en to zh_CN translation catalogue (167 entries)

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en: Eben Moglen Harvard Speech - GNU Project - Free Software Foundation
zh_CN: Eben Moglen 在哈佛的演讲 - GNU 工程 - 自由软件基金会

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en: Speech for Harvard Journal of Law &amp; Technology
zh_CN: 为哈佛《法律与科技期刊》所做的演讲

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en: by Eben Moglen&nbsp;<a href="#moglen"><sup>[*]</sup></a>
zh_CN: Eben Moglen&nbsp;<a href="#moglen"><sup>[*]</sup></a> 著

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en: <i>February 23, 2004 - Cambridge, MA, USA</i>
zh_CN: <i>2004年2月23日 - 美国麻省剑桥</i>

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en: 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.
zh_CN: 谢谢你们。非常高兴能来到这里。我要感谢《法律与科技期刊》和 Jonathan Zittrain 的精心安排，让我能以如此愉快的方式参与其中。确实，一想到要长时间谈论一场进展不大的诉讼，我就感到有些力不从心。不过，在我的发言中，我会时不时提及 SCO 诉讼案。

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en: 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.
zh_CN: McBride 先生在场时，曾多次善意提及我，我也将投桃报李。我希望在座的各位&mdash;&mdash;那些关注对话的人&mdash;&mdash;能感受到我对他的回应，尽管我认为，若像 Jonathan 提议的那样以"他说，我说"的形式展开，恐怕不会让今晚的讨论在智力层面显得特别富有挑战性。

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en: 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.
zh_CN: 自由软件（Free software），你们肯定知道&mdash;&mdash;我确信这不是我编造的&mdash;&mdash;其 &ldquo;free&rdquo; 是自由（freedom）之自由，而非免费啤酒（free beer）之免费。今年在你们的杰出演讲者系列中，关于这场诉讼的讨论存在一个根本问题：至少到目前为止，似乎有人暗示我们这些信奉自由软件运动的人，其主要目标是阻止人们在计算机行业获利。

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en: 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.
zh_CN: 有人时而暗示，这种观点源于对经济利益的莫名敌意，或特别反感人们做事应当获得激励的想法。我将在讨论中表明，我们其实非常相信激励的作用&mdash;&mdash;尽管我们对激励问题的看法或许与 McBride 先生略有不同。但归根结底&mdash;&mdash;我们必须从这里开始厘清&mdash;&mdash;问题的核心从来不是让事物像啤酒般免费，而是让它们如自由般自由。

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en: 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.
zh_CN: 自由软件运动的目标是让人们能够理解、学习、改进、适配并共享这项日益渗透人类生活的技术。

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en: 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.
zh_CN: 此处的公平理念核心并非指事物应当免费，而是指我们应当享有自由，思想应当自由，应当能够尽可能了解我们所处的世界，并尽可能摆脱对他人知识的依赖，除非我们主动选择理解与借鉴。

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en: 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.
zh_CN: 这个理念正是我亲爱的朋友兼同事 Richard Stallman 自1980年代初就怀有的强烈愿望。他渴望创造这样一个世界：任何人完成任何工作所需的计算机软件，都将以允许自由获取软件内含知识的方式提供，并赋予人们通过修改和共享来创造更多知识、改进现有技术的自由权利。

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en: 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.
zh_CN: 这是对技术知识自由演进的渴望。一种不受禁止改进、获取与共享原则束缚的、通过修改实现的传承。细想之下，这颇像致力于通过促进知识获取来推动科学与实用技艺传播的承诺。

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en: 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.
zh_CN: 简而言之，自由软件运动的理念既不敌对，也绝不违背18世纪那种通过知识获取来改善社会与人类的崇高理想。

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en: 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.
zh_CN: 宪法第一条第八款中的版权条款，只是我们那些远不如传说中务实的开国先贤们，参与18世纪那个关于世界与人类生活可臻完善伟大信念的诸多方式之一。

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en: 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&mdash;this is mine, you cannot have it unless you pay whether property principles best further that shared goal of the me&mdash;perfectability of human life and society based around access to knowledge.
zh_CN: 这项版权条款，正是对"通过知识共享实现社会臻善"理念的一种独特法律诠释。然而我们这些21世纪的继承者，却生活在一个充满疑虑的时代&mdash;&mdash;当财产权原则被强势推行，其必然伴随的排他性（"此物归我所有，非付费不可得"）是否真能推动那个我们曾共同向往的愿景：以知识开放为基础，实现人类生活与社会的至善境界？

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en: 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.
zh_CN: 二十年来，我们始终秉持这样的立场：现行版权规则若有助于促进科学与实用技艺的传播，便是良法；若阻碍知识的扩散与实用技艺的发展，则必有改进之余地。

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en: 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.
zh_CN: 请允许我冒昧邀功，我们确实大幅改进了这些规则，但绝非通过否定现有版权条例。恰恰相反，我们对此始终保持着近乎严苛的尊重。

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en: 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.
zh_CN: 在当下这些漫天飞舞的激烈言辞中，有件事总让我觉得颇为有趣：当我以律师身份审视自己每周的日常工作，竟发现自己显得出奇地正统。

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en: 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.
zh_CN: 尽管在洛杉矶未必受欢迎，我却发现自己与当地许多律师的行事方式如出一辙。我要求客户的版权受到尊重，并耗费大量枯燥时间，试图让人们遵守《版权法》中白纸黑字的规则。而讽刺的是，外界总以为我正忙着摧毁这部法律。

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en: 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.
zh_CN: 自由软件运动，本质上是试图运用18世纪那套鼓励知识传播的原则，来改造人类的技术环境。而正如 Jonathan 所言，我个人认为这场实验在起步阶段已取得了相当不错的成效。

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en: 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.
zh_CN: 正是因为取得了相当不错的成果，才招致了反弹，而如今席卷全球的"SCO 诉 IBM"争议&mdash;&mdash;McBride 先生此前在场时曾预言，这场诉讼终将演变为"SCO 对抗所谓的 Linux 社区"&mdash;&mdash;不过是众多反弹浪花中的一朵罢了。

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en: I don't think that's actually what's happening, but it is certainly what Mr. McBride came here to say was happening.
zh_CN: 我并不认为事实果真如此，但这确实是 McBride 先生此番前来宣称正在发生的状况。

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en: 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.
zh_CN: 因此，我最好先简要谈谈：在 McBride 先生所描述的这场所谓"免费产品是否会扼杀网络创作动力"的重大考验中，我们究竟如何看待当前局势。

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en: 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.
zh_CN: 自由软件&mdash;&mdash;其中名为 Linux 的操作系统内核只是成千上万个重要范例之一&mdash;&mdash;目前而言，堪称地球表面单一最庞大的技术参考库。

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en: 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&mdash;what computers can be made to do&mdash;solely by consulting material that is freely available for adaptation and reuse, in any way that she or he may want.
zh_CN: 我之所以这样说，是因为自由软件是唯一以有形形式固化的知识宝库，任何人、在任何地方，都能以自己的方式通过查阅这些允许自由修改与重复使用的材料，从技术小白成长为某个重大技术领域&mdash;&mdash;比如计算机可实现哪些功能&mdash;&mdash;的专家。

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en: 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.
zh_CN: 我们通过允许人们实践&mdash;&mdash;不是摆弄玩具，而是操作那些真正用于完成优秀作品的实际工具&mdash;&mdash;来推动全球范围内的学习。

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en: 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.
zh_CN: 为此，我们致力于打造一套教育体系与人力资本提升系统，这套系统将以促进人类臻于至善的方式，兑现"推动科学与实用技艺传播"的承诺。

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en: 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>&mdash;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&mdash;celebrated everywhere that capitalism is actually believed in&mdash;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.
zh_CN: 这正是我们努力实现且已达成的事业。事实上，我们正让一家名为 Santa Cruz Operation<i>[sic]</i>或称 SCO 有限公司的企业面临淘汰。这并非我们的本意，而是所谓资本主义"创造性破坏"力量的必然结果&mdash;&mdash;Joseph Schumpeter 早年间便揭示过这一规律。对比目前使用其他人的资本来做同样的事的那些人，我们以更低成本实现了更优的成果。其结果&mdash;&mdash;在真正信奉资本主义的任何地方，这都被视为值得庆贺的现象&mdash;&mdash;便是：现有企业要么革新运营方式，要么退出市场。这通常被看作积极的发展，它总能带来巨大的福祉提升：资本主义无时无刻不在各处宣扬这种优势，以期当人们看清这项巨大收益时，能对其固有缺陷稍加宽容。

