March 19, 2002
MR Michael Eisner, Disney CEO, has recently been demonstrating once again why there is no democracy in Disneyland. Testifying before the United States Senate in support of proposed legislation by Senator Ernest F. Hollings of South Carolina-who has received large political donations from Disney--Mr Eisner tactfully gave voice to his view of the computer hardware and consumer electronics industries. ``We're dealing with an industry where an unspoken strategy is that the killer app is piracy,'' Mr Eisner said. ``Their quarter-to-quarter growth is definitely pushed forward by people wanting to get anything for free on their television or computer or handheld device.'' For this reason, Mr Eisner decreed, the market could not be trusted to keep his content safe from all that overwhelming human desire to share; the only acceptable solution for Disney is Senator Hollings' proposal--drafted last summer in closed meetings with Disney lobbyists--which would require all hardware and software in the United States to obey mandated content protection rules, and give a right to copyright owners to prevent the distribution of any software or hardware that doesn't meet the mandates. By something less than coincidence, this proposed legislation would make free software multimedia implementations illegal.
I've written here before about the inevitable conflict between free software and this out-of-control imperialism by the ``culture owners.'' Mr Eisner just went and spelled it all out so clearly. In order for bitstreams to be sold in his business model, which he ludicrously calls a ``free market,'' every computer, every consumer electronics device and every piece of functional software has to be most definitely unfree, subject to government rules about how it can work, and not subject to modification by its users. Otherwise the users could modify the software to keep copies of the music, video, and other miscellaneous schlock Mr Eisner hopes to peddle to them purely on subscription, pay-as-you-go, terms.
The content merchants, who think as Mr Eisner does but not necessarily as crudely, want every device that interacts with human eyeballs and eardrums to be a ``trusted platform,'' which means trusted by them not to be under the actual control of its user. But building computers that render their users completely unfree is difficult. It is also squarely in conflict with the free software movement's objective, which is to encourage the building of software that makes all computer users completely free.
Despite the opulence and influence of the content merchants, we have two powerful advantages in the conflict. First, and most important, we are engaged in an activity deeply cherished in any free society: we are having new ideas and publishing them for anyone who wants to read them. Our ideas are mostly embodied in computer software, but they are also contained in our legal documents, like the GNU General Public License, and in other writings. We have just as much right to publish the software as the licenses or the philosophical essays. In order to prevent us from making software of very high quality and sharing it, the owners will have to pay legislators to make bad laws, which violate the freedom of thought and speech. Such laws, no matter how many politicians have received ``campaign contributions'' to make them, are repugnant to human liberty; they will be overturned in the courts and they will haunt the bribed or intimidated politicians who help pass them. Only where there is no democracy among the workers and dictatorship prevails, like the Walt Disney Co., will such policies be acceptable.
But our free speech, we have been told, is different, because our free software might abet ``piracy.'' When lawyers for Universal City Studios and Disney told the courts here that free software capable of playing DVDs on computers equipped with the Linux kernel should be suppressed completely, because such software could be used to copy and redistribute movies as well as for the legitimate purpose of watching legally-acquired DVDs, they got a respectful hearing from the judges. After all, if the studios said we were ``pirates,'' the judges could be excused for thinking, there must be something in it.
Our second advantage is that it now turns out that the little boy is always crying ``wolf.'' Everyone is a pirate to Mr Eisner: IBM and HP, Dell and Panasonic, Apple and Nokia. Given how he defines ``pirate,'' the only freedom of speech he supports is his own.
So Mr Eisner hasn't done much for the owners' credibility. Indeed, he has created quite a broad coalition against himself. That's why in recent trips to Washington DC to oppose this legislation, I've had lobbyists from IBM and Hewlett-Packard helping me get our message heard. For the moment, it looks like Disney's US legislation is stalled. But Mr Eisner's empire is international, not parochial. He, Mr Murdoch, and the other robber barons of the global media have the same basic interest in technical unfreedom everywhere, not only in the US. Free software has to be prepared to defend itself politically all over the world. We're not just one small part of the future of freedom of speech. Given who's on the other side, we are going to be its embattled defenders in some very important controversies, coming soon to a theater near you.
* Eben Moglen is professor of law at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation. You can read more of his writing at moglen.law.columbia.edu.