Interview: Open-source advocate Eben Moglen

Eben Moglen admits he is a "talker" and his performance during our brief 30-minute chat does nothing to persuade otherwise. The former general counsel to the Free Software Foundation was at the Red Hat Summit in San Diego on Thursday to put his considerable oratorical skills to use, updating attendees around the soon-to-be-launched third instalment of the GNU General Public License  — a set of rules and restrictions that underpins the use of a lot of open-source software.

However, following reports that he has effectively stepped down from the Free Software Foundation (FSF), it seemed strange that Moglen was at the summit speaking about the GNU General Public License (GPL). But Moglen claims that reports that he is stepping away from the FSF have been exaggerated. He is merely putting a little distance between himself and the organisation.

The Software Freedom Law Center (SFLC), the legal service which he founded in 2005 to represent key free-software and open-source projects, will continue to serve the FSF; he just wants to step out of the limelight, he said.

"One of the things that people hate to admit is that sometimes a community is actually stronger if you step away from it," he claimed.

Moglen will now devote more of his time to his role as chairman of SFLC and to his teaching post at Columbia Law School. Comments posted in his blog shed some more light on the motivation for the change. "We're taking risk out of projects everybody is using or is going to want to use. Helping my colleagues do that work, supporting their growth as they support their clients, is the right thing for me to do right now," he said.

It's not surprising, given his gift for speech and passion for furthering the use of free and open software, that his name was on a list of individuals that emerged earlier this month that were apparently facing a potential "gagging" order from the SCO as part of its ongoing legal tussle with IBM over patent infringement in the Linux operating system.

The request was never enforced but it would have been interesting to see what effect, if any, a direct request to cease would have had on such a passionate supporter. 

Moglen became interested in computers at the age of 12. By 14 he was making money from writing computer programs. He spent several years coding for IBM, before turning away from the IT industry to become a lawyer. He worked as a law clerk for both the New York District Court and the US Supreme Court before joining Columbia Law School in the late 1980s, where he still works as a professor of law and legal history.

While working at Columbia, he tackled his first major legal case relating to software freedom. Moglen explained that, while "trawling a bulletin board" in the early 1990s, he came across Pretty Good Privacy (PGP), the email encryption program written by Phil Zimmermann. Moglen was impressed with the software, but also realised that Zimmermann was exposing himself to potential legal issues, as US legislation restricted the export of the software.

The US government accused Zimmermann of violating US regulations by publishing the PGP software on the internet. Moglen helped Zimmermann "pro bono", and eventually the government dismissed the case. It was while he was working on the Zimmermann case that Moglen was contacted by Richard Stallman, the founder of the FSF, who was also in need of legal help. Moglen again offered to do the work for him for nothing, and the rest is history.

This is not the first time that Moglen has made an appearance at a Red Hat Summit. At last year's summit in Nashville, he delivered a keynote speech that basically stole the show — his was the only one to warrant a near-standing ovation half-way through — not bad given that other speakers included MIT veteran and lead on the "One Laptop per Child" project Nicholas Negroponte.

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In that speech, Moglen made some brave assertions that, actually, free and open software is not anti-capitalist, as some detractors have observed — most famously Bill Gates with some ill-considered communism quips — but actually is as American as apple pie. "The actual politics are very American — they are not scary, but as natural as apple pie. The free-software solution is a return to the traditional result of personal ingenuity. It's freedom to invent, not reinvent — not invent over again something someone else had invented and locked up, but invent in the way that inventing was done in the great spurt of 19th-century inventiveness," he said.

So, one year on, does he think that the plight of free and open software has improved? Certainly, there have been set-backs — most notably the decision by Linux distributor Novell to partner with Microsoft, which was widely lambasted by open-source advocates, including Moglen, who questioned whether the deal actually violated the GPL. "If you make an agreement which requires you to pay a royalty to anyone for the right to distribute GPL software, you may not distribute it under the GPL," he said.

However, there have been some wins for free and open development, including Apple and EMI's moves to distribute music free from digital rights management controls. Without reflecting on specific examples, Moglen claimed that the last year has seen people finally begin to realise that free and open software can have a profound effect on their lives — and, in many cases, shape those lives. "Time Magazine had a cover claiming 'The people of the year are you', and more and more free software is changing the way human beings live," he said. It's hard to disagree.

ZDNet UK's Ingrid Marson contributed to this article