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en: 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 &ldquo;business model&rdquo; 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.
zh_CN: McBride 先生不愿破产。这完全可以理解。盖茨先生同样不愿破产。但他们都站错了21世纪政治经济学的立场。他们将软件视为产品，而要让其所谓的 &ldquo;商业模式&rdquo; 成立，软件就必须维持稀缺性。正是基于这种软件稀缺，他们才能从中榨取价格（包括经济租金）&mdash;&mdash;McBride 先生甚至暗示，这笔收入足以让人购置第二套房产。

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en: 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.
zh_CN: McBride 先生原以为程序员们将因此买得起第二套房产，但真正了解软件行业现状的人都清楚，如今的程序员根本置办不起第二套房子。我想 McBride 先生实际指的是：在软件即产品的商业模式还能苟延残喘的这段时间里，那些雇佣程序员的高管们，以及那些雇佣高管去雇佣程序员的金融家们，倒是有可能再添置一套豪宅。

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en: 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.
zh_CN: 我们之所以不将软件视为产品，是因为我们反对将任何人排除在软件之外。我们认为软件本质上是知识的一种形态。而今晚在场或未到场的国际商业机器公司（IBM）、惠普公司等机构则持另一种理论：21世纪的软件应是公共服务，一种结合了公共设施属性与最佳使用方案的知识载体，它能普遍促进企业经济增长，由此产生的盈余便可用来回报那些通过优化公共服务使用而帮助创造盈余的人们。

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en: 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&mdash;I do mean those in Redmond, as well as those in Utah&mdash;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&mdash;from the reduction of the costs of transportations of goods and the provisions of services&mdash;and by the by, there will be plenty of money to pay traffic engineers and the people who fix the pot holes.
zh_CN: 或许可以这样比喻我们当下的处境&mdash;&mdash;如果允许我打个比方的话&mdash;&mdash;McBride 先生和他的同僚们（我确实既指犹他州的那几位，也包括雷德蒙德的诸位）认为所有道路都该是收费公路。将 &ldquo;从此处到彼处&rdquo; 的能力视为商品：要么购买，要么禁行。而另一些人则坚信高速公路应是公共设施。让我们共同探索如何最优利用这些公共道路，使人人都能受益（无论是降低货物运输成本还是提升服务供给效率），顺便说一句，这样也完全有足够资金支付给交通工程师和道路养护工人。

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en: We believe, for what little our view of the economics of the software market may be worth in the 21st century&mdash;after all we are the people who transformed it&mdash;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.
zh_CN: 尽管我们对软件市场经济的见解在21世纪或许无足轻重&mdash;&mdash;毕竟我们正是颠覆这个市场的人&mdash;&mdash;但我们依然坚信：将软件视为公共服务的理念，更符合21世纪的经济现实。McBride 先生遵循另一套商业模式走向破产，对我们而言毫不意外。

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en: 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&amp;T at various times that they would do or refrain from doing various things, that some of the people who promised AT&amp;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.
zh_CN: MacBiride 先生声称自己濒临破产是因为有人窃取了他的财产——这便是诉讼的由来。然而事实表明，他指控的 &ldquo;窃贼&rdquo; 并非我们。他的理论逻辑是：曾有各方在不同时期向 AT&amp;T 作出各种承诺（包括某些作为或不作为），而其中部分承诺者最终违约，正是这些违约行为让 Linux——这个以自由条款发布的计算机程序——获得了不当利益。

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en: 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&mdash;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.
zh_CN: McBride 先生这番说辞或许有理，亦或纯属谬误。我们无从知晓那些合同的普遍条款内容，甚至正如他此前在场时所言，我们连他是否真是这些合同的受益者都不得而知。眼下他正通过诉讼试图证明自己确实拥有所主张的权利（即他声称由 Novell 转让的某些合同权益）。对于这些权利的归属问题，我不作评判，也祝愿 McBride 先生在这场确权诉讼中好运。

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en: 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&amp;T, Sequent, IBM, and others, over time.
zh_CN: 但 McBride 先生还宣称——尽管迄今未见其言行一致——我们的创作成果在某种程度上受制于那些合同纠纷。他主张（虽然尚未采取相应行动）自由软件用户可能因其主张而对他或其公司负有责任，这些主张源于 AT&amp;T、Sequent、IBM 等公司历时多年的契约关系。

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en: 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.
zh_CN: 我曾耗费大量时间，不厌其烦地推敲 McBride 先生及其同僚讲述的每个情节：这些支离破碎的叙述究竟能否构成对第三方的版权主张。

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en: 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.
zh_CN: 我投入这些时间，是因为全球有众多第三方担忧 McBride 先生提出的版权主张。我曾直面诸多虚幻的案例：有些被宣称是衍生作品却根本不符合版权法定义；有些所谓版权主张最终被证实基于无人能明确主张所有权的代码（这些代码早已进入公有领域多年）；更有甚者，McBride 先生竟试图禁止人们使用某些代码——而恰恰是他自己曾承诺允许他人自由使用、复制、修改和任意分发这些代码。

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en: 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&amp;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.
zh_CN: 渐渐地，我不得不承认：我实在找不出任何合法依据，能让 McBride 先生的公司向第三方（那些从未与 AT&amp;T 或其继承者就 Unix 操作系统代码建立契约关系的群体）主张赔偿或禁止其使用自由软件。

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en: This is the thing we call SCO, not a lawsuit actually brought on the basis of promises exchanged between IBM and AT&amp;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&amp;T and somebody else to which Mr McBride's firm is a successor in interest.
zh_CN: 这就是所谓的"SCO 事件"，它并非基于 IBM 与 AT&amp;T 之间承诺纠纷的真实诉讼，而是一种诡异的臆想：仅因 AT&amp;T 与其他方（McBride 先生的公司作为利益继承者）的某些协议，全球数十万用户就可能被迫弃用价值数十亿美元的软件，而这些软件正是我们使大家能以边际成本获取的。

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en: 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.
zh_CN: 我认为这一主张毫无实质依据。在诸位尖锐的质询引导下，我本可逐步阐明其中缘由。但相关论证我已公开发表，今晚就不在此赘述了——毕竟，重复咀嚼这些陈词滥调，实在有负我们共处的宝贵时光。

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en: 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.
zh_CN: 在 <a href="/philosophy/sco/">www.gnu.org/philosophy/sco</a>（注意全小写字母），您将看到我与 Stallman 先生关于这些议题撰写的系列文章。那里应有尽有，我们已对所有争议点进行了细致剖析。

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en: 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.
zh_CN: 但在哈佛法学院的课堂上，实在难以抗拒谈论美国最高法院的诱惑。因此，请允许我暂且与诸位进行一番"最高法院观察"。

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en: 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.
zh_CN: McBridea 先生此前在此演讲时，曾多次提及 "Eldred 诉 Ashcroft 案"。据他解读，美国最高法院以7比2的票数"反对自由软件，支持资本主义"<i>[观众笑声]</i>。耐人寻味的是，就在他与诸位探讨此案的当天，我恰在洛杉矶与一位名为 Kevin McBride 的人士讨论同一案件。此君正是 McBride 先生的胞弟，也是其演讲所依据文件的真正执笔人。

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en: 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.
zh_CN: 在这场讨论中，Kevin McBride 确实占得先机——毕竟他的律师身份对解读美国最高法院判例总归有所裨益。但单凭这点优势还远远不够。

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en: The primary trick in discussing cases&mdash;I shrink from saying that even in this room where I have taught first-year law students&mdash;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.
zh_CN: 剖析判例的核心要诀&mdash;&mdash;即便在这间我曾教授一年级法学新生的教室里，此言仍令我踌躇&mdash;&mdash;在于区分判决主文与附带意见。这项技艺，曾耗费全球律师无数个阴郁的九月与十月，在座诸位想必也都深有体会。

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en: The McBrides, jointly&mdash;I feel sometimes as though I'm in a Quentin Tarantino movie of some sort with them <i>[laughter]</i>&mdash;the McBrides have failed to distinguish adequately between dicta and holding.
zh_CN: McBride 兄弟，合在一起&mdash;&mdash;有时我觉得自己仿佛置身于某部昆汀·塔伦蒂诺的电影中<i>[观众笑声]</i>&mdash;&mdash;他们始终未能充分区分判决主文与附带意见。

