The spectre of free information

Interview with Eben Moglen, Professor of Law and Legal History, Columbia University Law School.

EBEN MOGLEN is Professor of Law and Legal History at the Columbia University Law School, founder director of the Software Freedom Law Centre, and general counsel for the Free Software Foundation, Boston. Free software is software that gives users the freedom to use it on any number of computers, to share it with others, to study and modify it and to redistribute the modified version. Moglen was involved in developing Version 3 of the GNU General Public Licence (the licence with which most free software is distributed) along with Richard M. Stallman, founder of the free software movement.

Moglen has had a rather unusual career. At 16, he helped write the first networked e-mail system. He later worked on designing programming languages at IBM but left the company in 1984. He did a history degree and then a law degree and ended up teaching and writing about the roots of intellectual property law.

A friendly and jovial person, Moglen has very interesting ideas, which he has expressed through his numerous lectures across the world and in his writings. In his speech in Thiruvananthapuram in June on free software and free culture, he said that all patent laws, including the ones in the United States, are archaic. Speaking in New Delhi in 2006, he remarked: Anything that is worth copying is worth sharing. He has devised what he calls the correlative corollary to Faradays Law: Take the community, wind the net around it and spin the world, and you get information flowing through the network. Another interesting work from him is the dotCommunist Manifesto about which also he speaks in this interview, during his visit to India in June. Excerpts from the interview he gave V. Sasi Kumar, a free software activist based in Thiruvananthapuram:

The free software movement started in the United States. What is the status of free software there? How popular is it?

It is a little hard to judge how popular it is, for two reasons. First, because we have people who are using it and dont know that they are using it. Its inside their enterprises and/or its inside their appliances. And they are not aware of it. Second, we have the people who know that they are using it and who have purchased the product or downloaded the product without necessarily accounting for all their copies. So, what we can say is that free software is far more popular in the United States than what the United States is aware. You cant buy a router or a wireless access point pretty much without getting free software inside. You cant run a network in a business without having free software in the business network.

Heterogeneity is absolutely the standard now. It is very difficult to find an all-Microsoft shop or an all-proprietary shop.

Can you name some major organisations that use free software exclusively? Are there major companies with, possibly, a lot of desktops and servers that use it exclusively?

In general, we are too far along the curve of computerisation of the economy in the United States for people not already to have working systems. And to become an exclusively free software shop at the expense of breaking existing systems doesnt happen. So, for the same reason that we remain in once we are in, they remain in once they are in.

What does the global scenario look like?

The most important difference I see on this subject as I travel around the world is a difference from South to North. In the global South, the decision to care about freedom in technology isnt a retrofit: There is a significant understanding in India, in Brazil, in South Africa of the political and social as well as technological benefits of freedom.

In the global North, the issue is seen as one of business policy, avoiding vendor lock-in, as it is called, which means moving away from software which imposes dependency on one particular vendor for services associated with the software. In the South, lock-in concerns not one particular vendor but [is] a question about systems as a whole: Do we want to be locked into a free trade system that imposes monopolies on us? The question of software freedom becomes a question of avoiding forces that slow down or inhibit national social development.

There is also, I think, a kind of gradient from country to country, from west to east or east to west. You have some countries in Europe very strongly interested in the free software idea and others more weakly interested in the free software idea. Unfortunately, the element of the venality or the purchaseability of politics is relevant to this. Because unfree software, like pharmaceuticals, has become an industry which heavily depends upon influence with governments.

If government wants to spend the taxpayers money wisely on technology, it will tend to use free software. So, influencing governments not to use the taxpayers money wisely becomes a part of the proprietary software way of doing business. The mixed companies can say to government with some degree of credibility: Look, we are not trying to cost you money; in the long run we are trying to save you money, but we dont think the way you save money is by ripping out existing infrastructure or retraining existing workers. And so, to the extent that enterprises or governments have come to see themselves as mixed heterogeneous parties already, they are solicitors for free software. They dont want it beaten, they dont want it eliminated, but they dont want to be compelled to use it either.

I think that the real goal of most of the countries currently building open source policies in the North, as they tend to call them, is to restore individual choice to businesses. They have come to see anti-competitive practices in the proprietary software industry as an interference with businesses choice and they want to restore choice. But they are not particularly interested in freedom as opposed to choice.

