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Free Software, Free Hardware, Free Bandwidth
Interview with Eben Moglen

Eben Moglen, Professor of Law at the Columbia University in New York on free software and the law's power(lessness) to change the current systems.

Free software has become a fairly familiar concept to most people. At the Open Cultures Conference you highlighted the growing importance of free hardware and free bandwidth. Which are the key issues here?

Hardware got very cheap and easy to acquire by people in the developed world. But the content industries have realized now that there is no way they are going to control software, because free software has become so familiar. If you are Disney or one of the owners of culture, you begin to want to control all the machines in the network, so there is no place where the ownership of culture can give way to the freedom to share. So you try to sneak the law of technology into the law of copyright. This happens via the Digital Millennium Copyright Act in the United States or the European Copyright Directive in Europe. In the end you create the technology called “trusted computing“, which means computers that nobody can trust. What we wind up with is a war to use our own computers and cell phones in our own way.

You have also spoken of a “war around bandwidth”.

What free bandwidth means is that we ought to have a right to communicate equally using the electromagnetic spectrum that belongs to all of us. Instead, governments pretend they own it or Mr. Murdoch owns it, Mr. Berlusconi, or that Deutsche Telekom owns it. The result is that we pay to be connected to one another’s minds. And that means we can only be as connected as we can afford. Which means that poor people and people who are disfavored in the societies in which they live don’t have the ability to speak, and we need to change that.

To which extent can law-making change that situation? Are law makers aware of these problems?

Law makers could change things. But the reality in which we live now is that law makers change things for the worse. The owners of culture and the owners of bandwidth are to this regime what the aristocracy was to the ancien régime of Europe. They don’t pay taxes, they have special legal privileges, they use the public property as though it were their private domain, and they expect law to preserve those privileges, not to threaten them. And indeed, throughout the developed society, this is what happens. It may happen in different ways. In Belgrade under Mr. Milosevič, it works in one way, in Rome under Berlusconi, it works in a different one, in Washington D.C. under Mr. Murdoch in yet another. Throughout the developed world, the relationship between broadcasters and the government is particularly intimate. The telecommunications companies and the image makers are particularly powerful. The experience of the 1990s was that they got everything that they wanted. The experience of the 21st century begins with their having everything they could possibly desire. The problem is that the 12 year olds don’t believe what they believe.

Are we talking about a revolutionary movement along the dividing line of generations?

The difference between this revolution and the revolution that have marked European history is that the division is less between those who have and who have not than between those who are young and those who are not. The young have a different grasp of the ideological valance of these conceptions. Their view, I think, is more inherently truthful. The pharmaceutical industry bought me and my friends twelve billion dollars of free publicity during the late 1990s because they taught every literate child on earth that the words “intellectual property” means people dying of AIDS in Africa because patented drugs are unaffordable. The people who put children in jail for stealing music think that music is something that can be stolen. Johan Sebastian Bach did not think that music could be stolen, neither did Mozart, and twelve year-olds don’t think that music can be stolen. The idea that music is a thing that you can steal belongs to a particular generation in history. It is a culturally and historically contingent event which is ending. It’s the fact that its ending that marks the crisis of ideology for the regime in power. The regime serves those who serves it, and they believe that music can be stolen.

So there some inherent misconceptions in the whole idea of trusted computing and digital rights management?

There are inherent contradictions between a system that claims to be free market capitalism on the one hand, and the ownership of ideas on the other. The patent law is inherently contradictory. When somebody says “I am a free market capitalist, and that is why I believe in the free patent law” that is to say that government should decide what is a good idea, should decide who had the idea, and that for 20 years no one else is allowed to use the idea unless they pay for it. So claiming to be a free market capitalism and supporting patent law is nonsense. But you don’t realize it is nonsense because you don’t realize that your ideology is contradictory. Its your world view and you stick to it.

Do you think that the new emerging intellectual property regimes will fall victim to their own internal contradictions? Or might there just be an intensification of coercion so that the whole cultural landscape will be streamlined to suit the needs of the rights owners?

The wish it would happen like that, but it won’t. The problem is that in the end it will just be an exercise in force. The cultural model that followed Edison was a technologically enabled model that says culture is commodity and it is distributed on coercive terms. You can have it only if you can pay for it. The problem is that in the 21st century coercion works badly because technology resists force. Technology is multi-path. Technology is de-centralized. Technology has low bottle necks. Mrs. Milosevič controlled broadcasting, he could even control newspapers but he could not control the web sites. B92 moved to Montenegro and published a website and people knew what was going on. Technology resists force, and therefore coercive models for the production and distribution of culture are harder to maintain. The Norwegian teenager Jan Johansen was taken to court by the movie industry in the US and Norway for understanding how DVD works and developing a program that allowed bypassing the copy protection. The industry may win all the cases, but it loses the war.

With this sort of criticism, what kind of responses are you getting then from media industry and their representatives?

Most of the time they ignore me, deliberately or non-deliberately. When I went out to start doing the crypto wars at the beginning of the 1990 - freeing encryption was the first necessary step - I don’t think that the National Security Agency knew who I was. When I started doing Free Software in a serious way Mr. Gates did not pay any attention. He did not know who I was for years. I am still not sure he knows. I was in Redmond last week, but I did not see him, I saw his underlings. But now they know what is free software. I don’t think the telecommunications companies think: Moglen is going to get into our business, we’d better be worried. They have no idea who I am. Mr. Eisner, the CEO of Disney, has not thought about me in his life. But if they knew what I represent, the ideas that I have the honor to try and improve and spread around the world, they would ignore them in a hostile way. They would not tell anybody about them, that would be dangerous. They would not spread them, that would be ruinous. They would keep silence about them and hope that nobody would notice, and I think this is what they are doing.

You consider free bandwidth as the key issue to be addressed in the coming years if culture is supposed remain free in the digital era.

Free software is now a thing that exists. The hardware counter revolution – trusted computing - has to fail, as I think it will. The place that’s really most difficult and complicated is the regulation of the electro-magnetic spectrum. It is fully accepted by all governments on earth that they need to regulate the spectrum. And it is fully accepted by them in one way or another that that means giving away exclusive rights and spectrum to a few privileged organizations and people. And that has to change. We have to use spectrum the way our cell phones use it, by sharing it. Not by giving a piece to him and a piece to her and a piece to them and no piece to you and me. In doing that we are going to challenge the telecommunications companies, the broadcasters, and state power over the spectrum which belongs to all of us. That’s the most important next step. I am getting ready to say we won about free software. I am getting ready to say we are going to win about trusted computing. Because that is where the revolution really happens.

But the obstacles seem to be formidable.

Sure, this is an area where political power resists most firmly, and that is where it has to give way. We can’t live in a 21st century where Rupert Murdoch and Silvio Berlusconi and a twenty other people control most of the bandwidth and give it to us only if we pay for it. We have to live in a world were everybody is a broadcaster, everybody can be a radio station, everybody can be a television, everybody can do whatever he or she needs to communicate with others on an equal basis.

What needs to happen in order for this to be possible?

In order to do that all we have to do is take the technology that exist now as models and spread it and make it better and put it into the parts of the electromagnetic spectrum where it belongs. Doing that means changing the law of all developed societies – by getting around it, by hacking it, by playing tricks with it, by pulling it inside out. It is not going to change because the legislator wakes up one morning and says “I think I’ll undo spectrum concentration today”. In fact, we are just observing the American Federal Communications Commission do the opposite, giving even more power to Mr. Murdoch.

Eben Moglen is Professor of Law at the Columbia University in New York and Board Member and General Counsel of the Free Software Foundation.

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