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en: 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.
zh_CN: 我对 Eldred 诉 Ashcroft 案持异议立场，我认为该案判决有失公允。作为法庭之友，我曾提交法律意见书，并协助挚友兼同事  Larry Lessig 进行核心论点陈述。遗憾的是，这些努力最终未能奏效。

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en: 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.
zh_CN: 诡异的是，我将简要说明这一点，我们在 Eldred 诉 Ashcroft 案中的立场，若严格依据判决主文而非附带意见，反倒会支持 McBride 先生当前的主张。但该案实质裁决（而非表面说辞）其实对 McBride 兄弟的论点不利——无论是兄弟中的哪一位。可惜他们未能参透其中玄机。

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en: 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:
zh_CN: 容我阐明缘由。SCO 对抗自由软件的根本困境不在于其攻势，而在于其防御体系的缺陷。若要在侵犯自由软件权益的案件中自辩，你必须准备好接受一通质询——今夜在座的基金会同僚们对我这通质询早已司空见惯。该质询进程如下：

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en: &ldquo;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.&rdquo;
zh_CN: &ldquo;潜在被告先生，您正在未经许可分发我客户的版权作品。请立即停止。若希望继续分发，我们可协助您恢复因侵权而终止的分发权，但您必须合规分发。&rdquo;

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en: 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, &ldquo;Judge, Mr. Defendant has used our copyrighted work, copied it, modified it and distributed it without permission. Please make him stop.&rdquo;
zh_CN: 当我发出这通质询时，潜在被告的律师便面临抉择：要么与我们合作，要么对我们开战。若选择对簿公堂，他将面临第二轮抉择。我们将向法官陈情：“法官阁下，被告方未经许可使用、复制、修改并分发我方版权作品，请予以禁止。”

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en: One thing that the defendant can say is, &ldquo;You're right. I have no license.&rdquo; 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, &ldquo;But Judge, I do have a license. It's this here document, the GNU GPL. General Public License,&rdquo; at which point, because I know the license reasonably well, and I'm aware in what respect he is breaking it, I will say, &ldquo;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.&rdquo;
zh_CN: 被告方可选择承认：“您所言极是，我确实未经授权。”但鲜有被告如此陈词，因为这意味着败诉。因此当被告预演法庭抗辩时，他们终将主张：“法官阁下，我持有有效许可，即这份《GNU 通用公共许可证》。”此时，鉴于我对该许可条款了然于胸，并确知其违约细节，我将向法庭指出：“被告虽曾获得许可，却违反其条款。根据许可证第4章规定，违约行为导致许可自动终止。”

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en: 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&mdash;Mr. McBride made it here some weeks ago&mdash;that there has never been a court test of the GPL.
zh_CN: 但请注意：要在自由软件诉讼中挺过第一回合，被告方必须主动援引 GPL 条款。这份许可是让其诉讼能持续超过纳秒时长的唯一密钥。这正是数周前 McBride 先生在此宣称 &ldquo;GPL 从未经受法庭检验&rdquo; 的根本缘由，诸位想必还记得他那番论述。

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en: 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.
zh_CN: 对于那些总爱说"GPL 从未经过法庭检验"的人，我只想简单回应：别怪我。我可是随时奉陪，是被告方始终不愿应战。当人们连续十年都拒绝通过法律途径解决争议时，您猜怎么着？这种论调根本站不住脚。

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en: 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.
zh_CN: 过去十年间，GPL 协议在我守护下得以成功推行，靠的是其行之有效，而非缺陷或争议。如今 McBride 先生及其同僚正面临同样困境，而他们的对手是 IBM：一个财力雄厚、权势滔天且绝不轻言退让的商业巨头。

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en: 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.
zh_CN: 他们（即SCO公司）一直在分发名为 Linux 的操作系统内核程序，并且至今仍在向现有客户提供该程序，这因为他们负有合同约定的维护义务。

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en: 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.
zh_CN: 当 SCO 分发这款名为 Linux 的程序时，他们实际上是在未经授权的情况下分发数千名开发者的成果。之所以丧失授权，是因为他们试图违反 GPL 第2章和第6章的规定，通过附加许可收费条款，亲手焚毁了自身的许可资格。

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en: 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, &ldquo;Judge, they're distributing our copyrighted work, and they don't have any permission.  Make them stop.&rdquo;
zh_CN: 根据 GPL 第4章规定，他们的违约行为导致其丧失了分发权。而 IBM 已在诉讼反诉中陈词：&ldquo;法官阁下，被告方正在未经授权的情况下分发我方版权作品，请予以禁止。&rdquo;

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en: If SCO played smart, they would have said, &ldquo;But your Honor, we do have a license.  It's the GNU GPL.&rdquo; 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.
zh_CN: 若 SCO 足够明智，本应陈词：&ldquo;法官阁下，我们确实持有授权：即 GNU 通用公共许可证。&rdquo;至于他们未采取此策略的原因（我们虽心知肚明却不必在此赘述），或许是为避免影响诉讼中的其他主张，又或许源于他们接受了微软一千万美元的投资——这个问题，相信在稍后的问答环节我们还会深入探讨。

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en: At any rate, they didn't say that. What they said back is, &ldquo;But Judge, the GNU GPL is a violation of the United States Constitution, the Copyright Law, the Export Control Law,&rdquo; and I have now forgotten whether or not they also said the United Nations Charter of the Rights of Man. <i>[laughter]</i>
zh_CN: 总之，他们并未如此抗辩。其实际回应是：&ldquo;法官大人，GNU GPL 违反美国宪法、版权法、出口管制法。&rdquo;至于是否还搬出了《联合国人权宪章》，我此刻倒真记不清了。<i>[笑声]</i>

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en: 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.
zh_CN: 眼下我们仅聚焦于 GPL 是否违反美国宪法这一问题。稍后我将重提 Eldred 诉 Ashcroft 案。

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en: 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.
zh_CN: 在 Eldred 诉 Ashcroft 案中，435名众议员与百名参议员被巧妙贿赂，以迂回手段实现版权永久化。这笔贿赂——当然完全合法，且冠以"竞选捐款"之名——最终推动国会通过了版权期限延长法案。

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en: In 1929, &ldquo;Steamboat Willy&rdquo; 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.
zh_CN: 1929年，《威利号汽船》首次向公众展示了一个名为米老鼠的角色。当时的版权企业作者保护期限——与现今几乎无异——为75年。若非2004年国会的干预，米老鼠本应挣脱所有权束缚（至少依据版权法而言）。这自然催生了一场重大法律改革，只为阻止米老鼠进入公有领域。

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en: 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.
zh_CN: 现行版权期限延长法案意味着无论 Sonny Bono 未来十年会否再次滑雪撞树<sup><a href="#TransNote1">1</a></sup>，国会总会周期性地将版权期限再延长些许。当时代广场的跨年球即将坠向午夜时，他们便再延长些许。如此周而复始，再无一物需落入公有领域，米老鼠更是首当其冲地永世长存。

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en: 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.
zh_CN: Lessig 教授、Eric Eldred 以及我和美国其他众多素来理智的人士都认为，这种做法实际上并不符合"通过信息共享实现人类臻善"的崇高理念。我们质疑这种逐次切割式的永久版权垄断是否真能促进科学与实用技艺的传播，并据此向最高法院主张《版权期限延长法案》理应废止。诚如 McBiride 先生所言，我们遭到了断然否决。

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en: 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.
zh_CN: 事实证明，只要满足以下条件，就不存在所谓"违宪的版权规则"：该规则由国会通过、遵守表达与思想二分原则（最高法院认定此乃版权不侵犯言论自由的宪法保障）、且合理使用权利得到充分维护。

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en: 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.
zh_CN: 简而言之，Eldred 诉 Ashcroft 案的实质判决要旨是：国会可自主制定任何版权法律，而依据这些推定合宪的版权法所签发的所有许可，均不受宪法性质疑。

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en: 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.
zh_CN: 容我告知 McBride 先生一个事实：现行版权法符合宪法，而我们的许可证完全遵循版权法所有要求，同样具有合宪性推定。唯有在我们赢得 Eldred 诉 Ashcroft 案的世界里（即对版权许可进行实质性正当程序审查，以核验其是否符合宪法第一条第八款要求的版权形态），McBride 先生及其同僚才可能站在美国法庭上主张某项版权许可违宪。