Is the adoption of free software in most developing countries driven by ideology or by economics?

Local cultural conditions vary enormously in the societies around the world where free software is making inroads, and whether the software is seen as confirming an ideological presumption in favour of free information or presenting a development opportunity seems to me [to be] largely unpredictable in advance.

You have talked a lot about how this technology can help reach things such as music and video to a large number of people at a low cost. The recording industry in the U.S. is going in the opposite direction tha

I believe that the primary confusion, which is mostly deliberate and not accidental, is that the parties currently engaged in producing and distributing culture have made it appear that we dont believe in remuneration, that we dont believe in compensating creators, which is a funny thing to claim because we are mostly a movement of creators. And it would be surprising in a very extreme way if we believed that creators should not be rewarded for what they do.

The primary difficulty is not about whether people should be compensated; it is about whether the compensation should be forced compensation. It is about [whether] the model should be: you may not have this thing unless you pay, what even economists at the opening of the 20th century in America referred to as distribution by the coercive state.

The problem that we have isnt only a philosophic problem, its a factual problem. Under conditions of 21st century technology, forcing people by prohibiting distribution works badly. Because there are so many alternative vehicles of redistribution for any given digital artifact, forcing people to pay before they receive is an impractical mode of activity. So, the distributor who currently uses that mode of activity tries to define his mode as the only legitimate mode. He says only force will work. Anybody who doesnt believe that force will work is a pirate, that is, a person forcibly redistributing goods. We say, no, no.

We are making two claims, one of them practical and one of them philosophical. The philosophical claim is that forcing people to pay before they receive is wrong, with respect to goods with zero marginal cost, because it imposes the real cost of redistribution on the poor who cannot get [the goods]. We say ignorance is too high a price to pay for the production of knowledge. We say refusing people the right to listen to music is not a good way to encourage musicians. But we say practically that forcing people to pay before they receive will not work under 21st century conditions. What we need to do is to reduce the friction of paying, just as much as we have reduced the friction of distributing. So let us ask the question, if every music-playing software, whether in a device or in a general public computer, makes it easy, really easy, to pay the people who made the music all the people, not just the girl in the front or the band, but the engineers and the songwriters and the composers if its really easy to pay when you want to, then why cant we ask people just voluntarily to pay for what they love? They always did. Music before Thomas Edison was always paid for by people who wanted the musician to be paid. They paid him to play at their wedding or they paid him to play on the street or they gave him a job playing in their palace. But in all cases it was the willingness of people to pay for what they love that made the creators existence possible by giving him a source of income.

We need to have software for playing culture which encourages and simplifies voluntary payment. Then anybody can get a copy, and whenever they play it, they can ask, do you want to contribute? Or even they can set their software automatically to contribute for them. I always pay the piano player. I always reward anybody who plays the sarod, whatever it is.

We make it possible for people to encourage art by paying artists. We stop holding a gun to the head of the person who uses art or loves art or cares about art because you never need to force a guy who loves music to pay for music. You only need to force him if you are going to try and charge him more than he can afford to pay. I see poor people give money to musicians all the time, and they give as much as they can afford to pay. And forcing them to pay more by taking music away from them makes neither philosophical nor practical sense.

The confusion is between the belief that we dont care about compensation and the reality, that we just think that forcible compensation is philosophically wrong and practically worthless. Then, we will start moving to a world in which music players reward musicians and video players reward movie makers. But we shouldnt expect proprietary movie players or proprietary video players to help us create new modes of paying artists. Those players only encourage us to click on advertising, making new modes of rewarding advertisements.

Free software that helps us reward artists is therefore a crucial part of the business of freeing art. And this is why I say in my writing that there is an inherent relationship between free software and free culture. Free software enables free culture. Without free software you cant have free culture just as without free software you cant have Google. They are interdependent properties, free culture and free software. And we have to have a common banner and we have to march under the same banner together. Because if we dont tell people that we are inherently part of the same thing, if we cant get that message across, they wont figure it out for themselves.

Making a movie now involves a lot of money for camera units, for editing studio rent, for taking multiple prints, and so on. Today, the estimated cost of producing a Malayalam movie is a few crore rupees. If we

Cinema is a form of popular art, as we know it. Unauthorised DVDs are available by the millions in all the large cities of the developing world, and yet movies are still being made by studios that risk large commercial losses, as well as by consortia of national arts agencies subsidising national cinemas. I dont think either of those modalities of creation will be destroyed because other modalities, benefiting from collaborative distribution and even collaborative production, are also coming into existence.

