Moglen Targets Patents, Compliance and Innovation as Key Challenges for Free Software



Free software has come a very long way, but there’s still some serious challenges yet to be met.


That was the overarching theme of Wednesday’s from Eben Moglen, Professor of Law and Legal History at Columbia University Law School and Director-Counsel and Chairman at the Software Freedom Law Center (SFLC), who delivered a powerful message on the state of free software to LinuxCon attendees.

Moglen told his audience that in many ways, some elements of free software had truly matured as a recognized part of the worlds of technology and business.

“We are past the point where we are trying to prove the worth of free software to the developers and to the businesses,” he said, emphasizing that much of the original goal of free software–to make freedom useful for people–has indeed been met.

At this time in history, Moglen is keenly interested not on the strengths of free software, but rather on the interface between free software and business interests. The intersection, as he describes it, “between the economy of ownership and the economy of sharing.”

It is here, at this touchpoint, that defense is needed. But not defending free software from business, as they are not mutually hostile and exclusive.

“We are not defending freedom against capitalism or business, but usually from greed,” Moglen said.

In the areas where these two economies overlap, there are three areas where Moglen believes the free software community has to be particularly vigilant.

The first trouble spot Moglen identified was that of patent law.

The patent crisis is not going to go away,” Moglen stressed. This summer’s Bilski ruling from the US Supreme Court confirmed as much for Moglen, who related to the audience that before the decision was handed down, he feared that the Court would hand down a ruling to the effect of: “You can’t patent this, and here are five incoherent reasons why… and that’s exactly what happened.”

Moglen is concerned that without clarity from the US regarding patents, there will be not international clarity, and patents will remain a constant threat.

“We going to have to deal with this slowly and carefully,” Moglen reiterated, using such patent defense organizations such as the Open Invention Network as one potent method of defense against patents.

It won’t be easy: “The patent system is built for secrecy, obscurity, complexity… and troublemaking.” Nonetheless, the challenge will remain for some time.

The second legal concern touched on compliance, which gave an opportunity to touch on The Linux Foundation’s announcement this week of its new Open Compliance Program, which, along with the SFLC’s efforts, are key programs to educating incoming free software developers and businesses about the rules of the road.

The problem is that the world of free software is not like it was during its origins, when it was technical people who brought free software to businesses (sometimes before the business was aware of it), and it was the engineers who were the early and outspoken advocates of free software.

No longer, Moglen explained. Now, with the maturity and attractiveness of free software firmly in place, engineers and businesses alike are coming to free software possibly uneducated about the legal aspects of free software. This situation, in turn, leads to potential compliance issues.

Efforts like the Open Compliance Program and the work done by the SFLC, Moglen added, need to keep trying to develop ways for businesses to join free software knowledgeably.

The final area of legal concern that Moglen highlighted in the keynote was imagination; specifically, the imagination lawyers and businessmen once brought to overlap free software and business to create some truly innovative ways to use free software.

Looking around his community, Moglen sees evidence that the legal community is showing signs of aging, or burn out, or even complacency. All of these things are potential dangers, because without fresh, new, disruptive ideas about the meeting of free software and business, the coexistence between the economy of ownership and the economy of sharing could fail.

“What we need are all out brains,” Moglen concluded. “There’s no free software side and no business side. We’re all in both businesses.”