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Re: GPLv3 comedy unfolding -- Eben: "Copyleft Capitalism: GPLv3 and the

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- Eben: "Copyleft Capitalism: GPLv3 and the Future of Software Innovation"
Date: Sat, 17 Nov 2007 17:51:04 +0100

Enjoy... ROFL

Video of Eben Moglen’s Talk at IBM Research Now Available Online

I just got a note from Joe Latone of IBM Research that brought the happy
news that the video of Eben Moglen’s talk Copyleft Capitalism, GPLv3 and
the Future of Software Innovation, given at at IBM Research on October
29, 2007, is now available online:

it was too long for youtube, so i put it on google video. 

I was able to view it using my Ubuntu box running 7.10. The video is a
bit grainy, but the audio quality is very good, and that is what counts.

Joe can be seen at the start in his spiffy leather jacket introducing
Eben. [1]

You can see two of the Tuxers on the podium in front of Eben. (I suspect
they went up so close so that they wouldn’t miss a single word of his
speech. I learned later they enjoyed it even more than I did.)


1. Joe commented on my post that included a picture of me selling
baloons “back in the day,” over thirty years ago, that my mustache made
me look like a cross of Dan Ackroyd and Borat. Here’s back at you, Joe.


"Mathematics is primarily a language for ensuring reliable results
in human social activity. "

