# LANGUAGE translation of https://www.gnu.org/philosophy/moglen-harvard-speech-2004.html # Copyright (C) YEAR Free Software Foundation, Inc. # This file is distributed under the same license as the original article. # FIRST AUTHOR , YEAR. # #, fuzzy msgid "" msgstr "" "Project-Id-Version: moglen-harvard-speech-2004.html\n" "POT-Creation-Date: 2021-12-25 21:25+0000\n" "PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n" "Last-Translator: FULL NAME \n" "Language-Team: LANGUAGE \n" "Language: \n" "MIME-Version: 1.0\n" "Content-Type: text/plain; charset=CHARSET\n" "Content-Transfer-Encoding: 8bit\n" #. type: Content of: msgid "Eben Moglen Harvard Speech - GNU Project - Free Software Foundation" msgstr "" #. type: Content of: <div><h2> msgid "Speech for Harvard Journal of Law & Technology" msgstr "" #. type: Content of: <div><address> msgid "by Eben Moglen <a href=\"#moglen\"><sup>[*]</sup></a>" msgstr "" #. type: Content of: <div><p> msgid "<i>February 23, 2004 - Cambridge, MA, USA</i>" msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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 whether property principles best further that shared goal " "of the me—perfectability of human life and society based around access " "to knowledge." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "I don't think that's actually what's happening, but it is certainly what " "Mr. McBride came here to say was happening." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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 " "<i>[sic]</i>—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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "At <a href=\"/philosophy/sco/\">www.gnu.org/philosophy/sco</a>, 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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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 " "<i>[laughter from audience]</i>. 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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "The McBrides, jointly—I feel sometimes as though I'm in a Quentin " "Tarantino movie of some sort with them <i>[laughter]</i>—the McBrides " "have failed to distinguish adequately between dicta and holding." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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:" msgstr "" #. type: Content of: <div><p> msgid "" "“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.”" msgstr "" #. type: Content of: <div><p> msgid "" "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.”" msgstr "" #. type: Content of: <div><p> msgid "" "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.”" msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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.”" msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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. <i>[laughter]</i>" msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "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." msgstr "" #. type: Content of: <div><p> msgid "" "In attempting that trick, we will be confronting a series of owners far more " "powerful than Microsoft and Disney. You need only consider the actual " "embedded power of the telecommunications oligopolists in the society around " "you to recognize just what an uphill battle that one will be. That's the " "one that we must win if we are to approach the middle of the 21st century in " "a world in which knowledge is freely available to be shared by everybody. " "We must see to it that everyone has a birthright in bandwidth, a sufficient " "opportunity to communicate, to be able to learn on the basis of access to " "all the knowledge that is there. This is our greatest legal challenge. The " "freedom of the software layer in the Net is an essential component in that " "crusade. Our ability to prevent the devices that we use from being " "controlled by other people is an essential element in that campaign." msgstr "" #. type: Content of: <div><p> msgid "" "But in the end, it is our ability to unify all of the elements of the " "information society—software, hardware, and bandwidth—in shared " "hands, that is in our own hands, that determines whether we can succeed in " "carrying out the great 18th century dream, the one that is found in Article " "1 Section 8 of the United States Constitution, the one that says that human " "beings and human society are infinitely improvable if only we take the " "necessary steps to set the mind free. That's where we are really going. " "Mr. McBride's company's fate, whether it succeeds or fails, even the fate of " "the International Business Machine corporation, is small compared to that. " "We are running a civil rights movement. We're not trying to compete " "everybody out of business, or anybody out of business. We don't care who " "succeeds or fails in the marketplace. We have our eyes on the prize. We " "know where we are going: Freedom. Now." msgstr "" #. type: Content of: <div><p> msgid "Thank you very much." msgstr "" #. type: Content of: <div><p> msgid "I'm delighted to take your questions:" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Zarren:</b> So, I've been asked by the media services people to make sure " "that when people ask their questions, if they could speak into the " "microphone, that would be good. There's a little button that turns it on." