Free software's white knight

'I live in a world where software has freed me,' says Eben Moglen, explaining his commitment to software freedom
Written by Ingrid Marson, Contributor

Eben Moglen, the longstanding legal counsel for the Free Software Foundation, became interested in computers at the age of 12. By 14 he was making money from writing computer programs. "I paid for my college education, a PhD in history and my law degree on the proceeds of being a programmer," he says.

Moglen spent several years coding for IBM, before turning away from the IT industry to become a lawyer. He worked as a law clerk for both the New York District Court and the US Supreme Court before joining Columbia Law School in the late 1980s, where he still works as a professor of law and legal history.

While working at Columbia, he tackled his first major legal case relating to software freedom. Moglen explains that while "trawling a bulletin board" in the early 1990s he came across Pretty Good Privacy, the email encryption program written by Phil Zimmerman. Moglen was impressed with the software, but realised that Zimmerman was exposing himself to potential legal issues, as US legislation restricted the export of cryptographic software.

"I wrote an email message to him [Zimmerman] saying 'Congratulations, you're going to change the world but you're also going to get into a shit-load of trouble. When you do, call me'," says Moglen. "I was just two weeks ahead of the police," he adds.

The US government accused Zimmerman of violating US regulations by publishing the PGP software on the Internet. Moglen helped Zimmerman pro bono, and eventually the government dismissed the case.

It was while he was working on the Zimmerman case that Moglen was contacted by Richard Stallman, the founder of the Free Software Foundation, who was also in need of legal help. Moglen again offered to do the work for him for nothing.

"I said to him, 'I use Emacs every day, so it will be a long time before you run out of free legal help.'," says Moglen.

Initially, Moglen was spending about a fifth of his time doing legal work for the FSF, although this increased over time. But, he points out that the time he has given is no different to the time that many free software developers have given to improve programs.

"I was giving him the time because it was something that needed to be done. Some of the work could only be done by a lawyer, some could only be done by Richard, and some could only be done by programmers. There were not as many lawyers willing to work on what needed doing for nothing than programmers," he says.

As well as legal work for the FSF, Moglen now works with a number of other free software projects through the Software Freedom Law Center, which he helped launch in February 2005. He is also a director of the Public Patent Foundation, an organisation that aims to limit the abuse of the United States patent system.

Eben Moglen seated

Eben Moglen at his desk, in the Software Freedom Law Center

ZDNet UK spoke to Moglen last week about the work he is doing with the Law Center, his plans for expansion, and his philosophy on software freedom, and you can read the interview on the next few pages.

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Q: Last year, you helped launch the Software Freedom Law Center, which offers free legal advice to free software projects. How many projects are you working with?
There are more takers than we can supply, so we have had to figure out how to best use the resources at our disposal. This involves triage — allocating our services to those who need it most.

There are five lawyers in this firm and we have about a dozen major clients. That's about the client load I expect us to carry for the next six months or so. There are perhaps another half dozen people seeking our help who might become clients in the future, and there are also a similar number of people who need much less from us than our major clients do.

We also carry out activities that are of benefit to the broad community of developers. For example, this week we released a position paper about the situation regarding GPL violations in relation to the Sarbanes-Oxley Act.

What sort of help do you provide to free software projects? Who are your main clients?
One aspect is the representation of free software projects that are in wide commercial use so need to be particularly sure about their legal situation. Another has to do with projects that need organisational help — tax questions or whatever.

The Free Software Foundation and the GPL revision process are consuming a great deal of time in the firm at the moment. In the next couple of weeks, there's going to be time spent on the One Laptop per Child project. We also have some work outstanding for the Apache Software Foundation and do work for Wine, Samba and OpenOffice.org.

What is the Law Center's involvement in the GPL 3 revision process?
At present, I would characterise our effort this way: the Free Software Foundation, which is the author of the licence, is primarily responsible for the licence comment process. As the FSF's legal counsel we are responsible for the management of legal questions. For that reason the Center is involved in the discussion and drafting of the licence — Richard and I are working together on it.

