Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2023/10/11/moglen-sflc.html
[ The below is a personal statement that I make on my own behalf. While
my statement’s release coincides with a release of an unrelated statement
on similar topics made
by my
employer, Software Freedom Conservancy, and
the Free
Software Foundation Europe, please keep in mind that this statement is
my own, personal opinion — written exclusively by me — and not
necessarily the opinion of either of those organizations. I did not consult
nor coordinate with either organization on this statement. ]
With great trepidation, I have decided to make this public statement
regarding the psychological abuse, including menacing, that I suffered,
perpetrated by Eben Moglen, both while I was employed at his Software
Freedom Law Center (SFLC) from 2005-2010, and in the years after he fired
me. No one revels in having psychological injuries and mistreatment
they’ve suffered paraded to the public. I’ll be frank that if it were not
for Moglen’s use of the USA Trademark Trial and Appeal Board (TTAB) as a
method to perpetrate further abusive behavior, I wouldn’t have written this
post. Furthermore, sadly, Moglen has threatened in recent TTAB filings his
intention to use the proceeding to release personal details about my life
to the public (using the litigation itself as a lever). I have decided to
preemptively make public the facts herein first myself — so that I
can at least control the timing and framing of the information.
This post is long; the issues discussed in it are complicated, nuanced,
and cannot be summed up easily. Nevertheless, I’m realistic that most
people will stop reading soon, so I’ll summarize now as best I can in a few
sentences: I worked initially with, and then for, Eben Moglen for
nearly a decade — during which time he was psychologically abusive and
gaslighted me (under the guise of training and mentoring me). I thought
for many years that he was one of my best friends (— in retrospect, I
believe that he tricked me into believing that he was). As such, I shared
extremely personal details about myself to him — which he has used
both contemporaneously and in years hence to attempt to discredit me with
my colleagues and peers. Recently, Moglen declared his plans to use
current TTAB proceedings to force me to answer questions about my mental
health in
deposition0. Long
ago, I disclosed key personal information to Moglen, I therefore have a
pretty good idea of what his next move will be during that deposition
questioning. Specifically, I believe Moglen was hoping to out me as
omni/bisexual1 as part of my deposition
in this proceeding. As such, I’m outing myself here first (primarily) to
disarm his ability to use what he knows about my sexual orientation against
me. Since that last sentence makes me already out, Moglen will be unable
to use the biggest “secret” that Moglen “has on me”
in his future psychological and legal attacks.
I suspect some folks will stop reading here, but I really urge that you
keep reading this post, and also to read the unrelated statement made by
Conservancy
and FSFE.
The details are important and matter. I am admittedly embarrassed to talk
publicly about how Moglen exacerbated, expanded, and caused new symptoms of
my Post-Traumatic Stress Disorder (PTSD) — which I already suffered
from when I met him. But, I feel it is important to talk about these
issues publicly for many reasons — including that Moglen seeks to
expose these personal facts about me as an attempt to stigmatize what is
actually a positive thing: I seek ongoing treatment for my PTSD (which
Moglen himself, in part, caused) and to simultaneously process and reduce
my (painful and stubborn) internalized shame about my LGBTQIA+
status. (Like many proud LGBTQIA+ folks, I struggle with this because
living in a society unfriendly to LGBTQIA+ folks can lead to difficult
shame issues — this is a well-documented phenomena that LGBTQIA+
folks like myself suffer from.)
The primary recent catalyst for this situation is as follows: Moglen has
insisted that, as part of the
ongoing trademark
cancellation petition that SFLC filed against my employer, Software Freedom
Conservancy in
the TTAB,
that Moglen both personally be allowed to be present at, and to
actually take the depositions3 of me and
my colleague, Karen Sandler.
This kind of behavior is typical of how abusers use litigation to
perpetuate their abuse. The USA legal system is designed to give everyone
“their day in Court”. Frankly, many of the rules established
for Court proceedings did not contemplate that the process could be
manipulated by abusers, and it remains an open problem on how to repair the
rules that both preserve the egalitarian nature of our legal system, but
also does not make it easy for abusers to misuse those same rules.
Depositions, in particular, are a key tool in abusers’ arsenals.
Depositions allow Plaintiffs (in the TTAB, BTW, the Plaintiff is called
“the Petitioner”) to gather evidence. Generally speaking, most
Courts have no good default rules to prevent abusers from using these
depositions to get themselves in the room with their victims and harass
those victims further with off-topic haranguing. The only method (which is
quite clunky as a legal tool) to curtail the harassment somewhat is called
a protective order. However, Moglen has been smart enough to use
the very process of the protective order application to further perpetuate
abusive behavior.