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> I just wanted to ask a question clarifying and, well, " "anyway… You seem to, or not, have expressed a dichotomy between " "software and hardware, in the sense that software needs to be free, software " "is a utility, a public good. Hardware you don't talk about so much. And by " "hardware, initially I mean related to software but then generalizable to " "machines, just any kind of machine. How do you distinguish why should " "software be free and hardware not?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> The 21st century political economy is different from the past " "economic history of the human beings because the economy is full of goods " "that have zero marginal cost. Traditional microeconomic reasoning depends " "upon the fact that goods in general have non-zero marginal cost. It takes " "money to make, move, and sell each one. The availability of freedom for all " "in the world of bitstreams hinges on that non, on that zero marginal cost " "characteristic of digital information. It is because the marginal cost of " "computer software is zero that all we have to do is cover the fixed costs of " "its making in order to make it free to everybody, free not just in the sense " "of freedom, but also in the sense of beer." msgstr "" #. type: Content of: <div><p> msgid "" "Hardware, that is computers and, you know PDAs, as well as shoes and tables " "and bricks in the wall and even seats in a Harvard Law School classroom, has " "non-zero marginal cost. And the traditional microeconomic reasoning still " "continues to apply to it in pretty much the way that it did for Adam Smith, " "David Ricardo, or Karl Marx. Reasoning about hardware is, in that sense, " "like reasoning about the economy we grew up in and presents all of those " "questions of how you actually cover the costs of each new unit that the " "market is designed to help us solve." msgstr "" #. type: Content of: <div><p> msgid "" "It's precisely because so much of human knowledge and culture in the 21st " "century no longer participates in the traditional microeconomics of price, " "asymptotically reaching towards a non-zero marginal cost, that we experience " "so much opportunity to give people what they never had before. And when I " "speak to you about the difference between hardware and software I'm " "implicitly observing the distinction between the traditional non-zero " "marginal cost economy and the wonderful and weird economics of bitstreams, " "in which the traditional microeconomic theory gives the right answers, but " "traditional microeconomic theorists don't like what they see when they do " "the chalk work." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> Would you then advocate to, in other words, because knowledge can " "be contained in hardware, and also hardware has this additional marginal " "cost, would you advocate every, that for instance, for every computer to " "come with chip diagrams so that the knowledge in the hardware is free while " "you can still collect on the marginal cost?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> Sure, it would be a very good idea, and if you watch and see " "what happens in the 21st century you'll see more and more manufacturers " "deciding to do precisely that, because of the value of empowered user " "innovation, which will drive down their costs of making new and better " "products all the time. Indeed for reasons which are as obvious to " "manufacturers as they are to us, the softwarization of hardware in the 21st " "century is good for everybody. I'm writing a little bit about that now. I " "don't mean to plug a book, but wait a little bit and I'll try and show you " "what I actually think about all of that in a disciplined sort of way." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> I was wondering if the SCO lawsuit might be the first of what " "could become a series of lawsuits filed ad seriatim and in parallel against " "free software? And wanted to get your view on two possible types of lawsuits " "that could follow on the heels of SCO, regardless of whether SCO won or " "lost." msgstr "" #. type: Content of: <div><p> msgid "" "The first would be a lawsuit filed by a company that to its shock and " "amazement found that instead of its programmers hoping for their first " "house, working on the stuff they were supposed to work on by day, they were " "in fact spending most of their time Slashdot and the rest of their time " "coding free software, and then occasionally staying up late to do something " "for the old man. If those programmers have signed, which is typical, " "agreements with their company that says any software they write actually is " "property of the company, maybe even a work for hire, what is the prospect " "that a company could then say, Our code through that coder has been worked " "in to something like Linux, and it is now infringing unless we are paid " "damages?" msgstr "" #. type: Content of: <div><p> msgid "" "The second possible way in which you could see this kind of lawsuit come up " "would be, oddly enough, through the thirty-five year termination rule, " "something that normally would be heralded by people in your position, to say " "copyright law allows musicians and artists who stupidly signed agreements " "when they were but small peons, without legal assistance with big companies, " "thirty-five years later can take it all back, no matter what. They can reset " "the clock to zero and re- negotiate. I call this the Rod Stewart Salvation " "Act. <i>[laughter]</i> And while that might be helpful for the artists, much " "as the music industry hates it, couldn't that also mean that free software " "coders, who willingly contributed, weren't even blocked by their employers, " "to contribute to Free Software Movement, could—down the line—and " "thirty-five years isn't that long in the history of Unix, say, “We " "take it all back?”" