The final linux.conf.au keynote was delivered by FSF attorney Eben Moglen.
It was, it must be said, one of the best
talks your editor has seen in some time. Mr. Moglen can take an absolutely
uncompromising approach to software freedom just as well as, say, Richard
Stallman, but he can deliver the message in a way that is vital and
effective for a far wider audience. While one would not want to distract
him from his important legal work, it would be a good thing if Eben Moglen
spoke a little more often.
The following is a poor attempt to summarize the talk.
The "legal state of the free world" is strong. In particular, attacks on
the General Public License have abated. One year ago, the SCO group was
claiming that the GPL was invalid and in violation of the U.S. constitution.
That kind of talk is not happening any more. SCO "has not
completely flatlined," but it is almost there.
What were the legal consequences of the SCO attack? Certainly the
invalidation of the GPL was not one of them. There were two outcomes, one
positive, and one less so.
On the positive side, the industry (as composed of large vendors who make
money from free software) has decided that the community needs better
lawyers. In particular, the industry has concluded that financing good
legal advice for the community early in the game, before problems develop,
is a good investment. The result was the creation of the Software Freedom Law Center, with
almost $5 million in funding. That figure can be expected to triple
in the near future. There should be, soon, abundant legal help available
for nonprofit organizations and developers working in the free software
In this sense, the dotcom bust was a fortuitous event as well. As
technology jobs went away, numerous technical people found their way into law
school. Many of them were not too happy about it, but these were the
students Eben had been waiting for the last fifteen years. Soon, there
will be a new crop of lawyers who understand technology and who can read
code - and they will be funded to work for the community. This is a very
good outcome, and we owe thanks to Darl McBride for helping to bring it about.
The other outcome from the SCO attack is the general realization, in the
boardrooms of companies threatened by free software, that copyright attacks
are of limited value. SCO and its backers brought a heavily funded attack
against a project set up fifteen years ago by a student in Helsinki who
didn't think he had any need for lawyers - and that project sustained the
attack easily. Copyright does not appear, any more, to be a legal tool
which can be used to impede the spread of free software.
Patent attacks are a different matter, and "we are going to face serious
challenges" in that area. There will probably not be much in the way of
patent infringement suits against individual developers; those developers
simply do not have the deep pockets which might attract such a suit.
Instead, the attacks will come in the form of threats to users.
This is happening now: corporate officers will get a visit from "the
monopoly" or others and be told about the sort of trouble waiting for it as
a result of its use of patent-infringing free software. That trouble can
be avoided by quietly paying royalties to the patent holder. This is
happening "more than we would believe" currently - companies are paying
royalties for their use of free software. It remains quiet because it is
in nobody's interest to make this sort of shakedown public. The victims
will not come forward; they will not even tell their suppliers.
Defending against patents is a complicated task. An important part is
destroying patents - getting the (U.S, mainly) patent office to reevaluate
and (hopefully) invalidate a threatening patent. This is what was done
with Microsoft's FAT patent, for example. When it works, it is by far the
most cost-effective way of dealing with patent problems; it is far cheaper
than trying to litigate a patent case later on.
This process is tricky. Typically, a group wishing to invalidate a patent
gets a single shot, in the form of its initial request to the patent
office. After that, the process becomes confidential, and involves
communications with the patent holder. So that first shot has to be a very
good one. They are getting better at it.
Killing patents makes people in the industry nervous - they have their
arsenal of patents too, after all. There is, however, an "agonizing
reappraisal" of the patent system going on within the industry.
Some companies in the technology industry are starting to
get a sense that the patent system does not work in their favor. It will
be interesting to see what happens within IBM, in particular. In general,
patent reform is going to be a big issue over the next couple of years.
Some parts of industry will favor reform, others (such as the
pharmaceutical industry) are happy with the system as it stands now.
There will be groups trying to redirect the reform process to favor their
own interests, and many "false
friends" appearing out of the woodwork. There will be opportunities for
serious reform, but the community will have to step carefully.
Meanwhile, Samba 4, in particular, may not be safe; there are likely to be
patents out there. "Expect trouble."
[In a separate session, Eben encouraged free software developers to record
their novel inventions and to obtain patents on the best of them. Free
legal help can be made available to obtain patents on the best ideas.