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en: 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.
zh_CN: 换言之，对 McBride 先生而言遗憾的是：我们输掉了 Eldred 诉 Ashcroft 案，而他此刻试图主张的诉求，连同某些更有价值的诉求，早在彼时便已夭折，除非最高法院推翻该案判决。

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en: 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.
zh_CN: McBride 先生从 Ginsberg 大法官宣布最高法院判决时亲资本主义的修辞中，获得了些许无济于事的慰藉。作为 Eldred 诉 Ashcroft 案另一位愤懑的观察者，我祝他好好享受这冰冷的安慰。尽管他浑然不知，其实当年我们同属诉讼一方，而他现在试图提出的法律论点，可惜早已被证明失败。请注意，即便法庭允许他主张"版权许可应符合宪法政策"这种观点，我们仍将大获全胜。

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en: 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.
zh_CN: 容我断言（若您有兴趣我们可深入探讨）：当今美国没有哪项版权许可比我们的更契合托马斯·杰斐逊的版权理念，亦或宪法第一条第八款所蕴含的版权要义。因为我们正推动的知识与实用技艺传播实践，其成效已远超所有史上资金最雄厚垄断企业那些利益驱动的专有软件分发模式。

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en: 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.
zh_CN: 然而遗憾的是，McBride 先生无法将我们推向那个能在美国最高法院慷慨陈词并大获全胜的阶段。因为最高法院早已裁定：只要国会议员收受竞选捐款、完成投票、并将由此产生的橡皮图章法案递交白宫盖章，版权法即自动获得合宪性推定。不过，只要 McBride 先生能从法律角度认清自身利益所在，我仍欢迎他加入美国版权宽松化运动。可惜诸位都明白，我们可等不及他醍醐灌顶的那天。要是 McBride 先生当年读过哈佛法学院就好了。

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en: 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.
zh_CN: 关于 SCO 的话题，我想就此打住，尽管我很乐意稍后回答诸位相关问题。这本质上是一片版权诉讼的荒漠，其中根本不涉及任何版权主张，只有 IBM 与 SCO 之间的若干合同纠纷，这些自会由法院妥善裁决。我对审判结果仅抱有适度兴趣，因为它绝非自由软件事业的威胁，顶多算是场恼人的麻烦。不幸的是，我预计自己仍将耗费大量时间应对这场闹剧，但内心深知，它对我真正在意的事物构不成实质威胁——甚至连像样的威胁都算不上。

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en: 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.
zh_CN: 因此，我想探讨自由软件真实的法律前景，而非 McBride 先生臆想中那种"美国生活方式与我们这类存在"的史诗级冲突。不得不说，这种"美国 VS 异类"的论调令我耳熟。每当听 McBride 发言，我仿佛听见鲍尔默的声音，诸位或许也有同感。换言之，我现在将 SCO 视为微软垄断势力的公关代言，毕竟微软资金更雄厚，且对我们事业的忌惮更为持久。

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en: 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.
zh_CN: 微软作为财力雄厚的企业，本可依托"软件即公共服务+周边服务"的商业模式在21世纪取得成功。但尽管盖茨先生才智过人，人类自由
    的理念始终未能引起他的共鸣。而将业务转型为服务型模式——个中缘由我想诸位都明白——显然不合其心意。因此，为维系微软垄断地位（我确实指的是生死存亡问题），MaBride 先生所鼓吹的"我们正在危害美国生活方式"之论调必须占据上风。

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en: 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.
zh_CN: 遗憾的是，对微软而言这套说辞终将失效，因为世人有目共睹，我们的实际作为远非那套宣传话术所能抹煞。无论如何，我们都将继续推进事业：促进知识自由，尤其是技术知识的自由。在此过程中，我们必须直面现实世界的真实挑战（SCO 之流显然不在此列），接下来请允许我就此稍作阐述。

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en: 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&mdash;I say this with enormous satisfaction&mdash;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.
zh_CN: 用我们的术语来说，软件是自由的。这意味着，我们已构建起一套全球可用的软件体系，其健壮性与可能性如此深远，以至于人类距实现"用计算机完成任何设想"仅需数月之遥。当然，人们总不断萌发新需求并予以实现。就此而言&mdash;&mdash;我满怀欣慰地宣布&mdash;&mdash;自由软件运动已扎根生长，成为21世纪不可磨灭的组成部分。但自由软件的自由仍面临若干亟待应对的威胁。

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en: 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.
zh_CN: 与版权法不同，专利法存在若干严重危害技术知识自由的特性。如果说版权法还部分实现了18世纪"人类可臻完善"的崇高理想，那么专利法却令人遗憾地背道而驰。这并不意外，18世纪的思想家们对专利制度本就心存疑虑，英国法传统中对法定垄断权的警惕，令他们对此深怀戒惧。

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en: 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.
zh_CN: 21世纪的专利法堪称恶习大全，这一点毋庸置疑。在我们所处的软件领域，专利法的运作方式更是存在若干尤为不幸的特征。我们必须竭力确保专利的合法范围——虽现实存在却本应有限——不会因管理者的疏忽而在本世纪继续扩张，进而将思想的所有权也纳入囊中，仅仅因为这些思想是用计算机编程语言而非英语或数学语言表述的。

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en: 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.
zh_CN: 这对我们而言是一项重要工作，也是众多精明律师正在全球范围内通过不同许可协议和法律架构以不一致方式开展的工作。而律师们应对专利威胁的方式缺乏协调性给我们带来了严峻挑战。未来五年内，我们亟需在全球举办高规格研讨会，专门探讨可专利性与自由软件理念的关系，从而明确哪些许可条款和工作方式能最大限度降低专利风险。

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en: 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.
zh_CN: 当前，关于这一议题的观点多样性可谓具有建设性。但若想在本十年期内有效遏制不当专利扩张及其对我们所期待的人类知识进步的特殊影响，我们必须通过完善思维体系来适度整合这些分歧观点。

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en: 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.
zh_CN: 正如诸位所知，这也是我已耗时一年撰写专著的主题，网络空间正涌现诸多突破性的所有权变革。音乐、电影等文化形式的传播，如今孩童做得比职业从业者更出色。艺术家们逐渐意识到：若允许人们自由传播作品，其收益反而胜过当下被文化秃鹫奴役的处境。诚然，这些中间商通过音乐牟取暴利，但他们攫取每美元中的九十四美分，仅将六美分分给音乐人的行径，对创作者实则弊远大于利。

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en: 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&mdash;and you can't distribute unless you pay for the right to do so&mdash;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.
zh_CN: 当前网络所有权争议甚嚣尘上。鉴于我关注的远不止自由软件，自然密切关注这场纷争，且持有明确立场。但对我们当下的讨论而言，关键在于文化产业的既得利益者已然意识到：若想维系其"分销权即财产"的旧有模式（即未经付费购买便禁止传播的体系），就必须全力巩固这套机制，否则其商业模式必将崩塌。而依我之见，这实质上等同于要对网络实施军事化占领&mdash;&mdash;他们必须控制所有网络节点，并确保每一段比特流在传输前都经过版权核查，唯有分销权被买断的比特流才获准通行。

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en: 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.
zh_CN: 正是由于软件的自由属性，文化产业的既得利益者才不得不占领网络硬件层以维持其商业模式。诸如 Ian Clark 的 Freenet 等支持点对点数据共享的自由软件，乃至 TCP/IP 这类基础数据交换协议，为"每段比特流都需内置所有权凭证且仅限付费节点传输"的企图构筑了难以逾越的屏障。这导致他们愈发迫切地推动所谓"可信计算"（实为奥威尔式<sup><a href="#TransNote2">2</a></sup>话术），就是制造用户无法信任的计算机系统。

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en: 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.
zh_CN: 要在21世纪社会持续推进知识自由事业，我们必须阻止"可信计算"及其衍生机制占据网络硬件层——防止硬件设备被改造成拒绝运行能自由分享信息的自由软件。应对这项挑战是极其复杂的法律难题，对律师而言，处理相关许可协议和软件产品整合的难度，甚至远超最初解放自由软件时面临的障碍。相比完善现有的自由软件分发体系，这才是我当前最为关注的焦点议题。