You have written that international capitalism is facing a spectre, the spectre of free information. Can you elaborate on this?

Yes. Whats happening is that, at one and the same time, the digital revolution is offering capitalists the undreamt of possibility that they can continue to charge large prices for goods that have no cost of manufacture and distribution. That is the bonanza. That is perfection for capitalism. Profit becomes the whole of the price. Its a very great dream for them.

At the same time, they are facing the possibility of complete ruin if we move to a voluntary distribution system in which they no longer own anything but perform services to creators. Because then, in distributing culture, they must compete with children and lovers and people who distribute culture just because they want to. So there is a competitive crisis building.

On the one hand, their pay-off matrix shows in the positive side some very large numbers. And on the negative side, their pay-off matrix shows equally large negative numbers. There is no saddle point in this game, the game theoreticians would say. The game itself does not give you an optimum strategy.

There are two possibilities: they have superior force, and so they coerce the game to the cells in which they win. Or we have superior force in which case they must change their way of doing business. Unfortunately, there is really no choice in the middle. The middle becomes hard to hold because the ends are so attractive.

So, international capital at one and the same time sees that it has opportunities beyond its wildest dreams and it has challenges that might put it out of business. This produces that same uneasiness that beset capital when it first encountered the communist movement in the middle of the 19th century. And so I took the moment at which it encountered communism and I changed a few words to show how it works at the opening of the 20th century. And the spectre of free information that haunts capitalism now is like the spectre of communism that haunted it in the 19th century with just one exception; this one works. The communists of 1867 were writing about something that they hoped to do. We are writing about the spreading out of something we have already done. This one is already showing that it can happen.

What you said is true about software and, as you said, culture. But can that be applied to capitalism as a whole? Can we apply it to manufacturing on the whole?

No. The problem of the goods that have non-zero cost remains just as it was before. It is hard to make shoes and tables and chairs and automobiles and buildings in anything other than the capitalist economy because the marginal cost is non-zero and something has to be done to get the money for every unit.

The reason that they are facing a crisis is that for the first time in the history of human beings, a preponderance of value in the economy as a whole is shifting to goods with zero marginal cost. As manufacturing goes down the chain of social value so that less developed economies are earning a larger proportion of their total income from manufacturing than more developed economies, then the more developed economies increasingly specialise in knowledge goods with zero marginal cost. And the significance of our insights into the total economic policy of those societies goes up.

As they begin to think of themselves as exporters of bit streams, knowledge and symbols and entertainment, the developed societies with the highly developed capitalist sectors begin to recognise that they must live and play in our zero-marginal-cost world. Denying that their goods have zero marginal cost wont work. They tried that last decade.

Making exceptions from the general rules of economics wont work because of the traison des clercs [French for treason of the clergy: a phrase that has come to denote the moment in socially revolutionary situations when the retained intellectual defenders of the established order begin to question the system] that follows from that as the economists refuse to go with the programme.

So, they have to fall back to simple microeconomic theory because its the rules by which they lived and it becomes the rules by which they are forced to change fundamentally what they do because there is no alternative. That is the crisis.

Published under the Creative Commons Attribution No Derivatives (by-nd) Licence. This article may be freely reproduced in any media without any specific permission.

Eben Moglen

Employment: Professor of Law, Columbia Law School, since 1994; 2005- Founding Director, Software Freedom Law Center; 1987-94 Associate Professor of Law, Columbia Law School; 1986-87 Law Clerk to Justice Thurgood Marshall, U.S. Supreme Court; 1985-1986 Law Clerk to Judge Edward Weinfeld, U.S. District Court, Southern District of New York; 1984 Associate, Cravath Swaine & Moore, New York; 1983 IBM Corp., New York, Associate Corporation Counsel; 1979-84 IBM Corp., San Jose, California, programmer/analyst, Programming Language Research & Development.

Education: Yale University: 1993 Ph.D. with distinction in History; 1985 J.D., M.Phil in History (with honours).

Visiting Professorships: 1994-95 Harvard Law School; Fall 1993 University of Virginia Law School; Spring-summer 1991 Tel-Aviv University Faculty of Law.