Until the rules of the game can be changed, we must play the game, and
having the right patents available may make all the difference in defending
against an attack.]
Back to the GPL: the work done by Harald Welte getting the German courts to
recognize and enforce the GPL has been a very good thing. Eben, however,
is also pleased by the fact that, over the last decade or so, he has not
had to take the GPL to court. Threats to enforce the GPL are entirely
credible - there are few volunteers to be the first defendant in a GPL
infringement suit in the U.S. It also helps that the Free Software
Foundation, in enforcing the GPL, seeks neither money nor publicity.
Instead, what they want is compliance with the license. "I get compliance
every single time."
Enforcement against embedded manufacturers ("appliances") has been
problematic in the past. These manufacturers have less motivation
to comply with the GPL, and the costs of compliance (especially after a
product has been released) are higher. The working strategy in this case
recognizes that the company actually guilty of the infringement (usually a
relatively anonymous manufacturer in the far east) is highly receptive to
pressure from its real customers: the companies who put their nameplates on
the hardware and sell it to the end users. If you go to a company with a
big brand and get that company to pressure the initial supplier, that
supplier will listen.
Meanwhile, the appliance manufacturers have started to figure out that
posting their source is not just something they have to do to comply with
the GPL - it can be good business in its own right. When the source is out
there, their customers will do some of their quality assurance and product
improvement work for them - and remain happier customers.
In summary, the problems with GPL compliance by appliance manufacturers
will go away in the near future.
There is not much to be said, at this point, about what will be in
version 3 of the GPL. Much, however, can be said about the process.
The GPL currently serves four different, and sometimes conflicting goals.
Any attempt to update the GPL must preserve its ability to serve all of
those goals. The components of the GPL are:
- A worldwide copyright license. Worldwide licenses are exceedingly
rare; they are typically tuned to each legal system in which they
operate. The GPL cannot be issued in various national versions,
however; it must work everywhere.
- A code of industry conduct - how players in the free software world
will interact with each other. Any new code of conduct must be
negotiated with the industry; it cannot just be imposed by fiat.
- The GPL is a political document; it forms, in a sense, the
constitution of the free software movement.
- It is the codification of the thought of Richard Stallman, and must
continue to adhere to his beliefs.
Updating the GPL will be a long process. Eben will be putting together an
international gathering of copyright lawyers to help with the crafting of
the copyright license portion of the GPL. A separate gathering of industry
representatives will be needed to hammer out the necessary compromises on
the code of conduct; this is a part of the process which may not sit well
with Richard Stallman, but it must happen anyway. The constitutional part
of the GPL, instead, should see minimal changes - there has been no
fundamental change in the wider world to motivate the creation of a new
constitution. On the last point, there will be no revision of the GPL
which does not meet with the approval of Richard Stallman and the Free
When a new license nears readiness, it will be posted with a long
explanation of why each decision was made. Then will come the comment
period, as the FSF tries to build a consensus around the new license. The
revision of the GPL is, perhaps, the most difficult task Eben has ever
taken on, and he is not sure that he is up to it. The job must be done,
As for when: "soon." He did not want to undertake revisions of the GPL
while it was under attack - updating the GPL should not be seen as a
defensive maneuver. Now, however, the GPL is not under attack, and "the
monopoly" is distracted for the next couple of years trying to get its next
big software release out. This is the time to get the work done, so
something is going to happen.
In response to a question about software-controlled radios: that is a
global problem, not just limited to the United States.
Japan, it seems, is the worst
jurisdiction in this regard; there have been threats to arrest foreign
software radio developers should they set foot there. Fixing the software
radio problem is a key part of ensuring freedom of communication in the
future, and it is currently Eben's most pressing problem. There has been
little progress so far, however, and new strategies will be required.
In general, freedom is under threat worldwide. The events since 9/11, in
particular, have accelerated trends toward a repressive,
surveillance-oriented world. If we want to ensure our political freedoms
in this environment, we must work for technological freedom. Without the ability
to control our own systems, to communicate freely in privacy, and to
interact with others, we will not have the wider freedoms we hope for. The
free software movement is the heir to the free-speech movements which
started in Europe centuries ago; we are at the forefront of what has been a
very long and difficult fight for freedom. The difference is that "this
time we win."
Standing ovations for speakers at Linux conferences are a rare thing; Eben
Moglen received two of them.
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