To understand all this in context, I ask that you first
read Conservancy’s
public response to the initial filing of the trademark cancellation
proceeding (six years ago). In short, SFLC is seeking to
“cancel” the trademark on the name “Software Freedom
Conservancy”. Ostensibly, that’s all this case is (or, rather should
be) about.
The problem is that, upon reading
the docket in
detail, it’s easily seen that at nearly every step, Moglen has
attempted to use the proceeding as a method to harass and attack me and my
colleague, Karen Sandler — regarding issues wholly unrelated to the
trademarks. The recent arguments have been about our depositions4 —
mine and Karen’s2.
After some complex legal back-and-forth,
Judge Elgin
ordered that I was legally required to sit for a deposition with and by
Moglen. This is the point where a catch-22 began for me.
- Option 0: Sit in a room for 8+ hours with a person who had spent
years verbally abusing me and let him ask me any question he
wants5 —
under penalty of perjury and contempt of Court if I refuse. - Option
1: Give Conservancy’s lawyers permission to talk openly, in public
documents, about the details of the abuse I suffered from Moglen and the
psychological harm that it caused me (which is the necessary backup
document for a protective order motion).
IOW, the only way to
get a protective order that would prevent me from being legally required to
suffer further psychological abuse from Moglen was to publicly talk about
the past abuse 😩. I reluctantly chose Option 1. I encourage you to read
in
full
my first sworn testimony on the issue. That document explains many of the
psychological abusive examples I suffered from Moglen — both as an
employee at SFLC and since.
Fortunately, that aforementioned sworn testimony was sufficient to
convince Judge Elgin to at least entertain reconsidering her decision that
I have to sit8 for a deposition with Moglen. However, submitting the
official motion then required that I give even more
information about why the deposition with Moglen will be psychologically
harmful. In particular, I had little choice but to add a letter from my
(highly qualified) mental health provider speaking to the psychological
dangers that I would face if deposed by Moglen personally and/or in his
presence. I reluctantly asked my therapist
to provide
such a letter. It was really tough for me to publicly identify who my
therapist is, but it was, again, my best option out of that catch-22. I
admittedly didn’t anticipate that Moglen might use this knowledge as a
method to further his abuse against me publicly in his response filing.
As can be seen in Moglen’s response
filing, Moglen
directly attacks my therapist’s credentials — claiming she is not
credible nor qualified. Moglen’s argument is that because my therapist
is a licensed, AASECT-certified sex therapist, she is not qualified to
diagnose PTSD. Of course, Moglen’s argument is without merit: my
therapist’s sex therapy credentials are in addition to her many other
credentials and certifications — all of which is explained on her
website that Moglen admits in his filing he has reviewed.
As I mentioned, at one time, I foolishly and erroneously considered Moglen
a good friend. As such, I told Moglen a lot about my personal life,
including that I was omni/bisexual, and that I was (at the time) closeted. So,
Moglen already knows full well the reason that I would select a therapist
who held among her credentials a certification to give therapy relating to
sexuality. Moglen’s filing is, in my view, a veiled threat to me that he’s
going to disclose publicly what he knows about my sexuality as part of this
proceeding. So, I’ve decided — after much thought — that I
should simply disarm him on this and say it first: I have identified as
bisexual/omnisexual6 since 1993, but I have
never been “out” in my professional community — until
now. Moglen knows full well (because I told him on more than one occasion)
that I struggled with whether or not to come out for decades. Thus, I
chose a therapist who was both qualified to give treatment for PTSD as
well as for sexual orientation challenges because I’ve lived much of
my life with internalized shame about my sexual orientation. (I was (and
still am, a bit) afraid that it would hurt my career opportunities in the
FOSS community and technology generally if I came out; more on that below.)
I was still working through these issues with my therapist when all these
recent events occurred.
Despite the serious psychological abuse I’ve suffered from Moglen, until
this recent filing, I wouldn’t have imagined that Moglen would attempt to
use the secrecy about my LGBTQIA+ status as a way to further terrorize me.
All I can think to say to Moglen in response is to quote
what Joe Welch
said to Senator Joe McCarthy on 1954-06-09: “Have you no sense of
decency, sir — at long last? Have you left no sense of
decency?”.
