THE SOFTWARE REVOLUTION WILL NOT BE TiVo’d: LINUS VS. STALLMAN AND THE POLITICS OF SOFTWARE
Free software, as Richard Stallman likes to point out, is a matter of freedom, not one of free beer. The free software movement’s stance against the idea of proprietary software is rooted in something far larger and more complex than mere economics – the lash against TiVo, for instance, does simply not stem from distaste for TiVo’s monetization of its product, but from something distinct, although closely related to the commercialization of software, which is that proprietary software, beyond fattening the pockets of its creators (whoever and however many they may be), inevitably deprives users of a whole slate of freedoms. This is the beef with software patents – that they are anti-freedom. Free software is about politics more than it is about economics.
The problem with Stallman’s vocal position against “TiVoization” – which has since become fodder for the ongoing battle between Linus Torvalds and Richard Stallman – is that it might under certain lights appear to go beyond being pro free software to the point where it is actually anti-profit. At their most basic, all three versions of the GPL seek to protect computer users from being denied the freedom to use and manipulate their computers and programs as they wish. Stallman is a venerable defender of individual freedom. He believes in people coming together to work for the general good of society. Liberal to the bone, vehemently protective of individual liberty, he opposes cloud computing, for instance, because it is a threat to individual privacy and because cloud computing represents just as big a menace as proprietary software to users’ control and to their rights to tinker.
In its utter embrace of users’ rights and shared creativity, free software relinquishes central control, the kind of control that is often used selfishly and against the interests of the community or society, the type of control synonymous with proprietary interest. As demonstrated by virtually all open-sourced productions, efficient, useful projects need not be centralized to work well.
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TiVoization represents a kind of control that runs against the grain of free software ideology. The TiVo box/service runs on free, open-source software (the GNU Linux system) under the terms of a GPL copyleft license, but uses hardware restrictions to prevent TiVo users from modifying or tinkering with their TiVo software. Stallman has made the attack on TiVoization – the very real denial of user freedom entailed by the TiVo practice of encoding free software that is covered by a copyleft, within hardware restriction – a central feature of the third version of the GPL. Linus Torvalds, for one, is less militant than Stallman in his views on proprietary control. For Torvalds, a copyleft license (the “freedom” part of “free software”) should only regulate software, and not the hardware on which it runs. Thus, one could still modify the software on a TiVo box to run on another hardware, just not on the TiVo box itself. Torvalds’ view of free software, then, is fundamentally different from Stallman’s.
DRMs or digital signatures used to prevent modified software from running on specific hardware do indeed deny TiVo users a certain degree of freedom, but then again, complete and total user freedom has never (until now) been a feature of real-world business. Trade secrets and patents abound in the physical world, and TiVo is very much a physical product. It is more than just software. Torvalds believes “TiVo never did anything wrong… The fact that they do their hardware and have some DRM issues with the content producers and thus want to protect the integrity of that hardware [sic].” TiVo may be a boot-loader, but the Linux kernel license covers the kernel alone, not the hardware, and “people who make their own hardware can design them any which way they want.,” according to Torvalds.
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The disagreement over TiVoization, between Torvalds and Stallman, is a profound ideological one. It reflects divergent views about property (both physical and intellectual) and about the uses of technology. Stallman is right to say that free software is different from open-source software. One is a development methodology (open-source) and the other is a social ideology with ethical incentives. Stallman may be a programmer, but he but he is foremost a political thinker, an activist. The movement he helped launch, the free software movement, reveals, in a deeply urgent way, the moral underpinnings of technology, software, and intellectual property.
That software creation is most innovative in areas of least intervention (ie. free software) and that most software patents are filed by patent lawyers, firms and patent trolls (very rarely by the programming “comrades” who value, according to Stallman, friendship over obeying the law or making money) are hugely important facts that speak to the observable economic (to say the least) harm of patents on the software sector. Patents promote litigation, pitch patent trolls against software producers, prolong monopolies, and are hardly linked to real achievements. These are real damages and proof that software should effectively be free. But Stallman goes beyond the economic motivations for free software. His attack is not just against proprietary or nonfree software, but seemingly against a great many forms of property in general. The GPL 3.0 is not just about software, but about the commercialization (or non-commercialization/freedom) of hardware, too.
Both Torvalds and Stallman know that free software and TiVoization are not simply about business models, but about how people live their lives. In a keynote delivered at a Red Hat conference, legal scholar (and Stallman’s attorney) Eben Moglen said: “The free software revolution is in that sense distinctively a return to the tradition of the transformative result of individual ingenuity. It redressed a balance in the world of software, which had tilted too far away from the utility of individual ingenuity. It freed users to improve and share, and to benefit freely from other people’s improvements, but it also freed individuals to invent.” Inaccessible and propriety software makes the world a less inventive, more selfish, and darker place, less comprehensible, less conducive to human autonomy, and one in which machines have increased control at the expense of individual freedom. The issue of software, then, is an issue of how we live our lives. It is a matter of moral urgency, and deserves to be thought of as such. But as far as the discussion surrounding software is a discussion of political principle, one should pay closer attention to Stallman’s arguments as such – not merely as calls to action, not merely as bell-ringing activism, but as carefully staked, and truly sweeping, political positions.
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Torvalds has been thrashed and lambasted for writing of Stallman that he “literally sees free software as a fight between good and evil.” Torvalds is worried about Stallman’s militancy. He says on his blog, “You do realize FSF scared a lot of reasonable people away with its politics?” And that’s precisely the point, and the problem. Software is a matter of politics, and it should be treated as such – as a complex debate within which multiple ethical and economic imperatives are at play, rather as a Manichean, yes-no battle of right vs. wrong. Torvalds gets attacked for endorsing then-Senator Obama in the same breath as he delivers his criticism of GPL 3.0, in that same blog post, but Torvalds’ admiring mention of Obama, pre-2008 election, simply served to draw an analogy between Obama’s promise of post-partisan progress and the kind of progress Torvalds himself was hoping to see in the Great Software Debate. At the time of his blogging, Torvalds hoped and believed that Obama “really can see the other side not just when it comes to religion, but when it comes to international issues too.” The problem with Stallman’s thinking is not that he’s wrong about software (he’s not) but that he fails to consider other perspectives. The GPL 3.0 goes beyond pushing for free software; it veers on the militant as it attacks TiVoization and business practices. Free software truly is a revolution – even though it doesn’t get spoken of as such – but it operates in a world where overly zealous idealism and Manichean categorization do little to serve the mainstream revolution of ideas, but rather give the impression of originating from the fringes, and not the center of the conversation, where it all belongs.
Yale Law Tech 
