Eben Moglen on the Republic of Open Souce

Notes from Eben Moglen’s talk this morning at OSCON. There’s no way I could really capture all of Moglen’s points – so think of these as rough, raw highlights. All typos, grammatical errors, and other goofs are mine.

Licensing is not where it is going to be at for the next while, and there are other public policy issues where it will be at instead.

Licenses are a part of community building – they are constitutions for communities.

But the words of licenses are just the beginning – just as written constitutions are just the beginning of the republics which they give birth to and organize.

In the 21st century it is no longer factories or individuals which are the units of production and distribution – it is communities. This is the reality of mass culture.

You can’t see a cola ad today, without seeing a reference to a web site associated with that cola, and if you visit that website you will see a community under construction – a community of people who encourage each other to drink more cola.

You can’t be in the syrup business today without a community of syrup-suckers.

Communities experience disruption – both hostile disruption from competitive communities outside but also from internal disruption based on the stresses and strains inherent in social life.

I talk to lots of people about licensing. But the most important conversations are really about public policy and quality of community – the community itself improves the quality of dialog within the community.

The licensing discussions are serious, and are treated as serious public policy discussions to be engaged in with a clear sense that community interests much be preserved – these are public policy issues.

We are now in a position to say that we have turned a corner – we will never go away. That we are seen as powerful competitors to the existing business model is historically significant.

It is true that we are entering a period of contention about patents in particular – the industry’s dominant competitor is seeing it needs to change, and that is disruptive – but are not in any fundamental danger due to the strength of our communities.

GPLv3 – successfully addressed the issue of discriminatory patent pledges – and all the yelling and hand waving from one geographic corner of the IT universe won’t change that.

Most of the work my colleagues do at the Freedom Software Law Center you never even see. Problems that may arise years down the road arise and are discussed and resolved before the become major issues.

Example – paper on wireless drivers due out shortly- unique only in the sense that it is resulting in a public document.

The way that licenses work is that they need preventive care – its not just about fixing holes but strengthening communities.

The global software industry spends tens of billions a year in order to earn tens of billions – and they spend a billion or so on litigation.

We cost nothing, make little, and have zero litigation – even though the companies around us make tons of money.

When the litigation in your town drops to zero, it is time to have a block party, not time to have a name-callign argument about who is and isn’t open source.

The communities are working with a level of smoothness and frictionless operation at a level unheard of in commercial development in any period in the industrial age.

If we have done well – and we have – it is incumbent upon us to understand why, and how to preserve that. . . . we are the best example that the world can show in how the reduction of barbed wire can result in more productivity and less conflict – and we are not getting the reputation for that which is deserved.

We have to be more sensitive that this is, in fact, a political accomplishment. What we have done is to build a good republic, and we need to ensure that we keep it. We need to understand what the commitment to success primarily involves, and we confuse ourselves if we think that is primarily a question of business organization, or how companies are funded, or even how programmers are paid. It isn’t that these questions are not important, but that they are small beer compared to the questions of how we ensure that the community continues to strengthen rather than becoming less free over time.

When we were of no interest to the wealthiest interests in the world, our community was more equal because it was only us in it. When they arrived, the neighborhood got more expensive, and our community now looks more like the world outside, with a full range of wealth. But we have preserved in the midst of this stratification many mechanism of egalitarian impact and intent.

It is good – and fundamentally right and just – for people to begin from a presumed equality – inequality of access to ideas and each other is a fundamental corrosion of community.

Service provision and the GPL – an extraordinarily heated subject about which there is lots of noise and concern – but most of the discussion comes at it from the point of view of business strategy. (Ultimately comes to Google bashing). The problem in my view is that we don’t start in the right place – which is, oddly enough, in that American individual focused question of what we think people’s rights ought to be.

The fundamental right with which Stallman has always begun is anyone’s right to run any program anywhere at any time for any reason – this has to include the right for people to run a program at any time *for anyone* – that is, provision of software as a service for other people. That is an important aspect of sharing. You cannot take that away, and slice off that major aspect of freedom, in order to limit the size of an organism in the republic, or limit competition or whatever, unless you can prove that some more important aspect of freedom is being injured.

It is a key element of the freedom of speech to have the freedom to not speak your thoughts. Thus one of the key freedoms of the ability to share is the right to not share.

If the discussion about service provision is a rights conflict issue, it is critically important to frame that discussion in clear terms based on the rights perceived to be in conflict.

No rights based argument sufficient has been articulated which should compel the release of code which some people choose to run for third parties benefit. That doesn’t mean such an argument doesn’t exist – and the conversation should continue – but the GPLv3 provides a framework in which that experience can happen.

People who want to experiment with this approach will continue to have access to the GPL commons. What will not do is allow people who have made conclusions about service provisioning back into that commons and force those decisions on the commons.

But this is only one public policy issue we need to continue to argue about in order to continue to protect and evolve the republic – not because of some crisis but as a matter of continued maintenance.

In addition there is the patent issue – our neighbor to the north’s patent saber rattling is just a blip in this larger conversation about what patents are and ought to be.

Patent policy needs to be an issue on which there is real public policy debate – in which it is up to us to be involved as citizens. We need to be heard on this – it will not be prominent public debate but we must be heard.

The same is true with respect to ODF and the representation of public data in proprietary formats. All public data ought to be in a format that any citizen can access without purchasing commerical software, obtaining a patent grant from anyone, or relying on software based partially on proprietary algorithms.

We can as citizens of our republic decisively affect this issue on all of our behalfs and for the greater public good.

We need to move as far as we can and as fast as we can in the direction of institutions in which decisions are made through voting and leaders derive their leadership from the consent of those who choose them.

We will do better in our republic if we increase the ability of our leadership to legitimize itself over time.

The republic is not going to be kept strong by speeches made by me – the republic is going to be kept strong by speeches made by you.


  1. Thanks for the link Jim – though I think the Register’s too quick to endorse Moglen’s approach in that discussion.

    I understand the place of deliberate provocation, but I thought the critique got too personal and ultimately distracts from the real potential for O’Reilly’s audience to benefit from Moglen’s experience and wisdom.

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