Eben Moglen

Eben Moglen earned his PhD in History and law degree at Yale University during what he sometimes calls his "long, dark period" in New Haven. He began working as a professional computer programmer in 1973, at the age of fourteen. Before and during law school, from 1979-1984, he was a designer and developer of advanced computer programming languages (VSAPL, APL2, Pascal) at IBM's Santa Teresa Laboratory and Thomas J. Watson Research Center.

After law school he was a law clerk to Judge Edward Weinfeld of the United States District Court in New York City and to Justice Thurgood Marshall of the United States Supreme Court.

He has taught at Columbia Law School--and has held visiting appointments at Harvard University, Tel-Aviv University and the University of Virginia--since 1987.

From 1991-1994 he represented Philip R. Zimmerman, the author of Pretty Good Privacy (PGP) in connection with a potential criminal prosecution by the United States Government.

Since 1993 he has served without fee as General Counsel of the Free Software Foundation, and has represented numerous clients in the free software world. In 2003 he was given the Electronic Frontier Foundation's Pioneer Award for efforts on behalf of freedom in the electronic society.

News

Linux's Hit Men - Forbes.com Daniel Lyons, 10.14.03

NEW YORK - In the world of "free" open source software, there is no greater villain than SCO, owner of the Unix operating system.

The Lindon, Utah, company has outraged Linux lovers by suing IBM (nyse: IBM - news - people ), claiming IBM stole Unix code and put it into Linux. Some fear the lawsuit by SCO (nasdaq: SCOX - news - people ) will impede the adoption of Linux.

Wind River Gets Smart Peace, Love and Paychecks Linux Scare Tactics Kill Bill Linux Loyalists Leery IBM Refuses To Indemnify Linux Users Red Hat's Mad Matt Vs. Humongous SCO Lawsuit IBM Takes Linux To A New Level Why You Won't Be Getting A Linux PC The Limitations Of Linux

But the spread of Linux could be hurt by another group--and ironically, it's the free-software proponents themselves.

For months, in secret, the Free Software Foundation, a Boston-based group that controls the licensing process for Linux and other "free" programs, has been making threats to Cisco Systems (nasdaq: CSCO - news - people ) and Broadcom (nasdaq: BRCM - news - people ) over a networking router that runs the Linux operating system.

The router is made by Linksys, a company Cisco acquired in June. It lets you hook computers together on a wireless Wi-Fi network, employing a high-speed standard called 802.11g. Aimed at home users, the $129 device has been a smash hit, selling 400,000 units in the first quarter of this year alone.

But now there's a problem. The Linux software in the router is distributed under the GNU General Public License (GPL), which the Free Software Foundation created in 1991.

Under the license, if you distribute GPL software in a product, you must also distribute the software's source code. And not just the GPL code, but also the code for any "derivative works" you've created--even if publishing that code means anyone can now make a knockoff of your product.

Not great news if you're Cisco, which paid $500 million for Linksys. In Cisco's case, it's even trickier, because the disputed code resides on chips that Linksys buys from Broadcom. So now Cisco is caught between the Free Software Foundation and one of its big suppliers.

For several months, officials from the Free Software Foundation have been quietly pushing Cisco and Broadcom for a resolution. According to Free Software Foundation Executive Director Bradley Kuhn, the foundation is demanding that Cisco and Broadcom either a) rip out all the Linux code in the router and use some other operating system, or b) make their code available to the entire world.

And if they balk? Kuhn raises the threat of legal action. "We defend the rights protected by the GPL license," he says. "We have legal teeth, so if someone does not share and share alike, we can make them obey the rules."

The legal teeth belong to Eben Moglen, a Columbia Law School professor who acts as pro bono counsel for the foundation. Moglen says his chats with Cisco have been friendly, and he believes the matter will be settled without a court fight. Cisco and Broadcom wouldn't comment.

The dispute, which was leaked to an Internet message board, offers a rare peek into the dark side of the free software movement--a view that contrasts with the movement's usual public image of happy software proles linking arms and singing the "Internationale" while freely sharing the fruits of their code-writing labor.

