought that this did not actually conform
to the grand idea of the perfectability of human beings through the
sharing of information. We doubted that securing perpetual ownership a
slice at a time was actually a form of encouraging the diffusion of
science and the useful arts, and we suggested to the Supreme Court that
on this basis alone, the Copyright Term Extension Act should fall.
We were, as Mr. McBride rightly points out, soundly repudiated.

It turns out that there's no such thing as an unconstitutional copyright
rule, if Congress passes it, and if it observes the distinction between
expression and idea, which the Supreme Court says is the constitutional
guarantee that copyright does not violate the freedom of expression, and
provided that fair use rights are adequately maintained.

In short, the actual holding of Eldred against Ashcroft is, Congress can
make such copyright law as it wants, and all licenses issued under the
presumptively constitutional copyright law are beyond constitutional
challenge.

I have news for Mr. McBride. The existing copyright law is constitutional
and our license, which fully observes all the requirements that the
copyright law places upon it, are also presumptively constitutional. Only
in the world in which we succeeded in Eldred against Ashcroft, in which
if you like there would be substantive due process review of copyright
licenses to see whether they met the form of copyright called for in
Article 1 Section 8, could Mr. McBride and friends even stand in a United
States courtroom and argue that a copyrights license is
unconstitutional.

[35:17]

Regrettably for Mr. McBride, in other words, we lost Eldred against Ashcroft, and the very
claim he now wishes to make perished, along with some more worthwhile claims, at that moment, at least until such
time as the Supreme Court changes the holding in Eldred against Ashcroft.

Mr. McBride takes a great deal of cold comfort from the pro-capitalist rhetoric in which Justice Ginsberg announced
the decision of the Supreme Court. And, as yet another disgruntled observer of Eldred against Ashcroft, I wish him luck
with his cold comfort, but he and I were on the same side of that case, little as he knows it, and the legal arguments
that he would now like to present unfortunately failed. Mind you, even if he were allowed to present to the court the idea
that copyright licenses should be judged for their squareness with constitutional policy, we would triumphantly
prevail.

There is no copyright license in the United States today, I will lay this down without further demonstration but we can
talk about it if you like, there is no copyright license in the United States today more fitting to Thomas Jefferson’s
idea of copyright or indeed to the conception of copyright contained in Article 1 Section 8, than ours. For we are
pursuing an attempt at the diffusion of knowledge and the useful arts which is already proving far more effective at
diffusing knowledge than all of the profit-motivated proprietary software distribution being conducted by the grandest
and best funded monopoly in the history of the world.

But, sorrily for us all, Mr. McBride will not get us to the stage where we are allowed to tell that to the United States
Supreme Court, where we would prevail gloriously, because the United States Supreme Court's already decided that
copyright law is presumptively constitutional as soon as Congressmen have taken the campaign contributions, held the
vote, and passed the resulting gumball-like statute to the White House for the obligatory stamping. But I welcome Mr.
McBride to the campaign for a less restrictive copyright in the United States, as soon as he actually figures out, from
the legal point of view, which side his bread is buttered. Unfortunately, as you all realize, we cannot hold our breaths
waiting for enlightenment to strike. If only Mr. McBride attended Harvard Law School.

That’s, I think, enough about SCO, truly, though I am delighted to answer your questions in due course about it. It's
actually a copyright lawsuit desert. There aren’t any copyright claims in it. There are some contract claims between
IBM and SCO, and those will, in due course, be adjusted by the courts, and I look forward with a moderate degree of
interest to the outcome. A threat to the freedom of free software, it ain’t. One hell of a nuisance it most certainly is. And
I, unfortunately, expect to continue to spend a good deal of my time abating the nuisance, but without much sense of the
presence of a hovering threat to the things I really care about, of which this is not a very good one.

So instead I want to talk about the legal future of free software as it actually is, rather than as Mr. McBride sees it, some
titanic clash between the American way of life and whatever it is we’re supposed to be. I should say about that titanic
clash between the American way of life and whoever we are that it rings familiar to me. Increasingly I listen to Mr.
McBride and I hear Mr. Ballmer, as perhaps you do as well. That is to say, I treat SCO now as press agentry for the
Microsoft monopoly, which has deeper pockets and a longer-term concern with what we are doing.

[39:38]

Microsoft’s a very wealthy corporation, and it could succeed on a business model of software-as-a-public utility
surrounded by services in the 21st century. But for all the profound depth of Mr. Gates’ mind, the idea of
human freedom is one of those things which doesn’t register very well with him. And the idea of transforming his
business into a service business, for reasons that are, I think, accessible to us all, doesn’t appeal. Therefore, for the
survival of the Microsoft monopoly, and I do actually mean its survival, the theory being presented by Mr. McBride
that we are doing something horrid to the American way of life must prevail. Regrettably for Microsoft, it won’t,
because what we are actually doing is more apparent to the world than that propagandistic view will allow for.
We at any rate have to go on about our business, which is encouraging the freedom of knowledge and in particular the
freedom of technical knowledge, and in doing that, we have to confront the actual challenges presented to us by the
world in which we live (which aren’t SCO), and so for just a few more moments I want to talk about those.

