The good folks at Groklaw have transcribed a speech by Eben Moglen, counsel to the Free Software Foundation. It’s a long, fascinating speech that focuses mostly on the legal issues raised by SCO in their various lawsuits.

I’ve thought for some time that we are on engaged in a kind of societal revolution, and you can sense this in Moglen’s speech, in the issues and arguments he raises. The open source software movement threatens to overturn some deeply-held ideas about capitalism. As the struggle over software rights progresses, you can see shades of the American Revolution. Ordinary people are asserting their right to create and share knowledge freely, to not be bound to capitalist tyranny any more than American colonists felt they should be bound to the tyranny of King George.

The essential struggle is over freedom. Moglen makes the distinction that we’re talking here about free as in freedom, not free as in beer.

“The fundamental belief in fairness here is not that it is fair that things should be free. It is that it is fair that we should be free and that our thoughts should be free, that we should be able to know as much about the world in which we live as possible, and that we should be as little as possible captive to other people’s knowledge, beyond the appeal to our own understanding and initiative.”

For those who don’t know, there is a lawsuit – or series of lawsuits, really – brought by a software company name of SCO that asserts that the free distribution of Linux is driving them out of business. SCO asserts that Linux has benefitted from the inclusion of code that SCO owns and that Linux hd no right to appropriate without compensation. (I think that’s the gist of it. The nitty-gritty details are discussed at Groklaw.) Moglen says:

”[The Free Software Foundation] are, as it happens, driving out of business a firm called the Santa Cruz Operation [sic] – or SCO Ltd. That was not our intention. That’s a result of something called the creative destruction potential of capitalism, once upon a time identified by Joseph Schumpeter. We are doing a thing better at lower cost than it is presently being done by those people using other people’s money to do it. The result – celebrated everywhere that capitalism is actually believed in—is that existing firms are going to have to change their way of operation or leave the market. This is usually regarded as a positive outcome, associated with enormous welfare increases of which capitalism celebrates at every opportunity everywhere all the time in the hope that the few defects that capitalism may possess will be less prominently visible once that enormous benefit is carefully observed.”

This is one of the critical difficulties of capitalism as I see it. Not a fatal flaw, mind you, but a serious difficulty. The problem is inertia. People who have spent great effort and wealth to achieve a top position in the capitalist heirarchy have, quite understandably, an interest in maintaining that position. They have also developed attitudes and created structures which rely on the capitalist foundation. It’s really not terribly easy for someone to just say, “Ah, times have changed. Someone’s doing this thing better than we are. Better step aside.” That just seems too unrealistic for us to expect out of ordinary humans.

We also as a society, view the people whom capitalism has bypassed as tragic failures. Perhaps what is needed is some way for the bypassed to save face. If we recognized and honored the achievements of capitalists in advancing the cause of society, if we offered them a graceful way to step aside, would that address this difficulty?

In other words, if we only measure accomplishments by how much money they produce, and if we consider the also-rans with contempt instead of as the logical byproducts of a capitalist system, we will continue to see SCOs and Disneys and Microsofts fighting tooth and nail to maintain their place in the scheme of things. It’s as much about respect and power as about money.

Perhaps we need something like a tribal elder ethic, where people can earn the mark of wisdom and experience and are revered instead of denigrated. I know how naive and Pollyanna-ish that sounds, but I really don’t see a market solution for this. There may be a deficit in our societal ethic that creates these kinds of lawsuits, and that leads companies to argue for favorable laws which have the effect of eroding our freedoms and reducing the free flow of knowledge (like the DMCA and the extension of the term of copyright.)

As to the lawsuit, it seems to me that, in the end, all SCO can hope to achieve is to delay the inevitable. As Moglen points out, software is not a scarce commodity. On the contrary, everyone can learn to write it, and many people do. If SCO succeeds in killing or wounding Linux, the whole thing will just start all over, and someone will write “Linux, Part 2” and Microsoft and SCO will be facing the same problem all over again. Even if they win, they can’t win.

Later, Moglen turned his attention to the struggle over the right to freely distribute music and other creative products.

“Think for a moment about the coffee house folk musician, the singer/songwriter. The simplest case in a way of the transformation of the music business. Here are people who are currently on tour 40, 45, 50 weeks a year. What happens is, they go to places and they perform and at the back, CDs are on sale, but people don’t buy those CDs as a kind of, you know, I would otherwise be stealing the music; they buy it the way they buy goods at a farmers market or a crafts fair, because of their personal relationship to the artist.

“So let me tell you what I think the owners of culture were doing in the 20th century. It took them two generations from Edison to figure out what their business was, and it wasn’t music and it wasn’t movies. It was celebrity. They created very large artificial people, you know, with navels eight feet high. And then we had these fantasy personal relationships with the artificial big people. And those personal relationships were manipulated to sell us lots and lots of stuff—music and movies and T-shirts and toys and, you know, sexual gratification, and heavens knows what else. All of that on the basis of the underlying real economy of culture, which is that we pay for that which we have relations with. We are human beings, social animals. We have been socialized and evolved for life in the band for a very long time. And when we are given things of beauty and utility that we believe in, we actually do support them.”

I believe this to be true, too. I concede that it’s hard to build a business plan on the idea that people will just pay for your product because they like you. But isn’t this what really happens in fact in the world of capitalism? Isn’t this what businesses discover over and over, that it’s not having the best product at the best price that always makes the difference? Service, courtesy, and personal attention are the values that make businesses succeed. If all politics is local, maybe all consumption is personal.

Finally, I loved this remark, a response to the current uproar over outsourcing:

“We [in the open source community] are actually doing more to sustain the livelihood of programmers than the proprietary people are. Mr. Gates has only so many jobs, and he will move them to where the programming is cheapest. Just you watch. We, on the other hand, are enabling people to gain technical knowledge which they can customize and market in the world where they live. We are making people programmers, right? And we are giving them a base upon which to perform their service activity at every level in the economy, from small to large.”

And this is why open-source will succeed, because it makes economic sense for the largest number of people. I can see why Gates and McBride are worried, but they will have no more success in subjugating the masses than did King George or Louis the XIV.

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Thursday, February 26th, 2004 @ 12:38 pm Freedom Matters
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