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en: 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.
zh_CN: 但请容我再进一步，与诸位探讨自由硬件问题背后的深层困境。我们正身处硬件廉价、软件自由的时代；倘若硬件持续保持现有运作模式，那么核心矛盾将转向被商品化的带宽资源（而非作为公共设施的带宽）。当前世界通行规则是：支付能力决定带宽获取量。因此，在这个硬件廉价、软件自由的世界里，知识与科技的传播仍面临重大阻碍，因为求知者因太过贫困而无力支付学习所需的带宽费用。

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en: 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.
zh_CN: 这一困境源于20世纪第二季度起，电磁频谱也被当作私有财产对待。当时声称这是技术必需——为解决设备干扰问题，但这种理由在智能设备时代已不成立。21世纪自由软件面临的首要难题，便是如何让电磁频谱回归共享使用模式，而非财产化垄断。诸位会发现，这里自由软件本身——可自由执行的代码——将再次发挥关键作用。

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en: 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.
zh_CN: 正是软件定义无线电（即运行特性由软件控制且用户可修改的设备）能够将频谱从私有化状态解放为共享资源。这将成为我们未来二三十年的核心议题，而非仅在本十年期内。随着我们致力于让全球每个求知者都能平等获取知识，如何运用我们掌握的技术与法律工具实现频谱自由，将是必须解决的命题。

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en: 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.
zh_CN: 在实现这一技术突破的过程中，我们将直面比微软和迪士尼更强大的既得利益集团。只需审视电信寡头在社会中的根深蒂固势力，便知这场战役何其艰难。但若想迎来21世纪中叶那个人人皆可自由共享知识的世界，此战我们非胜不可。我们必须确保：带宽资源成为与生俱来的权利，充足的通信机会成为学习的基础保障，让所有现存知识都能被自由获取。这才是最严峻的法律挑战。网络软件层的自由是这场圣战的核心支柱，而捍卫终端设备不受他人控制的自主权，则是战役成败的关键所在。

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en: But in the end, it is our ability to unify all of the elements of the information society&mdash;software, hardware, and bandwidth&mdash;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.
zh_CN: 但最终决定我们能否实现18世纪伟大梦想的&mdash;&mdash;那个镌刻在美国宪法第一条第八款的梦想，那个坚信"只要采取必要措施解放思想，人类与社会就能无限进步"的梦想&mdash;&mdash;关键在于我们能否将信息社会的所有要素（软件、硬件与带宽）统一置于共享机制之下，即由我们自主掌控。这才是真正的征途。相较于此，McBride 公司的成败，乃至 IBM 的兴衰，都微不足道。我们正在进行的是一场民权运动，并非要击垮任何商业对手，也不在意谁在市场中沉浮。我们始终紧盯目标，深知方向所在：此时此刻，即为自由而战。

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en: Thank you very much.
zh_CN: 非常感谢诸位。

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en: I'm delighted to take your questions:
zh_CN: 我很乐意回答各位的提问：

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en: <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.
zh_CN: <b>Zarren：</b>媒体服务人员要求我告诉大家提问时最好确保对着话筒。话筒有一个小的开关来打开。

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en: <b>Q:</b> I just wanted to ask a question clarifying and, well, anyway&hellip; 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?
zh_CN: <b>问题：</b>我想提个问题澄清一下观点...您似乎将软件与硬件二元对立，主张软件必须自由，应作为公共产品，却较少讨论硬件。这里的"硬件"最初指与软件相关的设备，但可泛化至所有机器。您如何界定软件应自由而硬件不必自由的逻辑？

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en: <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.
zh_CN: <b>Moglen：</b>21世纪政治经济学与人类既往经济史的根本差异在于：当今经济充斥着零边际成本商品。传统微观经济学推演的前提是商品普遍具有非零边际成本——每件产品的制造、流通与销售都需消耗资金。而比特流世界的全民自由，正建立在数字信息零边际成本的特性之上。正因为计算机软件的边际成本为零，我们只需覆盖其开发的固定成本，便能使其对所有人”free“：不仅是自由意义上的"自由"，也是啤酒意义上的"免费"。

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en: 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.
zh_CN: 硬件——无论是计算机、PDA，还是鞋子、桌椅、墙砖，乃至哈佛法学院教室的座位——始终具有非零边际成本。传统微观经济学理论对其依然适用，其适用方式与亚当·斯密、大卫·李嘉图或卡尔·马克思时代并无二致。从这个意义上说，硬件经济学仍遵循我们熟悉的传统经济逻辑，仍需面对"如何覆盖每个新增单位成本"这一市场机制旨在解决的核心命题。

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en: 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.
zh_CN: 正是由于21世纪人类知识与文化的绝大部分已脱离传统微观经济学的价格体系（其边际成本无限趋近于零），我们才获得前所未有的赋能机遇。当论及硬件与软件之别时，我实质是在区分两种经济形态：一种是传统的非零边际成本经济，另一种则是比特流的神奇经济学——传统微观理论虽能给出正确答案，但理论家们面对演算结果时却往往怅然若失。

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en: <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?
zh_CN: <b>问题：</b>那么您是否会主张——鉴于知识同样可承载于硬件，而硬件又存在附加边际成本——要求每台计算机都附带芯片设计图？这样既能保障硬件知识的自由获取，又可通过边际成本回收费用。

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en: <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.
zh_CN: <b>Moglen：</b>这当然是个绝妙的主意。若您观察21世纪的发展趋势，会发现越来越多制造商正选择这么做，因为赋能用户创新能持续降低其产品迭代成本。事实上，硬件软件化对各方有利的道理，厂商与我们同样明白。我正在就此撰文探讨（并非刻意推销著作），稍后我将以系统化的方式向诸位展示我的完整思考框架。

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en: <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.
zh_CN: <b>问题：</b>我想请教：SCO 诉讼是否会成为针对自由软件的系列诉讼的开端，无论是连环诉讼还是并行诉讼？此外，无论 SCO 胜败与否，希望听取您关于后续可能出现的两类诉讼的见解。

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en: 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?
zh_CN: 第一类可能是这样的诉讼：某公司震惊地发现，其程序员并未专心完成本职工作（以期购置首套房产），反而将大部分时间耗在 Slashdot 论坛上，其余时间编写自由软件，只偶尔熬夜处理公司任务。若这些程序员（通常如此）已签署协议声明其编写的一切软件归公司所有，甚至可能属于职务作品，那么公司主张"通过该程序员，我们的代码已混入 Linux 等程序，若不赔偿即构成侵权"的可能性有多大？

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en: 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&mdash;down the line&mdash;and thirty-five years isn't that long in the history of Unix, say, &ldquo;We take it all back?&rdquo;
zh_CN: 第二种可能的诉讼途径出人意料地源于"35年终止权"规则，这一通常被你们阵营拥护的条款规定：音乐人/艺术家若在弱势时未获法律协助便与大公司签约，35年后可无条件收回权利，重置谈判时钟。我称之为"罗德·斯图尔特<sup><a href="#TransNote3">3</a></sup>救赎法案"<i>[笑声]</i>。尽管音乐界痛恨该条款对艺术家的保护，但这是否也意味着：那些自愿贡献（甚至未受雇主阻拦）的自由软件开发者，也可能在35年后（对 Unix 历史而言不算长）宣布"我们收回所有授权"？

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en: <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.
zh_CN: <b>Moglen：</b>这是两个非常精彩的问题。若要逐一详答恐耗时过长，请容我聚焦第一个问题，因其至关重要。Jonathan 的提问揭示了：自由软件面临的核心法律难题，与其说关乎许可证条款，不如说在于软件产品的组装流程。SCO 事件的法律后果之一，便是促使人们持续密切关注自由软件的构建过程。他们将意识到，真正关键的是如何处理诸如"职务作品主张"等潜在法律风险。在这方面，Stallman 先生再次展现出非凡预见力：因为人们终将理解，他们期望的自由软件构建方式，正是自由软件基金会二十余年来始终坚持的范式。

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en: 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.
zh_CN: 随着事态发展，人们终将意识到：对于自由软件项目的每项代码贡献，若贡献者受雇于企业，则需同步获得其雇主出具的职务作品免责声明。届时，自由软件基金会的档案柜在他们眼中将如同问题荒漠中的绿洲。我们早已预见这一风险，并作为全球大量自由软件的托管者积极防范。未来开发者必将力求在合作伊始就完善这些法律保障，并对非规范流程构建的软件持更审慎态度。