In fact, the Free Software Foundation runs a lot of these "enforcement actions." There are 30 to 40 going on right now, and there were 50 last year, Kuhn says. There have been hundreds since 1991, when the current version of the GPL was published, he says. Tracking down bad guys has become such a big operation that the Free Software Foundation has created a so-called Compliance Lab to snoop out violators and bust them.

Who pays for this? The 12-employee Free Software Foundation has limited resources. So it seeks donations. And sometimes it collects money from companies it has busted.

Last year, the foundation alleged that OpenTV, a San Francisco company that ships a set-top box containing Linux, was violating the GPL. The drama took months to resolve and ended with OpenTV writing a check for $65,000 to the Free Software Foundation. "They paid us a very substantial payment for our time and trouble," Moglen says.

Sometimes it's the other way around--the foundation gets paid by private companies for whom it acts as a sort of hired enforcer. Last year a Swedish software company called mySQL asked for help resolving a dispute with NuSphere, a subsidiary of Progress Software (nasdaq: PRGS - news - people ). The companies had made a deal to work on software that would include mySQL's GPL-licensed database program. A dispute arose over contract issues, and also over the GPL, which mySQL claimed NuSphere had violated. In the end, Progress resolved the matter by walking away from the partnership.

Afterward, mySQL made a $25,000 donation to the Free Software Foundation. Was this payback? "I won't say that," says Marten Mickos, chief executive of mySQL. "But of course, why would we give them money if not as a sign of gratitude?"

The mySQL versus NuSphere squabble demonstrates another risk: These disputes might scare companies away from using open source software. Joseph Alsop, chief executive of Progress, reckons the fiasco with mySQL cost his company $10 million in lost development and marketing work. Now he says he is cautious about working with GPL software. Instead, Progress uses an open source database program distributed under the less onerous Berkeley Software Distribution license.

In some ways, these Free Software Foundation "enforcement actions" can be more dangerous than a typical copyright spat, because usually copyright holders seek money--say, royalties on the product that infringing companies are selling. But the Free Software Foundation doesn't want royalties--it wants you to burn down your house, or at the very least share it with cloners.

Or maybe, as some suggest, the foundation wants GPL-covered code to creep into commercial products so it can use GPL to force open those products. Kuhn says that's nuts--"pure propaganda rhetoric." But he concedes that his foundation hates the way companies like Oracle (nasdaq: ORCL - news - people ) and Microsoft (nasdaq: MSFT - news - people ) generate billions of dollars by selling software licenses. "We'd like people to stop selling proprietary software. It's bad for the world," Kuhn says.

So far, none of the Free Software Foundation's targets have decided it is bad for the world and gone to court. This despite the fact that the foundation has $750,000 in the bank and one lawyer who works for free, part time, when he's not teaching classes at Columbia University.

Will Cisco and Broadcom be the first? Probably they'll decide, like everyone else, that it's cheaper to settle than to fight.

Such a pity, comrade.

Recommended Papers

There are two major papers authored by Eben Moglen. Both are pretty weak, but might be useful to understand FSF legal approach.

In the first article, Eben Moglen, General Counsel to the FSF, tries to formulate the legal foundation of GPL.  In short according to Mogden GPL is based on the right of the author "The copyright holder is legally empowered to exclude all others from copying, distributing, and making derivative works.". The weakness of this argument is that under GPL the question of authorship is rather complex and it can be argued that by using GPL the author explicitly abandoned all the rights granted to him under the copyright law. In other words if you use copyleft you has no rights to copyright ;-) : you may be subtracting from copyright so much that you lose all the protection.  Compatibility of GPL with fair use provisions are also not that clear.  Tough question like "GPL and government sponsored research" and GPL compatibility with other licenses were avoided.  If a government organization is doing pure research then I think the obligation lies with the direction of a BSD license that makes for the easiest path to adoption by all parties, commercial or free.
 

