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A Group Conversation with Eben Moglen, Part II

Software as Service and GPL 3

May 20, 2007

The Founding Director of the Software Freedom Law Center gave two talks at the recent Red Hat Summit, with the second being more of a Q&A session than a formal presentation.

Although this talk was before the recent round of allegations from Microsoft, Moglen's topics were still very much germaine to the Linux community. In Part II, Moglen discusses how the GPL3 relates software as services, Novell, and linking to other pieces of code. An example of how software should be managed for the public good, and a discussion of the differences between lawyers and engineers is also within.

Question: A broader question around the software increasingly being delivered in the form of a service, direct; through direct services. The GPL3 as I understand it explicitly doesn't address that if it's not strictly software. Could you kind of maybe talk a little bit about your philosophy or your view around that going forward?

Moglen: When you take some GPL software made in the Commons and intend to stay free as you make a private modification to it that you don't want to share with anybody you're exercising a right--and it's a really technical and important right--and it's a right not to be interfered with likely any more than the right to copy ought to be interfered with rightly or to share, when you have modified. The decision to engage in private modification and seeing what neat stuff you can do with it is an important right at the basic level of the four freedoms and the Free Software Foundation doesn't want to make licenses that in any way interfere with its exercise.

The right of private modification is so important that we just went through the enormous exercise of trying to divide our friends in the IT industry from our not-so-friends in the entertainment industry over preserving people's right to privately modify GPL code in the devices that show up in their daily lives. So it would not be consistent with the full respect for the freedoms that the license is about, to begin telling people that they can't make private modifications to code just because those private modifications turn out to be a good business model. And therefore knowing as one does that Mr. Stallman is a rational creature driven by a respect for principle, the outcome of the conversation is not really fundamentally endowed; private modification is a right and private modifications that produce prosperous businesses are a desirable phenomena.

At the same time, if that process were conducted by people who routinely didn't return any modifications to Commons of anything, no matter how trivial, no matter how generally useful as opposed to business crucial, and if such a party were to get very large either in the world in general or with in a particular area, the failure to share might turn out to be a major moral difficulty and ethical nuisance and a real problem. And you wouldn't necessarily want that. That is to say, a party in keeping the rules of the Commons as they have been laid down may still behave selfishly and if a big enough or otherwise intrusive enough party with selfish behavior can cause very serious trouble that will cause pressure within the Commons to realign the rules. And you don't want that to happen, either. That is to say that parties ought not to seek to put the right of private modification and the pursuit of prosperity on a collision course. They ought to exercise ecological good sense; that's what the Free Software Foundation would say is general principle.

You can see on Google Video a talk I gave of less than 60 days ago, in which I go to Google and I say out loud and in person please pay attention to these general principles. Make sure you maximize the quantity of what you return to Commons. If you keep 10-percent of all of your modifications because they are enormously valuable to you--when you return 90-percent of them because they're better for the world at large than they are held as trade secret business advantages to you nobody will bother you. But if you would hold 100-percent of your patches for 20 years GPL will come to have a clause in it that will require you to give back--that will fundamentally burden not just your right of private modification but other people's and it will be not necessarily a good thing for the world but there will be overwhelming ecological pressure to do it.

In other words, it isn't the license which determines how well the Commons fairs under that condition; it's the ecological wisdom of the participants in the Commons. This, I think, is a broader lesson if you allow me to say so and now I'm going to take your question broader than you asked it.

We are leaving the period in which the sophistication of our understanding of how to do this work is limited by the ability to make better licenses. For the last few years we have had a proliferation of people trying to make better licenses and they weren't wrong; we needed better licenses. But we've got better licenses. We're learning (a) how to make licenses better in the communal fashion; and (b) major licenses have now been through periods of improvement that will also be superior to resettling as people move to the better licenses. We've got a lot of other things to think about beyond licenses that have to do with the other ecological protection measures that a Commons needs in order to stay healthy. The licenses by themselves don't do that work. Taking care of the forest is more than having good forestry regulations.

So what we're going to move into now over the next five years is a period in which people become as sophisticated about the other ecological management measures as they have gotten about licenses. And I hope that things like the Software Freedom Law Center, which see themselves as expert consultants--legal and managerial--in taking care of free software Commons will spring up in a lot of places; be heavenly supported by those people who have revenue streams that can support them, so that we can go about the business of developing and disseminating better practices for taking care of Commons, in which the licenses are only a piece of the story. The problem of the software as service provider is in my judgment largely a diplomatic problem; it consists in reminding people who want to follow that model that that model is good, desirable, encouraged, appropriate, wise, but also could be pursued at an extreme to the heart of the community at large and they should be wise stewards of the land, too.

If those who engage in large scale trade secret redevelopment of GPL software act as wise stewards of the land--everything will be great. If they make mistakes, we should collectively try to teach them how not to make those mistakes again.

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