Notes from Prof. Eben Moglen’s talk on “The Empire & the iPhone: ‘Technology Platforms,’ the Commons, and the Way We Live Now”

Tonight I attended a talk by Eben Moglen titled “The Empire & the iPhone: ‘Technology Platforms,’ the Commons, and the Way We Live Now”, put on by the Information Law Institute Students Assocation at NYULS. They are hosting a Stallman talk on Wednesday; it is Krissa’s birthday so I won’t be attending that one.

The talk was a full hour, plus 30 minutes of Q&A. Necessarily, then, these notes are fragmentary (‘written’ on an N800). It is probably best to read them as jotted (and heavily paraphrased!) notes and highlights rather than expecting a coherent narrative. Don’t rely on these for reporting Eben’s thoughts- if you see something of interest here that you plan on quoting in a Serious Format, contact me, or better yet him, to confirm that it is acccurate.

I wish I had deep thoughts to add, but I’m pretty beat up tonight. Possibly more tomorrow. Nutshell version: I think Eben is obviously correct that platforms are loci of control, and hence are very dangerous for anyone concerned with rights in a digital context. (Not just software freedom, but freedom of speech, freedom from government eavesdropping, etc.) At the same time platforms (and the standardization they can create) can facilitate innovation at other levels in the stack, and efficiencies all over. Figuring out how to strike that balance may be as easy as just having good rules about platform licensing, but I have a gut feeling it will be more complex and difficult than that. At any rate, like I said, probably more of my own thoughts tomorrow.

The Talk

He wants to focus on non-license stuff, and instead focus on where we live now- the broader view of the environment rather than the specifics of one license. (ed.: of course the first question in q&a was about ms-novell. :)

The commons is here and not going away; production in 21st cent. will be community based, and traditional sellers are now realizing this, and reacting defensively or otherwise.

Rise of prosumer is critical; digital camera is the beginning of this but only the beginning; will impact much more than photography- stage shows, etc.

We now know that ownership of knowledge blocks, and/or makes inefficient, knowledge production. [ed.: he asserted in Q&A that we should issue patents under a formal adminstrative cost-benefit analysis scheme, but I’m not sure how one can even pretened to do that, given the sparseness of the economic research on the topic.]

Other than MS every single significant software vendor uses- depends on- output of commons. Not just culture and software but banking and money are now contested; paypal distributes banking. Ebay decentralizes vending.

Commons are now central both for the most and least powerful.

Many mechanisms for commons to protect itself; copyleft but also stubborn 12year olds and p2p. Needs all of them.

IBM and HP are doing well in large part b/c of harnessing commons.

Talked regularly to Bill Hilf, MS. Calculated that MS can bring 3.8 million manhours/week to the table; from sf.net + surveys done by rishab ghosh he gets (in 2004 ) 5 million manhours/week spent producing GPL software; now probably closer to 6m overall. So commons is the majority in some parts of software, even if not yet in other places in ip.

Despite the reality of production, commons is not the dominant theory of production. Proprietary mental models still dominant, which is why we still pay for phone calls. Skype is not perfect, but is still early and very threatening to a broad range of interests, and having an impact.

Question, then: owners will have their innings to respond; what will the response look like?

Says their answer will be the platform, which is (among other things) a safe box within which commons can be safely controlled/walled off.

The cell phone network is an example. It gives people impression that movement matters (“roaming”); that expensive hardware is necessary; that you must carry the state with you in the form of e911; that you must eventually give vast amounts of info to marketers.

Commons has better answers for all this (wifi, skype, etc.), but like MS, the cell people tie you to a platform and scare you w/ isolation if you leave the comfort and security of the platform.

The story Jobs spins is ‘There would be no music w/out the platform- people will stop singing w/out the platform.’ This is obviously ludicrous but we’ve bought into it. Despite his recent letter, Jobs is not really anti-drm; just doesn’t want to lose the platform.

“Who will make software if you sell it below cost?” is what the economists used to ask; now sony and xbox do this for hardware, and the economists justify it as a blade/handle model, which he finds economically implausible, unless we give them alternate forms of control so they can force the blades on us- this, again, is the ‘platform’.Says that Tivo’s GC finally checked in on gpl3; Moglen apologized for RMS’s use of “tivoization” as a phrase, but tivo still wanted the keysigning clause removed. Says Tivo even offerred removal of drm from the stored video, just as long as they could keep the subscription lockin by signing the software. If they gave away subs via hacking, they lose out. They want free software to compromise so that they can commit the “economic stupidity” of too-cheap hw.

Sees the near future as the process of maneuvering the commons through the obstacle course of platforms which benefit incumbents.

Notes that government is fertile grounds for creation of platform by fiat/incumbents.

Notes that not all platforms are the same; some more or less bad than others.

Job/wealth creation from the comon is not inherently bad, but it can create pathologies as people attempt to game or exploit the commons. He says we will need a language to describe this; we’ll probably get it from ecologists. [ed.: he didn’t mention Boyle, but clearly he is influenced by Boyle’s paper.] Says that the commons is not as bad off as the environment, b/c the commons was created intentionally and with a clear, self-conscious, long-term politics, whereas we exploited the environment for ages without clear understanding of what we were doing.

Biopatent protests are similarly politically motivated- goal is to demonstrate power/value of commons, and the damage caused by parcelization. The success of the movement is not predetermined; it requires determined, aware effort. “Can’t leave war to the generals or platform decisions to the platform makers.”

Governments now understand that commons is a reality, and has significant momentum, but we can’t be complacent. We are becoming more diverse, which makes political action hard, esp. since some of our allies are only allies of convenience.

From each according to ability is actually a possibility now in our domain; others before us did not really have the option, but we do and we should take it. This time we win.

Questions (really mostly just the answers):

• By political he means civil/civilized- over coffee, in courtrooms, etc.- not in the street, nor by pushing for specific political candidates, since the fcc and doj are more important than top-level politicians, and appointments are also unpredictable. (Notes that both Gore and Bush made pilgrimage to Redmond in 2000, whereas he can’t imagine Teddy Roosevelt making a pilgrimage to Standard Oil.)
• Thinks winning in open standards is long term- after 8-10 years most standards bodies are going to look like w3c, and have patent policies in place to enable them to escape from patent gaming.
• Says the SFLC brief in Microsoft v. AT&T is identical to Eli Lilly’s brief; pharma is trying to throw software out of the patent tent before software takes down the whole thing.
• Cites Rawls to justify the superior morality/justice of a sharing culture, with reference to the moral problem of keeping knowledge from the poor. (ed.: my political philosophy work pays off!)