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> So, those are two very good questions. If I answer each one " "of them fully, I'm going to take too long. Let me concentrate on the first " "one, because I think it's really quite important. What Jonathan's question " "does is point out to you that the great legal issues in the freedom of free " "software have less to do with the license than with the process of assembly " "by which the original product is put together. One of the legal " "consequences of the SCO affair is that people are going to start to pay " "closer attention all the time to how free software products are put " "together. They are going to discover that what really matters is how you " "deal with the questions of, for example, possible lurking work-for-hire " "claims against free software. They're going to discover that in this " "respect, too, Mr. Stallman was quite prescient, because they are going to " "recognize that the way they want their free software put together is the way " "the Free Software Foundation put it together since now more than twenty " "years." msgstr "" #. type: Content of: <div><p> msgid "" "The way we're going, they're going to discover that they really would like " "to have it, is for each individual contribution of code to a free software " "project, if the guy who contributed the code was working in the industry, " "they would really like to have a work-for-hire disclaimer from the guy's " "employer, executed at the same time that the contribution was made. And the " "filing cabinets at the Free Software Foundation are going to look to them " "like an oasis in a desert of possible problems. We saw that problem " "coming. We have tried in our act as stewards over a large part of the free " "software in the world to deal with it. People are going to want to have that " "up front for everything that they can possibly, and they're going to be much " "more reluctant to rely on software that wasn't assembled in those ways." msgstr "" #. type: Content of: <div><p> msgid "" "If you are thinking about working in the law of free software, and gosh, I " "hope you are, one of the things you might want to be thinking about working " "on is the software conservation trusts that are going to be growing up " "around this economy in the next five years. I'll help you make one, or you " "can come to work in one of mine. We're going to need to spend a lot of time " "doing work which is associated with trustees. We're going to be spending a " "lot of time making sure that things are put together and they are built " "well. And we are going to be doing that on behalf of a third-party insurance " "industry which is going to be growing up, is growing up before our very eyes " "now, which is learning that it really cares how the free software is " "assembled." msgstr "" #. type: Content of: <div><p> msgid "" "When you go to an insurance company and ask for fire insurance on your " "house, they don't want to know how your house is licensed. They want to know " "how your house is built. And the questions you are asking about how the free " "software is built are about to become really important questions. What will " "abate those lawsuits is that we did our work well or that we are doing our " "work well as lawyers, assisting programmers to put projects together in " "defensible ways that protect freedom." msgstr "" #. type: Content of: <div><p> msgid "" "Up until the day before yesterday, there were probably three lawyers on " "earth who cared a lot about that, and two of them are in this room. There " "will be more in the near future. I will say quickly about your second " "question, Jonathan, that the problem presented is a serious problem, but, at " "least from my point of view, a manageable one, and I'm willing to talk more " "about why, but I think we ought to get more voices into the conversation." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> Without disputing the importance or difficulty of the spectrum " "battle, or the … clearly the copyright battle and progress is very " "immediate, but it seems to me that most worrisome right now is the patent " "battle that I expect to come next. Compared to that, the whole thing with " "SCO, well, SCO is a paper dragon, a hollow threat. Can you say anything " "about what you expect that battle to look like? And how it will be fought? " "How it can be?