Interview: Eben Moglen

As for funding, we've received now two rounds of funding from OSDL, which has been acting as our agent for collecting from a number of vendors, they have been gratifyingly reliable in the funding of our firm, and I have no reason to believe that there will be any difficulty. I think the principle that better support for developers is good for business is now firmly in everybody's mind and we have been very graciously entrusted with the task of making that happen.

The kernel also maintains a technical mechanism, namely the GPL-only symbols and tainting structure, which seems to suggest an API for the connection of non-GPL'ed code to the kernel, which also seems to me a strong indication of the presence of an exception. The difficulty as a lawyer, even a lawyer that is reasonably knowledgeable about these matters, is that I don't understand what the terms of that exception are.

So, say I want to audit a system, say an embedded product, in which I find non-GPL loadable kernel modules present, how do I know whether that fits within an exception which is legitimately available to third parties and when it is not?

Linus has said over the years a number of things about how he would not object to anything that was not in obvious bad taste, or ugly, or awkward or unacceptable and I understood, I think, what he meant at each of those particular times. But it would be helpful in applying an analysis from a lawyer's point of view, and think about the problem.

One very important area is the problem faced by people who make software-controlled radios, which they want to run in systems which make use of the Linux kernel and other GNU and free software. Those parties may feel they're under regulatory orders not to release source code modules, because regulators in Japan and Europe and the United States have all, to differing degrees, made clear to manufacturers of radio transmission hardware that if they allow after-market modification that violates spectrum control regulations they may be in trouble. The Japanese in particular have been very strong in their wording.

So then there are parties in the world who think they are in legal trouble on one side with the regulators if they do release source code for loadable kernel modules that drive their software-controlled radios, and they don't know if they're in legal trouble on the other side if they don't release source code. For those parties, in particular, it would be very helpful if the kernel developers had decided to formalize the nature of their exceptions, and the Free Software Foundation and I have made a few attempts to discuss that matter with kernel developers. I had conversations with Ted Ts'o, I talked to Linus about it and I understood there were some reluctances to clarify, in a full and complete way, what was going on. There may have even been disagreements among kernel developers about that, I wouldn't know. But I continue to think that it would be useful, for a whole variety of people who are trying in good faith to do the very best they can, and who may be navigating some dodgy legal territory, for them to be able to refer to something beyond the COPYING file which -- with all due respect -- I think probably doesn't contain all the terms that are relevant to the use of the kernel.

I think that what I said was, that a process of taking a copyright assignment process from each contributor, accompanied by a legal indemnity, promising that the code was the code of the contributor and that there was nobody else with a dominating interest in it and doing so at the point of an indemnification promise to the Free Software Foundation produced a very strong chain link fence between us and claims of the kind that SCO was throwing around and I thought that constituted an indication of a cautious and prudent model of how to put free software together which Stallman had been following since long before I worked with him in the construction of the GNU Project. That didn't mean I think, that it was the only way to put together code that is strong, but where it works, it's a highly desirable model to pursue.

Linus eventually found another formula, which suited his view of the way the kernel development process works for introducing some accountability in the contributions process, and I thought that was a very good idea, and I said so. I think that if all the free software in the world were assembled in the most prudent and conservative fashion, that Mr. McBride and his colleagues would have found no place to even begin with the FUD with which they began. I think it's also important to point out that we all thought those accusations were baseless to start with and had good reasons to think they were baseless to start with. There wasn't anything wrong with how the kernel is put together. If there was a statement to make, it was simply the way the kernel is put together doesn't prove on its face the cleanliness of how it was put together with the degree of strength that otherwise could have been mustered.

I would advise clients of the Software Freedom Law Center, in light of SCO and many other things to begin their projects in ways that document and protect more carefully that structure of how free software is put together. But I understand completely how Linus Torvalds, living in Finland as a University of Helsinki undergraduate, unadvised by counsel, would not have chosen what I would now recommend to my clients to choose.

Why it's not a good idea is that each one of those parties that procures peace and quiet for itself is doing harm to the others in the ecology. Each one that takes a license strengthens the apparent patent claim that they are paying tribute on. The result of which is to strengthen the hand by which the troll tends to pick somebody else up later on. From an ecological point of view, we're concerned about the health of the entire community. You'd like to say to such people, before you pay that license fee, can you talk to about why that patent FUD may be just FUD? Could we discuss what we know about the patents held by the parties shaking you down? Could we present to you why maybe those patents aren't very strong and maybe not an appropriate basis for the payment of tribute. In other words, could we maintain a united, consolidated front.

The problem with the private license deals, they affect our solidarity and our ability to act defensively as a community together. And whether they're done publicly or not by the party who took the license, there's always a risk they'll be trumpeted by the patent holder as a sign of the strength of its patent and the degree to which other people should be afraid. So, when I have some reason to believe that some such situation is in progress, I often make an attempt to communicate with the party taking out a license, and often they won't talk and they prefer peace and quiet. I think that more respect for the needs of the community would be an appropriate leaven in their decision-making process?

