August 24, 2006

A conversation with Eben Moglen

Author: Joe 'Zonker' Brockmeier

Eben Moglen is a man who wears many hats: professor of law and legal history at Columbia University, general counsel for the Free Software Foundation, and chairman of the Software Freedom Law Center (SFLC). Last week at the LinuxWorld Conference & Expo in San Francisco, I sat down with Moglen to get an update on the draft process of the GNU General Public License version 3 (GPLv3), his opinion on modified versions of the GPL, and the status of the SFLC.

According to Moglen, the GPLv3 draft process is now "at the halfway point in every sense." Moglen says that they are now entering "the most serious part of the negotiations," to convince stakeholders that the GPLv3 is an improvement over the GPLv2. The discussions on the second draft should continue through mid-October, and then a last call draft should be released in mid-November. Moglen says that he is confident that the final draft of the GPLv3 will be released by March 2007, which is in keeping with the timeline set in the GPLv3 Process Definition.

Moglen didn't go into many specifics of the changes found in the second draft, but he did note that there were "substantial changes" in "all major operating provisions of the license," including changes to section 1, dealing with corresponding source code, and the DRM section. A guide to the new draft is available on the FSF site.

The FSF has also released the first draft of the GNU Lesser General Public License (LGPL). Moglen says the revised LGPL is a "very important theoretical advance," because it exists as "a single permissive exception," to the GPL rather than as a separate license.

Eben Moglen talks about the GPLv3 draft process - click to view video

Modified GPLs

While work continues on the GPLv3, two new licenses based on the GPLv2 have been announced as well. The GPU project has released a GPL variant with a "no military use" clause, and Funambol has announced the Honest Public License (HPL), which addresses the "ASP loophole" in the GPLv2. The so-called ASP loophole allows application service providers to modify GPLed code, and sell services based on the code, without distributing changes.

In fact, the HPL appropriates language from the GPLv3 second draft, which Moglen says is undesirable. "I regret the timing of this ... for one very important reason. We emit these drafts during the process with clear indication that they are not for application to software. There's a reason for that. The reason is the automatic reversioning provision of the GPL." Moglen says that it's "very important" to be clear what does and does not constitute a version of the GPL for use with software.

Moglen made it clear that he does not object to the idea behind the license, which he called "a perfectly legitimate position about how community ought to work, that if people produce code from commons to offer services," they should give back the code. However, he says that he does not consider the language that is being taken from the GPLv3 draft ready to be applied to software, and that he would have preferred that Funambol wait until the GPLv3 is ready.

As for the "no military use" clause, Moglen says that "as a person who dislikes seeing jellied gasoline dropped on the heads of other people's children," he might be "morally sympathetic" to the no military use provision -- but that respect for freedom requires that one respect all uses of software. He also noted that if the no military use provision were to catch on, we would wind up with some knowledge that is only military, and some that is only for civilian use. He also says that licenses that restrict use based on moral or ethical concerns are "licenses that bend too far away from respect for users' rights."

Co-existing with Microsoft?

Respect for users' rights was a consistent theme throughout our discussion, but it was particularly dominant when discussing Microsoft.

Eben Moglen talks about coexisting with Microsoft - click to view video

At the O'Reilly Open Source Convention (OSCON), Moglen noted during his keynote that the one question he'd like to ask of Microsoft is whether the company believes that users have rights. Microsoft has been making many noises about coexistence with the open source community, but Moglen says that "the basis of coexistence has to be a shared respect for users' rights."

When it comes to developer's rights, there seems to be no disagreement between Microsoft and the free software community that developers have the right to determine how their code is to be used -- though free software developers certainly exercise their rights in a different fashion than Microsoft exercises its rights. When it comes to users' rights, though, there's a major difference.

Moglen says that there is no evidence of a shared respect for users' rights on behalf of Microsoft, because the company has not shown a recognition of users' rights at all. He suggests that now, given the change in leadership at Microsoft, would be an ideal time for Microsoft to rethink its mission and give consideration to whether users have rights. If that happened, Moglen says that he would "love to exchange a sense of permanent armistice" with Microsoft.

The difference between culture and software

During his keynote at LinuxWorld Conference & Expo, Professor Larry Lessig talked about two ways to approach discussions of free culture -- the "lefty" way of talking about ideals and freedom, and the "right" way of talking about the advantages to business. Moglen says that the left and right wing split is "an artifact" of Lessig's work in free culture, versus Moglen's work in free software.

"He sees a sharper distinction, left and right, between people who care about free on the one hand, and businesses on the other. In the world we're talking about, where executable software is really centrally at stake, that left/right distinction, business/non-business, is not quite appropriate, because businessmen themselves have concerns about freedom.... They don't want the restoration of service monopolies, or other forms of control over who can compete to do what on behalf of customers."

Eben Moglen discusses Larry Lessig's LinuxWorld keynote - click to view video

He also says that individuals in the software business, though not in the entertainment business, tend to be aware of threats posed by "too much surveillance, and too much control.... They know that the technology they make and sell [is] capable of being used in ways which are pretty hard on the freedom of human beings."

As an example, he noted that during discussions about the GPLv3, some of the people raise concerns that the anti-DRM provisions may be bad for business -- but at the same time, they also talk about concerns about surveillance and privacy. "We don't want to be bad for business, but we really don't want to be bad for freedom, and [businessmen] ... are aware that both are at stake."

The Software Freedom Law Center

In April, the SFLC launched the Software Freedom Conservancy (SFC) as a way for free software projects to receive the benefits of non-profit status, legal structure, and other administrative services without going through the hassle of setting up a foundation on their own. The SFC provides a sort of one-stop shop for services that are necessary for free software projects, but not the types of services that developers are skilled at providing themselves. Moglen described the SFC's product as "communities that function well."

Eben Moglen on the Software Freedom Law Center - click to view video

The projects do not have to give up any of their rights to participate in the Conservancy. Moglen pointed out that being a member of the SFC does not require giving up control of a project's direction, nor does it require assignment of copyrights to the SFC or FSF. Projects are free to leave at any time, and Moglen expects that some projects will eventually "develop an enormous following," similar to Firefox and other popular projects, and move on to their own independent structure.

The conservancy "looks pretty simple and small right now," says Moglen, but it will make a big difference to developers in the long run. Indeed, it seems to be growing. When the SFC was announced in April, it had a handful of member projects, including Wine, uClibc, BusyBox, and Samba. Moglen says that the SFC now has "a couple of dozen" projects that have applied for membership, and a dozen more that have been offered a spot or are under evaluation, though the SFC can't disclose the names of the projects just yet.

Moglen is also looking beyond the areas where free software has firmly taken root, such as at the operating system level. He says that "some parts of userspace have become irreversibly commoditized and now free and inexorably free," and he wants the SFC to be "at the front lines" of areas where free software is not yet firmly planted.

"Not litigating, not yelling, not throwing firebombs -- we're counselors and advisors, but I want us to be counselors and advisors at a place where a steady hand and some experience in how all of this works can be put to the best possible use."

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