It’s hard to express coherently the difficult realization of the stark
political reality of our world. There are people you might meet (and/or
work for) who, if they have a policy disagreement8 with you later, will use
every single fact about you to their advantage to prevail in that
disagreement. There is truly no reason that Moglen needed to draw
attention to the fact that I see a therapist who specializes (in part) in
issues with sexuality. The fact that he
goes
on to further claim that the mere fact that she has such certification
makes her unqualified to treat my other mental health illness —
some of which Moglen himself (in part) personally caused — is
unconscionable. I expect that even most of my worst political rivals who
work for proprietary software companies and violate copyleft licenses on a
daily basis would not stoop as low to what Moglen has in this
situation.
At this point, I really have no choice but to come out as
omnisexual7 — even though I
wasn’t really ready to do so. Moglen has insisted now that my therapy has
been brought up in the proceeding,
that he
has a legal right to force me to be evaluated by a therapist of his
choosing (as if I were a criminal
defendant). Moglen
has also indicated that, during my deposition, he will interrogate me about
my therapy and my reasons for choosing this particular therapist (see, for
example, footnote 2 on page 11 (PDF-Page 27) of Moglen’s declaration in support of the
motion). Now, even if the judge grants Conservancy’s motion
to exclude Moglen from my deposition, Moglen will instruct his attorneys to
ask me those questions about my therapy and my sexual orientation —
with the obvious goal of seeking to embarrass me by forcing me to reveal
such things publicly. Like those folks who sat before McCarthy in those
HUAC
hearings, I know
that none of my
secrets will survive Moglen’s deposition. By outing myself here first,
I am, at least, disarming Moglen from attempting to use my shame about my
sexual orientation against me.
Regarding LGBTQIA+ Acceptance and FOSS
I would like to leave Moglen and his abusive behavior there, and spend the
rest of this post talking about related issues of much greater importance.
First, I want to explain why it was so difficult for me to come out in my
professional community. Being somewhat older than most folks in FOSS
today, I really need to paint the picture of the USA when my career in
technology and FOSS got started. I was in my sophomore year of my Computer
Science undergraduate program when Clinton implemented
the Don’t
ask, Don’t tell (DADT) policy for military in the USA. Now, as a
pacifist, I had no desire to join the military, but the DADT approach was
widely accepted in all areas of life.
The whole sarcastic “Not that there’s anything wrong with that
…” attitude (made famous contemporaneously to DADT on an
episode of the TV
show, Seinfeld) made it clear in culture that the world,
including those who ostensibly supported LGBTQIA+ rights, wanted queer
folks to remain, at best, “quiet and proud”, not “loud
and proud”. As a clincher, note that three years after DADT
was put in effect, overwhelming bipartisan support came forward for the
so-called
“Defense
of Marriage Act (DOMA)”. An overwhelming majority of
everyone in Congress and the Presidency (regardless of party affiliation)
was in 1996 anti-LGBTQIA+. Folks who supported and voted yes for DOMA
include: Earl Blumenauer (still a senator from my current
state), Joe Biden (now POTUS (!)), Barbara Mikulski (a
senator until 2017 from my home state), and Chuck Schumer (still Senate
majority leader today). DADT didn’t end until 2011, and
while SCOTUS
ruled parts of DOMA unconstitutional in 2015,
Congress didn’t
actually repeal DOMA until last year! Hopefully, that gives a
clear sense of what the climate for LGBTQIA+ folks was like in the 1990s,
and why I felt was terrified to be outed — even as the 1990s became
the 2000s.
I also admit that my own shame about my sexual orientation grew as I got
older and began my professional career. I “pass” as straight
— particularly in our heteronormative culture that auto-casts
everyone as cishet until proven otherwise. It was just easier to not bring
it up. Why bother, I thought? It was off-topic (so I felt), and there
were plenty of people around the tech world in the 1990s and early 2000s
who were not particularly LGBTQIA+-friendly, or who feigned that they were
but were still “weird” about it.
I do think tech in general and FOSS in particular are much more
LGBTQIA+-friendly than they once were. However, there has been a huge
anti-LGBTQIA+ backlash in certain areas of the USA in recent years, so even
as I became more comfortable with the idea of being “out”, I
also felt (and do feel) that the world has recently gotten a lot more
dangerous for LGBTQIA+ folks. Folks like Moglen who wage “total
war” against their political opponents know this, and it is precisely
why they try to cast phrases like bisexual, gay, queer, and “sex
therapist” as salacious.
