Defender of the GPL

The Columbia Law School professor and attorney representing the Free Software Foundation has the new role of explaining and overseeing the update to the General Public License (GPL). That document, being revised for the first time in 15 years, is not only the embodiment of the free software movement's principles but also the legal foundation for thousands of open-source software programs from Linux to MySQL.

Moglen's client is FSF founder and leader Richard Stallman, who seeks to propagate his philosophical and technical goals through the GPL. The license requires that the source code underlying any software it governs may be freely seen, modified and redistributed; if changes are made to software that's distributed, those changes must also be published under the GPL.

The draft of version 3 of the GPL doesn't change that fundamental mechanism, but it does take a more aggressive stance when it comes to patent law. Unlike 1991's version 2, the update explicitly tackles the issue of software patents. It also takes a stand against digital rights management technology--which the FSF dubs "digital restrictions management"--that encrypts or locks software or content to govern its use.

Moglen discussed the changed license terms, his concerns about how Linux uses the GPL, and troubles with TiVo and Hollywood in an interview with CNET News.com's Stephen Shankland and Martin LaMonica at a GPL 3 conference at the Massachusetts Institute of Technology in Cambridge.

Q: For openers, could you describe for us the magnitude of the changes in the GPL version 3 draft. Is this a revolutionary overhaul of the license or is this a course correction?
Moglen: I would say that it is an evolution of the license, not a course correction. I believe there is no fundamental change to the course the license is on. This is an evolution representing catching up to 15 years of history because GPL version 2 lasted so long. Those 15 years of history saw a transformation of technology, a transformation of the social uses and environment of free software, and a transformation of the legal environment.

The technology changed for the better, the social environment of free software changed unimaginably for the better and the legal environment changed for the worse. The evolution of the license catches up in my view with all three of those aspects of the situation.

Q: When you talk about a legal environment changing for the worse I suspect in part at least you're referring to patent law.
Moglen: Your surmise, of course, is right. What happened was that in 1991, GPL version 2 warned people: If you don't pay attention to the patent problem, it's going to hurt everybody, free and unfree alike. Fifteen years later, I don't think there's anybody in the business--not even the most established near-monopolist--who doesn't understand that there's a problem with patent law. The beneficiaries of patent law themselves now recognize the nature of the difficulty.

In fact, the very largest company in patent-getting terms, IBM, has been recently in the leading edge of what it refers to as patent reform activity in Washington. They are in the rare situation of reforming that of which they are the largest beneficiary. When you see that happen, you know that something fundamental has gone wrong.

In this instance, as in many, Mr. Stallman was prescient. The license tried to deal with the problem early, but it is a measure of how serious the problem was that, by the end of the 1990s, others in the free software world were criticizing GPL on the grounds that it didn't go far enough to solve the problem against which it had sounded early warning.

That's not the only change for the worse in law, however. In addition, there is the movement toward what many of my colleagues in the teaching business refer to as paracopyright: the DMCA (Digital Millennium Copyright Act), the European Copyright Directive, (and) the reinforcement of the traditional principles of copyright law by technology regulations designed to protect specific businesses.

It's a form of legal subsidy to business--in the form of regulatory rules--which is harming trillions of dollars of business on behalf of the few tens of billions of dollars of business for certain entertainment industries. This creates enormous trouble for makers of software and hardware technology around the world, and it makes a special trouble for the free software movement.

What exactly is wrong with software patents?
Moglen: Patents, unlike copyright, are said to control ideas rather than expressions. The soul of the free software movement is the re-implementation of neat stuff we thought up, no matter how we learned it or where we came by it; and in the world of copyright, there's nothing wrong with that. You can re-implement or redescribe or re-express anything you want however you please. When you write a newspaper story or a Web site story tomorrow, the question isn't: Are you reporting news somebody else owns? The question is: Did you write your own story?

Imagine a world in which news was owned in such a way that once one guy reported it nobody else could report it for 20 years because the first guy to report it owned it. That's the problem that the patent law proposes to software.

Moglen: The globalization of the movement--the immense geographical cultural spread of free software--means the license has to work in more places, more completely, more strongly for more people who do more diverse things. We have rewritten many provisions of the license to remove U.S.-centric vocabulary or legal concepts, to neutralize the language of the GPL so it can be used more effectively in more countries with less legal uncertainty.

Second, there are also more programs under more licenses which, while free, are incompatible with GPL. To enable broader technical collaboration, we have added the enhanced compatibility provisions of the license to allow more people to share more code across more projects than ever before. The ability to share Eclipse License code and Apache License Code...means that GPL now reaches far more broadly across the world of programs and projects than it ever did before. We are doing what we wish everybody would do with the problem of license proliferation: We're expanding our compatibility in the hope that people can use fewer licenses to do the same amount of work, and we think that too is a response to success.

Under the new license draft, may GPL software be included under software governed by the Apache Software License?
Moglen: No, the GPL is still a copyleft license, and the Apache Software License and the Eclipse License are still permissive licenses. They permit code under those licenses to be used in proprietary ways, and it is therefore not possible to open up a two-way street.

One of the questions with the GPL is about how tightly you may link GPL code with non-GPL code, for example, when you compile a GPL program and it uses other code in a software library. Have you done anything to define how tightly GPL code may be linked with non-GPL code? Under what circumstances is that permitted and not permitted?
Moglen: We have made one clarification, as we see it, of what we believe was always the rule. We reasserted that code dynamically linked to GPL code--which the GPL code is intended to require, not merely optionally incorporate--is part of the source code of the work under the GPL and must be released.

