13 December 2008, afternoon: Eben delivered his talk on 'Legal Practice in FOSS' at National Law School, Bangalore.

A group of future lawyers, a motley crew of guys and girls, all students of one of the top law schools in the country, sat together, earnestly drinking in what Eben Moglen was saying. Eben started off in legal terms that they would understand and relate to, and before the middle of his talk he had them agreeing to most of the points he put forward, and I was amazed to see that he had transformed his talk so inconspicuously from that of a professor of law speaking about legal concepts to that of a classical leftist.
Eben started out with some legal anecdotes from his own experiences a practicing lawyer.

While working at Columbia, he tackled his first major legal case relating to software freedom. Moglen explains that while "trawling a bulletin board" in the early 1990s he came across Pretty Good Privacy (PGP), the e-mail encryption program written by Phil Zimmerman. Moglen was impressed with the software, but realized that Zimmerman was exposing himself to potential legal issues, as U.S. legislation restricted the export of cryptographic software. "I wrote an e-mail message to him (Zimmerman) saying, 'Congratulations, you're going to change the world, but you're also going to get into a ... load of trouble. When you do, call me,'" Moglen said. "I was just two weeks ahead of the police." The U.S. government accused Zimmerman of violating U.S. regulations by publishing the PGP software on the Internet. Moglen helped Zimmerman pro bono, and eventually the government dismissed the case.

It was while he was working on the Zimmerman case that Moglen was contacted by Richard Stallman, the founder of the Free Software Foundation, who was also in need of legal help. Moglen again offered to do the work for him for nothing. "I said to him, 'I use Emacs (a text editor written by Stallman) every day, so it will be a long time before you run out of free legal help,'" Moglen said. Initially, Moglen was spending about a fifth of his time doing legal work for the foundation, although this increased over time. But he points out that the time he has given is no different to the time that many free software developers have given to improve programs.

To paint a clearer pictureof the legal and ethical connotations involved with free and open source software, Moglen argued that Capitalism now makes a great deal of money out of free software, and it voluntarily pays them (Moglen's foundation) money to make, improve and provide lawyers for it.

Some people decided to make knowledge into property. That wasn't capitalism speaking; that was a greedy scam. There wasn't anything normatively acceptable about it. It contravened the freedom of speech and ideas. We should chose not to engage in it because it is excluding people from ideas.

This is an especially bad thing in the digital world. In the analog world, excluding people makes sense as you've got to raise money to manufacture something--a book or a tape. So you have to say to people, "This cassette tape costs a dollar to make; if you don't give me a dollar I can't make another one." In the digital world, nothing has a marginal cost. Once you make the first one you can make an additional million at no extra cost, so you should only have to pay that cost once.

Moglen said that last year, the European Parliament rejected the software patent directive. The rejection of the directive was a great success in politicizing what had until then been a niche subject. It was an announcement that patents is something that politics should be about--like transport, health and education.

Is there a change in attitude towards patents? Moglen says that in 50 years from now, or 100 years from now, the ownership of ideas is going to seem repugnant and the patent system won't exist anymore. But that is going to require a confrontation of cataclysmic proportions, from people who right now don't know anything about patents.

While talking about patents with respect to software, Moglen pointed out that uncertainty is the problem. The problem of patents when they are applied to software is that there is no way of finding out how many patents you could be infringing. When the patent system is applied to something like a spinning wheel there are a limited number of possible patents that people can check on before mass-manufacturing the product. But there is no way to check what patents a software product may be violating.

Programming is an incremental process, so it couldbe said that almost nothing could be argued to be novel. But even if software patents were only issued on really narrow grounds, instead of being handed out like gumballs to someone who puts a nickel in a machine, there would still be a risk involved in writing computer programs.

Moglen summed up his speech by taking in questions from the audience. Perhaps his activities and their purpose can be summed up with his answer to the question asked by someone from the audience as to why he chose to do what he does. His answer: ‘I wanted to be a lawyer. And I wanted to get up in the morning and look myself in the eye when I stand in front of the mirror’.