Professor Eben Moglen Replies

Professor Eben Moglen Replies 270

Posted by Roblimo on Thursday February 20, 2003 @01:30PM from the stalwart-supporter-of-the-EFF-and-FSF dept.

The call for questions went out on Feb. 10. Here are your answers. We'd like to give Prof. Moglen special thanks for taking time out from his busy schedule to do this.

1) Biggest win and loss so far?
by Em Emalb

What would you consider to be your biggest "win" so far?

How about loss?

I am sure a lot of us here think we know, but it would be interesting to hear it directly from you.

thanks for fighting the good fight.

Eben:

When lawyers are engaged in litigation, their work can be judged in terms of wins and losses. But most of the work that I've done for the Free Software Foundation in the past ten years wasn't about litigation. It wasn't about conflict at all; it was about helping people cooperate, so that more high-quality free software came into being, and stayed free. Every time I persuaded someone that it was better to comply with GPL than to fight with the Foundation, everybody won. Every time I helped licensors who couldn't or didn't want to use GPL to use a GPL-compatible free software license, so that their code and all the world's GPL'd code could be freely combined, everybody won. Many of the outcomes I feel most satisfied about over the past decade wouldn't even make a good story: they're just examples of how persistent, patient reasoning with people can convince them to do the right thing. On the other hand, the matters I most regret are places where I failed to persuade people to work together. Everyone in the /. community can think of controversies in the free software world, personality conflicts, failures of cooperation that have impeded progress. I've tried over the years to bridge some of those gaps, sometimes with no success at all.

There have been litigation controversies in which I've been involved over the years, not always for the Foundation, which lend themselves to the calculus of win and loss. I still feel very pleased with the efforts I and others made from '91 to '94 to prevent the United States Government from indicting Phil Zimmerman over PGP. Winning the crypto wars was one of the most important things our side did in the '90s, and it started with Phil. On the other hand, this year's defeat in the Supreme Court in Eldred v. Ashcroft, the copyright term extension case, is an unambiguous loss that's going to hurt the cause of free speech and free culture for years to come. I filed a brief amicus curiae in that case on the Foundation's behalf, and like my friend and colleague Larry Lessig, who argued the case in the Court, I take our defeat rather personally. But no defeat in court can possibly be as important as the victory all of us have won in the world: free software exists, and grows more powerful and more elegant every day. That's a victory of the profoundest consequence that we've all won together, and I'm intensely proud of the small contributions I've made to the cause.

2) Clarifying the GPL
by sterno

One issue that I know has come up for me is how the GPL applies in situations where I'm using GPL software but I'm not actually modifying it. For example, I write a Java application, and it is reliant on a JAR that is GPL'd. Do I then need to GPL my software? I haven't changed the JAR in anyway, I'm just redistributing it with my software. The end user could just as easily download the JAR themselves, it's just a convenience for me to offer it in my package.

Eben:

The language or programming paradigm in use doesn't determine the rules of compliance, nor does whether the GPL'd code has been modified. The situation is no different than the one where your code depends on static or dynamic linking of a GPL'd library, say GNU readline. Your code, in order to operate, must be combined with the GPL'd code, forming a new combined work, which under GPL section 2(b) must be distributed under the terms of the GPL and only the GPL. If the author of the other code had chosen to release his JAR under the Lesser GPL, your contribution to the combined work could be released under any license of your choosing, but by releasing under GPL he or she chose to invoke the principle of "share and share alike."

3) Helping independent developers work with the GPL
by SwellJoe

I've recently been doing some contract development work for other companies. These companies, so far, have all been very friendly to GPLing the work they hire me for that extends existing GPLed work.

However, when I'm preparing contracts I never know just how to specify that wholly original work we do for them will be "Work-for-hire" under whatever license they choose, but code based on and extending GPLed software will be placed under the same license.

I've browsed through the GNU site, in hopes of locating some example contract language that would make this clear to new customers and make it a legally binding aspect of any agreements made, but alas, I could find no help in this regard.

