Transcript: SESSION V: The End of One Era, the Start of Another - “The New Consensus and Its Aftermath”

November 2, 2018
Jerome Greene Hall, Columbia Law School

Session Description:

“The New Consensus and Its Aftermath” - What is this new consensus about the open source model of developing software? What were the legal models of the past and how have they evolved now and for the future? What came before it? Professor Moglen explains what will come after.

Presented by The Software Freedom Law Center and Columbia University Law School with Eben Moglen, Professor of Law at Columbia Law School and Founder of the Software Freedom Law Center.

See event page for further information.


EBEN MOGLEN: I know in assigning myself this spot that I am pressing peoples’ weekends, and I won’t do it for very long. I some thanks to say and I have a couple of remarks I want to offer about what we all just went through together. In thanking the people that I work with, I am really, more than usually, thanking the people who literally made this possible. I have been dealing with a tiny little difficulty. My mother died two weeks ago yesterday. The team whom I usually count upon to get things done was the team that made it all possible while I stepped away to deal with the inevitabilities of life and death. So, my thanks are not merely the routine matter that one might have watched me give in the past. They are the thanks for the people who saved this from disappearing as I disappeared myself.

To Daniel Gnoutcheff who has produced the stream, the video, will produce the audio, the transcripts, has, in fact, coped successfully with everything except my bad microphone placement all day long without a single error. I am, as always, in awe of what an empowered geek can do. To Michael Weholt, my personal assistant, who has done everything that was necessary to get all the logistics straightened out and everything on point and all of it without the over-pervading and, in fact, overwhelmingly unnecessary intervention of his boss - my special thanks. To the volunteers who worked with him to produce a perfect conference, being driven by a man insane with grief and totally incapable of operating - also my thanks. Tanisha Madrid has run my businesses now for six years having been - well, correct my numbers, that’s her job. Tanisha has made it possible for me to remain in business when I didn’t actually know what my bank balance was, because she knew it for me. We have worked together so long that I wonder whether I can run a business without her, but one of these days I supposed I’ll have to try. Thank you from my heart. When you’re in trouble, when you’re struggling in law practice, you are at risk of being absolutely destroyed, because lawyers work under rules of strict liability. If we screw up, that’s the end of us. That’s when the quality of your partner is the only thing that keeps you in business. It’s an honor for me to work with Mishi, and it’s an extraordinary privilege for any lawyers to have a partner who is perfect at all the things that one is imperfect at oneself. I have been imperfect at everything recently, and she has been perfect at everything. She made this conference program. She got all the people in order. She made it occur, and I don’t have any appropriate way to express my gratitude.

To Keith Bergelt, the Open Invention Network, for providing lunch, I can’t express my gratitude adequately. It was an excellent lunch. I hope you enjoyed it. I am really grateful, and, as always, for paying for it. The donors to SFLC, whom you see in this room and whom you all know, the companies that have shared the wealth with us for 13 years now so that we could provide lawyering to the community and so that we could train lawyers who work there now. Well, what’s to be said except that they have stepped up and made community possible in ways which I have found an awful lot of fun. So much, then, for thanks.

I want to say a little bit about substance before we all part for another year. You see, I hope, what it was that I intended us to be talking about, which the news that has been accumulating over the weeks that I have been away has very much intensified. We have come to the end of that first phase of the life of the free software movement and the open-source temperament. We have taken our bow for that. We changed how everybody in the world made software, and they’re not going back to making it a different way. We have created an understanding that sharing is better than excluding in a whole variety of technical phases, and that has changed how every company works in the world. Because everybody’s IT is different. And we have changed the way careers work in IT because we have altered the social contract of employment. We have given young people around the world who were learning an opportunity to cut their teeth on the real, and to prove their value to employers and to societies and to educational institutions by getting their hands into the real stuff and making it better. There is no impulse to learning quite as extraordinary as the impulse to learning that comes from being able to change what is for the benefit of the people around you.

The moment we first began to survey open source programmers in the mid-90s, we learned again and again in every survey of people what a powerful motive it was to help the people around me - to improve my skills while making life better for others. We did that in the making of computer programs and the technology that computer programs enable, and we changed millions of people’s lives for the better in that process. We did that against the background of some resistance - people who thought we shouldn’t do it that way, because it was wrong for their business models or because it was wrong for the status that they had in a world of cutthroat competition among firms, because they thought it was not an appropriate social model, because it was un-American or un-this or un-that. And there are no such people left. Not because they’re dead, not because they were run over by Joseph Schumpeter’s creative destruction of capitalism. They’re just as rich as they used to be, but they’re our friends now. They came to - well, I’m going to call it - enlightenment, if you don’t mind. Because it was an enlightening experience for all of us to see, that sharing worked so much better than excluding.

