Eben Moglen challenges Tim O’Reilly to “join the conversation”

Portland, Ore. — At the O’Reilly Open Source Convention today, Software Freedom Law Center director Eben Moglen threw down the gauntlet to O’Reilly founder and CEO Tim O’Reilly. Saying that O’Reilly had spent 10 years making money and building the O’Reilly name, Moglen invited O’Reilly to stop being “frivolous” and to join the conversation about software freedom.

During today’s executive briefing, Moglen was given a half hour to discuss “licensing in the Web 2.0 era” with O’Reilly. Earlier in the session, the exchanges between O’Reilly and other guests had been genial and fairly superficial, focusing on Facebook and Firefox extensions. However, Moglen took O’Reilly to task about promoting open source over free software, and got rather heated at several points during the exchange, telling O’Reilly that his premise that Web 2.0 had rendered software licenses unimportant was faulty.

Instead, Moglen says that the Web 2.0 era is “a bunch of hooey” and the “revolution we’ve been through hasn’t been the centralization of processing capacity, it’s been the distribution of processing capacity.” He invited everyone to “look around the room” and pointed out that there were 150 to 200 computers in the room with “more opportunity to make software than IBM had in 1965.”

In the long term, Moglen says that people will tell Google and other providers “we’ll store it [data] ourselves … and we’ll do what we want with it.”

According to Moglen, “on the 10-year timescale, this [Web 2.0] is thermal noise.” When O’Reilly countered that one could claim that Linux was also “thermal noise,” Moglen shot back “you could, but you’d be wrong” and that Linux would continue to be important on the long-term timescale.

Moglen also says that this is not a new problem, and says that he faced the same issue when he started with the Free Software Foundation in 1993 over a situation with a hosted version of an optimized GCC. He dismissed the idea that the Web 2.0 companies are the long haul. “Facebook is a question of what the kids are doing this week; it’s not my problem,” says Moglen, and suggested that the kids will be doing something else next week.

The idea that Google and other “Web 2.0” providers are somehow making licenses irrelevant is wrong, says Moglen, because those companies are exercising freedoms that Richard M. Stallman sought to protect with the GPL — namely, the right to run software for any purpose, and the right to make private modifications. While those rights may conflict with others — namely the right to study modifications — Moglen says that “binary thinking” won’t solve the problem. Instead we need diplomacy to protect and ensure the rights of all parties. “We’ve got to conclude that what Google does, they have a right to do in freedom. They shouldn’t need permission to run programs. If you need permission to run programs, you can’t have freedom.”

The concern over Web 2.0 companies and software licensing, says Moglen, is “spending 90% of your time worrying about 2% of activity.”

Next, Moglen took O’Reilly to task over supporting “open source” rather than free software. “If we’d been worrying about principle instead of open source … You guys were wasting time talking about open source…. We still have serious problems to correct in public policies made by people propping up business models that were dying and wasting time promoting commercial products.”

At that point, Moglen issued O’Reilly an “invitation to do the thing you know to be important. Stop worrying about a little bit of money” and join the conversation about free software instead of open source.

Moglen also took several questions from the audience. One attendee asked how we could take Moglen seriously when the GPLv3 didn’t close the software-as-a-service loophole. Moglen says that the GPLv3 could have closed the “loophole” but then it would have violated two of the fundamental freedoms: the freedom to run code for any purpose, and the right to private modifications. Moglen says that he’s not interested in legal work that removes people’s rights, but that he is more interested in doing work that finds a way to support the rights of both parties. When rights are in conflict, he says that lawyers need to find ways to protect the rights of both parties.

At the close of the session, just before the midday break, Moglen told O’Reilly to “use this 10 years” for less frivolous purposes, and that he’d “just bought you enough time with GPLv3 to address this [free software] like a grownup.” When O’Reilly suggested that Moglen had made a personal attack, Moglen replied, “I invited you to a conversation you’d been avoiding.”