Issue #17 March 2006

See you at the Summit: Eben Moglen

Will American history students one day read the dotCommunist manifesto alongside Paine and Publius? Will government policies come full circle and echo Anarchism Triumphant or the Free Software Foundation's GNU General Public License (GPL) on issues of privacy, intellectual property, and copyright?

They just might, if Columbia professor and legal scholar Eben Moglen succeeds in his life's work.

Moglen is a particularly gifted thinker and communicator; a doctor of history (PhD) and a lawyer; schooled at Yale, a professor at Columbia. His works will educate and shape generations to come. The almost-lyrical Manifesto even sounds like the sort of document early American patriots would pen:

"We, the creators of the free information society, mean to wrest from the bourgeoisie, by degrees, the shared patrimony of humankind. We intend the resumption of the cultural inheritance stolen from us under the guise of 'intellectual property,' as well as the medium of electromagnetic transportation. We are committed to the struggle for free speech, free knowledge, and free technology."1

Like the Federalists, Moglen believes the world--and, with it, restrictive views on globalism and intellectual property--is on the precipice of great change. A step either way, and the landscape will be vastly different after the fall.

Where can we falter? From Moglen's earliest writings, it's clear that he believes patenting software is just the beginning.

"The movement from analog to digital representation--in video, music, printing, telecommunications, and even choreography, religious worship, and sexual gratification--potentially turns all forms of human symbolic activity into software."2

As we move more and more of our lives onto disk and online--when our doctors keep digital records; when we do business on the web; when we seek out companionship or community on bulletin boards or through email--we are creating great volumes of digital material. What will those large data piles become? And what becomes of us as we offload all this stuff?

Moglen says, "Our 'hardware,' genetically wired, is our nature, and determines us. Our nurture is 'software,' establishes our cultural programming, which is our comparative freedom...Thus 'software' becomes a viable metaphor for all symbolic activity, apparently divorced from the technical context of the word's origin, despite the unease raised in the technically competent when the term is thus bandied about, eliding the conceptual significance of its derivation."2

How we treat today's software resources informs the way we treat our possessions--and our very selves--tomorrow. As time passes and technology matures, the difference between what we own and what we are becomes more and more slight. Locking down intellectual property now limits creativity and bottles genius. What will we be thwarting in the future?

As a member of the Supreme Court bar--a institution famed for the production of pure intellectual product--Moglen is determined (and well-armed) to foster and protect intellectual curiosity.

Moglen's firebrand writings have titles that include terms and phrases like 'Anarchy' and 'Communist,' 'Judgment Day' and 'Death.' You know from first glance that these are serious ideas about serious subjects. Moglen frequently participates in panels or gives talks to his passion, some on behalf of the Software Freedom Law center (of which he is founder and chairman), the Public Patent Foundation (director), or others. Video of some of his speeches can be found online: Ibiblio and Duke University are two recent stops with available video recordings. Released under free licenses, of course.

Moglen also represents the FSF pro bono, as he has for the past 14 years. Today, Moglen indicates with his time that the FSF's approach is one he finds successful. With client (and friend) Richard Stallman as well as a host of other supporters, he is rewriting and revising one of the major licenses used to protect open source software and intellectual property from commercialized lockdown--the GPL.

Work on the new version began in 1993, in what Moglen refers to as a slow 'evolution' of the license.3 In January 2006, the FSF released the GPL v3 draft for public review and comment. A rationale document was also released, explaining the nature and depth of the changes.

The proposed changes intend to make the license more global, grant more protections from Digital Rights Management (DRM) and overzealous copyright law, and reduce incompatibilities between the GPL and other licenses.

Modifications towards globalization and greater compatibility are a testament to the GPL's movement beyond geographical borders and into greater application. In an interview with Stephen Shankland of CNET, Moglen said, "The globalization of the movement--the immense geographical cultural spread of free software--means the license has to work in more places, more completely, more strongly for more people who do more diverse things. We have rewritten many provisions of the license to remove U.S.-centric vocabulary or legal concepts, to neutralize the language of the GPL so it can be used more effectively in more countries with less legal uncertainty."3

Another move to help broaden the GPL's reach is language that narrows the gap between the GPL and other open source licenses. "There are also more programs under more licenses which, while free, are incompatible with GPL. To enable broader technical collaboration, we have added the enhanced compatibility provisions of the license to allow more people to share more code across more projects than ever before," said Moglen. 3

Globalization and compatibility changes are necessary to match the growing demand for and uses of the license. The third major revision addresses a more controversial topic and puts Moglen at odds with organizations he's verbally jousted with for years, as well as a few surprising newcomers. Moglen has gone so far as to declare DRM in any form "fundamentally incompatible" with both the FSF's views and the position of the GPL. The new draft includes fairly strong language on the subject:

"As a free software license, this License intrinsically disfavors technical attempts to restrict users' freedom to copy, modify, and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensor's intent ... Regardless of any other provision of this License, no permission is given to distribute covered works that illegally invade users' privacy, nor for modes of distribution that deny users that run covered works the full exercise of the legal rights granted by this License."5

That statement is designed to clearly convey the GPL's stance, but why stop there? The following paragraph confirms what some have long wished for: GPL'ed code, when introduced into systems that "generate or access certain data," requires any connected code that accesses the same data stream to also be GPL'ed. It also stipulates that works licensed under the GPL cannot "constitute part of an effective technological protection measure."5

And that, unfortunately, is where Moglen runs afoul of every geek's favorite media toy--TiVo. TiVo complied with GPL v.2, but their data-collecting practice is one of the privacy-limiting behaviors Stallman and Moglen are standing against. As the draft stands now, TiVo will not comply.

And, thus, TiVo may be among the first to fight the battles that determine our future digital privacy and copyright/copyleft laws. It's merely lucky for us that the arena is a courtroom, and we have Eben Moglen on our side.

If you're headed to the Red Hat Summit, make sure you pack your autograph book. You might need to get the John Hancock of this generation's Thomas Jefferson.

1  The dotCommunist Manifesto

2  Anarchism Triumphant

3  Defender of the GPL, Stephen Shankland for CNET

4  GPL 3 to take hard line on DRM, Martin LaMonica for CNET

5  GPLv3 Draft, Section 3. Digital Restrictions Management


About the author

Bascha Harris is an editor, writer, and occasional web developer at Red Hat. She cut her digital teeth at ibiblio with Paul Jones (thanks, Paul!). She owns two TiVos. They have names.