For book publication in celebration of the 150th anniversary of Columbia Law School, October 2008

Freedom Now: Digital Technology and Social Justice

Social Theory for Digital Times

Digital technology can eliminate ignorance and cultural deprivation by making all that is useful or beautiful available to everyone everywhere at almost no cost. We can use it to free every mind on earth. Instead we are reinforcing inequality by accepting as legitimate the ownership of ideas. Justice in our new digital age requires replacing noxious “intellectual property” rules with the principles of open access and freedom to share.

How We Got Here

So-called “owners” sought to enclose the freedom of ideas, using legislation purchased from a venal Congress, because the new technology threatened their fortunes. Digital technology initially empowered the “owners,” drastically reducing costs and expanding markets. But by reducing the marginal cost of almost all knowledge and culture to zero—so that everybody could in theory possess, make and share a nearly no-cost copy of anything—the digital transformation wound up threatening the very inequality of access that sustained privilege.

Some classes of goods, like the computer software sold at monopoly prices by Microsoft, are better produced for free redistribution by large-scale collaboration, involving talented professional and amateur programmers working without ownership relations, for the common benefit. Other, non-functional, digital goods, such as music and entertainment video, are better distributed by direct sharing among the networked audience than by businesses with exclusive distribution rights. We used to need these feudal proprietors. Now they are obsolete, but of course they refuse to go away. Instead, they want more, and they are willing to kill morality and justice in order to get it.

What We Did About It

Social theory can be hard as steel when it shows how to pry apart impacted power in times of rapid change. My work has been entirely concerned for the last decade with exposition of a theory and consolidation of practical gains that flow from it. Theoretical explanation meant troubling legal academics to learn technical details familiarly known to millions of young people around the world; this hardly worked, for reasons best left unmentioned. Consolidating the practical gains required helping those young people to explore for themselves the production of “freedom” in a technologically advanced society. This was easier, and more productive, so by and large I addressed myself primarily to that audience. They were, after all, my students.

It seemed most effective, in writing for academic readers, to introduce the theory by showing its relationship to some principles of nineteenth-century political economy, which I did in Anarchism Triumphant and The dotCommunist Manifesto. Meanwhile, nearly 50,000 (predominantly) younger people watched Software and Community in the Early 21st Century at YouTube or downloaded it from; perhaps twice as many heard Die Gedanken Sind Frei.

To make theory real, I began with others in 1991 the much criticized and ultimately successful effort to force withdrawal of US Government export controls on strong public-key encryption—thus enabling all global e-commerce, which depends on ubiquitous strong encryption, and which an ignorant and power-mad national security state would have indefinitely suppressed. From 1993, I helped engineer the legal and political arrangements that turned Richard Stallman’s Free Software Movement from a marginal techno-social splinter into the engine of more than $50 billion annually in global information technology sales. Free software and open source destroyed Microsoft’s monopoly grip and restructured the global software industry, based on knowledge everyone has a right to share. In 2005, I founded the Software Freedom Law Center, the world’s only non-profit legal services organization devoted entirely to facilitating the non-profit manufacture and distribution of open source and free software. In 2006 and 2007, I personally directed the largest multi-community transnational copyright license negotiation in history, creating an updated version of the GNU General Public License, under which more than 100,000 software projects around the world have been freely licensed since 1991.

Following a strategy I laid out in Freeing the Mind, free software is rapidly eroding global control of culture by the multimedia oligopolists. Soon, all proprietary publishing of text, music, video and other cultural media will be competing at a disadvantage against culture made to be freely shared. Within the next generation the ownership of culture will be extinct.

We have also refused to accept social damage done by noxious state intervention dispensing absolute monopolies on ideas through the patent system. Lawyers I helped train joined with Daniel Ravicher and me at the Public Patent Foundation in successfully re-examining a patent on the world’s most profitable pharmaceutical, Lipitor—thus shortening the drug’s patent lifetime by seven years and returning more than $70 billion in ill-gotten gains from Pfizer to patients and insurers—all for less than $5,000. We helped to protect the security of the world food supply by eliminating four Monsanto patents that had been used to attack farmers for replanting seed from their own crops. We broke unjustified patents wrongfully issued to Columbia University and the University of Wisconsin that extracted tolls from all researchers using basic genetic manipulation techniques or experimenting with human stem cells. We nullified patents by Microsoft and Blackboard that could have been used to threaten Free Software projects in the United States.

What I Shall Do Next

The immorality of deliberately perpetuating ignorance is exceeded only by the evil of constructing social infrastructure that prohibits privacy, anonymity, and the free exchange of information of which the State or its Patrons disapprove. Free software is now irreversibly playing its role in the long revolution, making the Net a force that responds to the people, not the “owners.” Using that force, and precisely targeted legal interventions, I’m going to invent means to fight the censorship of oppressive States as well as the oligopolists who want to own our minds. Thurgood Marshall taught me that changing the world requires two things only: knowing exactly what you want, and knowing exactly how to get it. We need free software, free culture, free spectrum, and free bandwidth. I shall continue to study, and implement, our means to win them.

© 2008, Eben Moglen. Permission is given for verbatim reproduction in any medium, provided this notice is preserved.