Newsmaker: Free software's white knight

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We expect to export more lawyers than we retain--I expect that more than half of the people here will go on to work somewhere else. I see this as a postgraduate law school in free software.

How easy do you think it will be to recruit more lawyers with a software background?
Moglen: The very best people will want to work here, because we can let people do what they really care about and be materially secure. I would expect any lawyer working here to have a free software background. We'll have people working here who have studied computer science at top institutions like MIT, who have contributed to free software projects and who have worked at companies like IBM or HP.

As well as your role at the law center, you also sit on the Public Patent Foundation's board of directors. A number of large technology companies, including IBM and Microsoft, have called for the U.S. patent system to be reformed. How hopeful are you about this?
Moglen: The patent system at the moment has two primary users--the information technology industry and the pharmaceutical industry. The pharmaceutical industry is not going to permit any change in patent law that is disadvantageous to itself.

In the digital world, nothing has a marginal cost. Once you make the first one you can make an additional million at no extra cost, so you should only have to pay that cost once.

The patent system could be improved for the IT industry by preventing software patents. Stallman has been saying for 15 years that there should be no patents on software. The larger patent system is also a bad idea, but there is not going to be any change in that area so long as the pharmaceutical industry owns as many politicians as they do.

But do patents really affect free software? You rarely hear about companies being asked to pay royalties for patents infringed by free software.
Moglen: Users are not, by and large, the people from whom patent holders first seek to collect royalties. A better person to collect royalties from is the distributor, as the royalty can be included in price. Are distributors of free software programs sometimes paying royalties on patents held by people who aren't advocates of free software? Yes. But the people paying the royalties don't always have a stake in going public about it.

I don't think the scale of the problem is equal to the level of royalties. Uncertainty is the problem. The problem of patents when they are applied to software is that there is no way of finding out how many patents you could be infringing. When the patent system is applied to something like a spinning wheel there are a limited number of possible patents that people can check on before mass-manufacturing the product. But there is no way to check what patents a software product may be violating.

Programming is an incremental process, so I would say almost nothing could be argued to be novel. But even if software patents were only issued on really narrow grounds, instead of being handed out like gumballs to someone who puts a nickel in a machine, there would still be a risk involved in writing computer programs.

Last year, the European Parliament rejected the software patent directive. Do you see this as a sign that the attitudes toward software patents are changing?
Moglen: (The rejection of the directive) was a great success in politicizing what had until then been a niche subject. It was an announcement that patents is something that politics should be about--like transport, health and education.

Is there a change in attitude towards patents? I don't know yet. In 50 years from now, or 100 years from now, the ownership of ideas is going to seem repugnant and the patent system won't exist anymore. But that is going to require a confrontation of cataclysmic proportions, from people who right now don't know anything about patents.

Various people have accused the free software movement of being anti-capitalist, including Microsoft Chairman Bill Gates. What's your response?
Moglen: The idea that we are anti-capitalist is a stupid idea. Free software is not anti-capitalist. Capitalism now makes a great deal of money out of free software, and it voluntarily pays us money to make, improve and lawyer for it.

Some people decided to make knowledge into property. That wasn't capitalism speaking; that was a greedy scam. There wasn't anything normatively acceptable about it. It contravened the freedom of speech and ideas. We didn't engage in it because it was excluding people from ideas.

This is an especially bad thing in the digital world. In the analog world, excluding people makes sense as you've got to raise money to manufacture something--a book or a tape. So you have to say to people, "This cassette tape costs a dollar to make; if you don't give me a dollar I can't make another one." In the digital world, nothing has a marginal cost. Once you make the first one you can make an additional million at no extra cost, so you should only have to pay that cost once.

People have referred to you as a DotCommunist. Do you see yourself that way?
Moglen: I published an article in a magazine called "The DotCommunist Manifesto," which is different from calling myself a DotCommunist.

This paper is nothing more complicated than borrowing the Communist manifesto. Then everybody said, "He's a DotCommunist." When I wrote a piece, saying Anarchism Triumphant: Free Software and the Death of Copyright, there are probably some people who said I'm an anarchist.

But writing an article doesn't make one any of those things. If I say "Die Gedanken Sind Frei" (a German song), I'm not becoming German, I'm just singing an old song, which says that thoughts are free and they belong to me.

Lastly, why do you think the FSF has been successful at spreading its philosophy?
Moglen: The reason why our plans for freedom work better than other peoples' is that they include a sequence of activities--proof of concept, running code and the solicitation of partnership. First you make it, then it works, then you invite people to make it better.  

Ingrid Marson of ZDNet UK reported from London.

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Really

Ok, so let me get this straight. There is no cost to software huh? So I'm not supposed to get paid for my time to develop applications? I suppose lawyers aren't supposed to get paid either, or doctors, or electricians, or mechanics, or any other professional that gets paid for their expertise.

People need to realize that an awful lot of time goes into developing each revision of software product from many different people. All these people expect to get paid for their time, so they can do little things like keep food on the table and a roof over their heads.

Your not paying for the disc the software comes on, your paying for the expertise of the people that develop it.