I should point out: my clients know that the GPL is an enforceable copyright, and don't have a problem with that--our work with GPL'ed software is usually the reason they come to us...this isn't a question of companies wishing to steal GPLed software. It is a question of how to make those terms compatible with an agreement that covers both GPLed work and non-GPLed "work-for-hire". Usually we are doing a bit of both types of work, and we'd like the contract to reflect that in a clear and comprehensive manner.

Seems like this would be a common problem for developers, and I was surprised that I couldn't find any documentation about adding this kind of clause to a contract.

Eben:

Two different issues arise here, and I think they're being conflated. One question is who will own the copyright on the code you are producing, and the other is what license terms the owner may use in releasing that code. Whether the code you write involves wholly new programs or modifications to existing GPL'd programs, your code constitutes a copyrightable work of authorship, and the first question is whether copyright will be vested in you or in the party with whom you are contracting. No matter who owns the copyright, however, modifications to or works based on GPL'd works can only be released under GPL. A "work for hire" provision in your agreement addresses the first question, and means that copyright in all the works of authorship will vest in your client. As to the works based on GPL'd code, in response to the second issue, you want your client to acknowledge its responsibility to release that code under GPL and GPL only. Any number of strategies in contract drafting might be appropriate, depending on the circumstances. The Foundation website doesn't make specific recommendations on how to draft contracts because contract law varies from country to country throughout the world, and no suggestion could possibly be right everywhere. Nor can I provide useful legal advice here, given the level of abstraction. On sensible approach, in a US contract, might be to include a provision in which the buyer acknowledges that the works listed in an attached schedule are subject to GPL, and promises that all code delivered under the contract modifying or extending any of the listed works will be released solely under GPL.

4) Put you in my will...
by wowbagger

I'm a single guy, no dependants. I just had to update all my benefits info at work - if I die, who gets my employer-supplied insurance money.

So how would I go about making the FSF a beneficiary? You might want to put that info on the web site.

Right now, the only organization I have listed is the NRA - they make it pretty easy to set this sort of thing up.

Eben:

Without information about the specifics of your employer's insurance program, I can't provide any detailed advice. The Foundation is of course enormously grateful for the support it receives from members of the free software community around the world. As a moderately large donor to the Foundation myself, I want to express my personal appreciation of your willingness to give. Anyone who wishes to donate to FSF, whether through testamentary disposition or direct contribution, can get further information from the Foundation's Director of Communications, Ravi Khanna, ravi@fsf.org.

5) PHB opinions
by Eric Seppanen

My boss' boss (who is quite sharp technically as well as an attorney) thinks that the GPL is stupid because it doesn't read like it was written by a lawyer. He doesn't object to the principles and methods involved-- he's just disgusted by the unlawyerly writing. He says it was written by an amateur, not a lawyer, giving the impression that everyone using it is an amateur, and not serious about their work. What would you say to that?

Eben:

With all due respect to your boss' boss, he may not have appreciated the context in which the GPL is drafted. Most distributors of copyrighted material use a different copyright license for each country in which their work is distributed. That's not feasible for the free software movement: we have no control over the international path that any given piece of code may take, as it is copied and redistributed by its users, and we must therefore do business all over the world on a single license. What would seem good lawyerly drafting to a lawyer in one country might seem like officious or loquacious nonsense to a lawyer in another. Moreover, unlike the licenses written by the legal departments of proprietary content companies, our licenses are meant to be read by individual programmers, who we hope will choose to use those licenses to distribute their own programs. So the GPL is not addressed to lawyers in a single legal system, but to developers in every legal system around the world. Doing optimal drafting for that rather unusual set of needs is plenty serious business, I will say. It isn't work for amateurs. Whether we have been successful in achieving our intentions can only be judged by the results.

6) What can be done about spurious legal threats?
by Tom7

I've noticed a scary trend in "de facto" internet law: Sites are shut down, projects stopped, and ideas silenced because of scary notices from lawyers. Lots of the time, these cease and desist letters don't actually have much to stand on, but they're so cheap to send, and so effective, that any business with a site it doesn't like and a lawyer on salary would be crazy not to do it. The effect of these letters is chilling (so to speak): sites that are probably legal are shut down without the benefit of a trial, and the "precedent" affects the way other laymen interpret the law. I've seen numerous mostly-serious posts on slashdot proclaiming "Wouldn't this be a violation of the DMCA?" when referring to any sort of activity the MPAA or RIAA, etc. wouldn't like. (Speaking of the DMCA -- it has built-in provisions for making precisely this kind of judge-free takedown by an ISP!) This trend seems to be a serious breakdown of the legal system, and I don't like it.

