Eben Moglen - Keynote address to Linux Conference 2015, Auckland, New Zealand - 20150113
published via YouTube.com
[NOTE: Eben Moglen's talk is transcribed in full here - but not the Q & A.]
Good morning. It’s an honour to be here. I can’t thank the organizers enough, starting with Michael, Steve and Sharif, for their extremely persistent, kind, generous, determined effort to bring me back. I found it a little difficult to believe that it had been ten years. It felt to me as though it were a week or two ago that I was floating in a hot-air balloon over Canberra with Tridge and Jeremy Allison. And it had, indeed, been a decade. I think, in part, I found it hard to believe because I haven’t had much more than one or two days off since then. [Laughter] We have all been very busy changing the world. And it has been my pleasure to ride along. But ten years it has been and I am deeply, deeply honoured to be back. I will also thank you in advance for putting up with my heavily-accented English.
The decade through which we have passed certainly involved an awful lot of making good software. There’s been no shortage of making good software in the last decade. And it has involved at least some good-enough lawyering - in the sense that we are in way less trouble than we were back then - except the trouble we have deliberately made for ourselves. And we have fewer, if any, real devoted enemies and they are weaker than they were in almost every respect. [Applause]
The problem we were confronting ten years ago with respect to patent law, which we had been worrying about already for fifteen years, blossomed into the full-scale patent war that we have been warning industry for a generation now that we’re going to have. And tens of billions of dollars in value have been burned up and thrown away. And the process of innovating in our industry has been deeply and unhappily distorted by the attempts to use state-created monopolies to slow down the path of innovation by incumbents who needed to slow the clock, if not stop it altogether. And yet, at the same time, precisely because industry found itself in the terrible conditions that we had warned them about, we also acquired an awful lot of help. And the worst of the law around the world began to change.
Richard Stallman and I spent many years discussing various improbable and, ultimately, inoperable plans to create a free-software-protecting patent pool which would allow us to sit at the table with at least some chips and to perform the task of negotiating for freedom’s right to invent and freedom to operate and, of course, as Tridge kept telling me, the freedom to invent around - which is the most important freedom, if you’re as good an inventor as he is.
So we thought, again and again, about how to accomplish it. But without the fear of God in industry, it could not be done. And now the Open Invention Network provides very much the kind of community patent-defense, based around pooled assets, to be used to defend friends in trouble, that we had always hoped we would find a way to create.
Similarly, as the patent war went on, judges began to figure out that there was something wrong with the patent system. It was performing pathologically in the United States in precisely the pathological ways that we had warned everybody that it would. And the judges began to lose their enthusiasm for the subject. In the course of the last three years, we have won three unanimous decisions in the United States Supreme Court significantly restricting the ability to patent algorithms and other forms of abstract ideas. [Applause]
And so we find ourselves in the very extraordinary condition that, although the patent war is still waging, and the effort to create state-created monopolies in the behavior of mobile devices is apparently inexhaustible in some people’s view, the likelihood that the most stressful patent systems in the world will ever be used against free software developers is disappearing.
The tools of self-defence are not automatic. We haven’t arrived at a condition in which nobody tries to apply the patent law to the sort of stuff we invent. But the playing field is much more level. Our community-building activities across the space between profit-making industrial parties and non-profit-making software experimenters have tightened substantially in very good ways. I’m not in a position to say that we have no problem. I am in a position to say that the nature of the problem in those ten years has altered because the world has altered.
I am much more interested this morning in talking about the ways in which the world has altered. But, as a sort of ten-year catch-up, I will tell you what the next decade will present in the way of difficulty for us in this connection. The largest economy in the world is not now the economy of the United States. And, in another ten years, the most important patent system in the world with respect to IT industries will be the patent system of the People’s Republic of China, which will contain enormous numbers of statutory monopolies in a society without the working rule of law - unless we manage to achieve the rule of law in the People’s Republic of China in the next ten years, which does not seem at present particularly likely. This problem will afflict us, that is to say, the people who actually make the technology, comparatively lightly. It will affect our industrial partners enormously. And their strategic responses to the problem they will face will be the most interesting of our challenges with respect to the patent system in the next ten years.