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en: 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.
zh_CN: 若您有志于投身自由软件法律事业，我衷心期望如此，未来五年内，您或许应关注即将在这一生态中蓬勃发展的软件保护信托体系。我可协助您建立此类信托，或加入我们现有的架构。我们将耗费大量时间履行受托人职责，确保每项组件都合规构建。这一切服务对象正是第三方保险业。该行业已在我们见证下兴起，并日益重视自由软件的构建合规性。

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en: 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.
zh_CN: 当您向保险公司申请房屋火险时，他们不在乎您的房产适用何种许可，只关心建筑结构是否合规。而您提出的自由软件构建规范问题，即将成为至关重要的核心议题。唯有通过律师协助程序员以法律上可辩护的方式构建项目，妥善保障自由，方能有效遏制此类诉讼。

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en: 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.
zh_CN: 就在不久之前，全球可能仅有三位律师关注此事，其中两位正身处此室。但未来这类专业人士必将增多。Jonathan，关于您的第二个问题，我简要回应：这固然是个严峻挑战，但至少在我看来仍属可控范畴。我愿进一步阐述缘由，不过现在或许该让更多声音加入讨论了。

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en: <b>Q:</b> Without disputing the importance or difficulty of the spectrum battle, or the &hellip; 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?
zh_CN: <b>问题：</b>尽管频谱之争与版权战役的重要性与难度毋庸置疑（后者进展尤为紧迫），但在我看来，即将到来的专利大战才是最令人忧心的。相较之下，SCO 纠纷不过是纸老虎般的虚张声势。能否请您谈谈：这场专利战的预期形态？作战方式？乃至制胜之道？

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en: <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 &ldquo;intellectual property&rdquo; means people dying of preventable diseases because the drugs are too expensive because patents cover them.
zh_CN: <b>Moglen：</b>当然。专利本质是政治博弈。过去五年间，制药公司通过实际行动为我的立场提供了价值12万亿美元的免费宣传——他们让全球所有识字少年都明白："知识产权"意味着本可预防的死亡，只因专利垄断导致药价高昂。

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en: 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.
zh_CN: 专利即政治。专利制度本质是财富分配的长期绝对化工具。解决专利困局的答案不在法庭或实验室，而在于政治实践本身。

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en: 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.
zh_CN: 今夏欧洲议会以非常规之举拒绝欧盟委员会关于软件专利法的修订提案时，这场斗争的序幕已然拉开。

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en: 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&mdash;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&mdash;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.
zh_CN: 欧盟委员会曾提出一项旨在简化和统一欧洲专利法的修订建议，该建议将大幅降低软件相关发明的专利授权门槛。经过一场由欧洲自由软件运动（包括 Euro Linux、欧洲自由软件基金会及众多受益于"软件即公共事业"新模式的中小软件企业）主导的持久抗争，最终征集到25万民众联署。欧洲议会最终对建议予以否决。如今，欧洲议会内的绿党与社会民主党已清晰意识到：专利政策已成为党派立场的试金石。这意味着专利议题已形成明确阵营，选举政治与政党运作均可围绕这些对立阵营展开。

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en: 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.
zh_CN: 相比欧洲同仁，我们社会对此议题的认知仍显不足。今夏欧洲设定的标准，对我们而言是首要且艰巨的挑战。必须让国会议员明白：专利法绝非可由 <abbr title="专利商标局">PTO</abbr> 裁定的行政规章，而是需立法者决断的政治议题。为实现这一目标，我们或许需要重振美国众议院的实际民主功能，而这仅是诸多挑战中的一环。

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en: 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.
zh_CN: 但这正是美国技术精英必须领悟政治运作机制的关键所在——因为我们既无法在最高法院破解此局，也无法通过工作站攻克难题。唯有国会才是解决战场，而我们必须为此锻造政治博弈能力。

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en: <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?
zh_CN: <b>问题：</b>与此相关，我有个非法律层面（或许更属公关范畴）的疑问。您开场便强调"这是自由而非免费啤酒之争"。但当面对 Jack Valenti<sup><a href="#TransNote4">4</a></sup>、<abbr title="美国唱片业协会">RIAA</abbr> 乃至 McBride 先生持续不断的舆论攻势，他们反复灌输"免费啤酒"论调，告诫年轻人"不得盗版音乐巨头作品"，我们该如何赢得这场基层舆论战？毕竟这将最终影响国会决策。又该如何向技术圈外的公众传递自由软件的真义？

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en: <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.
zh_CN: <b>Moglen：</b>这个问题上，英语本身就在与我们作对。在欧洲多语环境中，"免费"与"自由"本就是两个截然不同的词汇，民众自然更容易理解二者的区别。

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en: 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.
zh_CN: "Software libre"（西班牙语/法语中的"自由软件"）能清晰区分这层含义；若需向法兰西学术院妥协，用 "logiciel libre" 也无妨；而英语 "free software" 则做不到。部分正因如此，90年代末有人提议改用"开源软件"。尽管这一措辞为倡导者带来的麻烦或许多过益处，但如今它倒为企业提供了便利：既能表明对我们事业的兴趣，又无需公开承诺其可能不认同（或至少日常运营不必高调宣扬）的政治社会理念。

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en: So one of the things that we do, for those who speak English, is we actually have to reinforce from time to time&mdash;that is all the time&mdash;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.
zh_CN: 因此，我们对英语使用者的一项持续工作（确切地说是无时无刻的工作），便是强化"免费啤酒"与"自由言论"的区分。不过在美国英语文化中，这理应不难。毕竟"自由言论"在美国文化中的地位远重于"免费啤酒"。至少在我成长的时代如此，无论 Rupert Murdoch<sup><a href="#TransNote5">5</a></sup> 如今如何扭曲这一价值观。

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en: 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.
zh_CN: 我们代表言论自由的一方，必须向公众阐明：若允许任何人——包括那些衣冠楚楚的老牌说客——将"热爱自由言论"等同于"从唱片店偷CD"，那么游戏就结束了。这不仅是自由软件的终结，更是自由社会生存根基的崩塌。

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en: 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, &ldquo;It's free software, it's not open source.&rdquo; 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.
zh_CN: 我们捍卫言论自由：此刻的我们就是当代的言论自由运动。这一立场必须始终不渝地坚持。我亲爱的朋友 Stallman 先生因四处强调"这是自由软件，不是开源软件"而招致不少阻力，但他有其深意：我们必须不断提醒世人，这本质是场言论自由保卫战。在21世纪这个有人妄图给所有思想贴上价签的世界里，我们的事业就是守护思想的自由。我们必须反复强化，技术社会的言论自由就是技术表达的自由。我相信我们能传达这一理念，也坚信这一理念必将深入人心。

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en: 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.
zh_CN: 这正是我倾注大量时间的使命。尽管偶尔难免令人厌烦，但至少大体上传达了核心理念。而我们所有人都需持之以恒地推进这项事业。

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en: <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&mdash;and this applies to more than just, you know, movies or music&mdash;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.
zh_CN: <b>问题：</b>我想提出一个问题。您详细阐述了分发自由化的主张，这部分论点我很理解；但对于零边际成本分发商品的创作者如何获得必要回报的论证，我的理解尚不充分。我听过不少解释（尽管这些并非您的观点）&mdash;&mdash;比如音乐人通过巡演补偿创作投入，或者人们出于热爱继续创作（不仅限于影视音乐，还包括书籍乃至非娱乐类知识产品）。但这些说法难以弥补创作者当前的实际收入损失。

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en: 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.
zh_CN: 因此，我想请教您能否阐述：自由分发体系（与现行体系的根本差异在于后者专为保障创作者报酬而设计）将如何重构创作回报机制？

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en: <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"> &ldquo;Freeing the Mind&rdquo;</a>, which addresses this question, I hope comprehensively, or at least a little bit. Now, let me give you an answer.
zh_CN: <b>Moglen：</b>我将简要回应，同时为节省时间说明：您可在我的网络文集（http://moglen.law.columbia.edu）中查阅题为<a href="http://moglen.law.columbia.edu/publications/maine-speech.html">《解放心灵》</a>的论文，该文对此问题有较全面探讨。现在请允许我直接作答。

