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Ask FSF General Counsel Eben Moglen
Columbia Law School professor Eben Moglen has been the Free Software Foundation's (pro bono) general counsel since 1993. He's also involved with the Electronic Frontier Foundation and has been mentioned on Slashdot a number of times because of his participation in these groups and some of the worthy causes they support, as well as other freedom-related matters. One question per post, please. We'll run Prof. Moglen's answers to 10 of the highest-moderated questions as soon as he gets them back to us.
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.
Sent from your iPad.
Whats your view on rms's pressure to have people prefix Linux with GNU?
MODS: I think this is a valid question. Maybe he will have something interesting to say about it.
moo
OK, have you contacted Castle Technologies about their alleged GPL violation?
If that's the case, you are probably not free to comment on the current proceedings, so a simple "yes" or "no" would be more than enough...
The right to offend is far more important than the right not to be offended. (Rowan Atkinson)
There have been several documented cases of companies "stealing" GPL code and incorporating it into their closed applications (not excluding embedded solutions and so forth). As far as I know, all of these have been settled out of court to the satisfaction of everyone involved. If such a case ever actually makes it to a court of law, do you consider the foundations, ideology and licenses that make up free/open software sufficiently complete and foolproof enough to successfully make a legal stand? Would you be willing to make that stand?
What would you offer as the best legal advice to make Linux and other GPL projects more palitable to large businesses and other investors, other than the fact the source code is completely open and free for modifications?
--CypherDragon
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.
This sig has been temporarily disconnected or is no longer in service
You work as a pro-bon loywer which means that you essentiallie work for free.
This is similar to those of us who code Linux applications ---- we work for free out of matter of principle and consider it as a way of donating to a charity organization since Linux is good for everyone.
My question is: Is your life effected by your day job (where you get paid) and your "night" job (in which you are the legal counsell for the GNU organization)?
Reply or e-mail; don't vaguely moderate. Ex-O'Reilly/MIT employee, now a full-time Google employee.
What do you feel is the greteast challenge in enforcing the GPL vs. other more conventional copyrights?
Warning: Opinions known to be heavily biased.
Where do you see the law and society heading? With companies trying and succeeding in buying laws which protect their markets (RIAA / MPAA, MS) and IP laws covering more and more ground (State Street, SBC), at what point will the law makers have an epiphany and start to reverse these bad laws, or should we hope that we end up with a reactive court to over turn these laws?
III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
What do you think about the applicability of the ideas and organisational methods of the free software movement to things other that software?
For example free designs of things (products, buildings etc)...
Check out MKDoc a mod_perl CMS
Was there ever a time when you had to bring some FSF geeks in to court for their expert testimony? How did you manage to clean them up for the courthouse? Was there any beard trimming and/or suit shopping?
It seems to me that the FSF arrangement for licenses has a big leg up on other open source arrangements, because it is clear who (the FSF) holds the ability to sue a violator of the license. What's your view of the oft-discussed problem of how to figure out who has standing to sue a GPL violator if there are lots of folks who have contributed to the GPL'd work? Is the only solution the aggregation of rights in an entity like a foundation or trust, the approach the FSF has taken?
What do you see the greates challenges are to Freedom of Speech given the Patriot act and Patriot II?
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,
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.
The evaluation of an action as 'practical' . . . depends on what it is that one wishes to practice.
Sir,
Does RMS refer to you as the "GNU/General Counsel"?
Trolling is a art,
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?
Most of the people that are widely considered enemies of digital freedom -- the RIAA, the MPAA -- are using the law as a bludgeoning tool. Does it make sense to fight back using the law as well -- in a sense adopting the same tactics as the "bad guys" -- or should be consider other alternatives before resorting to lawsuits and pre-emptive legislation?
Honorary Member of Jackie Chan's Kung Fu Process Servers
I'm assuming here that you follow the legal issues that interest you outside of the US. Which country's laws do you wish applied in the US ? It has been said that the US has the appearance of the 1st ammendment with none of its actual manifestations (similar comments have been made about egalite, liberte, fraternite in france), do you agree ?
And pushing my luck... why is a company able to claim rights assigned to individuals ?
An Eye for an Eye will make the whole world blind - Gandhi
As we move to the so-called "PostPC" era, there is more and more embedded software, compared to traditional desktop and server software. Often this embedded software, which controls toasters, VCRs, and all kinds of gizmos, is shipped in ROM. If not in ROM, it is shipped in ways which are very difficult, or impossible for the end-user to access or change. What is the role of the GPL in this case? If someone ships GPL'ed code in such a device, it is hard to even know that. And if so, what value is having the source, if you can't change it? It seems like slashdot is reporting more and more cases of GPL violations for embedded software -- is the FSF seeing this also?
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?
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?