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> Sure. Patents are about politics. I thought that the " "pharmaceuticals companies did my side a favor by buying us 12 trillion " "dollars in free publicity in the last half decade by teaching every literate " "twelve year old on earth that “intellectual property” means " "people dying of preventable diseases because the drugs are too expensive " "because patents cover them." msgstr "" #. type: Content of: <div><p> msgid "" "Patents are politics. Patents are about how we distribute wealth over very " "long periods of time, in quite absolute ways. We're not going to have an " "answer to our patent problem which lies in courtrooms or in " "laboratories. We're going to have an answer to our patent problems which " "lies in the actual conduct of politics." msgstr "" #. type: Content of: <div><p> msgid "" "You saw the beginning of it this past summer when the European Parliament " "decided, in a very unusual move, to refuse, and to refuse promulgation to " "the European Commission's preferences with respect to changes in patent law " "in Europe regarding inventions practiceable in software." msgstr "" #. type: Content of: <div><p> msgid "" "The European Commission put forward a suggestion for change and " "harmonization in European patent law which would have made the issuance of " "patents for inventions practiceable in software very much easier. The " "European parliament after a lengthy campaign, led in part by the Free " "Software Movement in Europe—that's Euro Linux and the Free Software " "Foundation Europe and a lot of small software houses in Europe benefitting " "substantially from the new mode of software as a public utility—a " "campaign which involved in the end 250,000 petition signatories, the " "European Parliament decided to say no. And two parties, Greens and Social " "Democrats, in the European Parliament now understand that patent policy in " "Europe is a partisan issue. That is to say that there are sides, and that " "electoral politics and party organization can be conducted around those " "sides." msgstr "" #. type: Content of: <div><p> msgid "" "Our society is a much less aware one on that subject. For those of us who " "live here, the task of getting to the standard set for us by our colleagues " "in Europe this past summer is the first and most important challenge. We " "must make our Congressmen understand that patent law is not an " "administrative law subject to be decided in the <abbr title=\"Patent and " "Trademark Office\">PTO</abbr>, but a political subject to be decided by our " "legislators. We may have to restore actual democracy to the House of " "Representatives in the United States in order to make that possible, and " "there are many other aspects to the challenge involved." msgstr "" #. type: Content of: <div><p> msgid "" "But this is one of the primary respects in which technically sophisticated " "people in the United States are going to have to get wise to the mechanisms " "of politics, because we're not going to solve this in the Supreme Court, and " "we're not going to solve this in the work station. We are going to solve " "this in Congress, and we're going to have to build our muscles up for doing " "that." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> Related to that point, I'm curious, this isn't so much a legal " "point as a, maybe even a public relations point. You opened up your talk by " "saying, This is about freedom not free beer. But when you, I think, listen " "to people like Jack Valenti and the <abbr title=\"Recording Industry " "Association of America\">RIAA</abbr>, you know, and, Mr. McBride, the " "constant drumbeat is of this idea of free beer and teaching kids that they " "can't steal from, you know, Big Music. How do you win that battle of public " "relations on the ground, which ultimately will have ramifications in " "Congress? How do you, how do you convey that message outside the technology " "community?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> Well, one of the things that I guess I would say about that " "is that English language fights us on it, right? One of the things that has " "happened over the course of time in our European environments, where the " "word for free in the sense of costless and the word for free in the sense of " "liberated are two different words, is that people have twigged to the " "distinction much more easily." msgstr "" #. type: Content of: <div><p> msgid "" "Software libre works nicely, or logiciel libre if you have to truckle to the " "Academie Francaise, in a way that free software doesn't at making that " "distinction. It was in part for that reason that some folks decided in the " "late 90's, that maybe they ought to try and find another phrase and settled " "on open source. That turned out to have more difficulties, I think, than " "benefits for the people who did it, though it now works very nicely as a way " "for business to identify its interest in what we do without committing " "itself to political or social philosophies that businessmen may not share or " "at any rate don't need to trumpet just in order to get their work done from " "day to day." msgstr "" #. type: Content of: <div><p> msgid "" "So one of the things that we do, for those who speak English, is we actually " "have to reinforce from time to time—that is all the time—the " "distinction between free beer and free speech. On the other hand those of us " "who live in the United States and speak English shouldn't have quite that " "much trouble because free speech is a way more important part of the " "American cultural