Freeing the Mind – Eben Moglen

Xavier's Auditorium, St Joseph College, Bangalore, 2007-06-03, 16:00

So let me start without more preface, by talking about what it was that the law of computer software came up against at the end of the 20th century.

This business of sharing software, that wasn’t a revolutionary idea in the beginning. In fact, in the beginning, it wasn’t even an idea at all; computer software was shared from the beginning of computer software. It wasn’t that we started in need of a revolution. It was that we began in a condition of innocence in which everything that we now struggle for was in the first place taken for granted. The knowledge about how to use a computer was in the beginning like the knowledge of how to use a lathe, or a drill, or a hammer. It was the common knowledge of skilled workmen. It is true that at that stage – the early history of the digital technology culture – the number of skilled workmen who shared information about how to use the tool called the digital computer was a very small number. There were a few thousand, then there were a few tens of thousands of people in the world for whom that knowledge was important. But they shared all the knowledge that there was. There were not even trade secrets, in the beginnings of the industry that we now called computer software. There were a few engineers in the world who used these machines in non-military ways. And every non-military user of the machines knew essentially what everybody else knew too.

By the time I began working as a computer programmer in the early 1970s, there were some secrets. That is to say, there were people who had computer programs that they didn’t fully share with everybody else. Those computer programs performed specific jobs that businesses believed gave them an advantage. Even in the early 1970s, the most sophisticated of the financial institutions in the world had secret software. Process software governing the manufacturing of particular sophisticated products – chemical products and electrical products – product production software, numerical control for machines that made other machines, such software was sometimes kept secret. Again, because it gave a specific competitive advantage to the business in which that software had been generated. But there was no one anywhere in the world who thought that software, standing by itself, was a product. A thing to be sold and therefore to be kept secret in relevant part, because if you didn’t keep it secret, you wouldn’t have a product to keep selling. Nobody had considered that as a business model when I began programming computers. Indeed, for most of a generation after I started programming, nobody would. It was an accident that computer software became a product.

And so I want to begin my remarks by pointing out that what we are doing when we talk about freeing software is not committing the act of revolution. We’re not even committing the act of substantially changing what most of us think of as the beginning into the middle or the end, we’re simply reversing a mistake, a contingent accident, something that happened to happen in the history of technology. I insist on that because, although later on I am going to be speaking as a revolutionary, I’m not speaking as a revolutionary when I talk about free software. And this is an interesting, important, maybe even dispositive fact.

The reason that everybody thought that software could be a product, in let us say, 1990 or 1995, was an accident in the way the computer industry developed. It was an accident largely having to do with the effect on the IBM corporation, of anti-trust enforcement by the United States government after 1969. But even the explanation of that accident carries the historian in me back a 100 years or so. Because, really, what I am trying to get at for you is how proprietary culture came to be in the first place.

The single most patented inventor in the history of the United States – the thing that in the American mind personifies the idea of the inventor, the genius, the unique innovative personality – the most patented inventor in the history of the United States is a collective known as Thomas Alva Edison. It wasn’t actually, you understand, Thomas Edison who invented the Edison inventions, it was the collective that worked at the Edison laboratories, they were employed engineers, the boss got all the patents in his name, and became the most patented inventor in the history of the United States. But we are, after all, talking about a community inventing things, and the community called Thomas Alva Edison invented things that made proprietary culture possible.

The phonograph and the moving picture.

The phonograph – the recording of sound, the durable recording of sound – turned music into a product. Never before in the history of the world had music been a product; music was either an act of social communion, or it was a service. Most of the time it was an act of social communion – people played so people could dance. Music was part of the life of a community, it was how a community expressed being together. But, from an economic point of view, music was a service rendered in a market for services; he who pays the piper calls the tune. What’s a wedding without musicians?

The service called music, the act of making people feel that they are together, by playing music for them in return for money – this is an act of making community, this service called music – became, thanks to the collective Thomas Alva Edison, a product, embedded in an object which could be transformed so as to durably persist across long distances and spaces of time. Music could be where the musician wasn’t, which allowed somebody else to arbitrage the desire for community by moving music made where it was cheap, to a place where community would pay heavily for it, which produced a market, which protected, as property, the idea of music as a thing. It also patented the phonograph. But that’s a second order consequence of the idea of the thing as a product in the first place.

Indeed, the patent system of the 19th century in America – the one that made the collective called Thomas Alva Edison, the idea of an invention – that patent system is a further reflection of the 19th century tendency to turn knowledge into products. A 20th century tendency with runaway capacity, because of the other Edisonian invention, the motion picture. Unlike the phonograph, the motion picture was not about taking an existing form of social service and turning it into a product. This was a new way to make community, by showing people something which allowed them as a group to participate in a shared imaginative experience. I would not suggest that this was a patentable invention, this is the thing called “theater”, also an expression of community, also purchasable as a service – think, I suppose, here of Hamlet and the players – a way to share and experience to make community through imagination, but now made portable. The act of creating a shared imaginative experience for a community became a product – the motion picture. And everywhere around the world, people began to share imaginative experience in darkened rooms together, experiencing a form of community built around the product that was the shared imaginative experience. From an economic point of view, I needn’t repeat what the analysis would offer. It moved drama from where it could be produced cheaply – that would be Bombay and Los Angeles, roughly speaking – to places where community needed to share imaginative experience and would pay for it.

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