Eben Moglen: There is no consistency between the guarantee of fundamental human rights and a system of ownership of ideas.
So, all revolutions begin with a question. Usually the question is “why?”
Sometimes the question is “who?”
The question here is Bertolt Brecht’s question, “Who built the pyramids of Thebes?”
Or maybe he stole that question from someone else.
If I have seen any further into that question, I saw it by standing on the shoulders of giants.
But I stole that from Isaac Newton, who stole that from Luis Steothis, who stole that from Bernard Shouters. Which we know because the American sociologist of science, Robert Merton, taught us that, who stole it from an anonymous author of a note in a British journal, in 1934, who stole it who-knows-where.
This of course is the beginning of the revolution. That is, the application of the word “theft” to what previously had been known as “learning.”
So we are now learning something in this room, and in these agencies, and in our various places around the world: We are learning that there is a connection between the fundamental human rights and the re-appropriation of what belongs to us, that was taken from us, by people who turned knowledge into commodities.
An inevitable, temporary, regrettable step in the process of getting back to freedom.
Lord Macaulay, writing about the English Glorious Revolution of 1688, from his position in the middle of the 19th century, found himself with a question: Here were all the great politicians of Whig England, having successfully dislodged a bitterly and evilly disposed despot, aware of enormous numbers of legal reforms that needed to be made, busy reshaping the English constitution in the winter of 1688-89. And he shows how one after another of the great reforms of the 18th century were proposed, and he said to himself, “How strange, nobody said ‘let’s repeal the censorship of the press’.” Which anybody now knows Lord Macaulay said was the single most important reform because the freedom of public discussion is the guarantor of all other rights. From the perspective of 1850, 1688 seemed rather backward in this recognition.
In the middle 1960s, the then dominant American scholar of copyright, Mel Nimmer, wrote an article asking a revolutionary question: “Why is copyright consistent with the first amendment guarantee of freedom of speech?” and he wrestled with it for a little while, and came to some comparatively unsatisfying answers, which satisfied him, mostly.
And then the field of copyright law went to sleep on the answers for another twenty years. By the time they found themselves hearing the question again, it was asked rather loudly by a few of us, and the answers that seemed barely satisfactory in 1967 seemed entirely useless altogether.
Now, mind you, the United States Supreme Court hadn’t quite figured that out yet. Thanks to a very skilled and daring investigator, my colleague Larry Lessig, we were able to demonstrate that the Supreme Court didn’t understand that problem at all, and we are unfortunately living with the consequences of their continuing – but I assure you, temporary – ignorance.
The question, “What is the fundamental consistency, if any, between the freedom of speech and copyright law in the United States?” now has as its grand international rhyme here today.
What is the fundamental consistency between the right of human beings to self determination and liberty with the system of ownership of ideas?
That’s a revolutionary question and it has a simple answer, as revolutionary questions do: There is no consistency between the guarantee of fundamental human rights and a system of ownership of ideas.
So those of us who know the answer to the question are beginning to implement the necessary step. We are making it impossible to continue with the system of the ownership of ideas. We will be finished with that work within our lifetimes, and the system of ownership of ideas will have been relegated to that very important, but almost forgotten location, the dust heap of history.
- Eben Moglen