As was the case in the last round, we are thinking more about the nature of their problems than they are - because they are dealing day-to-day with the problems of running their businesses. But if we are all lucky enough to be standing here ten years from now, if we are talking about the patent system and its effect on our work, that’s what we will be talking about. In the next decade, it will be very, very risky, probably too risky, for a shark to come and try to bite my clients or their comrades and friends throughout the community. We do get bit. I won’t tell you that we don’t. Every year now, we face a couple of opportunities for patent assertion by parties who think that stopping some free software project from doing something that it wants to do is in that business’s interest. But, in the world in which we now live, we have a baseball bat. We can swing it at the nose of the shark, and that does actually discourage biting quite substantially. Like every other thing in this world, it all happens in the dark, under the surface of the water. You can’t see it occurring. But the lawyers with whom I work - and I - we know. And we can say that, what used to feel radically unsafe to us, thanks to the businesses and the communities, which have pulled together over this last decade, has made an enormous difference.
So, in the last decade, we made a lot of wonderful software. And we did some good work around the world in abating nuisances that threatened us. But more important, I think, than the software that we made, the enormously important innovations in politics and society that we were creating alongside the software, began to take hold in the world. Of course, it’s true, that everything from ice cream to weaponry is now described as “open source”. But, if that’s an indication of anything, it’s an indication, as usual, that Stallman was right. You should be careful what words you use, because other people might borrow them. And so, I’m going to continue to talk about this stuff as free software here this morning, if you don’t mind, and you can translate it into … [Applause] anything you please. But, the fact that people took some language, and went and applied it to their products, and certified themselves open source this or that - what was really important was that people started to understand what distinguishes twenty-first century social organizations from twentieth century ones. Industrial society loved hierarchy. It had to love hierarchy. Its metaphors – the army of the unemployed or the industrial workforce. Hierarchy was intrinsic to twentieth century organizations at their strongest, as was secrecy (or, at least, obscurity).
But the very forms of activity that we created - the ways in which we have done what we have done - came to be an important lesson to the world in how twenty-first century organizations work. They are distinguished by three elements: • transparency, • participation, and • non-hierarchical collaboration. And these principles are not ones we imposed on the technical work we did. They are conditions that grew out of the technical work we did.
The relationship between our activity and transparency is, of course, so intimate that you can’t describe us without describing the concept of transparency. We don’t just let people see, we enable them to learn. And so our transparency is not merely that of a business with a big show-window. Rupert Murdoch puts a big glass wall in the front of a television studio in downtown Manhattan. It’s transparent in Mr. Murdoch’s sense - but not in ours.
Transparency, for us, means more than just a free show you can look at. It means a porous community that you can join, which is why participation also is not merely something that we have a value for, but something that makes all the value that we make. It is the ability to participate that’s the outcome of the determination to be transparent in the deep sense in which we are transparent.
And it is, of course, the case that we don’t merely do collaborative non-hierarchical structures, we invented them. A weekend project of Linus Torvald’s called Git. We remember the little tiff that created the need for Git. But we can ask ourselves a question, ten years haven’t gone by – “Where is BitKeeper now?” [Laughter]
The onset of real distributed version-control is the technology of non-hierarchical collaboration. It isn’t merely that we said we like non-hierarchical collaboration, or we believe in egalitarian access to technology. The technology we made has taken over the making of software, because it has demonstrated that non-hierarchical collaboration is how you have to make everything; otherwise, you are incurring inefficiency and setting up for failure.
So what we did over the past ten years – and, for me, that means not just Canberra in 2005, but where I was in Berlin, in the summer of 2004, talking about “Die Gedanken sind Frei” and the form of politics which we believe in – which isn’t Utopian revolution, it’s proof-of-concept plus running-code equals social and political progress. That has taken over the world in the past decade.
Sure, nobody can live without using our software. Sure, there isn’t any longer a business on earth that doesn’t need us. Sure, even Microsoft now recognizes that our way of software making won. [Applause]
But what is deeper, is that our structures of social engagement, our form of politics, that is, our question - “How do people live together in the cities?” – has also won. It is now clear, increasingly clear, to states and massive industrial organizations, and even the people who hold all the gold bars and would love to hold all the Bitcoins - it is now obvious to everybody, that the particular structures of twenty-first century politics - what makes the world of now and our human future different - is the forms of social interaction and organization of enterprise in the sense of human invention and self-improvement that we have stood for. And this, more than anything else, I think, is what we have done for our colleagues, our communities, the rest of the human race in the last ten years.
