Tech Chords

To orchestrate change you need someone who can balance vision with pragmatism. In Eben Moglen the proponents choreographing the software patents debate have such a leader. A keynote speaker at the recent seminar on "Software Patents and the Commons" in New Delhi, India, Moglen, the chairman of the Software Freedom Law Center, looked at the patents issue engulfing the free software world from a different perspective.

Side stepping software patents, Moglen instead talked about the rise of Commons (umbrella term for all resources that are collectively owned) in the new digital economy, and the impending death of ownership.

Moglen quotes the medieval European preacher John Ball's sermon at Blackheath, "when Adam delved and Eve span, who was then the gentleman?" to compare Commons as the producer of equality, with ownership which he labels as the producer of inequality.

This equation has changed in the last 400 years. He pins the economic progress of the industrial revolution to the reduction of commons and increase of ownership. The agents of change now were owners who displaced traditional common based production, and replaced it with production based on ownership.

It came to a head when Judge Posner in the US said "efficiency requires that everything be subject to exclusive ownership, because only exclusive ownership is capable of maximizing welfare."

Digital production

In the 21st century though, the economies of scale of the hierarchical production don't quite work. Moglen believes that digital culture and digital economic life do not reward economies of scale. They reward economies of collaboration.

"You can't sell a product without a URL," he says, since there isn't any way to sell a product without a community around it.

Instead of the passive Commons of the past, we now have Commons as an agent. "Rather than a pond full of fish, commons is a society producing something with purpose, with goals, with strategy, and capable of resistance," he explains.

Death of copyright

Referring to his collaboration with the FSF and their earlier exploits to "turn the [IT] industry into an industry of sharing resources", Moglen is of the opinion that even Microsoft has now realized the importance of Commons production in 21st century IT. "Vertically-integrated ownership-based hierarchically-organized production of software is dying," he says, adding that the old model isn't dead, but it's dying.

Moglen referred to a paper he wrote in 1999 titled, "Anarchism of the Triumphant: Free Software and the death of Copyright", which he concluded by saying that production without ownership will transform the music industry and journalism in the next 10 years.

He might have been laughed at back then, but 10 years later, musicians are discovering alternatives to exclusive licensing of their music.

And "journalism is failing to maintain hierarchy," believes Moglen. "Editors don't control, owners of editors don't control, reporters don't control, press lords, and press magnets no matter how many news-corps they own, do not control."

This might be true for the media the US. But in India, the lack of mainstream media coverage on the recent arrest of security researcher Hari Prasad who demonstrated the tamper-ability of the EVM, or his findings, are a clear reflection of the control over the media. Moglen's US-centric statements are also in stark contrast to those made by Ramon Magsaysay Award winning journalist P Sainath, who said the mainstream media in India can be manipulated with a percentage stake in a company.

Multi-faceted Commons

Moglen pointed to the case of Dmitry Sklyarov as an example of building a monument of the late 20th Century criminal law, "that criminalizes resistance to the exclusive ownership of culture."

With Commons, there are two processes going on. You have free software on one hand, and software patent breaking on the other. Similarly, there's the free software mobile telephone, as well as the iPhone and people jail-breaking it.

"What you see is two fundamentally different processes intertwined. Commons both outproduces ownership and competes directly with the structure of winner takes all, I-am-a-better-man-than-you capitalism on the one hand, and the commons act to ensure respect for its principles in a fairly elbows out, bare-knuckles discussion with the principles of ownership on the other side."

Don't throw away the brain

The one critical factor behind the success of the older ownership model, as per Moglen, is that the human brain is thrown away. "The great victory of ownership arises not only from the reduction of commons to property from enclosure, it capitalises on the inevitable existence of ignorance."

"The great commons of human existence is the commons created by the uniqueness of the human communicative capacity. We can think, and we can communicate our abstract thoughts to one another, and we can modify, and share, and remix, and reuse thought. The primary method of enclosure of human thought is the perpetuation of ignorance."

Moglen points to participation as the common shared system of human communicative activity. He believes this is where the activism of commons will have the greatest unique effect in the course of this century.

Deliver knowledge

Refering to cheap, affordable, mobile devices like the cell phone and the $35 tablet, Moglen said that the primary obstacle now "is not how to get knowledge to people, it's whether we are allowed to reproduce and deliver that knowledge."

"You are watching as the two empires that tried to divide the world between them at the end of the 20th century are failing to educate the next generation of their own population, let alone do anything to benefit themselves from the growth of the commons of all the brains in the world that can and will happen this next century."

Which is why, Moglen wants to ensure that every brain can learn, and the only obstacle to that is the ownership of ideas.

Commons is an active force

Moglen labels any discussion about patenting software as a tactical discussion that "occurs within the master strategy of the commons, not only to sustain itself against hostility, but to triumph."

"What is happening in global IT is still a forward demonstration, still a platform we can point to and say, this will happen to you too."

Moglen explains that to be disrupted by the Commons isn't a struggle in which the other party is destroyed. Rather, they get absorbed. "The used to co-opt us. Now we co-opt them."

He drives home the point using IBM's assistance as an example. "The IBM corporation didn't set out to destroy proprietary software, it discovered that the destruction would aid its business and it became our powerful ally at the very beginning of the process, and then all the competitors had to come along too."

Moglen ends by saying that the most important production of commons was Einstein, and the most important distribution of commons is science. "The way forward for the human race, the most important product of commons is our own survival, and there will be no competitor at the other end of this process, because there is no other way for every brain to learn and for the human race to survive."