The first public discussion draft of GPL 3 was released in January. When will the second discussion draft be available? Can you give any idea of the changes that will be included in the second version?
We will probably have a pause for redrafting in May and will be done with another discussion draft in mid-June.

I would say that the likeliest places for changes are places where there are lots of suggestions and discussion. I'm not surprised by what people are discussing, but these areas may not turn out to be the most important. A lot of changes have been proposed and if these are good, we'll take them.

We're learning too, so there may be changes in the next draft that have not been demanded or encouraged by people, but just resulted from our having thought more about it.

Linus Torvalds, the creator of Linux and the maintainer of its development kernel, has already said he won't convert the operating system to GPL 3. What do you think about this?
For me to comment on what licence someone should use would be...

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...a serious error. I give people advice about licensing, but it's up to my clients to choose their licence — something that requires careful thought.

I have read, I believe, all the statements Torvalds has made in public and some statements he hasn't made in public, but I don't have any beef with him. There isn't any conflict between us.

One point that Torvalds made was that he is "less religious" about the GPL than the FSF, and considers it more about making people behave fairly, rather than limiting people's use of software. Do you agree that your attitude to freedom is almost religious?
I think Linus' point of view on this subject is thoughtful. It can seem to someone who doesn't share our values to their full extent that it must have come from religious conviction. I don't see it as religious, but as a commitment, conviction and principle.

To me there is an importance attached to freedom, which is like the importance attached to any other social value.

Read Moglen's thoughts on the GPL 3 process and licence in our February interview with him on the subject.

Does the Center also get involved in handling GPL violations?
There are a fairly large number of reports to the FSF every year about people who are not abiding by the terms of the GPL. It's not hard to get people to abide by the licence — there are not many cases where you have to write more than one letter, and there are not too many of those where you have to write more than two letters. There are few cases where a lawyer needs to get involved.

We're not turning this into a trap where lawyers make money. The licence works because it's a system for gaining cooperation, not because it's a system for hurting people. You can run into bad propaganda about Stallman and the FSF, but we've never held up a business for a dime in unnecessary royalties. I had instructions from Stallman that I should never let a request for damages interfere with request for compliance.

How much do your lawyers know about software and software development?
The lawyers who work here have high levels of technical expertise — this is a hacker law firm. Our clients are people who write computer code — they respect people in proportion to their understanding of code and tend to be impatient with people that can't write code. One reason why I was an effective lawyer for Stallman was because if I had a question about the code, I simply looked at the code.

If you're a company that has fair amount of resources available, you don't need your lawyers to be computer programmers. Our problem is how to provide a high level of support at a low cost, so we need a high degree of technical specialisation.

How much funding has the Center received? What do you plan to do when this funding runs out?
We received $4.25m for two years from the OSDL [Open Source Development Labs, a Linux consortium funded by IBM, HP, Intel and others]. The OSDL is a fundraising agent and aggregator for us — it collects the donations of members that are interested in the success of this law firm, and gives them to us. This is good as we have an indistinct knowledge of who gives us what and it makes fundraising simple. I'm doing other fundraising as well, which is taking more of my time than I would necessarily like.

My view is that we will continue to...

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...represent an unbeatable deal. Free software is an immense pile of golden eggs, and now companies have suddenly realised that they need people to take care of the geese that lay the golden eggs.

Do you expect the Law Center to grow in the next few years?
Yes. But at present we don't expect it to grow without limits. In Autumn 2004, we proposed taking it to twice the size it is now within five years, but predicted that it would remain stable after that.

We expect to see more people doing this work in time, perhaps working within organisations for salaries, or within the non-profit sector. Our firm aims to find the best way to use a few million dollars a year to reduce risk and to produce a steady stream of young lawyers with experience in this area.

We expect to export more lawyers than we retain — I expect that more than half of the people here will go on to work somewhere else. I see this as a postgraduate law school in free software.

How easy do you think it will be to recruit more lawyers with a software background?
The very best people will want to work here, because we can let people do what they really care about and be materially secure. I would expect any lawyer working here to have a free software background. We'll have people working here who have studied computer science at top institutions like MIT, who have contributed to free software projects and who have worked at companies like IBM or HP.