The essence of copyright law, like other systems of property rules, is the power to exclude. The copyright holder is legally empowered to exclude all others from copying, distributing, and making derivative works.

This right to exclude implies an equally large power to license--that is, to grant permission to do what would otherwise be forbidden. Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits.

But most proprietary software companies want more power than copyright alone gives them . These companies say their software is ``licensed'' to consumers, but the license contains obligations that copyright law knows nothing about. Software you're not allowed to understand, for example, often requires you to agree not to decompile it. Copyright law doesn't prohibit decompilation, the prohibition is just a contract term you agree to as a condition of getting the software when you buy the product under shrink wrap in a store, or accept a ``clickwrap license'' on line. Copyright is just leverage for taking even more away from users.

The GPL, on the other hand, subtracts from copyright rather than adding to it. The license doesn't have to be complicated, because we try to control users as little as possible. Copyright grants publishers power to forbid users to exercise rights to copy, modify, and distribute that we believe all users should have; the GPL thus relaxes almost all the restrictions of the copyright system. The only thing we absolutely require is that anyone distributing GPL'd works or works made from GPL'd works distribute in turn under GPL. That condition is a very minor restriction, from the copyright point of view. Much more restrictive licenses are routinely held enforceable: every license involved in every single copyright lawsuit is more restrictive than the GPL.

Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers. But it is sometimes said that the GPL can't be enforced because users haven't ``accepted'' it.

This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.

Slashdot discussion GPL's Strength

Yeah Right (Score:1) by Ahaldra on Monday April 22, @09:35AM (#3386944) (User #534852 Info | http://slashdot.org/)

> So, why hasn't the GPL been successfully challenged yet? it has been challenged. the challenge was successful. see this slashdot article [slashdot.org] and discussion [slashdot.org] for details. in short: the GPL grants you the right to use the software in more ways than the normal copyright grants you. it extends international copyright laws to what stallman et al. call copyleft. but that still means you have to obey copyright laws: you have to mark your work as derivative, and conform to the license, which in case of the GPL states that you have to make the sourcecode of your work available. So in the linked slashdot article above, in the case of macosx.forked.net [forked.net] that would have meant that they made package desciptor files (".pmsp" on mac os x, the only form one can modify the package. To my understanding it represents the "preferred form" the GPL talks of) available, as well as noting that the files origin were fink packages, both of which they didn't do 'til today. so yes, the GPL has been successfully challenged.

Where is the BSA for the GPL? (Score:2, Interesting) by lynx_user_abroad on Monday April 22, @10:51AM (#3387265) (User #323975 Info | http://slashdot.org/)

I've always wondered why the Slashdot community (and GPL advocates in general) don't all get together and start a BSA-like (Business Software Alliance) organization to defend and promote the GPL?   sell shares to raise funds. say, $10 a piece. offer a bounty for whistleblowers (licensees, contractors, coders with options underwater, etc) who can demonstrate uses of GPL'd code in shipping, closed-source products. conduct BSA-style raids on firms selling closed-source software. since a proven violation would likely open-source the product, terminate that firm's ability to sell it further, and result in heavy fines (triple damages, plus all the ill-gotten gains) there would be a strong incentive to settle out-of-court. the settlement funds are fed-back into the organization to offer more bounties, and pay dividends to the share holders, etc. I realize this would never work (the community would never support it; free software has never been about taking software from others unwilling to give it) but it's fun to dream about it.

Well beyond copyright law (Score:1) by ClosedSource on Monday April 22, @11:25AM (#3387449) (User #238333 Info)

"Because the GPL (and presumably, other free/open software licenses) let the user do things that are otherwise illegal (copy and redistribute software), the GPL is in a stronger position to dictate terms." The author doesn't offer any precedents that show that a court is more likely to enforce a license because it is less restrictive than other licenses. In any case, the real issue for the GPL is the part that affects code that a licensee may add. Since the GPL requires that the source for new code must be distributed even though it was not created by the license holder, it goes well beyond copyright law.

