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August 7, 2002
The Columbia Law School professor and attorney representing the Free Software Foundation has the new role of explaining and overseeing the update to the General Public License (GPL). That document, being revised for the first time in 15 years, is not only the embodiment of the free software movement's principles but also the legal foundation for thousands of open-source software programs from Linux to MySQL.
Moglen's client is FSF founder and leader Richard Stallman, who seeks to propagate his philosophical and technical goals through the GPL. The license requires that the source code underlying any software it governs may be freely seen, modified and redistributed; if changes are made to software that's distributed, those changes must also be published under the GPL.
The draft of version 3 of the GPL doesn't change that fundamental mechanism, but it does take a more aggressive stance when it comes to patent law. Unlike 1991's version 2, the update explicitly tackles the issue of software patents. It also takes a stand against digital rights management technology--which the FSF dubs "digital restrictions management"--that encrypts or locks software or content to govern its use.
Moglen discussed the changed license terms, his concerns about how Linux uses the GPL, and troubles with TiVo and Hollywood in an interview with CNET News.com's Stephen Shankland and Martin LaMonica at a GPL 3 conference at the Massachusetts Institute of Technology in Cambridge.
Q: For openers, could you describe for us the magnitude of the changes in the GPL version 3 draft. Is this a revolutionary overhaul of the license or is this a course correction?
Moglen: I would say that it is an evolution of the license, not a course correction. I believe there is no fundamental change to the course the license is on. This is an evolution representing catching up to 15 years of history because GPL version 2 lasted so long. Those 15 years of history saw a transformation of technology, a transformation of the social uses and environment of free software, and a transformation of the legal environment.
The technology changed for the better, the social environment of free software changed unimaginably for the better and the legal environment changed for the worse. The evolution of the license catches up in my view with all three of those aspects of the situation.
Q: When you talk about a legal environment changing for the worse I suspect in part at least you're referring to patent law.
Moglen: Your surmise, of course, is right. What happened was that in 1991, GPL version 2 warned people: If you don't pay attention to the patent problem, it's going to hurt everybody, free and unfree alike. Fifteen years later, I don't think there's anybody in the business--not even the most established near-monopolist--who doesn't understand that there's a problem with patent law. The beneficiaries of patent law themselves now recognize the nature of the difficulty.
In fact, the very largest company in patent-getting terms, IBM, has been recently in the leading edge of what it refers to as patent reform activity in Washington. They are in the rare situation of reforming that of which they are the largest beneficiary. When you see that happen, you know that something fundamental has gone wrong.
In this instance, as in many, Mr. Stallman was prescient. The license tried to deal with the problem early, but it is a measure of how serious the problem was that, by the end of the 1990s, others in the free software world were criticizing GPL on the grounds that it didn't go far enough to solve the problem against which it had sounded early warning.
That's not the only change for the worse in law, however. In addition, there is the movement toward what many of my colleagues in the teaching business refer to as paracopyright: the DMCA (Digital Millennium Copyright Act), the European Copyright Directive, (and) the reinforcement of the traditional principles of copyright law by technology regulations designed to protect specific businesses.
It's a form of legal subsidy to business--in the form of regulatory rules--which is harming trillions of dollars of business on behalf of the few tens of billions of dollars of business for certain entertainment industries. This creates enormous trouble for makers of software and hardware technology around the world, and it makes a special trouble for the free software movement.
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Richard Stallman,
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