My question is: In your opinion, what can be done to change the way the system operates so that spurious legal threats aren't so economical? What can someone like me do, besides donating to the EFF or going to law school?

Eben:

It's true that it's cheap to write letters threatening legal action, and it's true that many people would prefer to stop doing whatever they're doing that causes them to receive such letters. Bullying of this kind is one of the ways that the rich and powerful oppress the weak and poor. Your question contains specific versions of the only two general answers I know: those of us who are lawyers should fulfill our obligation to provide assistance pro bono publico (for the good of the public, which means without charging fees) to those who need our help and can't pay for it; those of us who aren't lawyers should contribute to organizations, like EFF and FSF, that provide legal support to individuals who need help furthering the causes we believe in.

7) Question
by edward.virtually@pob

Given the failure of the DOJ and other cases against Microsoft (no meaningful penalties, technically incompetent judge overseeing DOJ case, requirement to support Java in IE endlessly held up in court) and the continuing wide-spread abuse of IP law to monopolize cyberspace (patents on obviously invalid claims -- decades of prior art, etc.), do you think Free Software (and it's more "popular" spin-off Open Source) has any chance of long term surival in the United States or it is just a matter of time before it is crushed?

Eben:

Despite the annoyances you mention, which I regard as unfortunate but inessential, I think the position of free software is almost impregnable, both in the United States and everywhere else. The most important threat to the survival of free software is the concept of "trusted computing," which really means the building of hardware you as a user can't trust at all. "Trusted" computers are computers that can be trusted by media companies not to run software that users can modify, so that media company "content" can be delivered without fear that software modified by users will exercise fair use rights that media companies don't want to allow. If the free software movement and its allies can avoid having "trusted" computing forced on PC consumers by either mandatory legislation or industry "consensus," I believe free software will be around forever, and will become the dominant mode of software production and distribution in the course of the next two decades.

8) Being like you.
by Anonymous Coward

As an undergraduate in computer science I have found licensing and intellectual property issues so interesting that I have chosen to go to law school. I would like to advance many of the causes that you support. What advice would you have for an aspiring lawyer who wants to promote freedom and the public domain? What steps would be necessary to support my family and still fight for the cause? How best can a lawyer help society without selling out to big money?

Eben:

There are businesses all over the technology sector that are making money through the employment of free software. They sell hardware, services, solutions, expertise, and even the software itself. They employ lawyers who promote freedom by helping businesses that promote free software. There are going to be businesses all over the media landscape in the next decade that help cultural producers (writers, musicians, videographers, etc.) escape the system of cultural ownership that produces the schlock jamming the eyeballs and eardrums of the world. They're going to need lawyers to resist the onslaught of the "content" oligarchs, who will try to do everything to keep free content from succeeding. There is going to be a major movement in the next two decades to free the electromagnetic spectrum from the iron triangle of the broadcasters, the politicians, and the "campaign contributors," all of whom have tremendous interests in preserving the system where "free speech" means Rupert Murdoch has a million times more right to speak than you and I. Getting back the wireless bandwidth of the world for the people themselves, giving everyone an equal right to communicate, is the next great frontier of freedom. So there are enterprises that need lawyers, provide livings to those lawyers, and further freedom all at once. There are non-profit organizations too that we can work for or donate our time to. Being a young lawyer, as I tell my students at Columbia, is--at its best--an imagination test. We are very fortunate members of this society, in that we can imagine the lives we want and then make them happen. My advice is, aim high.

9) FSF's W3C patent policy position
by The Pim

I sent the following to info@fsf.org on January 1, and have not received a reply. Since it is a legal question, perhaps Professor Moglen would answer it here. Some context:

Act Now To Sidestep A W3C Patent Pitfall [slashdot.org]
Please Help Pass W3C Patent Policy [debian.org]

I'm writing because I cannot understand some parts of the "FSF's Position on Proposed W3 Consortium 'Royalty-Free' Patent Policy", at http://www.gnu.org/philosophy/w3c-patent.html .