If you could wish away one of the several crappy laws that are of concern to the /. crowd, EFF, FSF, etc. which would it be? DMCA? Patriot Act? the Mickey Mouse Copyright Extension? Something Else? And why that one? I guess what I am really asking is: which of these crappy laws past in the last several years do you think is the most damaging?
my pet machine
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?
-- oldthinkers unbellyfeel ingsoc
I've heard talk of a new version of the GPL, which will fix shortcomings of version 2 (e.g. that it is unclear whether use of dynamic linking and/or CORBA-style binding to a GPLed work constitutes a "derived work").
However, a large amount of existing software is distributable "under the terms of the GPL, version 2" (and *not* under "version 2, or at your option, any later version"); for instance, the Linux kernel. Any future software, licensed under a GPL v3, would presumably be incompatible with such existing software.
Can the FSF do anything to make the GPL v3 backward-compatible with such software?
Also, would you consider the following part of the FDL to be a bug?
A DTD only describes the syntactic structure of a document, which may provide nowhere near enough information to understand the file format. [I sent an email to the FSF about this but it seems to have got lost in the ether]
perl -e 'fork||print for split//,"hahahaha"'
Sir,
Simply stated, what is your reaction to the Eldred v. Ashcroft decision. How do you think it will affect the legal climate for furthering the position of Free Software? Is this really and indication, as Mr. Lessig has noted, that any hope of the US government developing a more generous and insightful public policy position on the future of IP rights is effectivly on hold? What, if anything, can be done to further this cause other than writing to Congress and/or supporting the EFF?
-- People who think they know it all, really annoy those of us who do!
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?
314-15-9265
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.
www.eFax.com are spammers
The GPL currently has a "hole" in its wording that allows GPL'd web-based programs to in effect be used/hosted/run without being under the enforcement of the GPL (requiring the changes to be released to the public).
I know because I am the lead developer on a web-based GPL'd game, and we were advised of such by the GNU folks (many thanks for them answering our concerns). They suggested waiting for GPL3 (please PLEASE hurry!), or using the Affero GPL, which we cant, since it isnt compatible with the GPL, and portions of our code are from another project that is GPL'd.
What isn't clear (and what I hope you can answer) is what the law would say about a company that took a GPL'd web project (like mine), modified it, hosted it, and provided that service to the general public without providing the source to those modifications.
Is there any legal recourse to developers in that situation, because it has actually occured, and until now, we were under the impression that we were basically powerless until GPL3.0 comes out..
GPL'd web-based tradewars themed space game
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.
With all the problems with software patents and broad interpretation of copyright laws and contributory copyright infringement related to projects that support free communications, why not a step-by-step easy-to-follow blueprint for free software projects incorporating a non-profit for liability reasons (say choosing the state of Delaware)?
d related writings or commentary by Richard Stallman included here by
Obviously people can donate code to the Free Software Foundation, but that seems both to centralize liability risk in one organization (why should FSF take the fall for infringing a bogus software patent?) and also to provide less protection to the authors while they are writing free software.
One can use the Apache model which was incorporated in Delaware, but Apache does not seem have any restrictions in their articles of incorporation related to not selling software. I haven't actually ever found the FSF bylaws or certificate of incorporation anywhere on-line.
It would be nice to have a detailed process to follow that is a no brainer -- use these words in the articles of incorporation and bylaws, pay some specific (well chosen) corporation that specializes in forming corporations to file the papers ($500), keep up with annual reports and your annual fees for your registered legal agent ($100-200), and you are up and running with a reasonable liability shield if anything innocently infringes.
I'm thinking of something like this for a free software related organization I'm starting, with wording chosen to ensure the materials stay free:
The organization's purpose is [details snipped...]
To that end, the organization may engage in any legal activity, subject
to the following restrictions intended to ensure free licensing of the
results of all the organization's efforts (with "free" intended to mean
"free as in freedom" in the same way as the Free Software Foundation's
current or future similar definition of "free" licensing for software or
other creative works of various types -- e.g. public domain, GPL, LGPL,
GFDL, Python 2.0.1 license -- for detailed examples see:
http://www.gnu.org/licenses/license-list.html
an
reference). The restrictions are:
1) that any copyrights the organization creates itself, or whose
creation it directly supports in whole or in part, or which it receives
as donations or otherwise comes to hold, must only be licensed under
free licenses, and
2) that any patents the organization creates itself, or whose
creation it directly supports in whole or in part, or which it receives
as donations or otherwise comes to hold, must only be licensed under
free licenses,
3) that any trademarks the organization creates itself, or whose
creation it directly supports in whole or in part, or which it receives
as donations or otherwise comes to hold, will only used to support and
distinguish endeavors which require the free licensing of all the
resulting copyrights and/or patents, and
4) that copyrights, patents, and/or trademarks held for any reason by
the organization may not be voluntarily transferred from the
organization without contractual guarantees that future holders will
abide by these restrictions, and that the organization is required to
enforce these guarantees to the maximum extent feasible.
