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'A lawyer who is also idealist - how refreshing'

This article is more than 18 years old
The legal guardian of the free software movement explains why, after 12 years, the time is right to release version 3 of its constitution for public comment

At least 10% more programming effort is being poured into software released under the General Public Licence (GPL) - the legal underpinning of three-quarters of all free software such as the Linux operating system - than the combined output of all the programmers in Microsoft.

So says Eben Moglen, who has been analysing the coding hours per week people have done. And he should know: this hacker lawyer has for the past 12 years been official guardian of the GPL, and is overseeing the important process of crafting version 3 of what amounts to a constitution for the world of free software.

Moglen has had an unusual career. At 16, he helped write the first networked email system. He later worked on designing programming languages at IBM, but left the company in 1984, increasingly disillusioned after an epiphanic encounter with the Apple Lisa - a precursor of the Macintosh - and by the shift to what he calls "the cave-man interface: you point and you grunt". He did a history degree and then a law degree, and ended up teaching and writing about the roots of intellectual property law.

The crypto wars

But he retained contacts with the world of computing and, in the early 1990s, volunteered his services as a defence lawyer to Phil Zimmermann, whose Pretty Good Privacy encryption program had incurred the wrath of the US government, which was trying to keep such tools out of the hands of ordinary users, in what came to be known as the crypto wars.

That brought him to the attention of Richard Stallman, the founder of the Free Software Foundation and author of the original GPL. Moglen recalls: "I wrote him an email in which I said I use Emacs [a powerful editor and hacker tool written by Stallman] every day; it'll be a long time before you exhaust your entitlement to free legal help from me." Stallman, for his part, notes: "a lawyer who is also idealist is a refreshing combination."

The pair began thinking about revising the GPL almost immediately: Moglen says their discussions fill a large proportion of the 16,000 email messages they have exchanged. He explains why it is only now, after 12 years, that they have released a draft (http://gplv3.fsf.org) for public comment.

"I believed there would be a strategic advantage in releasing the GPL for discussion at a time when its most committed adversaries had other things on their mind. To have Microsoft busy getting a release of Windows together and engaging in heaps of positive publicity about itself seemed better than bringing a licence out at a time when they would not pay any substantial price for engaging in a lot of name-calling."

But the main trigger was "the immense embedded revolution around free software going on", he says. "Embedded" software runs devices such as mobile phones or MP3 players - devices where users aren't aware there is an operating system, let alone that it is likely to be GNU/Linux. "You have companies who we don't even think of as very big companies, who have 40 million units in the field with free software inside," says Moglen. "We're talking about a scale of commercial use and of a presence in people's lives that is overwhelming."

From a practical viewpoint, it was important to make sure that version 3 worked well for embedded devices - an area not envisaged when version 2 was drawn up in 1991. But Moglen emphasises that the principal reason embedded devices needed to be addressed was that they will have profound implications for users' rights - an issue at the heart of the licence. "One feeds directly into the other," Moglen says. "You're going to live in a world of devices, [and] you're going to have problems protecting users' rights in the devices."

He explains: "In the year 2006, the home is some real estate with appliances in it. In 2016, the home will be a digital entertainment and data processing network with real estate wrapped around it. The basic question then is: Who has the keys to your home? You or the people who deliver movies and pizza? The world they are thinking about is a world in which they have the keys to your home because the computers that constitute [your home's] entertainment and data processing network work for them, rather than for you.

"Users' rights have no deeper meaning than who controls the computer your kid uses at night when he comes home."

Digital restrictions

Some companies, notably those who sell music and films, want to control users' computers and entertainment devices through digital rights management (DRM) although Stallman prefers to call it digital restrictions management. The new version of the GPL licence says that creators of programs and embedded devices are free to add DRM to systems that use software released under the GPL (like GNU/Linux) - but on one condition: that users can change the underlying software.

"GPL 3 is like GPL 2," Moglen says. "It wants you to be able to use free software in combination with non-free software, providing you do so in ways that don't obscure the user's rights in the free software parts." In practice, this means users must always have the freedom to circumvent DRM schemes by modifying the accompanying GPL software. If they can't, they lose a vital freedom that Stallman's licence guarantees: to be able to change a program in any way they choose.

Manufacturers of embedded systems have a strong incentive to play along. As Moglen points out: "What they want is a very robust, highly debugged, completely stable, omni-competent, zero dollars per unit software platform for agile manufacture of devices in the future." Only one meets all those requirements: GNU/Linux.

The requirement for circumventable DRM is not all that outrageous. It already happens with DVDs. "Think of all those [multi-region] Korean DVD players," he says. "It's always been in part a lip-service game. When people cosh you in the alley again and again, eventually you start giving them play money when they hold you up, because there's contempt on both sides.

"We want to take a position that moderately and modestly insists that users have rights. And we think that's a position that ultimately has traction, even though business is big, because business consists of people who have rights." Those rights need protecting, too.

Version 3 addresses these issues, he says, because "this is the right moment to be having this conversation. Much earlier than this year, and there wouldn't have been as much support for our position. Too much later, and it would have been too late."

Age: 46

Education

1976-1980 Swarthmore College, History and Literature

1985 Yale University Juris Doctor and M Phil. in American Legal History

1993 Yale University PhD History: Development of Law in NY 1660-1774

Career

1979-1984 IBM, designer and developer computer programming languages

1985-1986 law clerk to Judge Edward Weinfeld, NYC

1986-1987 Clerk to Justice Thurgood Marshall, US Supreme Court

1987- Associate Professor then Professor of Law, Columbia Law School

1994- Free Software Foundation general counsel

2000- board member, FSF

2005- founding director, Software Freedom Law Center

Hobbies: Life in Manhattan

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