landscape than free beer is. At least it was in the world " "that I grew up in, whatever Rupert Murdoch may want to say about it now." msgstr "" #. type: Content of: <div><p> msgid "" "We are the party of free speech, and we need to point out to people that if " "you allow anybody, including a well-dressed lobbyist of ancient, ancient " "vintage, to declare that a love of free speech is like taking a CD out of a " "record store under your arm, game's over. Not game about free software, but " "game about liberty and life in a free society." msgstr "" #. type: Content of: <div><p> msgid "" "We stand for free speech. We're the free speech movement of the moment. And " "that we have to insist upon, all the time, uncompromisingly. My dear friend, " "Mr. Stallman, has caused a certain amount of resistance in life by going " "around saying, “It's free software, it's not open source.” He " "has a reason. This is the reason. We need to keep reminding people that " "what's at stake here is free speech. We need to keep reminding people that " "what we're doing is trying to keep the freedom of ideas in the 21st century, " "in a world where there are guys with little paste-it labels with price tags " "on it who would stick it on every idea on earth if it would make value for " "the shareholders. And what we have to do is to continue to reinforce the " "recognition that free speech in a technological society means technological " "free speech. I think we can do that. I think that's a deliverable message." msgstr "" #. type: Content of: <div><p> msgid "" "That's what I spend a good deal of my time doing, and while it's true that I " "bore people occasionally, at least I think I manage, more or less, to get " "the point across. We're just all going to have to be really assiduous about " "doing it." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> I'll ask a question. You talked a lot about distribution and how " "you think that ought to be free, and I think I see that argument much better " "than I see the argument about how creators of zero-marginal-cost " "distribution goods will necessarily be compensated for what they create, and " "so I've heard a lot of, I don't think these are any of your arguments, but " "I've heard, OK, well, that the musicians will go on tour, so they'll make it " "back that way, you know, whatever time they put in. Or people will keep " "creating whatever it is they create—and this applies to more than " "just, you know, movies or music—it applies to books, or even " "non-entertainment-style knowledge-type things, there's gotta be, you hear " "people will still do the same amount of it because they love to do it or are " "interested to do it, but I don't think that quite compensates for the " "compensation that many of those creators now receive." msgstr "" #. type: Content of: <div><p> msgid "" "And so I was wondering if you would comment a little bit on how the free " "distribution world, which differs from the current world in that many of the " "current distribution regimes were created specifically only to compensate " "people, will differ in terms of compensating creators." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> I will say a little bit now, and in the interests of time " "also say that you can find in the Net where I put stuff which is at " "http://moglen.law.columbia.edu a paper called <a " "href=\"http://moglen.law.columbia.edu/publications/maine-speech.html\"> " "“Freeing the Mind”</a>, which addresses this question, I hope " "comprehensively, or at least a little bit. Now, let me give you an answer." msgstr "" #. type: Content of: <div><p> msgid "" "Historical perspective is useful here. Before Thomas Edison, there was no " "way for culture to be commodity. Every musician, every artist, every creator " "of anything before Thomas Edison was essentially in the business of doing " "what we now have go back to doing, except those who lived in a world of " "goods that could be distributed in print, for whom you only have to step " "back to before Gutenberg. Right?" msgstr "" #. type: Content of: <div><p> msgid "" "The commoditization of culture is a phenomenon of yesterday, with respect to " "the deep history of human creativity. Whatever else we believe, and the " "problems are serious, we have to remind ourselves that there is no prospect " "that music would go away if it is ceased to be commodifiable. Music is " "always there. It always was." msgstr "" #. type: Content of: <div><p> msgid "" "What you are asking about is, why do people pay for the things they care " "about, in a way that will allow creators to go on making them? And the " "answer that I need to give you is that people pay out of the personal " "relationship that they have to the concept of making." msgstr "" #. type: Content of: <div><p> msgid "" "Musicians got paid by people who heard music, because they had a personal " "relationship to musicians. This is what you mean by going on tour or the " "Grateful Dead or anybody who uses the non-zero marginal cost of the theatre " "seat as a way of getting back, just as people merchandise as a way of " "getting back." msgstr "" #. type: Content of: <div><p> msgid "" "Think for a moment about the coffee house folk musician, the " "singer/songwriter. The simplest case in a way of the transformation of the " "music