There was lawyers working this: sharing has rules. And the minimalist rules of sharing work very well, but they don’t work completely well. And the more complex rules of sharing in which I spent most of my grown up career as a lawyer and a law teacher, those rules of sharing had difficulties: they were cumbersome, they were long-winded. Richard Fontana could have made GPLv3 shorter, I know he could have done it. Even I could have done it. But Richard couldn’t do it, so we did it the long way. Because we had to be complete. Because every corner case had to be handled. Because no sentence could allow what we are calling ambiguity. Trust me, if it weren’t for Richard Stahlman GPLv3 would be a lot more ambiguous than it is, and it’d be a lot shorter. And that was the compromise weren’t allowed to make, because our client demanded of us a complete precision in the rules of sharing.

The rules of sharing have paid out very nicely. We have come to a place where we can almost all agree about them. That consensus is enormous. It’s going to enable a great deal of progress. It is interesting in that era of consensus that our disagreements about modifications for additional restrictions, protections for business models - these are tiny disputes compared to the disputes we used to have. No fundamental principle is at stake in this. We have come to an agreement, and that agreement has already made many, many millions of humans live lives better and it’s going to make more too.

But we have lost, also, on the way. This is the Friday before an election. Politics matters. Nobody who lives in the United States can be unaware of the mattering of politics right now. The kinds of politics that we had, that we brought to this, that Richard had, that I had, that our friends and comrades in the movement had - the politics we had was the belief that human freedom could be eliminated by computer technology. That what we called liberty, what it meant to live in a free society could be eliminated by computer technology if it didn’t work for people. Users’ right in technology were, for us, a primary guarantee of the continuance of human liberty. We worried. Educated as we were in the science fiction of the 1960s - science fiction which became aware of the terrible danger of the unintended consequences of human effort because of a thing called the atomic bomb - we learned from that science fiction to fear a future in which people were slaves to computers because they could not change how computers worked. Because they didn’t know how, because they didn’t have the materials, because the machines baked society on them so tightly that there was no longer any room for liberty. That was the worry that made our careers.

We have won as to how to make software, but we have not won the saving of human liberty from the technology of digital computation. On the contrary, we are just as endangered as we feared when we were young. The effort to predict all human behavior based on all existing human behavior is well along. The second most powerful government on Earth, that of the Communist Party of China, certainly believes that it can achieve its stated goal, which is to eliminate from human society - or at least from the society it runs - the very ideas of democracy and constitutional liberty. And Xinjiang is a testing ground for the idea that computer technology can be made to do that work.

Everywhere in the developed world, we are aware that there is something sickening our politics, making it harder for us to discuss and easier for us to shout. And it is, of course, that combination of witness and publication that Julia was talking about this morning - that we have democratized technology, which we meant to do, and the technology which we have democratized is threatening democracy itself. The second phase of the free software movement, in other words, is not easy going. It’s not downhill sledding. It’s not that I wanted to have this conference to say we won, there is consensus, now we all go home for the weekend, and everything is fine.

Tuesday is important. Everybody must vote, but it isn’t just voting. You might have some votes in mind. You might have some issues that concern you that are particular to us. Whether, for example, governments should allow telecommunications service providers unlimited opportunities to buy us the network in order to acquire more behavior data. Whether we need forms of privacy legislation around the world - not just in the United States, but in the European Union and in India and everywhere that freedom will allow us to enact some laws for human benefit. Whether we need laws about data that will help to sustain freedom.

We say, Mishi and I, in the work that we are doing in India and elsewhere on such statutory development that there is a serious problem with calling things “data protection law.” Because it isn’t data that needs protecting, it’s people that need protecting. And we’re going, over the next few years, to discover that that question - how to protect people in data - is as complicated and as difficult as it seemed at the outset to wonder how we’re going to protect users’ rights in code. We figured that out. We iterated our way out of licenses. We tried minimal. We tried maximal. We tried automatic this, and we tried discretionary that, and eventually we parched our way to some conclusions which worked, and we helped people make a ton of money, and they drove those ideas deeply into the substance of the world - so deeply that they’re not going to come out again. That was good.

