Eben Moglen in Edinburgh

Last night I attended Professor Eben Moglen’s lecture at the School of Law at the University of Edinburgh, organised by the Scottish branch of the Society for Computer and Law. The first thing I noticed was that that the audience present in the lecture theatre was starkly divided between the suits and the t-shirts, a shallow observation perhaps, but one that conveys the profound difference of the way one looks at software. As I was explaining to someone before the talk who was unfamiliar with the topic, the t-shirts were there because they believe in free software, while some of the suits were there because they cannot afford to ignore free software and free licensing. The talk is about the GPL version 3.

The lecture started with a compelling look at the ethical imperatives in the sharing of knowledge, “we are one generation away from the free spread of knowledge” through digital means with little or no replication cost. Money is still needed to represent and create knowledge, but such things are becoming cheaper to reproduce. If it is possible to give to each human being anything of utility or beauty at no or little cost, shouldn’t we? In the analog economy, cost, labour and the expense of creation generated an economy of property, economists explained why the prior system worked, and why it was wrong. However, nowadays, ignorance and deprivation are preventable, so why do they persist?

Richard Stallman began his movement with a clear moral statement. He had a moral insight regarding software, about rights to use, understand and know about the software. The result of such ideals is the Free Software Foundation. It allows software to get done, it also empowers communities to share their work. GPL v1 and v2 were drafted and released before 1991, but they are just the starting point of the philosophies expounded. The initial rules for sharing assumed that copyright only had to be considered, and therefore the GPL v2 only takes copyright law into account through the inception of copyleft and other legal hacks. But the change brought about by proprietary software has changed the environment, these systems became monopolies, and as every monopoly in history, it creates lousy products at high prices.

Such evolution has required the re-drafting of the GPL, the fundamental legal mechanisms require an update, which has been done by a global process of assembling a physical and virtual community for such purposes. Moglen keeps referring to this as a legislative process, which is an interesting choice of words, but it is precisely intended, as he has been known to have made statements that the GPL is the global norm of the free software movement. The legislative process has been achieved by allowing the community to work freely with itself. The consultation included hackers, industry, lawyers and users. A lot of the useless legislative behaviour was skipped, such as people trying to buy, coerce or scare Stallman. Professor Moglen admitted that the end result is a bit too long and a bit too complex, which is to be expected of such a long consultation.

A persuasive discourse follows on the creation of new law, with some clever snide remarks at Civil Law systems maintaining Roman Law institutions to this day (“norms that were created to sustain 1st century Mediterranean commerce”), and proposes the American Uniform Commercial Code (UCC) as an example of vigorous new norm-making, and that the new GPL is very much akin to the new UCC. But the GPL goes beyond that, it is law-making by the common man, by the community, by the people, in a way that is not done any more. There is a veiled attack on the lawyers in the room by the mention of paid spies (ouch!). There is some mention of the Web 2.0 revolution, that the people’s empowerment may herald a new political era. The GPL improved copyright law, which was the law of the publisher. Free software is the law of the creator. The fate of the monopoly will be decided in the next few weeks and months, and the talk ends with rhetoric that resembles “we shall prevail” language.

To me, the other big news from the lecture is that the GPL v3 consensus draft will be released on Friday!

Questions: A question about the interaction between v2 an v3 brings about the quote of the night: “The moment we released the first GPL version 3 draft, version 2 became perfect”. He acknowledges that some developers will decide to stay with version 2 (explicitly acknowledging Linus Torvalds very outspoken refusal to migrate), but that this will be a question for each project.

Yours truly then asked the following question: “One of the most controversial elements of the draft version has been the inclusion of technological protection measures in the draft. Seeing that DRMs may fall by their own weight and by their defective nature, wouldn’t it have been wiser not to include them?” Moglen answers that having the debate itself was useful, he agrees that TPMs are on the way out, but he argues that this is in part due to the fact that they were included in the draft in the first place. I see his point that the discussion was useful, but I’m not at all sure that DRMs would not be under siege as they are if they had not been mentioned in the proposed text. Hubris anyone?

Media: There will be a video of the talk available from here. Watch this space.

Verdict: The talk was about moral imperatives, and I see why the argument is so persuasive to those who have heard it before. I may be misreading the crowd, but there was a respectful hush throughout. Moglen is a powerful speaker, make no mistake.