business. Here are people who are currently on tour 40, 45, 50 weeks a " "year. What happens is, they go to places and they perform and at the back, " "CDs are on sale, but people don't buy those CDs as a kind of, you know, I " "would otherwise be stealing the music; they buy it the way they buy goods at " "a farmers market or a crafts fair, because of their personal relationship to " "the artist." msgstr "" #. type: Content of: <div><p> msgid "" "So let me tell you what I think the owners of culture were doing in the 20th " "century. It took them two generations from Edison to figure out what their " "business was, and it wasn't music and it wasn't movies. It was " "celebrity. They created very large artificial people, you know, with navels " "eight feet high. And then we had these fantasy personal relationships with " "the artificial big people. And those personal relationships were manipulated " "to sell us lots and lots of stuff—music and movies and T-shirts and " "toys and, you know, sexual gratification, and heaven knows what else. All of " "that on the basis of the underlying real economy of culture, which is that " "we pay for that which we have relations with. We are human beings, social " "animals. We have been socialized and evolved for life in the band for a " "very long time. And when we are given things of beauty and utility that we " "believe in, we actually do support them." msgstr "" #. type: Content of: <div><p> msgid "" "You think that this isn't true, because the current skin at the top of " "social life says that that's not a robust enough mechanism to sustain " "creation, and that the only mechanism that will sustain creation is coercive " "exclusion—you can't have it, if you don't pay." msgstr "" #. type: Content of: <div><p> msgid "" "But they can't be historically right, because the ability to coerce " "effectively is a thing of yesterday. And the longer, deeper history of " "culture is the history of the non-coercive mechanisms for securing " "compensation to artists, only some of which we are now in a position to " "improve immeasurably." msgstr "" #. type: Content of: <div><p> msgid "<b>Q:</b> But what about the software writer?" msgstr "" #. type: Content of: <div><p> msgid "<b>Moglen:</b> Ah, the software…" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> That's the kind of stuff I think I was more getting at with my " "question. So you have somebody who creates something useful but it has a " "zero distribution cost, and it's useful in a way that's not, not useful like " "celebrity, though I'm not sure, I don't think that's useful in some ways, " "but it's useful in the different sense that it takes a long time to create " "well." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> See, the programmers I worked with all my life thought of " "themselves as artisans, and it was very hard to unionize them. They thought " "that they were individual creators. Software writers at the moment have " "begun to lose that feeling, as the world proletarianizes them much more " "severely than it used to. They're beginning to notice that they're workers, " "and not only that, but if you pay attention to the Presidential campaign " "currently going on around us, they are becoming aware of the fact that they " "are workers whose jobs are movable in international trade." msgstr "" #. type: Content of: <div><p> msgid "" "We are actually doing more to sustain the livelihood of programmers than the " "proprietary people are. Mr. Gates has only so many jobs, and he will move " "them to where the programming is cheapest. Just you watch. We, on the other " "hand, are enabling people to gain technical knowledge which they can " "customize and market in the world where they live. We are making people " "programmers, right? And we are giving them a base upon which to perform " "their service activity at every level in the economy, from small to large." msgstr "" #. type: Content of: <div><p> msgid "" "There is programming work for fourteen-year-olds in the world now because " "they have the whole of GNU upon which to erect whatever it is that somebody " "in their neighbourhood wants to buy, and we are making enough value for the " "IBM corporation that it's worth putting billions of dollars behind." msgstr "" #. type: Content of: <div><p> msgid "" "If I were an employee of the IBM corporation right this moment, I would " "consider my job more secure where it is because of free software than if " "free software disappeared from the face of the earth, and I don't think most " "of the people who work at IBM would disagree with me." msgstr "" #. type: Content of: <div><p> msgid "" "Of all the people who participate in the economy of zero marginal cost, I " "think the programmers can see most clearly where their benefits lie, and if " "you just wait for a few more tens of thousands of programming jobs to go " "from here to Bangalore, they'll see it even more clearly." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> So, author writes software. The moment the software is fixed in a " "tangible medium, copyright attaches; others can't use it without further " "action by author. Author chooses to adopt the General Public License to " "govern what others can do with the software, and you made the intriguing " "point then that the General Public License gives, with certain limits, and " "that's why, you point out, nobody is really wanting to challenge it all that " "much because it would be a Pyrrhic challenge. If you win and the license " "evaporates, then it rubber-bands back to the author." msgstr "" #. type: Content of: <div><p> msgid "" "That seems so persuasive, and almost proves too much, doesn't it? Because, " "suppose another author writes software, writes for now with the author and " "chooses to license it under the Grand Old Party License, by which only " "Republicans may make derivative works, and other, what would otherwise be " "copyright-infringing uses of the software. One, do you think such a license " "should be enforced by the courts? And two, couldn't you say the same logic " "would apply, that nobody would dare to challenge it because half a loaf is " "better than none? At least, let the Republicans use the software." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen: </b> So, fundamentally I think the question that you asked is, " "Has the law of copyright misuse evaporated entirely? And I think the answer, " "notwithstanding the Supreme Court's current deference to whatever Congress " "chooses to say, is no. I think there's still a common law of going too far " "out there, and as a lawyer who works on behalf of people who are fairly " "militant on behalf of sharing, I hear proposals all the time about stuff " "that they think it would be really neat to do that I don't think the " "copyright law, unalloyed by further contractualization will permit them to " "do." msgstr "" #. type: Content of: <div><p> msgid "" "I think the actual tool set of Berne-harmonized copyright law has certain " "limits on the power of the licensor, and I believe that those limits are " "capacious enough to allow us to create the kind of self-healing commons we " "have created, but I'm not sure that they would be strong enough to permit " "the importation of lots of additional contractualizing restrictions as " "though they were part of the body of copyright law itself." msgstr "" #. type: Content of: <div><p> msgid "" "Moreover I'm pretty sure that if you tried to do it and succeeded in one " "jurisdiction, you would find that the Berne Convention didn't actually " "export all of those propositions around the world for you, and that " "therefore you would have difficulty erecting a worldwide empire around the " "GPL Public License." msgstr "" #. type: Content of: <div><p> msgid "" "But I think you're correct to say another thing, which is that if there were " "a number of self-defending commons raised on different principles around the " "world, that that would create undesirable dead weight lawsuits, which is why " "I spend a fair amount of time trying to help people see why the GPL is good " "and doesn't require to be turned into the XPL and the YPL and the ZPL around " "the world. In fact I think in the next few years, we're going to have a " "greater consolidation of licenses, not a greater multiplication of them. But " "it's a conceptual issue of importance, and it depends upon the belief that " "copyright law all by itself permits some things and not others, and that you " "can only fill those gaps with the kind of contract law that we try not to " "use." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> Can you recommend any economists who have studied zero marginal " "cost economics?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> Well, see now, I sometimes joke with my dear colleague, " "Yochai Benkler at Yale Law School, that Yochai is well-positioned now to win " "the final Nobel Prize in economics. But I fear that that's not quite correct " "and that people are beginning to flood in. I have a little bit this sort of " "feeling that sooner or later I'm going to wake up and find out that in " "Stockholm they've decided to award a prize to guys for teaching economics " "that we have known for 25 years." msgstr "" #. type: Content of: <div><p> msgid "" "Eric von Hippel is doing very important work about that, if you want to take " "just people living in the neighborhood. We are beginning to get in our " "business schools a bunch of people who are actually trying to think about " "these questions, because they see billions of dollars being bet and in good " "business school tradition, they tend to figure out that what rich " "businessmen and their investors are thinking about is something they might " "want to pay attention to." msgstr "" #. type: Content of: <div><p> msgid "" "In the pure economics departments, unfortunately we remain a phenomenon too " "disquieting to consult just yet. But PhD students, of course, do not always " "do what their professors do, and my guess is that we are merely a few years " "away from the beginning of some rocket science on these subjects." msgstr "" #. type: Content of: <div><p> msgid "" "It's an enormous, beautiful opportunity for the revision of a field. Even in " "an economic, even in a discipline like economics, it is only so long that " "people can be prevented from working on really interesting problems. And the " "day is coming." msgstr "" #. type: Content of: <div><p> msgid "" "<b>Q:</b> Just a general question on market forces and the free software " "economy. Even in an ideal world, wouldn't you say that, you know, because of " "the market forces and then we, you