If there has been good news about politics in the world in the last decade - we did it. And if there has been only bad news about politics in the last decade around the world - it’s not our fault, we tried.
However, what has also happened, because of the broad understanding that the route to better politics in the human future, the route to better, more efficient, more humane enterprise, lies in our form of sharing. Because, precisely because, of the breadth of our success, we now also begin to understand what our common values are about.
We are, after all, an exceedingly diverse community. We bridge the entire gap between vi and emacs, for example. [Laughter] We also, as it happens, speak every language, and are part of every faith, and play every sport, and climb everything that can be climbed, and dive under everything that can be dived under. And we are culturally extremely discrepant, including in the extent that we self-consciously believe that what we do is political as well as technical - a fact that some of us are immediately conscious of all the time, and another, equally important and powerfully inventive bunch of us, tend to keep a little bit further at a distance.
But, as I say, it doesn’t really matter how far you feel the political engagement that has been added to our work, because the forms of political engagement which grow organically and necessarily out of our technology, the way it works, and what that means about how people interact with one another - those principles of transparency, participation, non-hierarchical collaboration - they are themselves a social and political program.
And whether one thinks of it as - free software, free society - or not, the challenges in which we now live - are challenges which grow out of our own self-made, home-grown, DIY, we hacked it together, political aspirations, for transparency, for participation, and for collaborative, non-hierarchical self-government.
We face something now we are fortunate enough to be able to name in a word, and the word is “Snowden”. For those of us who live in the United States, there is, of course, a complicated, dual-meaning concerning Mr. Snowden, because national security is a thing that worries people one nation at a time. And so, although I live in a global environment, in which the meaning of Mr. Snowden is untrammelled by any question of “Who was he spying on?” and “Did he do a bad thing?” - in my home society, of course, there is a lot of such discussion – which is why, when I want to write about Mr. Snowden, or the consequences of his activities I am so grateful to Alan Rusbridger of The Guardian for giving me a place in which to do the work. But outside the boundaries of my home society, the meaning of Mr. Snowden’s activities is far less complicated. What we have learned, as a result of what he has taught us in the past year and a half, is that, even in a very rare society, with strong legal controls – or, apparently strong legal controls – over listening, there is no longer any hope that we can directly prevent power - whether it is private power or public power - from turning the Net into a procedure for totalitarianism. [Applause]
We are now living in the question, for which people like my comrade, Mr. Stallman, and my former client, Phillip Zimmermann, have been trying to prepare us for a generation.
I walked in to Mr. Zimmermann’s life in an email message in the summer of 1991. I saw PGP appear on the Net on a July evening on a Fido bulletin board in New York City and I wrote him an email message and I said “Congratulations, you’ve done a wonderful thing. You’re going to change the world. You’re also going to get in a shitload of trouble [Laughter] and when it happens I can help you. Here is who I am.”
And it was because I was working for Mr. Zimmermann and a story appeared in The New York Times by John Markoff about what I was doing that Richard Stallman first got in touch with me. And that was how Richard and I professionally met. Now let us take ourselves back to 1991. And let’s imagine that Mr. Zimmermann does not have adequate legal help and that PGP is intimidated out of existence by the United States government. We now live in a world without PGP - which means we also live in a world without SSH - which means we also live in a world without my client’s SSL, et cetera, et cetera, et cetera. And I think you would agree with me, that if that’s the world we lived in now, we would be facing the irreversible movement towards irresistible despotism, towards political power coming into existence in one or more places around the world that would have the power to predict the behavior of people, and to prevent the coalescence of political dissent, decapitate movements, and create a kind of immortality of un-freedom.
There are, of course, a lot of people who had nothing to do with making software to share who have helped us to prevent that from happening. But we must, I think, understand that we now live in the world we were afraid of. And that, what stands between us and the things which we were the most afraid of, is ourselves, our own inventions - which we have now a responsibility not only to use ourselves and to improve and to keep vital, but to spread as widely as we can, and as effectively as we can.
We are required, no question about it, to have the wisdom of serpents, if we are to use the technologies we have invented in order to prevent the fastening on the human race of a despotism it will not be able to shake.