         -- Columbia Professor Eben Anarcho-Dot Communist Moglen

Alexander Terekhov wrote:
> ----
> Today I heard the best single presentation on open-source and free
> software I have ever personally attended, in a talk by Columbia
> Professor of Law Eben Moglen, on the topic “Copyleft Capitalism: GPLv3
> and the Future of Software Innovation.” He spoke for over 90 minutes. I
> understand the session was recorded, and I have asked that a transcript
> be prepared. I write the rest of this post based on the notes I took
> during his extraordinary talk.
> Eben was introduced by Joe Latone of IBM Research. He mentioned that
> almost everyone knows one or more of the following facts about Eben:
> He is a Professor at Columbia Law School;
> He worked for the Free Software Foundation for over a decade, serving as
> its counsel and was thus Richard Stallman’s chief legal adviser in the
> drafting of Version 3 of the GPL License, gplv3;
> He is currently the Chairman of the Software Freedom Law Center,which,
> in its own words,”SFLC provides legal representation and other
> law-related services to protect and advance Free and Open Source
> Software. Founded in 2005, the Center now represents many of the most
> important and well-established free software and open source projects.”
> Joe then remarked that few people know that:
> Eben began his career as a systems programmer for IBM in 1979;
> After receiving his Law degree, Eben worked as an IP (intellectual
> property) attorney for IBM in the Yorktown Lab of IBM Research;
> I know one additional fact about Eben that I think is worth knowing as
> you read my notes below, as well as any of his other writing.
> According to his resume, Eben’s degrees include:
> 1993, Yale University, Ph.D. with Distinction in History
> 1985, Yale University, J.D.; M.Phil. in History (with honors) Articles
> Editor, Yale Law Journal, Vol. 93.
> 1976-80, Swarthmore College. A.B. (High Honors), 1980. Phi Beta Kappa.
> Philip Hicks Prize, Literary Criticism.
> If you read his resume closely, you can see that for a year he attended
> one of the best law schools in the history of this country. Admission
> was very selective, for a single individual served as the Dean,
> Admissions Office, and Faculty of this school. Its students were called
> “clerks,” and he taught them personally by example each and every day
> they had the great good fortune to work under his tutelage. He was one
> of the greatest figures in American jurisprudence:
> 1986-87, Law Clerk to Justice Thurgood Marshall, United States Supreme
> Court.
> See for example, Eben’s A Vigil For Thurgood Marshall, which begins as
> follows:
> Three days after his death, on January 27, 1993, Thurgood Marshall came
> to the Supreme Court, up the marble steps, for the last time. Congress
> had ordered Abraham Lincoln’s catafalque brought to the Court, and on it
> the casket of Thurgood Marshall lay in state. His beloved Chief, Earl
> Warren, had been so honored in the Great Hall of the Court, and no one
> else. Congress was right about the bier, and spoke with the voice of the
> people: no other American, of any age, so deserved to lie where Lincoln
> slept.
> I brought along a few members of my Linux Menagerie, a group I call the
> “Tuxers,” and placed them on the podium before Eben began his talk.
> Eben Moglen and LTC “Tuxers” prepare to speak.
> Here then my notes:
> Copyleft Capitalism: GPLv3 and the Future of Software Innovation
> Eben Moglen, Professor, Columbia Law School
> Copyleft Capitalism
> gplv2 and gplv3 as technologies
> cannot separate law, technology and politics
> how oranization affects making of software
> (I noted about thirty people in audience)
> Started for for IBM in 1979 in San Jose, CA, in what was then known as
> STL, (Santa Teresa Laboratory), and is now known as SVL (Silicon Valley
> Laboratory). It is one of the larger sites of IBM’s Software Group.
> Was one of 330 mainframe programmers, doing various “major language”
> projects.
> Used 2371 (number unclea) DASD [Note from Dave: This dates Eben — and me
> — as this is an old IBMism; it stands for “Direct Access Storage
> Device”, what we now call “hard disks”)] Several large rooms of this
> large disks required to contain a the enormous amount of storage, 29
> gigabytes. You can buy a small disk with that capacity today for under
> $100.
> [Note from Dave:To illustrate his point, when I worked at NYU/CIMS in
> the 80’s, I recall that we bought an external Davong hard disk for an
> IBM PC in 1983. It cost $5000, and had a 5 megabyte disk, for a net cost
> of about $1000/megabyte. This translates to about $1M/gigabyte, so
> Eben’s 29 gigabytes would then have cost about thirty million dollars.]
> Hardware engineers achieved miracles.
> [Note from Dave: The advances in disk technology have outpaced Moore’s
> Law. That is, disks have gotten smaller in size, bigger in capacity, and
> cheaper in cost faster than chips have gotten smaller in size , faster
> in speed , and cheaper in cost.]
> But there has been little improvement in the software development
> process,especially in Microsoft software.
> Eben then mentioned that he had once worked with Michelle Hack. [Note
> from Dave: I had earlier eaten lunch in the Hawthorne cafeteria, and had
> seen Michelle, though he was busy and as I was with someone, I hadn’t
> bothered to say hi. I’ve known him for close to twenty years. He is one
> of IBM’s Masters of the Mainframe.]
> There are fundamental limitations with respect to software.
> Software engineers are as good as hardware engineers, as smart, as
> sophisticated.
> The problem is that we haven’t allowed them to get better.
> For there has been a structure that:
> prohibits sharing
> introduces increased friction
> creates bottlenecks
> There are additional concerns related to interoperability.
