It created a bit of a stir at the O’Reilly Radar Executive Briefing on Open Source a few weeks ago when Eben Moglen, who’d been invited to speak with me about free software licensing in the era of Web 2.0, chose instead to take me to task for talking about open source rather than free software for the past ten years, and for “wasting time promoting commercial products.” A number of people asked to see the video from the session. Even though we hadn’t planned to release the video from the executive briefing, we were able to get a copy. Here it is:
And here is the file in ogg format for those of you who, like Eben, prefer not to use Flash.
Some quick takeaways: both Eben and I feel a bit uncomfortable with how this session turned out. I’d like to say that we both demonstrated the truth of Oscar Wilde’s dictum that “only the mediocre man is always at his best.” I believe that Eben regrets his confrontational tone, and I regret that I wasn’t quick enough on my feet or forceful enough to steer the conversation onto the topics I wanted to talk with Eben about. We ended up mostly talking past each other. I do believe that the issues that I invited Eben to talk about are among the most urgent facing free software advocates today, so it was disappointing to me to have my position that Web 2.0 provides some fundamental challenges to free software characterized by Eben only as self-promotional hype, and Google and other centralized data services dismissed as “thermal noise” in the long term trend of the computer industry towards decentralization and freedom.
The closest Eben came to acknowledging my position that the fundamental challenge of the Web 2.0 era may not be free software but free data, and the right of users to view, delete, modify, or freely transfer to a competing service the data that is stored about them in centralized databases, was when he said:
“You used to have Fourth Amendment rights in the United States, which meant that police had to get a warrant after convincing a judge they had probable cause. Now they fill out a subpoena blank and send it to Google or EZpass or whoever it is. I know federal prosecutors who would entirely agree that the constitutional landscape has completely shifted under them in the past decade. They no longer have to worry about the judicial restraints on what government is able to discover, because they have a private surveillance system now functioning that they can subpoena at convenience. That’s a deeply important problem for anyone who cares about constitutional freedom in the United States…. I absolutely agree the serious public policy issues of all this centralized information in private hands that can be pushed around by governments is a uniquely serious difficulty for people in the 21st century who care about individual freedom.”
I completely agree with Eben about the constitutional and civil liberties risks of the new computing paradigm. But I’m perplexed that that is the only implication he sees. It’s a bit hard to reconcile the forceful statement quoted above with the notion that Web 2.0 is thermal noise.
I also struggle with Eben’s notion that “we” (the open source movement) missed the opportunity to engage with these issues for the past ten years, when Richard Stallman told me in 1999 that the issue “didn’t matter,” [pdf], and that even in this session, Eben spent much of his time arguing that the computing paradigm hasn’t changed significantly in the past decade. Eben says at the end of the session that he was inviting me to a conversation I’ve been ignoring. I unfortunately felt the same way, and it’s a conversation I’ve been asking the industry to engage with since my very first public talk on open source in 1997.
Eben also did ultimately get around to acknowledging some of the dilemmas provided by software as a service. He made a strong statement about why the Free Software Foundation ultimately chose not to close the “SaaS loophole” in GPLv3:
“We’ve got to conclude that what Google does, they have a right to do in freedom. They shouldn’t need anyone’s permission to run programs. Stallman was right about that at the very beginning. If you have to ask other people’s permission to run a program, you don’t have adequate freedom. And that means you’ve got to have the right to run programs for someone else. And what’s more, you have to have the right to make private modifications. Because if you don’t have a right to make private modifications, and keep them to yourself whenever you want to, then the principle of freedom of thought is being rudely disrupted by a required responsibility to disclose what you are thinking to someone else… So if we take the philosophical responsibility to provide freedom seriously, we’re going to have to say … their rights, properly protected, may conflict with other people’s rights, properly protected. The solution isn’t to reduce anyone’s rights.”
I was impressed by Eben’s insightful framing of the conflict and the decision that was made. However, he seemed to have no answer, besides negotiation, and perhaps legislation, to address this conflict of rights. It will be interesting to see how the situation evolves. And that’s actually the right answer. As Larry Lessig argues in a different context, for many situations triggered by technological change, it’s better to wait for the dust to clear before pushing new laws (or licenses.)
Meanwhile, I continue to feel that the focus of the free software movement on “software” rather than on “freedom” is the real lost opportunity. In the first era of the computer industry, lock-in was provided by hardware; in the second era, it was provided by software; today, it is provided by centralized databases driven by winner-takes-all network effects. Focusing only on free software is as limiting as focusing on free hardware. It’s freedom that matters. I would have thought that Eben and I could have found common cause there, and would love to have a real conversation about these issues.