We are moving towards a single exoskeletal nervous system embracing the whole of humanity. And the neuroanatomy of that system is constructed out of what we have called “the Internet” - and we will soon, in another generation, simply be able to call the nervous system of the human race. Whether it is built to be controlled at its endpoints by the things quaintly known as “individuals” - or whether it is built to be directed from centres of scrutiny and data mining and prediction - is the political decision we make for the future.
We, in this room, will not determine what happens to the climate of the planet. But we will determine the physiology of the nervous system of humanity – the functional behavior of the everything we are building.
And, as was foreseen by some of our most wonderful crackpot visionaries, at the beginning of this process – I need mention no names [Laughter] – but, as was foreseen by the most wonderful of our crackpot visionaries – freedom itself depends on how we make use of the technologies we are creating.
If the politics that we think about as characteristic of the ways we work – transparency, participation, enablement, non-hierarchical collaboration – are to survive the onset of the immense data society, with listeners inside everything – if that set of values is to survive, we must continue the process of building the political and social theory that emerges from our tech. I’m not going to say we all, therefore, become primarily aware of the political significance of what we do - but it is part of the wisdom of every project. It is part of the skills that we all bring together to every group of which we are a part - that some of us are always thinking, “How do we turn this to the political advantage, the social advantage, of the desire of the human race for each individual mind to grow and invent freely?”
And we must understand that the forms of legal control, the forms of government power, that will now concern us most, are not the handing out of real estate in the patent offices. They’re not the questions of how much copyright law you can have over interface declarations.
(Though I must say that now that the Supreme Court has delayed for another period the decision to take Google against Oracle we could find ourselves in that situation once the Solicitor General of the United States has weighed in. But this is lawyers work. We do lawyer’s work, right. I train people to do lawyer’s work in this world. And we will handle all of that. But that is not where the real political, legal, and social action now is).
Mr. Snowden did for us crucial work. You see the numbers. Sixty-one percent of the part of the human race connected to the Internet is aware of Mr. Snowden and what he means. And between thirty-nine and forty-five percent of that nearly two-thirds of the human race connected to the Internet wants to do something to improve its privacy. Alright. They do. And that means they want to meet us - more badly than they ever did before. They didn’t want to meet us before because people who make proprietary IT showed them it was quote convenient close quote and they went for it. It was convenient. We, of course, were not convenient. I don’t remember why it was we weren’t convenient. I think it was the command line or something. But we weren’t convenient, OK. So lots of people - their eyes glazed over. They were our friends. They were our brothers and sisters. They were our parents. But their eyes glazed over when we talked about it. No more, no more. No more, no more. Everybody wants to meet us now. And we need to put on our nice vest and go out and politely explain to them how we save freedom together. “It’s very convenient to save freedom,” we’re going to tell them, right? “If you give away your freedom for convenience, we will have trouble getting it back for you. But now would be an awfully convenient time to help us embed freedom in the network we are building. Your children will thank you.”
We know about “network effects”. We don’t mean “Everybody has to use Office because everybody has to use Office because otherwise how will you open the Office documents.” We mean that it is hard to sustain freedom in a technological environment which has been engineered to take it away, and that there is strength in numbers. We can make even people who loving controlling their users decide to spoof MAC addresses, right? We can make people who used to be not-on-our-side about crypto encrypt the stuff on the flash memory in the phone. But what we cannot do, without the universalization of the way we work, is to prove to the rest of the human race that technology that anyone can copy, modify, and share is technology which preserves privacy, autonomy, and freedom - and that other software will not.
Nobody in business is going to use cybersecurity they can’t read anymore. Once again, as usual, it is not the expert opinion of the world that we can’t reach. When Mr. Snowden revealed the Bullrun program, that is, the effort by NSA to break commercially-significant crypto, I was having a conversation with an analyst who has been very much on the side of the three-letter agencies for decades. And I said to him, “You know, the problem with what Mr. Snowden has not just taught us, it’s not that he has proved that you were wrong for twenty years. That’s a tiny problem. The problem Mr. Snowden really poses for you is that he has proved that we were right for twenty years. And that’s a very different thing altogether.”
