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Interview with Eben Moglen

Shedding light on the legal issues around open source

LinuxWorld Magazine's editor-in-chief Kevin Bedell recently met with professor Eben Moglen of Columbia University. Eben's the general counsel for the Free Software Foundation; here he shares with LWM readers his insight on the distribution of culture and information in our Internet world.

LWM: Eben, can you give us a little background on some of your work with the FSF and how you got involved? What kind of things have you done together?
Eben Moglen:
I became involved with the Free Software Foundation back in 1992. I had been representing a man called Phillip Zimmerman, the author of a computer program called Pretty Good Privacy, PGP. Richard Stallman saw some press coverage of my representation of Zimmerman and wrote to me asking if I could help him with a legal problem which was personal to Stallman, not the business of the FSF, and I represented him in connection with that particular question briefly.

I realized that there was a great deal more work that the foundation could use help with and I began to do that work. In 1993 I decided that I was prepared to make a long-term commitment to assisting the foundation with its various legal work and became its general counsel, serving pro bono publico, that is without fee, which I have done now for about 14 years.

The work that I have done for the foundation was primarily work in two areas, one of which was assisting in the development of the GPL version 3, a long-standing task, still going on, and taking care of the foundation's other legal relationships with free software developers, which means copyright assignment systems and the disclaimers of work-for-hire status and other legal material connected with the assembly of free software which the foundation attempts to publish and distribute, and seeking to gain compliance with the GPL and other free software licensing, such as the LGPL, published and used by the FSF.

I've done a good deal of compliance work over the years, but mostly in recent years as the options with software throughout the IT and consumer electronics industries have expanded and more and more enterprises, more and more organizations, are using free software and need occasional help obeying the rules of the road.

LWM: That sounds interesting, and I'm sure the community appreciates your involvement. I understand that you've been following the SCO case pretty closely. Can you share some of your views on it?
There's a lawsuit, one lawsuit and only one lawsuit, between SCO and International Business Machines Corporation, and in that lawsuit as it is presently constructed SCO says IBM took material which was licensed to it by AT&T, licenses of which SCO says it is the beneficiary in interest as a result of intermediate conveyances of rights from AT&T to Novell to SCO.

SCO says that IBM took material which was trade secret under license and contributed to a program called the Linux kernel, the kernel of free software operating systems, which descends from the Free Software Foundation's GNU project, and the SCO complaint says that that contribution by IBM to the program called Linux is a violation of trade secret law, a misappropriation because the licenses that covered such material were not followed.

SCO also claims that IBM was engaged with SCO's predecessor in a joint venture called Monterey, and that Project Monterey developed jointly some technologies which were again trade secrets of the joint venture and which IBM wrongfully included in its contributions to the Linux OS kernel in violation of a joint venture agreement which IBM then canceled in an attempt, SCO says, to undermine SCO's commercial proprietary Unix product by furthering the development of the Linux program, and therefore of free software in general.

Those are the only actual claims that SCO has brought against anybody, and they require, in order to be proven, some facts concerning the relationship between IBM and Project Monterey and the licenses on Unix technology given to IBM by AT&T, which are not yet proven.

Even more important, however, those claims require that SCO demonstrate that IBM's contributions of code to the program called the Linux OS kernel were somehow in violation of somebody else's rights under trade secret law.

This is a very unlikely set of claims, but they are the only claims that SCO has brought.

SCO has also engaged in a great deal of saber rattling but has not brought any lawsuits, has not risked filing any claims, under the theory that the distribution of the program called the Linux OS kernel violates SCO's copyright because it is said that there is copying from SCO's work, or from work to which SCO now has the copyright assignment, into the program called the Linux OS kernel in its more recent version.

This also requires a showing of which parts of the program called Linux have actually been copied, literally copied, from work on which SCO holds copyright. Such a showing has not been made, despite the fact that all that would be necessary is to identify the portions of a publicly released program to which hundreds of thousands, if not millions, of people all over the planet have the source code, and all SCO would need to do would be to say, 'this and this and this and this are copied from works of ours," which it has not done. A single instance of supposedly copied code has been shown by SCO's CEO Darl McBride at a public meeting in Las Vegas, Nevada; that single instance of allegedly copied code may very well not be SCO's copyrighted code at all. It has been published many times over the years; it's quite old code; and there is no reason to believe it is not in the public domain, though at one time SCO put a copyright on it and released it under a free software license. But even if that code is copyrighted to SCO's predecessor Caldera, there is no version of the Linux OS kernel running on any PC hardware anywhere on earth that contains that code. And this is the sole piece of factual evidence that has been presented by SCO to support its claim. Legally, the SCO lawsuit has a central problem, that SCO has distributed for a very long time the Linux OS kernel program under the Free Software Foundation's General Public License (GPL). If it were to distribute that program at all it would be required to distribute it under GPL because the contributors to the Linux OS kernel have all chosen to license their contributions under the GPL. But when SCO distributes that program under the GPL, it tells everyone on earth that they have a right to copy, modify, and redistribute that code freely. As a result, the very people SCO is saying must take licenses from it in order to use what it claims are copyrighted works of its own that have been copied into the kernel, already have licenses from SCO; that license is the GPL, which allows them to copy, modify, and distribute whatever SCO works, if any, are contained in it. So the GPL in itself represents an obstacle to SCO's threats against users, as it represents an obstacle to its trade secret claim against IBM. It can hardly argue that IBM has violated trade secret law by contributing to the Linux kernel material which the plaintiff itself has distributed to everybody, in source code form, under a license which permits free copying, and modification, and distribution. Accordingly, though SCO didn't see this at the beginning, the GPL itself means that SCO loses the lawsuit it has brought against IBM as to trade secret law, and would lose any of the lawsuits that it has threatened to bring, but never brought, against users of free software and the Linux OS kernel program in particular.