But Richard always worried that we were going to wind up with a thing was open source - that was free software without the freedom. And that’s not exactly what happened, but what happened was, indeed, that people got so full of technical achievement and so full of money and so full of new ways to do things that freedom took a second place. Now that we don’t have to do any of that other work again, now that we will never have to defend the model of sharing over excluding, now that we never have to say we’re not a cancer, now that we can count upon everybody to understand why we believe in sharing, now we have to go back to what was, in the first place, the primary lesson. Freedom is threatened by our technological prowess. The thing that we called being a human being with some privacy and some ability to resist external scrutiny or surveillance, some opportunity to keep the history of who we are from being collected by other people and used to our disadvantage, this we have now even more work to do.

This is why I am not particularly concerned with the question of whether we are going to have licenses of purity or perfect compliance with the rules of those licenses. These are now small matters in a hurricane. We have watched the technology that we helped to make become the technology of universal behavior collection. We have instrumented the human race, and we are acquiring the news about everybody all the time, everywhere. One person in this room said to me today that “you know, now I work at company so-and-so and we know everything about everyone.” And that’s right, of course. And there’s something wrong with that. That’s not what we came into this for. We came into this for the idea that people could compute in freedom, and we certainly thought that meant that people could compute in ways that wouldn’t kill them or hurt them, that wouldn’t lead to their characterization as enemies of the state or enemies of the people or enemies of peace and justice and good religion.

We have a lot of work to do. I am really glad that the first phase of the free software movement is over. I’m glad that it ended with peace and victory - both. And I am really happy that we can welcome all our former adversaries as our current friends - that there is no one left whose opposition we have to bear. And I am really glad that there is an election on Tuesday, and I hope that you’re all going to vote in it. But I am really worried that Wednesday - we will still have freedom to win. We will still have all the problems that we came into this trying to solve still to solve. We have some wonderful tools, and we have attracted to the project tens of millions of human beings who may never have either the opportunity or the resources to help us fight this fight. I don’t mean to say that I think everybody who has ever patched a free software program is an apostle of political liberty in the way I mean it, but I can say that everybody who has ever felt free to make a change in a computer program and share that program with people whose lives might be improved by it knows one of the major benefits of freedom and may therefore be part of our comradeship in trying to make sure that the technology that we have all made is not the source of the destruction of the morals and the values which we brought to our lives.

My mother in the last days of her life, in her late 70s and early 80s, became very interested in walking my beat. Her emerita lecture at the University of California, Santa Cruz in cultural studies delivered in 2012 was: from Frankenstein to Facebook. Last summer, when everyone started to talk about Frankenstein’s monster after the Cambridge Analytica business, I told her, “so now you too are part of the family,” five years early on the iniquities of Mark Zuckerberg. But it was more than that. I’m sorry that she won’t be here to read the book I’m working on, because she was the primary reader and inspirer I had in writing it.

But I recognize that part of the world I am mourning - the world she lived in, which made feminist struggle and the effort for racial justice in the United States crucial parts of her life - is like the world of enterprise software: unbelievably more globalized and complex. We are now fighting for human freedom, not for our freedom in this country, or for the freedom of people who look like us, or for the people who share our history of oppression. We are concerned with whether a way of being human can survive. We made the technology which threatens to eradicate it and we did that in order to say ourselves. And now we have to live with the second order consequences of our victory.

A year from now, when we are here again together, I hope, we will not have to worry about whether the free software model is triumphant. We will not have to worry about whether anybody has fallen out of the boat or the consensus has disappeared. But depending on the world we wake up in on Wednesday morning after the election, we may have to worry about the survival of freedom even more deeply than we worry about it now. I hope everybody understands that underneath all of cleverness and all our success, we face the same issue we always faced: are we going to rule this technology or is this technology going to rule us? And that problem is one in which we all ought, on the basis of the consensus we now have, to be equally interested in, equally concerned.

I do not care whether proprietary software licensing survives. It’s fine with me if it does. But the idea that that could be the most important question in any human being’s life this coming weekend seems to me wrong, the same way it seemed to me wrong when Richard Stallman and I first sat down together in the year 1993. We wanted something then, and we still want it now. We have achieved an awful lot, and we are at risk of falling desperately short. I hope that everybody understands the beauty of peace, and I hope that everybody understands where the real threat to peace is. We have work. We’ll do ours. I’m sure that you will do yours. A year from now, let us hope that we have come together in a safer and more free world. Thank you very much.