5) that in the event of the likeliehood of an involuntary transfer of
copyrights, patents, or trademarks from the organization such as from
the result of a judgement against the organization, the organization
must take all legal and feasible steps to prevent the transfer or to
make a voluntary transfer to an appropriate non-profit organization as
under section (4) or if appropriate place the item in the public domain.
These restrictions may not be removed by future changes to these
articles of incorporation.
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
I think that the FSF is very important and I want to assist but I have my own situation to deal with as well. I would like to make a difference and am seeking the most effective way to do that.
You are donating your time/knowledge. What are other ways to help?
Specifically, What is the single best thing a supporter can do to help. In other words What does the FSF need most that we might be able to supply?
o Money
o Volunteers (with what skills?, to do what?)
o Publicity
o Subject Matter Experts (what subjects?)
o Something else I can't imagine?
Thanks.
boyfoot_bear [with teak of chan]
What attempts have been made to both translate the GPL to other languages, and then verify that the translated version still makes sense?
a translated version of the GPL would be really helpful to those of us who deal primarily with non-english-speaking customers (they all speak spanish here), particularly when they ask about the licensing terms for Free Software we install for them. Instead of telling them to believe us about the license, we'd like to hand them a copy they can read, understand, and then hand to their legal department for them to also read and understand. However, even while there are unofficial translations available, they're still unofficial and thus don't instill much confidence in people.
My question is how you foresee the swing of the pendulum in the future. Do you think that the cycles will get smaller until a balance is reached, or do you see the cycles growing larger and larger until it causes a fracture and/or revolution in our society?
What role will the conflict over electronic media play in the balancing of individual rights?
Of course it would also be interesting to hear your views on the cyclical nature of individual rights as well.
If brevity is the soul of wit, then how does one explain Twitter?
Do you believe this claim is correct in all US jurisdictions, or do some state laws allow licenses like the GPL to be revoked by the copyright holder?
Professor Moglen,
... please feel free to answer only one.
First I would like to say I took both of your upper level law courses at Columbia. Both of these classes were memorable, thought provoking and fun. You really changed my view on many things especially the way our society functions.
On to my questions. I know your opinions about patent law (for slashdot readers: he thinks it should be abolished). Yet patent law provides a very exciting field of work for a young lawyer that is proficient in technology. Can you suggest any other similar fields for such lawyers? Especially for lawyers that are not quite bright enough to become supreme court clerks?
My other question has to do with encryption. I agree with your belief that encryption is integral to free speech, and allows one to escape totalitarian governments. But you probably read the new proposed patriot act, which makes using encrypion to commit a crime a seperate offense that is punishable by a significantly long prison term. Do you think if that law is passed it will chill the sue of encryption. Esepcially since computer crimes are new and vaguely defined, and one can easily imagine unkowingly commiting one.
A third question about the american legal system. Is there any hope of a judiciary that is both independant and free and able to render decisions free of fear and outside pressures after what happened in the bush case, the microsoft case and the terrorist detention cases? Oh, might as well add the pledge of allegience case.
Maybe I put in too many questions
If any slashdot readers are columbia law students I highly recommend mr. Moglen's upper level courses. But beware rumors of him being an easy grader are just false.
Can you describe the official position of the FSF in regards to linking to GPL'd code? For example, everyone seems pretty clear about static linking requiring the derived work to be GPL'd, but your past statements and those of RMS have differed in regards to dynamically linked works. Linus has recently been vocal about his view that binary-only kernel modules for drivers are a GPL violation. Can you clarify the FSF's position as to if/when dynamically linking a non-GPL program or module to a GPL'd library or kernel violates the GPL?
"As flies to the wanton boys are we to the gods; they kill us for sport." - William Shakespeare, King Lear
Many questions on the applicability of the GPL to a particular distribution scheme hinge on the legal question of whether the work is a derivative of some GPLed work.
What do you consider are the key considerations in determining if a work is derivative or not?
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
I recently purchased an ATI card that has TV-out. This functionality used to be somewhat supported by the gatos project. However, apparently it has recently been allowed/forced to rot. The gatos devel list gets asked about this functionality every few days, and the developers apparently have NDA info from ATI on how to accomplish this, but there seems to be a spirit of fear on the list that has silenced activity in this area.
I can echo this sentiment. Even if I thought I was legally in the "right" I wouldn't risk getting involved in a legal battle just to get a component on my $40 video card to work.
What advice would you give gatos devopers (or developers of similar code)?
Why, exactly, did the EFF choose not to appeal the 2nd Circuit Court decision against 2600 Magazine in the DeCSS-linking case?
Dahlmann tightly grips the knife, which he may have no idea how to use, and steps out into the plain.