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en: 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?
zh_CN: 历史视角在此颇具启发。托马斯·爱迪生之前，文化从未成为商品。每位音乐家、艺术家乃至创作者，本质上都从事着我们如今正回归的事业&mdash;&mdash;除非其作品可通过印刷品传播，而这要追溯至古登堡<sup><a href="#TransNote6">6</a></sup>时代之前。不是吗？

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en: 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.
zh_CN: 文化商品化在人类创造史的漫漫长河中，不过是昨日才兴起的现象。无论我们持何种观点&mdash;&mdash;尽管现存问题确实严峻&mdash;&mdash;我们都必须清醒地认识到：即便音乐无法再被商品化，它也绝不会消失。音乐始终存在，亘古如斯。

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en: 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.
zh_CN: 您的问题实质是：为何人们会为自己珍视的事物付费，以此支持创作者持续产出？我的回答是：付费行为源于人类与"创造"这一概念的情感联结。

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en: 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.
zh_CN: 音乐家通过听众获得报酬，皆因二者存在直接的情感纽带。这正是您所指的巡演模式或"感恩而死"乐队案例<sup><a href="#TransNote7">7</a></sup>的底层逻辑：利用剧场座位的非零边际成本实现价值回收，如同周边商品销售一样。

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en: 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.
zh_CN: 试想咖啡馆里的民谣歌手和作者。他们是音乐产业转型中最纯粹的案例。这些全年巡演40-50周的艺人，在舞台后兜售 CD，但人们购买的动机绝非"避免盗版"；而是如同在农夫市集选购手工品般，源于与艺术家的情感联结。

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en: 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&mdash;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.
zh_CN: 让我揭示20世纪文化垄断者的本质：从爱迪生时代起，他们耗费两代人才明白其生意真谛。既非音乐也非电影，而是造神工业。他们批量制造身高八尺的虚拟巨人，而我们则与这些人造偶像建立虚幻的情感联结。这些被操控的人际关系最终沦为推销工具&mdash;&mdash;音乐、电影、T 恤、玩具，乃至性幻想商品，不一而足。而这一切都基于文化的潜在真实经济逻辑：我们愿为自己认同的美与实用之物付费。我们人类作为社会性动物，历经了长期的部落社会生活和演化，当遇见真正值得信赖的美丽造物时，自会倾力支持。

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en: 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&mdash;you can't have it, if you don't pay.
zh_CN: 您或许质疑这一观点，因为当下社会表层规则宣称：情感联结不足以为创作提供持续动力，而唯有强制排他机制&mdash;&mdash;不付费即禁止获取&mdash;&mdash;才是维系创作的唯一途径。

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en: 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.
zh_CN: 但从历史维度看，强制手段的有效性不过是近代产物。更悠久的文化史实则是艺术家通过非强制机制获取回报的历史，而今我们正有幸仅将其中某些机制优化至前所未有的高度。

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en: <b>Q:</b> But what about the software writer?
zh_CN: <b>Q:</b>但是软件作者会怎样呢？

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en: <b>Moglen:</b> Ah, the software&hellip;
zh_CN: <b>Moglen：</b>啊哈，软件&hellip;&hellip;

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en: <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.
zh_CN: <b>问题：</b>我想追问的正是这类情形。当创作者产出具有零分发成本却真正实用的作品时（这里的"实用"不同于名人效应，尽管我不确定那是否算某种"实用"），而是指需要长期投入才能做好的实用价值。

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en: <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.
zh_CN: <b>Moglen：</b>我毕生共事的程序员们向来以工匠自居，这使他们极难被工会化。他们曾坚信自己是独立创作者，但如今这种认知正逐渐瓦解，世界对他们的无产阶级化改造比以往更彻底。他们开始意识到自己本质是劳动者，更值得注意的是，若关注当下总统选战便会发现：他们正在认识到自己是可被国际贸易转移的劳动力。

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en: 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.
zh_CN: 事实上，我们比专有软件阵营更能保障程序员的生计。盖茨先生提供的岗位有限，且会不断向编程成本最低的地区转移。不信且拭目以待。反观我们，正赋能人们掌握可定制、可本土化推广的技术知识。我们本质上是在培养程序员，不是吗？并为他们提供经济生态中各层级的服务基础：从个体开发者到大型企业。

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en: 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.
zh_CN: 当今世界，十四岁的少年也能从事编程工作。因为他们拥有完整的 GNU 体系作为基础，可开发邻里所需的任何软件。而我们创造的价值，甚至足以让 IBM 公司投入数十亿美元予以支持。

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en: 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.
zh_CN: 若此刻我是 IBM 的员工，我会认为自由软件的存在让我的职位比没有自由软件的世界更稳固，而且我相信多数 IBM 同仁对此并无异议。

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en: 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.
zh_CN: 在所有参与零边际成本经济的群体中，程序员最能看清自身利益所在，只需观望又有数万编程岗位从本土流向班加罗尔，他们的认知必将更加清晰。

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en: <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.
zh_CN: <b>问题：</b>当作者编写软件时，作品在固定于有形载体的瞬间即自动获得版权保护，他人未经授权不得使用。若作者选择采用通用公共许可证（GPL）来规范软件使用权限，正如您提出的深刻见解——该许可证在设定限制的同时也赋予权利，这正是无人愿轻易挑战 GPL 的原因：此类挑战即便获胜也将得不偿失<sup><a href="#TransNote8">8</a></sup>。因为若胜诉导致许可证失效，所有权利将如橡皮筋般弹回作者手中。

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en: 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.
zh_CN: 这说法听起来很有说服力，但会不会反而显得过于极端了呢？比如，假设另一位开发者编写了软件，选择以“共和党专属许可证”（Grand Old Party License）授权，规定只有共和党人才能制作衍生作品或进行其他可能构成版权侵权的使用。那么问题来了：第一，你认为法院应该强制执行这样的许可条款吗？第二，按照同样的逻辑，是否也可以说没人敢挑战它，因为“有总比没有强”？至少还能让共和党人用上这个软件，不是吗？

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en: <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.
zh_CN: <b>Moglen：</b>从根本上说，我认为您提出的问题本质上是：版权滥用原则是否已完全消亡？尽管最高法院目前对国会的立法选择保持遵从，我的答案是这一原则依然存在。我认为普通法中仍存在"越界限制"的原则。作为一名致力于为信息共享积极发声的律师，我时常听到各种提案，当事人认为某些做法"非常巧妙"，但在我看来，未经契约化调整的纯粹版权法体系根本不会允许这类行为。

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en: 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.
zh_CN: 我认为，《伯尔尼公约》<sup><a href="#TransNote9">9</a></sup>协调下的版权法工具箱本身就对许可方权力设定了某些限制。这些限制的包容性足以让我们构建目前这种具有自我修复能力的知识公地，但我并不确定它们能否强大到允许引入大量额外的契约化限制条款——仿佛这些条款本就属于版权法体系的一部分。

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en: 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.
zh_CN: 此外，我相当确定的是，即便你成功在某个司法管辖区实现了这一做法，也会发现《伯尔尼公约》实际上并未将这些主张推广至全球范围。因此，想要围绕 GPL 许可证建立一个全球性体系，你将面临重重困难。

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en: 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.
zh_CN: 但我认为您的另一点说得很对：倘若世界各地基于不同原则建立起多个自我维护的知识公地，那么势必会产生大量无实质意义的累讼。这正是为什么我投入大量时间帮助人们理解 GPL 协议的优越性：它无需被改造成 XPL、YPL 或 ZPL 等全球各地的变体。事实上，我认为未来几年许可证将趋向整合而非增殖。但这是个重要的理念问题，其核心在于认知到：单凭版权法本身就已允许某些行为而禁止另一些行为，而那些法律空白只能通过我们尽量避免使用的那类合同法来填补。

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en: <b>Q:</b> Can you recommend any economists who have studied zero marginal cost economics?
zh_CN: <b>问题：</b>您可以推荐一些研究零边际成本经济学的学者吗？

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en: <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.
zh_CN: <b>Moglen：</b>话说回来，我常和耶鲁法学院的挚友 Yochai Benkler 开玩笑，说他现在很有希望拿下最后一个诺贝尔经济学奖。不过我担心这个说法可能不太准确，毕竟涌入这个领域的人越来越多。我隐约有种预感：说不定哪天醒来就会看到斯德哥尔摩那边决定把奖项颁给某些人，只因他们讲授了我们二十五年前就熟知的经济学理论。