Without unduly criticizing businesses that are making business decisions, they're paying money to have peace, which is perfectly understandable to do and may be culturally particularly appropriate in certain national settings, I think that overall it creates difficulty for us, it aggravates the problem of patents overall.

My particular analysis is that, at the moment, the legislative process is stalled. I do not expect any movement in that legislative process. I think that, for the moment, that initiative is in the deep freeze. My analysis is that the power of pharma to control what happens to patents in the United States Congress is nearly absolute. The Princeton health economist, Uva Rinehart, who was a major advisor to the Clinton task force and is one of the most knowledgeable health care economists in the United States referred recently in a National Public Radio report I was listening to, to the pharmaceutical companies' "substantial equity stake in the United States Congress," and I thought that was a very elegant way of putting it.

My belief is that until such time as there is a deal which includes the pharmaceutical companies, there is very little enthusiasm in the United States Congress for meaningful patent reform.

I must say, as a person who represent parties who are very afraid of what patents can do to them, I think that this operation is very largely a sideshow. I think it was intended to give the impression that things were being done, and I think that people, in good faith, who want good outcomes, nobly put their shoulders to the wheel and tried to turn it. But I do not believe it will turn this time. I don't think it's going to turn until we make some serious attempt either to disengage the interests of pharma from IT and pursue sector-based relief from the patent problem or until we step up to the problem that the patent system doesn't work very well under 21st century conditions and no matter what the pharmaceutical companies think it needs serious reform.

You need to have people there right along, it's very inefficient to try after a project is over to develop the patent applications. Moreover, in the United States patent law, once you have gone on sale, which includes public distribution of free software, you have a year to file a patent application and after that you may not file at all.

The consequence of which is that there are both resource constraints and deadlines, which are very serious given the way that the free software development process works. Having patent agents and lawyers working along side developers is not a possibility. It's not efficient and it's not the way our community operates.

The result is that the process of getting patents for free software, to build a pool, is almost impracticable while the developer community is spread very thin and very little of it works for large technology businesses with established processes for the getting of patents.

On the other hand, resources may flow towards that in the same way that they have flowed towards the Software Freedom Law Center. I think that one of the most important things said in the OSDL announcement yesterday is that there would be resources for patent prosecution, that is for getting patents, available to developers who came forward and wanted their patents to go into the patent commons. That represents the first significant movement behind patent prosecution, behind getting patents. It's one of the things I hope people will notice about what OSDL has said, because I think it's an important strategic advance.

Will it work in that sense across the enormous range of free software projects? No, I don't think so, we're just at the beginning, we'd have to scale that in many different directions. But, in some crucial projects, important to our commercial partners in this process, and large numbers of users, and tightly coordinated development teams that have worked in large technology companies and know how the patent-getting processes work, in a range of conditions that are satisfied only in some parts of our community, I think there will be some real progress. I think you will see our inventions patented and there will be some cross-licensing negotiations that will be effective for us in gaining some use of other people's patent claims free of legal difficulty.

It is a possible approach. I think there are very significant difficulties with it, including the possibility we would pinch off a whole system of hardware in the world and say "free software doesn't run there." I think that might be a strategic mistake for the free software world, to say "we are going to write off a whole generation and form of hardware and not even attempt to bring freedom there..." I think we would risk leaving a whole lot of people in a condition of unfreedom for a long time.

I think unless we are prepared to be more sophisticated in our approach to this -- this is a very ham-fisted approach, the idea that you buy a computer and are not allowed to be in charge of it. It's a very anti-consumer thing to do. Instead of building an electric fence around it, as though it were some kind of bad place we don't want to go. I think we have a duty to bring freedom there if we can, and we need to empower consumers to reject such hardware and my hope is that in a future version of the GPL, we will devise something elegant and effective at using the gravitational force of freedom to unlock that place over there, and not just seal it off.

It was also a technical response to a problem that doesn't exist with intelligent devices that exist in the 21st century... the technical rationale for the concentration of spectrum in a few hands is gone, and there never was a social rationale for that concentration of spectrum. It was never the case that the public trust that held the common property of the airwaves needed to be dealt with in a concentrated fashion for social or political reasons, the only justification ever given was a technical one.

So from my point of view, the world of devices that know about the spectrum and deal with it intelligently can promise more democracy in media than we ever had before, just as the web did for publication of text and is now doing for video. We need to be alert to the fact that the way we deal with software-controlled radios and the ability for people to use the spectrum themselves the way they want to, is a very important political and social issue in the 21st century. That's why I pay very close attention to how the free software world interacts with the world of spectrum control and regulation. 15 years from now, that's where the action is and I want to get the early stuff right if it's at all possible to do so.

I also should say that although it is true the number of people using the GNU FDL isn't that large, the number of people objecting to the FDL wasn't all that large either. There were a small number of people who wanted to say something and have their views heard. Whether they were heard or whether they thought they were heard is two different questions... I don't think there was a word written on that subject that I didn't read. Many words written on that subject I had no desire to respond to because I thought that response would only increase the intensity of the discussion... my goal in helping the Free Software Foundation construct a new GPL is to increase the lucidity without increasing the intensity. I hope there is a lot less shouting and a lot more thinking next time around by all parties.