As well as your role at the Law Center, you also sit on the Public Patent Foundation's board of directors. A number of large technology companies, including IBM and Microsoft, have called for the US patent system to be reformed. How hopeful are you about this?
The patent system at the moment has two primary users — the information technology industry and the pharmaceutical industry. The pharmaceutical industry is not going to permit any change in patent law that is disadvantageous to itself.

The patent system could be improved for the IT industry by preventing software patents. Stallman has been saying for 15 years that there should be no patents on software. The larger patent system is also a bad idea, but there is not going to be any change in that area so long as the pharmaceutical industry owns as many politicians as they do.

But do patents really affect free software? You rarely hear about companies being asked to pay royalties for patents infringed by free software.
Users are not, by and large, the people from whom patent holders first seek to collect royalties. A better person to collect royalties from is the distributor, as the royalty can be included in price. Are distributors of free software programs sometimes paying royalties on patents held by people who aren't advocates of free software? Yes. But the people paying the royalties don't always have a stake in going public about it.

I don't think the scale of the problem is equal to the level of royalties. Uncertainty is the problem. The problem of patents when they are applied to software is that there is no way of finding out how many patents you could be infringing. When the patent system is applied to something like a spinning wheel there are a limited number of possible patents that people can check on before mass-manufacturing the product. But there is no way to check what patents a software product may be violating.

Programming is an incremental process, so I would say almost nothing could be argued to be novel. But, even if software patents were only issued on really narrow grounds, instead of being handed out like gumballs to someone who puts a nickel in a machine, there would still be...

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...a risk involved in writing computer programs.

Last year, the European Parliament rejected the software patent directive. Do you see this as a sign that the attitude toward software patents are changing?
[The rejection of the directive] was a great success in politicising what had until then been a niche subject. It was an announcement that patents is something that politics should be about — like transport, health and education.

Is there a change in attitude towards patents? I don't know yet. In 50 years from now, or 100 years from now, the ownership of ideas is going to seem repugnant and the patent system won't exist anymore. But that is going to require a confrontation of cataclysmic proportions, from people who right now don't know anything about patents.

Various people have accused the free software movement of being anti-capitalist, including Bill Gates. What's your response?
The idea that we are anti-capitalist is a stupid idea. Free software is not anti-capitalist. Capitalism now makes a great deal of money out of free software and it voluntarily pays us money to make, improve and lawyer for it.

Some people decided to make knowledge into property. That wasn't capitalism speaking; that was a greedy scam. There wasn't anything normatively acceptable about it. It contravened the freedom of speech and ideas. We didn't engage in it because it was excluding people from ideas.

This is an especially bad thing in the digital world. In the analogue world, excluding people makes sense as you've got to raise money to manufacture something — a book, or a tape. So you have to say to people, "this cassette tape costs a dollar to make, if you don't give me a dollar I can't make another one." In the digital world, nothing has a marginal cost. Once you make the first one you can make an additional million at no extra cost, so you should only have to pay that cost once.

People have referred to you as a dotCommunist. Do you see yourself that way?
I published an article in a magazine called The dotCommunist Manifesto,  which is different from calling myself a dotCommunist.

This paper is nothing more complicated than borrowing the Communist manifesto. Then everybody said, "he's a dotCommunist." When I wrote a piece, saying Anarchism Triumphant: Free Software and the Death of Copyright,  there are probably some people who said I'm an anarchist.

But writing an article doesn't make one any of those things. If I say "die gedanken sind frei" [a German song, that translates as 'thoughts are free'], I'm not becoming German, I'm just singing an old song, which says that thoughts are free and they belong to me.

Lastly, why do you think the FSF has been successful at spreading its philosophy?
The reason why our plans for freedom work better than other peoples' is that they include a sequence of activities — proof of concept, running code and the solicitation of partnership. First you make it, then it works, then you invite people to make it better.

Most of the people that have struggled for freedom have proposed a utopia — "I know of a place that's never existed, but if we go there it will be better." It turns out that as a mode of constructing freedoms there are problems with that method.

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