Software is, in our phrase, free, libre. That is to say, we now have a body of software accessible to everybody on earth
so robust and so profound in its possibilities that we are a few man months away from doing whatever it is that
anybody wants to do with computers all the time. And of course new things are constantly coming up that people would
like to do and they are doing them. In this respect -- I say this with enormous satisfaction -- in this respect the Free
Software Movement has taken hold and is now ineradicably part of the 21st century. But there are challenges to
the freedom of free software which we need to deal with.

Patent law, unlike copyright law, presents certain features which are egregious for the freedom of technical knowledge.
If the copyright law presents a workable form of the great 18th century ambition of the perfectability of human
kind, the patent law regrettably does not. This is not surprising, 18th century thinkers were a little dubious about
the patent law as well. They had a concern for statutory monopolies and a deep history of English law that made them
worry about them very much. Patent law in the 21st century is a collection of evil nuisances. There's no question about
it. And in the world of software where we exist, there are some particularly unfortunate characteristics of the way that the
patent law works. We are going to have to work hard to make sure that the legitimate scope of patent, which is
present, but which is small, is not expanded by careless administrators any further in the course of the 21st century to cover the ownership of ideas merely because those ideas are expressed in computer programming languages
rather than in, say, English or mathematics.

This is work for us, and it is work for us which a lot of smart lawyers are doing, but they are doing it around the world
in various licenses and other legal structures connected with software in inconsistent ways. And the inconsistency among
the ways in which lawyers are attempting to cope with the threats posed to software by patents are a serious difficulty
for us. We need to conduct a very high-level seminar in the next five years around the world over the relationship
between patentability and free software ideas and get square for ourselves what license terms and ways of working
minimize the risks posed by patents. There is what I would characterize at the moment as a constructive diversity of
views on that subject. But the diversity will have to be thinned a little bit through an improvement of our thought
processes if we are by the end of this decade to have done what we need to do in subduing the growth of inappropriate
patenting and its effect on our particular form of human knowledge enhancement.

As you are aware, and as I am spending a year writing a book about, there are lots of other things going on in the Net
about ownership. Music and movies and various other forms of culture are being distributed better by children than by
people that are being paid to do the work. Artists are beginning to discover that if they allow children to distribute art
in a freehanded sort of way, they will do better than they do in the current slavery in which they are kept by the culture
vultures, who do, it is true, make a good deal of money out of music, but they do so primarily by keeping ninety-four
cents out of every dollar and rendering six to the musicians, which isn’t very good for the musicians.

So there is a great deal of fuss going on about ownership in the Net, and since I care about more than just free software, I
care about that fuss. I have a side over there too. But the important thing for us in the conversation we’re presently
having is that the owners of culture now recognize that if they are going to prop up their own methods of distribution,
a method of distribution in which distribution is bought and sold and treated as property -- and you can’t distribute
unless you pay for the right to do so -- unless they can prop up that structure, they are done in their business models. And
for them that requires something which I truly believe amounts to the military occupation of the Net. They have to
control all the nodes in the Net and make sure that the bitstreams that pass through those nodes check in before they go
some place that the right of distribution hasn’t been bought or sold in order to permit that bitstream to go.

It is precisely because software is free, that the owners of culture have to occupy the hardware of the Net in order to
make good their business model. Free software, like, for example, Ian Clark’s Freenet or other forms of free software
that engages in peer-to-peer sharing of data, or for that matter just free software like TCP/IP which is meant for
sharing data, presents overwhelming obstacles to people who want every single bitstream to bear requirements of ownership
and distribution inside it and to go only to the places that have paid to receive it. The result is an increasing
movement to create what is in truly Orwellian fashion referred to as trusted computing, which means computers that
users can’t trust. In order to continue to move for the freedom of knowledge in 21st century society, we
have to prevent trusted computing and its various ancillary details from constituting the occupation of the hardware of
the Net, to prevent the hardware from running free software that shares information freely with people who want to
share. Beating the trusted computing challenge is a difficult legal problem, more difficult for the lawyer in dealing
with licensing and the putting together of software products than the original problem presented by freeing free
software in the first place. This, more than the improvement of the free software distribution structure as we currently
know it, is the problem most before my mind these days.

But I would take one more step with you to discuss the problem that lies behind the problem of free hardware. We are
living now in a world in which hardware is cheap and software is free, and if all the hardware continues to work pretty
much the way it works now, our major problem will be that bandwidth is now treated in the world also as a product,
rather than a public utility. And you are allowed to have, in general, as much bandwidth as you can pay for. So then in the
world in which we now exist, though hardware is cheap and software is free, there are major difficulties in
disseminating knowledge and encouraging the diffusion of science and the useful arts, because people are too poor to
pay for the bandwidth that they require in order to learn.

This arises from the fact that the electromagnetic spectrum too has been treated as property since the second quarter
of the 20th century. That was said to be technically necessary as a result of technical problems with interference
that are no longer relevant in the world of intelligent devices. The single greatest free software problem in the 21st century is how to return the electromagnetic spectrum to use by sharing rather than use-by-propertization. Here
again, as you will notice, free software itself, free executable software, has a major role to play. Because it is software-controlled radios, that is to say devices whose operating characteristics are contained in software and can be modified
by their users, that reclaim the spectrum for shared rather than propertarian use. Here is the central problem that we
will be dealing with, not at the end of this decade, but for the two or three decades that follow, as we seek to improve
access to knowledge around the world for every human mind. We will be dealing with the question of how to make
the technical and legal tools under our control free the spectrum.