Re:Interesting point (Score:2) by jspaleta on Monday April 22, @09:18AM (#3386874) (User #136955 Info | http://jspaleta.dyndns.org:8080/)

Because if a company used GPL'd software, and declined to release the source, they'd have two options: I take it you mean use and redistribute outside of the company. Nothing in the GPL says you have to offer up source code if you modify but don't redistribute....A company could easily pickup GPL code and modify it for use inside the company and never have to offer up the changes for distribution.

[ Reply to This | Parent ]

Re:Interesting point by lunenburg (Score:1) Monday April 22, @09:58AM Re:Interesting point by MikeBabcock (Score:2) Monday April 22, @09:59AM

Re:Interesting point (Score:2) by GauteL on Monday April 22, @11:40AM (#3387536) (User #29207 Info | http://www.linuxguiden.org)

I just have to nitpick here, because there is always someone who misunderstands this no matter how many posts that state otherwise:   You do not have to release source, or bother with the GPL-license if all you do is USE the software.   You only have to agree to the license if you actually distribute software externally based on that GPL-software.

 

Re:Interesting point (Score:2) by ajs ([email protected]) on Monday April 22, @05:26PM (#3390121) (User #35943 Info | http://www.ajs.com/~ajs/)

if a company used GPL'd software, and declined to release the source, they'd have two options [...] Not quite accurate. It a company used GPL'd software and then chose to distribute it (in original or modified form), you are correct. If I use GPLed software, the GPL holds no sway over what I do with it, as log as I remain withing the confines of copyright law. As soon as I do something which, under copyright law, is illegal, my only legal recourses are to comply with the GPL or seek alternate licensing from the copyright holder.

A  A follow-up article referenced in the first one. Emphazised non-legal (mostly bad PR related) method used by FSF. The author also admits that "legal technicalities prevented actual criminal prosecution of the violators".

We reach this stage dozens of times a year. A quiet initial contact is usually sufficient to resolve the problem. Parties thought they were complying with GPL, and are pleased to follow advice on the correction of an error. Sometimes, however, we believe that confidence-building measures will be required, because the scale of the violation or its persistence in time makes mere voluntary compliance insufficient. In such situations we work with organizations to establish GPL-compliance programs within their enterprises, led by senior managers who report to us, and directly to their enterprises' managing boards, regularly. In particularly complex cases, we have sometimes insisted upon measures that would make subsequent judicial enforcement simple and rapid in the event of future violation.

... ... ...

In the early years of the free software movement, this was probably the only strategy available. Expensive and burdensome litigation might have destroyed the FSF, or at least prevented it from doing what we knew was necessary to make the free software movement the permanent force in reshaping the software industry that it has now become. Over time, however, we persisted in our approach to license enforcement not because we had to, but because it worked. An entire industry grew up around free software, all of whose participants understood the overwhelming importance of the GPL--no one wanted to be seen as the villain who stole free software, and no one wanted to be the customer, business partner, or even employee of such a bad actor. Faced with a choice between compliance without publicity or a campaign of bad publicity and a litigation battle they could not win, violators chose not to play it the hard way.

We have even, once or twice, faced enterprises which, under US copyright law, were engaged in deliberate, criminal copyright infringement: taking the source code of GPL'd software, recompiling it with an attempt to conceal its origin, and offering it for sale as a proprietary product. I have assisted free software developers other than the FSF to deal with such problems, which we have resolved--since the criminal infringer would not voluntarily desist and, in the cases I have in mind, legal technicalities prevented actual criminal prosecution of the violators--by talking to redistributors and potential customers. ``Why would you want to pay serious money,'' we have asked, ``for software that infringes our license and will bog you down in complex legal problems, when you can have the real thing for free?'' Customers have never failed to see the pertinence of the question. The stealing of free software is one place where, indeed, crime doesn't pay.

... ... ...

Humor

The dotCommunist Manifesto I doubt that Eben Moglen intended this as is humor, but it really turned out as a high quality humor piece ;-)

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Last updated: March 12, 2019