First, it is quite clear that you believe that software exercising patents with "field-of-use" licenses cannot be distributed under the GPL. However, it is not clear whether you believe that such software could be distributed as free software at all. Paragraph two seems to say that it could not, but it also appears to conflate GPLed software with free software, so I am not sure this is what the author meant. Paragraph three equivocates by saying "licensing under other free software licenses does not imply free", without saying "licensing under other free software licenses implies not free".

The impact of the proposed policy on the free software community obviously depends greatly on whether it could prevent us from implementing some standards at all, or only under the GPL. Which is it? (Since most of the document focuses on the GPL, I assume it is the latter. But it should be stated explicitly, and the hints to the contrary should be cleaned up.)

Second, who exactly would be prevented from distributing software exercising such patents under the GPL? Those in jurisdictions in which the patent applies, or everyone?

Third, why exactly are "field-of-use" patents incompatible with the GPL? The addendum intended to clarify this matter does not succeed. Step 4 in its example says,

C's patent license prohibits folks from taking his URL parsing code and putting it into, say, a search engine.

But C's patent equally prohibits folks from taking a (hypothetical) GPLed search engine and adding URL parsing code. So by that argument, nobody can distribute a GPLed search engine, either. What really is the criterion that prevents distribution under the GPL? Is it that the author "knows" that others will be "tempted" to modify the software such that it no longer meets the "field-of-use" restriction? Is it that the author has accepted the patent license himself?

And how does this differ from the situation of distributing GPLed software that cannot be used in some jurisdictions? If I distribute cryptographic software under the GPL, it will end up in the hands of people in repressive countries who are not allowed to use (never mind redistribute) it. This would seem to imply that such software cannot be distributed under the GPL.

I hope you can answer these questions and update the text on your web site.

Eben:

The question as asked is quite complex. Let me try to simplify it somewhat. Free software should be freely modifiable and redistributable by its users. Of course, any code once modified may practice claims of a patent about which the modifying user is uninformed. So anyone distributing free software is unable to assure his users that each and every modification they may want to make is noninfringing. But when someone distributes apparently-free software under actual but undisclosed legal restrictions preventing modification or redistribution, the software is not really free. GPL tries to deal with this problem through section 7, which says that if code you are distributing is actually under restriction that is incompatible with the terms of the GPL, you can't distribute under GPL at all. So if you have accepted a patent license that prohibits you from reusing some of your code, or code you have received from others, in different contexts, GPL section 7 means that you cannot distribute under GPL, and if the code you received was under GPL, your acceptance of the patent license precludes redistribution altogether. The goal is to ensure that, so far as each redistributor's actual knowledge is concerned, each item of GPL'd software distributed is fairly labeled: it can be freely copied, modified and redistributed.

From the Free Software Foundation's point of view, any code subject to field of use restrictions is not free software, but most free software copyright licenses don't read on the problem at all, and GPL section 7 only addresses one aspect of the problem. With respect to the specific issue involved in your question--the W3C proposed patent policy--GPL section 7 will be relevant in the following circumstances: a patent-holder contributes patent claims to a W3C Recommendation, and requires each implementer to take an explicit license containing a field of use restriction. GPL section 7 will preclude GPL'd implementation of that Recommendation. Apparently-free software can implement that Recommendation under, for example, BSD or X11 licenses, but despite its release under those licenses the software will not, from the Foundation's point of view, be actually and fully free.

10) Legal equivalent of GNU
by nattt

If free software / open source / etc. is seen as the saviour of the computer world, what do you see as the route or force to act towards making a better legal profession?

Eben:

I don't think I would talk about free software as the saviour of the computer world. I would say that free software is an important tool for preserving freedom of speech and freedom of thought in our networked society. The equivalent forces acting to produce a better legal system and a better legal profession are the constitutional norms in the US and other societies that protect freedoms of expression, inquiry, and publication. Our job as lawyers is to defend those freedoms, and to increase the relevance of legal doctrine in new social and technological environments.

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