> Note from Dave: At this point my notes just say “…eloquent” for in a few
> show sentences he gave a remarkably brilliant summary, but to fully
> appreciate it you have to get each word, and each comma right.
> Notes page with “eloquent” tag
> Hardware has improved by nine orders of magnitude in the last quarter
> century; while software has improved by less than one order of
> magnitude.
> Difficulty due to Redmond (i.e., Microsoft) but they are not unique,
> just a particularly aggravating example of the syndrome.
> Microsoft dominates software industry, yet produces no hardware except
> keyboards, mice, and “a table top supercomputer” (by which Eben meant
> the Xbox.)
> Apple differentiates on expensive hardware, but not nearly as great
> improvement in software.
> There have historically been few patents in hardware since patents
> expose your current state of knowledge, so that potential competitors
> can work around them or separately exploit the paths suggested by the
> patents.
> However, the patent system has become pathological in handing softare
> patents.
> As example, Eben said that in 1984, while working at Cravath (Note from
> Dave: one of the leading law firms; I think they helped IBM in both the
> Antitrust case of the 60’s and 70’s, as well as the recent L’Affair
> SCO), Eben helped (I think on behalf of IBM) in suit against Hitachi
> related to their having crossed the line (though he didn’t use quite
> these words) in gaining access to IBM technology. He said that 20 years
> later, after he learned that IBM had sold the disk drive business to
> Hitachi, he spoke with one of their people, and one of them remarked,
> “When someone has been trying to burgle your house for twenty years,
> then you sell them the house.”
> Eben mentioned he worked on VS APL, which had 470KLOCS of assembly code.
> [Note from Dave: VS was one of IBM’s operating systems; APL is a now
> almost-forgotten language that still has a following in Wall Street. I
> know some of the old-time APL folks, and asked Eben if he knew Aden
> Falkoff. Eben said Aden was his manager for this project.]
> Eben then went on at length about how this was back in the days when IBM
> freely shared source code, and that his group served as a key part of a
> shared community, in which customers sent in patches, there were
> meetings between IBM and customers, and so on.
> Product developers were clearinghouses, part of community of shared
> interests. They got customer patches, attended SHARE meetings. There was
> a technical collaboration between customers and manufacturers.
> [Note from Dave: I asked him if this was in the pre “OCO” days and if he
> had attended a SHARE meeting. He said “Yes,” and, “Yes.” For those who
> don’t speak IBMese, OCO stands for Object Code Only and its introduction
> in the early 80’s marked the end of IBM’s open sharing of its system
> code. SHARE was the IBM user group, and it had frequent conferences. I
> didn’t work at IBM when OCO came in, but I then shared an office with
> Jim Lipkis at NYU. He was quite active in SHARE,and remarked that he
> thought this was a bad move by IBM. It is interesting to speculate what
> might have happened if IBM had maintained open access to its source
> code, including that for the PC; the computing landscape today would
> certainly be much different…]
> But that was back in the early 80’s.
> Today the situation is much different, as Microsoft’s only asset was its
> source code. It was not vertically integrated. Though it was integrated
> with respect to software, that was too narrow a base. Thus Microsoft
> could not afford to share their code, and due to the dominant position
> they managed to achieve, they have created a software industry in their
> image.
> Microsoft has thus suppressed innovation, so their users are
> disempowered.
> This is not possible in general, as cannot disempower large companies
> such as GM and GE.
> The nightmare of any business if to use control of its destiny by having
> their destiny in the control of their suppliers.
> Companies want to maintain control over their destinies.
> For examplek, one of the way computer companies do this is to acquire
> patents, for this gives them freedom of action.
> Microsoft, which needs to protects its model, has said their model is
> the only model that can achieve innovation.
> In effect, this is Microsoft’s “Big Lie,” as in order to limit
> innovation it needs to argue that its model is the only one that allows
> innovation.
> The “Microsoft Tax” on hardware that was needed to protect its profit
> margins grew razor-think, thus reducing the “air supply”, in a way
> causing an asphyxiation of innovation.
> Microsoft’s success had a devastating impact on innovation:
> added friction in running a business
> programing became a discipline that was accessible only by using a
> proprietary toolkit
> This is opposed to the free software, where:
> You start from something that works
> Build on that
> Eben then started speaking of the gplv3 process. He began to say a key
> step was the difference between gplv1 and gplv2.
> As I was only familiar with gplv2, I eagerly waited to say what he would
> say.
> But then someone from the audience asked about SaaS, and he never got
> around to this again.
> [Note from Dave: SaaS stands for “Software As A Service,” The software
> world is currently divided into two groups: those who know what SaaS is
> and believe it is the next Second Coming in the Era of Software, and
> those who don’t give a damn about it. Most of the people in the first
> group work for large software companies such as IBM. I work for IBM, but
> am in the latter group.
> Though Eben was articulate in his comments, thus demonstrating that he
> would be in a formidable foe in a courtroom, I tuned out on this part of
> the discussion.]
> Eben then spoke or SugarCRM, saying it would evolve into three options:
> closed
> hosting
> “copyleft capitalism,” based on free software, which could be used for
> hosting, etc.
> Copyleft - by requiring sharing it has created commons in user
> innovation.
> Decision between GPL and BSD is how businesses maintain control over
> their business.
> [Note from Dave: idea here is that GPL, by forcing disclosure of any
> changes, lets businesses invest in free software knowing that no one can
> hijack their contributions — it must all be shared.]
> IBM is the most forward-looking organization in that its licenses
> require disclosing source code.
> [Note from Dave: I played a role in drafting IBM’s first open-source
> license. My charge to the attorneys was to “take Apache as a base and
> add whatever is needed to keep IBM’s patent attorneys happy.” I never
> requested a license that required that source changes be disclosed, and
> noted with surprise that when the license finally was approved this
> requirement had been added. Looking back, wiser heads — most of them
> with legal degrees — made the right call.]
> Hypothetical: What if FSF is under control of somebody we can’t trust?
> Eben said he had spent two and half years on the gplv3 process: one year
> of planning, followed by sixteen months of open discussion and revision.
> He felt that gplv3 addresses the sociological difficulty of the
> “commons” in this decade, so they had a “friend” for solving the patents
> issue/problem.”
> [Note from Dave: I probably got the previous sentence wrong, my notes
> are a bit murky here.]
> All of the gplv3 revision was done under pressure of ideological
> concerns:
> DRM (Digital Rights Management)
> Tivoization
> There is still significant diversity of priority over ideological and
> pragmatic aspects of business.
> The presence of enormous [illegible] between interests of ideology and
> pragmatists is where Eben labors now.
> Question from audience: Will this (gplv3?) raise the quality of
> software?
> Whatever are the real problems, we can “brute force” them by creating a
> billion more programmers.
> Closed code made if hard to become a programmer.
> Eben then spoke of some of his experiences working on APL almost thirty
> years ago.
> There was open access to the source code, so one of his first projects
> was to see if he could build it (it was about half a million lines of
> code). Able to leverage someone else’s work and learned how to build it
> within a day or two. When he showed this work to his manager, they were
> so impressed they gave him increased responsibility.
> Eben then expanded on the “billion programmers” motif, saying that now —
> with free and open-source software — there is a process of “Brownian
> motion” for software, which he also called “fractional distillation,” in
> which large crowds of programmers reach a consensus on what works best.
> He then said we should, “Let this engine run.”
> He said his estimate was that at most five percent — and this was
> probably too high — of Microsoft’s developers were capable on building
> Windows.
> We now have a system when deeply thoughtful people can observe, analyze,
> and synthesize the work of others.
> His next point was what happens where innovators are innovating of the
> stuff we use. He said that he had given many talks at universities,
> often at the request of a faculty member, but that when he showed up to
> give his talk, he learned the faculty members were skipping the talk,
> yet the room was packed with students eager to hear what he had to say.
> He then said that much software innovation is now done on the Linux
> kernel, using the gnu toolchain. [Note from Dave: I brought up the
> toolchain part, knowing that FSF’s greatest contribution to free
> software is that toolchain, and one must give credit where credit is
> due.]
> He then said that this innovation is “bringing rubber out of the rain
> forest,” so that innovation arrives as code that is working. It comes to
> use as a “proof of concept” in the form of running code.
> Then people hack on that, producing an incentive to further improve it,
> starting a cycle that yields a much higher level of innovation.
> The question then is how to maintain the “sweet spot” where people come
> whistling to work as they are so excited they can’t wait for the day to
> begin.
> [Note from Dave: Many years ago, when I was at CIMS, a fellow student
> said that he often noticed that Kurt Friedrichs, then a famed Professor
> of Mathematics well into his seventies, waited impatiently each morning
> for the elevator to arrive and carry him up to his office, as he was so
> eager to start his day’s work.]
> Eben then spoke of Samba, mentioning he had worked with the group since
> 1995:
> started as one-man project
> evolved into team
> Now EU says Samba is the competitor, and that this was the reason for
> the interoperability requirements imposed on Microsoft by the EU
> Substantial profit flows out of the “non-profit” supply chain that is
> the available free software artifact.
> The usual course of a company is to acquire a supplier, thus getting a
> non-profit infrastructure.
> Model is that non-profit supply chain is a renewable natural resource,
> and so “need to preserve the commons.”
> Three major points re gplv3:
> First, gplv3 was not just an attempt to improve the commons, but was
> done to address elements that had gone unaddressed in 91-92 when gplv2
> was drafted, due to patent issue.
> Purpose of gplv3 is — within the commons — encourage businesses not to
> use patents against one another. This was done not to address external
> threat. Real goal is to ensure that members of the commons act in a way
> that preserves and strengthens patents.
> gplv3 is an “anti-betrayal” agreement.
> Second, the “anti-defection” rules allows downstream protection.
> He then speculated that there will be unexpected consequences as a