We were the people who said, “You can’t trust what you can’t read.” We thought we were making an obvious point. We didn’t quite understand why it was hard for other people to figure out that you can’t trust what you can’t read - but they figured it out now. If they’re in the business of trusting on behalf of tens of millions of customers or users, they’re in the business now of not trusting what they can’t read. And security through obscurity in the real-world of professional IT is over.
But that doesn’t mean that what has happened to the users - those disempowered users, whose technology sells them out all the time - nothing has happened for them yet. I said half a decade ago now that we needed the First Law of Robotics - and we needed it in a helluva hurry, because we’re all carrying robots around with us everywhere I go. And they don’t obey the First Law at all. They hurt us all the time. And so I have to say again, what I was saying there at HOPE, if we don’t make the First Law of Robotics, nobody is going to make it. If we don’t get it in the middle of everything, it won’t be there. And Big Power in the world - whether you think of it as Big Economic Power or you think of it as Big Government Power or you think of it as Big Listener Power - Big Power in the world is fundamentally committed against the First Law. Big Power in the world wants the devices to work for It. And if it weren’t for us, they’d succeed. And the human race would pay a price which might last for generations.
So, we have to take ourselves seriously. That’s hard for us, ‘cause we’re hackers, and intrinsically we don’t take ourselves seriously, anymore than we engage in hierarchical non-collaborative development, right? I mean, a sense of irony about self is what makes it possible to do the technical work. And I will tell you a secret, it makes it possible to do the lawyering, too. When we sit around the conference table on Wednesday afternoons, still having the firm lunch that Karen Sandler taught me that I ought to have, I tell the lawyers who work for me that the only indispensable part of our law practice is irony. Because it’s only irony that keeps us from doing stuff that’s dumb - like going and suing rich people and letting them grind us into power, regardless of the merits, and things like that. We have to hack our way to a form of legal engagement that works for us and only ironic ones will do. So naturally we don’t take ourselves terribly seriously. I’m probably the only one here who has the degree of un-self-conscious willingness to take myself seriously that causes me to get up every morning and put on a suit for heaven’s sake. And even that’s too much for the ironists in the room, by and large. But we do have to take ourselves seriously. We have to take ourselves seriously. We’re not now in the prelude to the Star Wars we foresaw would happen - we’re in it. We’re in it. We have made what little it is that protected us against disaster already.
We are why everything doesn’t consist of X.509 certificates issued by corrupt authorities. We are why not just distributed version-control but the web of trust, right. We are why non-hierarchical modes of communicating safely and securely and protecting people’s privacy against the data mungers. We are why all of that is possible at all.
And that’s terrific. It’s wonderful. We did a great job. And therefore, we are now in the middle of what we really feared. And we have to keep doing it.
When I read Jim Dwyer’s wonderful book about the young men who started making Diaspora called “More Awesome than Money” – the part that I was interested in, of course, was not the part about me – I knew the part about me. And it wasn’t really about Ilya and Raffi and Max and … because I knew them too. It was about the understanding that, when those four young men decided to try to go out there, and fix social networking, and make it behave ethically - they were immediately surrounded by communities of spirit and material help. It wasn’t just Kickstarter money, it wasn’t just hacker space they were offered, it wasn’t just the beauty of the Silicon Valley disruptor machine looking for young people to disrupt things with - it was the whole social order around them.
But Ilya was a wonderful young man and his death must not have been in vain. As Aaron Swartz’s death must not have been in vain. We have, in ten years, had casualties. We have let people hurt our people, because we needed to.
And so we have to take ourselves seriously - because we, too, now have gravestones to care for- and young heroes who gave their lives for stuff we care about, whose sacrifices we have to honour, as we have young people all around us who will need us soon.
There isn’t a lot of public opinion data in any society about the young teenagers. They’re not voters, so they’re not polled. And they don’t buy enough, in most societies, to be worth marketing to. But everywhere you look, at public opinion data around the world, attitudes about Mr. Snowden, in those under eighteen years old, are decisively more positive than those of older people in each society. Our youngest kin are deeply affected by Mr. Snowden and his message.
I kid my students by saying that this is in part because Edward Snowden bears a wonderful resemblance to Harry Potter. [Laughter] But it isn’t only that, of course. Young people are now inhabiting the planet who have watched what has happened to their older siblings. They have watched the Facebook-ization of human civilization. They have watched the crossing-the-street-while-texting-and-letting-everybody-else-take-your-text-straight-out-of-the-air behavior - and they’re not absolutely happy about it.