LWM: Some of the more recent statements from SCO have discussed an actual court challenge to the GPL and whether it is not actually valid, and I know that is a confusing topic to a lot of people. Could you comment on that idea?
As to the actual substance of any claim that the GPL is an invalid copyright permission, it's foolish. The GPL is not some contractual example of what these days is called a license in the IP world. The GPL is an example of a "permission," what we used to call a license. If you take an ordinary first-year property class in law school, which I have sometimes taught, the word "license" is used in a particular way to describe permission to use real property.

The GPL is a unilateral permission. It says, we as copyright holders have the exclusive rights under the law to copy, modify, and distribute this work. But we permit you, the licensee, to do any of those things. Please note that your right to redistribute extends only to redistribution, whether of modified or unmodified versions of this work, under this license.

That's all. It says: "You're permitted to do these things. And if you want to redistribute, you're permitted to redistribute so long as you use this license and this license only." There is no promise on the other side, no contract. There's nothing to be invalid in this story. We're simply giving permission.

And there's nothing in the copyright law, or for that matter, as SCO has even more wildly suggested, in the Constitution of the United States, which prevents us from giving permission to people to perform acts which would otherwise be unperformable under copyright law.

People give permission for use of copyrighted material every day, of all sorts, and there is no case anywhere that suggests that the giving of broad permission to use, copy, modify, and distribute copyrighted material can somehow fall afoul of the copyright act or the U.S. Constitution. SCO's arguments, if they are to be dignified by the word argument, concerning the invalidity of the GPL are just false.

LWM: The idea of what I'll refer to as a commons-oriented license, or license where people agree to share and contribute to something that they can all share, is occurring in free software. I've been seeing the beginnings of that idea sort of going into other areas. (Take, for example, the Creative Commons project.) Are you seeing a trend toward this idea going into other areas?
Sure. What's happening is that the law is being asked to adjust to a fundamental change in the political economy of information.

Copyright law as we now know it is the outgrowth of the adoption of moveable type printing in Europe between the beginning of the 15th Century to the latter part of the 18th Century. Copyright law dealt with a problem presented by industrial production and distribution of information.

Information was located in physical artifacts, like books and pamphlets, that it cost money to make and to sell, and copyright law was a structure for finding a way to create flows of money back up the chain of distribution and manufacturing, leaving at the very back of the chain something for the actual creators who had made the works of utility or beauty in the first place.

Thomas Edison made a series of inventions at the end of the 19th Century which turned other forms of information besides the written word into physical artifacts that it similarly cost money to make, move, and sell, and beginning with the opening of the 20th Century those artifacts too, recorded music and video in the form of motion pictures, were also subjected to copyright law for the same reasons.

At the end of the 20th Century, however, the principle that you need copyright law in the traditional form in order to deal with the traditional industrial systems of distribution of information no longer applies, because we're in the era of post-industrial distribution of information.

Information of all kinds, all works of beauty and utility, are now bit screens. They have zero marginal cost. Once you have made the first copy, you can make as many additional copies as you need at no additional cost, and you can move them essentially without friction anywhere in the world that you want them to go.

The result is that works of knowledge and culture can now be had by everybody, at the same price that they can be had by anybody.

That raises a moral question, and it is the fundamental moral question of the 21st century: If you can give everybody access to knowledge and culture at the same price that anybody has it, why is it ever moral to exclude people just because they can't afford to pay?

If you could make enough bread for everybody on earth by making one loaf and then pressing a button, what would be the moral justification for charging more for bread than some people could afford?

Those of us who began with the idea of free distribution and copying and modification, those of us who began with the idea of commons, are now watching that idea expanding outward as people recognize that the field in which it was first applied is just one field, and just one example.

Some goods, like executable computer software, are better manufactured without property rights, without exclusion from the act of making. Free software is the best and most highly developed example in the world of a good that is best manufactured by giving everybody the right to be a maker.

But there are also goods that are best distributed by allowing everybody to be a distributor. Such goods include news and entertainment media. Those goods are best, that is most efficiently distributed, when nobody is excluded from the act of distribution.

This does not mean that creators shouldn't get paid - creators can be paid even if the act of distribution is an act that anybody is allowed to engage in.

The traditional system of distribution was to exclude people from the act of distributing unless they first agreed to pay those upstream from them, then they charged money downstream to the next set of distributees, and from the benefits of that stream and their own profits transmittance was upward.

In the world of the Internet, where everybody is connected to everybody else, you don't need those intermediaries. The system of distribution of culture can move to one in which everybody is allowed to distribute everything that's created, and everybody pays, directly, the creators for what is made.

The act of distribution costs nothing; it's simply the act of sending a bit screen from one place to another, in a world of essentially infinite bandwidth and switching capacity, so distributors don't need to be paid anymore.

This, of course, outrages the distributors, who are currently the major profiteers of culture, not the makers. It isn't musicians who make money from the sale of CDs, as everybody now recognizes. It is middlemen, and middlemen whose activity serves no continuing purpose except to deprive some people of music, which in moral justice they ought to be allowed to have even though they're poor.

So what we're seeing is a general recognition that new forms of production and distribution of information better adapt to the technology of the time and better adapt to the moral requirements of a fair economy.

This is the effort that Lessig's Creative Commons [see www.creativecommons.org - ed.] is strongly engaged in trying to undertake.

More Stories By Kevin Bedell

Kevin Bedell, one of the founding editors of Linux.SYS-CON.com, writes and speaks frequently on Linux and open source. He is the director of consulting and training for Black Duck Software.

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