> gplv3-like approach is used in hardware, as Sun has just started to do,
> so will have need for new patent protection.
> Third, gplv3 has established a trans-national approach to drafting a
> license. For example, Creative Commons is moving to use a similar
> trans-national approach.
> [Note from Dave: I commented that I had learned from Randy Metcalfe last
> October, when he worked for OSSWatch in the UK, that many international
> organizations had adopted and encouraged gplv2, even though they knew it
> contained language based on the US legal system that didn’t apply in the
> world at large. This sparked, I think, some of Eben’s comments here.]
> Eben then started comparing PERL and APL, though I don’t know why,
> though the net seems to be that PERL supports lots of ways of writing a
> program. [Note from Dave: I held my tongue here. Having written programs
> in both PERL and APL, I know they are similar in that it is virtually
> impossible to read code in these language that was written by someone
> else.]
> Copyleft Capitalism is the 21st century apotheosis of Yankee Ingenuity
> (here I think APL was given as an example of a toolkit).
> He mentioned that two hundred years ago Thomas Jefferson had predicted
> it would take a hundred years for the United States to cross the
> Mississippi, yet it had happened much sooner, due to the American
> Spirit.
> [Note from Dave: I have read Stephen Ambrose’s magnificent recounting of
> the Lewis and Clark expedition. Among the more telling parts is that
> Jefferson provided personal instruction to Lewis on science in the White
> House. Wouldn’t you have loved to sit in on one of those lessons?]
> Eben said the arrival of the web in parts of the world where the best
> brains are waiting will enable those brains to “come online.”
> There is a pursuit of the commons in software that will provide access
> to technology, and access to knowledge, that will itself be used to
> further expand the reach.
> The talk then ended, just about ninety minutes after he had started, and
> Eben opened the floor for questions.
> I was greatly pleased to recognize the voice of the first questioner,
> for it was the same Michelle Hack whom Eben had mentioned had been a
> colleague almost thirty years earlier! I think the question was about
> open access.
> Eben then spoke of Microsoft:
> Doom
> Microsoft failed in that, as a monopoly, it has for the first time
> failed to produce a new version that will get the old version out of the
> market.
> Vista has doomed them, as Microsoft is now competing with itself, trying
> to displace Windows with Vista.
> He then said the real problem was to limit the damage when Microsoft
> fails, how to get “out from under” Microsoft as they enter the end game,
> perhaps by paroxisms of litigation. [Note to Dave: take a lesson on
> spelling paroxisisysm, or whatever the damn hell it is, in the same way
> I had to learn to spell “indemnification” over three and half years
> ago.]
> He said Microsoft’s model was to get people to spend more, to get less.
> That while some counties had tried to sell themselves to Microsoft,
> taking 10 percent as a tax, it was now impossible to do this. [Note from
> Dave: I probably got this wrong, but it was a good metaphor.]
> He then predicted that the day would soon be upon us when people would
> be fired for buying Microsoft, and gave as example the aftermath of the
> 2000 dot-com implosion. CIO’s asked that expenses be cut, so many folks
> looked out over their server farms filled with Sun boxes. They then
> replaced those Sun boxes with white (ie, commodity) Intel boxes running
> Linux, after which they went back to management and reported they had
> cut costs fifteen percent.
> Eben then related how he had finessed the famed “coupons” in the
> Microsoft/Novell brouhaha, describing how he had “hacked” Novell.
> [Note from Dave: He was now in full stride, much as was Richard Feynman
> when I heard him tell of his days cracking safes in Los Alamos.]
> But I’ll let others relate that wonderful tale.
> Perhaps you can invite Eben to come talk to your company, or your
> university, to hear him speak.
> [Note from Dave: Indeed, the “Eben Moglen Coupon” will undoubtedly
> become more famous than the “Jikes Coupon.” We shall see.]
> I left at this point, though the discussion continue.
> --------------------------------------------------------------------------------
> Afterword:
> I had asked Eben before he began if this talk was available in written
> form. He said no, so I took the notes that I have used as the basis for
> recounting his talk.
> I understand the talk was recorded and that it will be made available
> along with a transcript, so those unable to attend the talk are in for a
> great treat when that record becomes available.
> Not only was the talk great fun to hear, it also had an impact, at least
> on me.
> Though I have voiced objections to gplv3 in many posts in this blog, I
> now take them back. The gplv3 process was much more purposeful and
> nuanced than I had appreciated, and I now place full trust in any effort
> in which Eben has played — or will play — a role.
> I started the post in the afternoon and spent most of the evening
> working on it, but I did find time to put our pumpkin in place, so the
> commuters coming home would see a welcome sight. Perhaps this will
> become to photos what ESR did for memos:
> Happy Halloween!.
> Note poodle Scout as well as Ken, our Rodent of Unusual Size, a reminder
> that I still prefer the Apache License to gplv2 or gplv3.
> This entry was written by daveshields, posted on October 29, 2007 at
> 23:59, filed under open-source. Bookmark the permalink. Follow any
> comments here with the RSS feed for this post. Post a comment or leave a
> trackback: Trackback URL.
> -----
> regards,
> alexander.

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