know, a group of players become " "especially successful, then they actually—even though it's an ideal " "world—they actually become powerful enough and they monopolize under " "standards again, and we come back to the same system we have today. So, I " "guess the question is that whether this product-type system economy we have, " "is that just a function of the structure we have, or is that, you know, a " "result of just market forces?" msgstr "" #. type: Content of: <div><p> msgid "" "<b>Moglen:</b> Well, the structure that we have constitutes what we call " "market forces. I wouldn't want to take the position that the market was a " "Newtonian mechanism that existed in the universe independent of human social " "interaction." msgstr "" #. type: Content of: <div><p> msgid "" "Look, what we are doing is trying, through legal institutions directed at " "the protection of a commons, to prevent that commons from suffering " "tragedy. Because the content of that commons is capable of renewal and has " "zero marginal cost, the tragedy we're trying to prevent is not Garrett " "Hardin's one, which was based upon the inherent exhaustibility of natural " "resources of certain kinds. But there is no question that the commons that " "we are making is capable of being appropriated and destroyed in the ways " "that you suggest." msgstr "" #. type: Content of: <div><p> msgid "" "Those of us who believe in the GNU GPL as a particularly valuable license to " "use believe in that because we think that there are other licenses which too " "weakly protect the commons and which are more amenable to a form of " "appropriation that might be ultimately destructive—this is our concern " "with the freedoms presented, for example, by the BSD license—we are " "concerned that though the freedoms in the short term seem even greater, that " "the longterm result is more readily the one that you are pointing at, market " "participants who are free to propriatize the content of the commons may " "succeed in so effectively propriatizing it as to drive the commons out of " "use altogether, thus, if you like, killing the goose that laid the golden " "egg in the first place." msgstr "" #. type: Content of: <div><p> msgid "" "So, to some extent, I would say, avoidance of the tragedy of the commons in " "our world depends upon the structuring of the commons. Institutions alone, " "as I also pointed out earlier in this conversation however, commons " "resources need active management." msgstr "" #. type: Content of: <div><p> msgid "" "You, as a lawyer, will either engage in assisting to protect the commons or " "not protect the commons. This is a form of natural resources law for the " "21st century. It is about the recognition that no machine will go of itself, " "that it will require assistance to achieve its goals precisely in the way " "that you have in mind." msgstr "" #. type: Content of: <div><p> msgid "" "The best National Park Law on earth won't prevent the poaching of the park " "if there are not committed people willing to defend it. So you offer a " "general theory of the possibility of commons destruction and I agree with " "you. I say two things. We can design a better commons, and we can work our " "tails off to keep that commons in being healthy, strong and well. That's " "what I'm up to. That's what I hope you'll be up to as well." msgstr "" #. type: Content of: <div><div><p> msgid "" "[*] Eben Moglen is a Professor of Law & Legal History at Columbia Law " "School, and General Counsel for the Free Software Foundation." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't have notes. #. type: Content of: <div> msgid "*GNUN-SLOT: TRANSLATOR'S NOTES*" msgstr "" #. type: Content of: <div><div><p> msgid "" "Please send general FSF & GNU inquiries to <a " "href=\"mailto:gnu@gnu.org\"><gnu@gnu.org></a>. There are also <a " "href=\"/contact/\">other ways to contact</a> the FSF. Broken links and " "other corrections or suggestions can be sent to <a " "href=\"mailto:webmasters@gnu.org\"><webmasters@gnu.org></a>." msgstr "" #. TRANSLATORS: Ignore the original text in this paragraph, #. replace it with the translation of these two: # #. We work hard and do our best to provide accurate, good quality #. translations. However, we are not exempt from imperfection. #. Please send your comments and general suggestions in this regard #. to <a href="mailto:web-translators@gnu.org"> # #. <web-translators@gnu.org></a>.</p> # #. <p>For information on coordinating and contributing translations of #. our web pages, see <a #. href="/server/standards/README.translations.html">Translations #. README</a>. #. type: Content of: <div><div><p> msgid "" "Please see the <a " "href=\"/server/standards/README.translations.html\">Translations README</a> " "for information on coordinating and contributing translations of this " "article." msgstr "" #. type: Content of: <div><p> msgid "Copyright © 2004 Eben Moglen" msgstr "" #. type: Content of: <div><p> msgid "" "Verbatim copying and distribution of this entire article is permitted in any " "medium without royalty provided this notice is preserved." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't want credits. #. type: Content of: <div><div> msgid "*GNUN-SLOT: TRANSLATOR'S CREDITS*" msgstr "" #. timestamp start #. type: Content of: <div><p> msgid "Updated:" msgstr ""