One specific area where the linking question arises is in the Linux kernel, where proprietary video drivers loaded are loaded as modules. Another one might be the use of a network driver that relies on proprietary firmware that is loaded from an operating system. (Such firmware, sometimes called "blobs," are strings of hexadecimal digits loaded from the operating system kernel into the hardware device to enable it to run.)
Moglen: In all good faith, I can't tell you. If the kernel were pure GPL in its license terms, the answer...would be: You couldn't link proprietary video drivers into it whether dynamically or statically, and you couldn't link drivers which were proprietary in their license terms.

Now the blobs--the object code somewhere in the kernel--raise other complicated issues because in the context of the kernel, they are data. They are just bits being moved around. It is on some other machine--a phone, a USB device--that they are code. And in that other context, they are not mixed with GPL software; they're just a program running on another chip in another computer.

I would distinguish the blobs from the proprietary drivers in the kernel. If the kernel's terms were unambiguously GPL, which they are apparently not, (proprietary drivers) would be forbidden. The blobs--though they are ethically objectionable to the Free Software Foundation, which believes that users ought to know what's running--are different because they are separate works when executed running in separate computers. From the point of view of the GPL work called the Linux kernel, they're just data.

When you talk about those who use GPL-covered software inside their product--Richard Stallman mentioned to me one was TiVo, which uses Linux in its video recording products--under the new digital rights management provisions of the GPL 3 draft, is that something that will be impossible?
Moglen: TiVo is a provider of hardware and software combinations to be used by people. Our concern with them is that they have rights as users, but they should respect the rights of the users to whom they sell. Having a personal video recorder which reports every button you push to headquarters when you use the remote control--and which won't run software if you modify the box so it snoops on you a little less--is not user-respecting conduct. (TiVo) complied with GPL 2 by the skin of its teeth.

What TiVo needs to do--what everybody needs to do who makes electronic devices--is to stop injuring users to help movie companies. We don't want our software used in a way which batters the head of the user to please somebody else. Our goal is the protection of users' rights not movies' rights, and that's the problem with TiVo. It was a problem under GPL version 2, and we worked with them to help them comply with the specific terms of GPL version 2.

It will be harder to comply with the terms of GPL version 3 because GPL version 3 contains language in our discussion draft designed to separate the world of freedom from the world of DRM. That's the difficulty that TiVo has. It is trying to straddle the line between freedom and un-freedom just a little too closely.

We can assume that Microsoft is going to put DRM into just about everything it does. Is the intention here just to have a very clear separation between these two worlds, to (ensure) that DRM just does not exist in the free software world?
Moglen: DRM of the kind that users can't control, modify or otherwise interact with in a controlled way is fundamentally incompatible with the principle that users ought to be in control of their computers and the technological laws. We didn't say that the only thing that we were going to do was stuff that was in irrepressible conflict with the movie industry. The movie industry said the only thing they would accept is stuff that was in irrepressible conflict with us.

What Mr. Stallman is saying is, "Well, if that's how you see it, then I've got to protect the freedom of the people whose freedom is my primary concern."

We will take a certain amount of criticism about this from companies, which are caught in the middle. They don't have a dog in that fight and they will be unhappy with us for saying strongly what our side of the dispute is. But we didn't beat them up in the first place. Disney beat them up in the first place. The CEO of the Walt Disney Co. went and testified before the United States Congress that the business model of...Apple Computer was piracy.

We just want to make sure that they're not allowed to throw rocks at the heads of all the users on Earth, the way they throw rocks at the heads of the IT companies. If the IT companies complain about the anti-DRM provisions in the GPL, I will say we have to defend our users' rights just as strongly as Walt Disney and the other companies attacked them.

As I'm sure you know, it's damn hard to make a modern movie for release in theaters without using free software. They benefit from the work we do all the time. Modern special effects, which are what their remaining lousy little business depends upon, are impossible without us. Not withstanding that they are uniquely indebted to us for what they do, they still refuse to respect our users' rights.

Mr. Stallman made perfectly clear that his point of view is: The world has to pay attention to that problem the way the world needed to pay attention to the patent problem 10 years ago. Now I recognize that that's a highly aggressive position, but it's not aggression. It's a defense related to an aggression, which was launched against the people whose rights are our primary concern.

But does this aggressive stance against DRM ultimately benefit non-free software--in this case it'd be Windows? If Disney cannot stomach the use of Linux because of these new DRM provisions, won't they just go with Windows?
Moglen: Their truthful situation is more difficult than that. They are compelled to behave now in a fashion which is obviously inequitable. If they could make movie special effects and do their rendering using software that didn't also come with freedom attached, perhaps they would. It would at least render them consistent.

That they find it necessary...to use the benefits of software conceived in freedom and then to turn around and try to deny those benefits to other people is obviously flat unfair. They're very good at image-making, and it takes a lot of image-making for them to prevent people from seeing that inconsistency as clearly as it should be seen.

How close to final form is the GPL 3 draft? Do you expect major changes or is this 90 percent of the way?
Moglen: I wouldn't pre-judge that. Richard (Stallman) and I know a lot, but we don't know everything.

Richard did say quite specifically this morning that on the issue of patents that there's not much room for negotiation.
Moglen: What won't change is the ethics. What won't change is the commitment to users' freedoms. What will change is (that) people will tell us facts about the world and facts about how free software is used and distributed that we don't know. They may know facts about how the license can be evaded that we don't know, and they may find bugs, failures to do what we thought we were doing. In all those ways, changes will occur. When Mr. Stallman says our principles won't change, those are my instructions. After 13 years of being his lawyer where the principles have not changed, I see no reason to believe they're going to change in the 14th.