Eben Moglen's campaign to kill the FCC

Code is not speech. It's property. That's what the law says, anyhow.
Written by Dana Blankenhorn, Inactive on

Eben Moglen (right) has a new crusade.

He wants to get rid of the FCC.

Unlicensed frequencies, which make WiFi possible, should enable the FCC's entire mission to become obsolete, he feels. A new proceeding on cognitive radios could combine with open source so frequency interference can be managed by technologists rather than lawyers.

The FCC was created in the 1930s, charged with managing "scarce" frequency spectrum for the greatest public benefit, and for dealing with wired monopolies like the Bell System. The monopolies no longer exist. Now cellularization and sectorization, when applied by WiFi radios in unlicensed frequency bands, could render the rest of that work redundant as well.

Personally I don't think Moglen will succeed. While technology is moving ahead so that the FCC might become small enough that we could drown it in a bathtub (in Grover Norquist's memorable phrase), much of Moglen's vision is based on the simple idea that "Code is Speech."

I agree with that formula. But under our copyright law, code is no longer speech. Code is property. Code can be banned, its distribution criminalized, because it violates the perceived rights of a copyright property holder. If code can be restricted in that way, why can't it be restricted for violating the perceived rights of a frequency holder?

It's another example of the basic conflict between copyright law and open source. Code is not speech. It's property. That's what the law says, anyhow.

And changing that may be more than even Eben Moglen can accomplish.

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