And so we have a crowd coming towards us. Ten years ago, I said in Berlin, that we were simply keeping dinner warm until the kids came home. The GNU Project was thirty years old last September 2013. And Edward Snowden was thirty years old in November. That was the first of our generation coming home. The beginning of the meaning of GNU.
Now we are in the second era - in which the larger world that does not make our software or understand why they should use our software - has come to an understanding of the principle that the freedom of the Net is the freedom of people. And that the Net is made of software and it works the way someone makes it work.
This is our big moment, ok. This is what we struggled for. I don’t mean, what we invented. When we struggle with code, we’re just struggling to make something neat. But when we go beyond the making something neat, this is what we’re in it for. We’re in it for the ability to help the people around us. We’ve known that, since we started taking our own temperatures fifteen years ago, and we began asking “Why do we make what we make?”
And it turned out that we make what we make in order to learn, and do neat stuff, and improve our skills - and to help other people.
And this is the big moment, where all the skill-making, and all the learning we have done, and all the neat stuff we have made - the rubber now meets the road with respect to whether we can use it to help humanity stay free.
This is what the last ten years did – they brought us here, to this intersection, to the moment when we can figure out whether, as the human race assembles its nervous system, it works for the data miners or it works for the people.
This is the moment, where we figure out whether we can deliver, not just for ourselves, but for everybody – whether we can turn the ability to have transparency, participation, non-hierarchical collaboration – whether we can turn that into not only a really good way of making software, but a really good way of confronting problems that people in the world are now sure are there – that they now understand, that they want help with, and that we, we alone, we are the people capable of delivering for them the freedom that they need. If we don’t, it will not happen.
We, through our own efforts, have narrowly escaped a couple of catastrophes for … in the past ten years. We have received, thanks to Mr. Snowden’s efforts, we have received a lot of information about what we did right. We have received a lot of information about where, even unlimited resources, devoted to breaking our view of the Net, have failed, because of what we made. We have received an awful lot of encouragement about our ability to survive an onslaught of capitalist aggression, the patent wars, the bollocksing of copyright law by the entertainment industries and so on.
We have demonstrated our vitality. We need not demonstrate our inventiveness - that we demonstrate every single day. But we are now merging into the larger movement for the freedom of the Net. And we are about to demonstrate whether we can carry it. Not boss it. Not control it. Not even lead it from in front.
But we do have the opportunity to be the plumbing of the great Internet freedom movement of the twenty-first century. We have the opportunity to set its technological conditions of success. We have the opportunity to prevent it from achieving failure. And, of course, since every sysadmin here knows that she or he really runs the business and without them it won’t work – if we shouldn’t be too unwilling to recognize that this isn’t such an unusual position for us, right?
Everybody’s power runs on our plumbing. Whether it’s freedom running on our plumbing or un-freedom running on our plumbing isn’t up to them. It’s up to us.
We have plenty to do. We are going to gain plenty of help. Indian society is going to come very much in our direction over the next several years and with it we are going to gain power of numbers and demographic force beyond our previous wildest dreams. But 1.6 billion people will still live in China under conditions of un-freedom in a world in which the Net is assumed to be a system of social control. And the world’s most powerful constitutional democracy - possessing more force of listening than everybody else put together - has abandoned the rule of law over listening and has begun plunging humanity towards darkness. And the consumer economy has come to depend upon data mining for advertising - which means it depends upon surveillance to make its living. And it will do what it takes to make its living because that its right, its power and its glory. But not ours.
We’ve a great deal to do. If we don’t do it, everything stops. I don’t mean everything doesn’t run. It runs just fine. But freedom stops. You know what it will mean. You know what it is to have a listener inside every device, and everything in life inside every device, and every child hooked up to the monitor all the time - everywhere she goes, everything she learns, everything she reads, everything she listens to - all marked down and ready to be calculated and correlated and manipulated.
That’s not the human race we meant to have. That’s not the way we meant the Net to work. That’s not the way we run our own stuff. And it mustn’t be the way we let other people run it.
So here we are: free software, free society – for real. We’re playing for keeps now. Humanity depends upon you. Thanks. And good luck. [Applause]
[00:44:08] [Q & A begins]
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