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en: 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.
zh_CN: 就拿身边的学者举例，Eric von Hippel 正在这个领域开展非常重要的工作。我们的商学院里也开始涌现一批真正思考这些问题的人，毕竟他们看到数百亿美元的资金正在这个领域流动。秉承商学院的传统，他们很快就意识到：那些富商和投资人关注的东西，或许也值得自己研究研究。

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en: 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.
zh_CN: 可惜在纯粹的经济学系里，我们这种现象仍然令人不安，尚不足以引起重视。不过博士生们当然不会总是亦步亦趋地跟随教授，我猜想，不出几年，这些领域就会开始出现一些高深精妙的研究成果。

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en: 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.
zh_CN: 这正是一个重塑学科的绝佳契机。即便在经济学这样的学科领域，人们也不可能永远被禁锢在无趣的研究中，真正引人入胜的问题终将获得关注，这一天很快就会到来。

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en: <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&mdash;even though it's an ideal world&mdash;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?
zh_CN: <b>问题：</b>关于市场力量和自由软件经济，我有个普遍性的问题：即便在理想环境下，难道不会因为市场机制的作用，导致某些参与者特别成功，最终&mdash;&mdash;哪怕是在理想世界&mdash;&mdash;他们依然会强大到垄断标准，使我们又回到如今的体系？所以问题在于：我们现有的这种产品型体系经济，究竟是现有结构的必然产物，还是说纯粹就是市场力量作用的结果？

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en: <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.
zh_CN: <b>Moglen：</b>现行的制度结构本身构成了我们所谓的"市场力量"。我不愿采取这样一种立场，即认为市场是独立于人类社会互动而存在的牛顿式机械系统。

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en: 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.
zh_CN: 请注意，我们正试图通过以保护公地为目的的法律制度，来避免这类公地遭受"悲剧"。由于该公地内容具有可再生性且边际成本为零，我们要防范的并非 Garrett Hardin<sup><a href="#TransNote10">10</a></sup> 所指的那种基于特定自然资源固有耗竭性的悲剧。但毫无疑问，我们正在构建的这种公地确实可能以您所说的方式被侵占和摧毁。

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en: 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&mdash;this is our concern with the freedoms presented, for example, by the BSD license&mdash;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.
zh_CN: 我们这些坚信 GNU GPL 许可证具有特殊价值的人，之所以持此立场，是因为我们认为其他许可证对公地的保护过于薄弱，更容易导致某种最终具破坏性的侵占行为&mdash;&mdash;这正是我们对 BSD 许可证所倡导自由度的担忧所在&mdash;&mdash;我们担心，尽管短期来看这些自由度似乎更大，但长期结果却更容易走向您所指出的方向：那些有权将公地内容私有化的市场参与者，可能通过高效私有化最终彻底扼杀公地的使用价值，用俗话说就是"杀死了下金蛋的鹅"。

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en: 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.
zh_CN: 因此，在某种程度上，我认为要避免我们这个世界中的公地悲剧，关键在于公地本身的结构设计。不过正如我在本次对话中早前指出的那样，单靠制度是不够的，公地资源需要积极的管理维护。

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en: 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.
zh_CN: 作为律师，您只有两种选择：要么投身于保护知识公地的事业，要么选择不作为。这实质上是21世纪的新型自然资源法。其核心在于认识到，任何机制都不会自行运转，要实现您所设想的目标，就必须借助人为干预的力量。

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en: 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.
zh_CN: 即便拥有世上最完善的国家公园法，若没有甘愿守护公园的坚定践行者，盗猎行为仍无法杜绝。您提出了一个关于公地可能遭破坏的普遍理论，我对此表示认同。但我要强调两点：我们既能设计更完善的公地制度，也能通过不懈努力使公地保持健康、强健与繁荣。这正是我致力的方向，也期待能与您携手同行。

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en: [*] Eben Moglen is a Professor of Law &amp; Legal History at Columbia Law School, and General Counsel for the Free Software Foundation.
zh_CN: [*] Eben Moglen 现任哥伦比亚法学院法学及法律史教授，并担任自由软件基金会总法律顾问。

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en: *GNUN-SLOT: TRANSLATOR'S NOTES*
zh_CN: <h3>译注</h3>
    <ol>
    <li id="TransNote1">Sonny Bono：暗指桑尼·波诺（版权期限延长法案推动者）的意外死亡典故。</li>
    <li id="TransNote2">奥威尔式： Orwellian，源自乔治·奥威尔的小说《1984》，用于描述权力异化。</li>
    <li id="TransNote3">罗德·斯图尔特：Rod Stewart，是英国传奇摇滚歌手，其职业生涯中的版权纠纷成为美国《版权法》"35年终止权"条款的典型案例 。</li>
    <li id="TransNote4">Jack Valenti：美国电影协会前主席，以强硬捍卫版权扩张立场著称，其言论与自由软件运动形成直接对立。</li>
    <li id="TransNote5">Rupert Murdoch：全球传媒巨头新闻集团的创始人，其媒体帝国对公共话语权的垄断与自由软件运动的理念形成尖锐对立。</li>
    <li id="TransNote6">15世纪，古登堡印刷术使书籍成为商品；19世纪，爱迪生留声机使音乐/表演成为商品。自由软件试图回归"古登堡前"的共享生态。</li>
    <li id="TransNote7">感恩而死乐队：Grateful Dead，开创商业模式完美诠释了自由分发与创作者收益的平衡：允许现场录音和放弃版权诉讼，观众和收入均增长。</li>
    <li id="TransNote8">原文 Pyrrhic challenge：皮洛士式的挑战，源自伊庇鲁斯国王皮洛士。他在阿斯库伦战役中击败了罗马人，却付出了无法弥补的惨重代价。引申为以难以承受的代价换取的胜利。</li>
    <li id="TransNote9">原文 Berne：指的是 《伯尔尼公约》（Berne Convention for the Protection of Literary and Artistic Works），全称《保护文学和艺术作品伯尔尼公约》。它是国际版权法的基石之一，于1886年在瑞士伯尔尼签署，后经多次修订。</li>
    <li id="TransNote10">Garrett Hardin：在1968年发表的经典论文《The Tragedy of the Commons》（《公地悲剧》）中提出了一个核心经济学理论，而这一理论与当前讨论的“知识公地”（commons）形成鲜明对比。</li>
    </ol>

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en: Please send general FSF &amp; GNU inquiries to <a href="mailto:gnu@gnu.org">&lt;gnu@gnu.org&gt;</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">&lt;webmasters@gnu.org&gt;</a>.
zh_CN: 请将对 FSF&amp;GNU 的一般询问发送到 <a href="mailto:gnu@gnu.org">&lt;gnu@gnu.org&gt;</a>。还有一些其他联系 FSF 的 <a href="/contact/">方式</a>。关于链接错误和 &rdquo;其他更正或建议&ldquo;，请发信到 <a href="mailto:web-translators@gnu.org">&lt;web-translators@gnu.org&gt;</a>。

note: 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 hr
en: Please see the <a href="/server/standards/README.translations.html">Translations README</a> for information on coordinating and contributing translations of this article.
zh_CN: 我们尽最大努力来提供精准和高质量的翻译，但难免会存在错误和不足。如果您在这方面有评论或一般性的建议，请发送至 <a href="mailto:web-translators@gnu.org">&lt;web-translators@gnu.org&gt;</a>。</p><p>关于进行协调与提交翻译的更多信息参见 <a href="/server/standards/README.translations.html">《译者指南》</a>。

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en: Copyright &copy; 2004 Eben Moglen
zh_CN: Copyright &copy; 2004 Eben Moglen<br></br>Copyright &copy; 2025 XIE Wensheng (translation)

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en: Verbatim copying and distribution of this entire article is permitted in any medium without royalty provided this notice is preserved.
zh_CN: 本文允许在任何媒体上进行全文逐字复制和分发，前提是保留此声明。

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en: *GNUN-SLOT: TRANSLATOR'S CREDITS*
zh_CN: <b>翻译团队</b>：<a rel="team" href="//savannah.gnu.org/projects/www-zh-cn/">&lt;CTT&gt;</a>，2025。

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en: Updated:
zh_CN: 最后更新：