Also, PTSD has this way of making you believe you’re vulnerable in every
situation. When you’re suffering from the worst of PTSD’s symptoms, you
believe that you can never be safe anywhere — ever again. But,
logically I know that I’m safe being a queer person (at least in the small
FOSS world) — for two big reasons. First, the FOSS community of
today is (in most cases) very welcoming to LGBTQIA+ folks and most of the
cishet folks in FOSS identify as LGBTQIA+ allies. Second, I sheepishly
admit that as I’ve reached my 0x32’nd year of life this year, I have a 20+
year credentialed career that has left me in a position of authority and
privilege as a FOSS leader. I gain inherent safety from my position of
power in the community to just be who I am.
While this is absolutely not the manner and time in which I wanted to come
out, I’ll try to make some proverbial lemonade out of the lemons. By now
being out as LGBTQIA+ and already being a FOSS leader, I’d like to
offer to anyone who is new to FOSS and faces fear and worry about LGBTQIA+
issues in FOSS to contact me if they think I can help. I can’t promise to
write back to everyone, but I will do my very best to try to either help or
route you to someone else in FOSS who might be able to.
Also, I want to state something in direct contrast to Moglen’s claims that
the mere fact that a therapist who is qualified for treating people with
issues related to sexual orientation is ipso facto unqualified to treat any
other mental condition. I want to share publicly how valuable it has been
for me in finding a therapist who “gets it” with regard to
living queer in the world while also suffering from other conditions (such as PTSD).
So many LGBTQIA+ youth are bullied due to their orientation, and sustained
bullying commonly causes PTSD. I think we should all be so lucky to have a
mental health provider, as I do,
that
is extensively qualified to treat the whole person and not just a
single condition or issue. We should stand against people like Moglen who,
upon seeing that someone’s therapist specializes in helping people with
their sexual orientation, would use that fact as a way to shame both the
individual and the therapist. Doing that is wrong, and people who do that
are failing to create safe spaces for the LGBTQIA+ community.
I am aghast that Moglen is trying to shame me for seeking help from a
mental health provider who could help me overcome my internalized shame
regarding my sexual orientation. I also want people to know that I did not
feel safe as a queer person when I worked for Eben Moglen at SFLC. But I
also know Moglen doesn’t represent what our FOSS community and software
freedom is about. I felt I needed to make this post not only to disarm the
power Moglen held to “out me” before I was ready, but also to
warn others that, in my opinion, Software Freedom Law Center (SFLC) as an
organization that is not a safe space for LGBTQIA+ folks.
Finally, I do know that Moglen is also a tenured professor at Columbia Law
School. I have so often worried about his students — who may, as I
did, erroneously believe they can trust Moglen with private information as
important as their LGBTQIA+ status. I simply felt I couldn’t stay silent
about my experiences in good conscience any longer.
A deposition is a form of testimony done during litigation before trial
begins. Each party in a legal dispute can subpoena witnesses. Rules vary
from venue to venue, but typically, a deposition is taken for eight hours,
and opposing attorneys can ask as many questions as they want —
including leading questions.
5In most
depositions, there is a time limit, but the scope of what questions
can be asked are not bounded. Somewhat strangely, one’s own lawyer
is not usually permitted to object on grounds of relevancy to the
case, so the questions can be as off-topic as the opposing counsel
wants.
3, 8 The
opposing attorney who asks the question is said to be “taking
the deposition”. The witness is said to be “sitting for
a deposition”. (IIUC, these are terms of art in
litigation).
1,
6,
7
From 1993-2018, I identified as “bisexual”. That term,
unfortunately, is, in my opinion, not friendly to non-binary people,
since the “bi” part (at least to me, I know others
disagree) assumes binary gender. The more common term used today is
“pansexual”, but, personally I prefer the term
“omnisexual” to “pansexual” for reasons that
are beyond the scope of this particular post. I am, however, not
offended if you use any of the three terms to refer to my sexual
orientation.
2Note, BTW: when
you read the docket, Judge Elgin (about 75% of the time) calls Karen
by the name “Ms. Bradley” (using my first name as if it
were Karen’s surname). It’s a bit confusing, so watch for it while
you’re reading so you don’t get confused.
8
Footnote added 2023-10-12, 19:00 US/Eastern: Since I
posted this about 30 hours ago, I’ve gotten so many statements of
support emailed to me that I can’t possibly respond to them all, but
I’ll try. Meanwhile, a few people have hinted at and/or outright
asked what policy disagreements Moglen actually has with me. I was
reluctant to answer because the point I’m making in this post is
that even if Moglen thought every last thing I’ve ever done
in my career was harmful policy-wise, it still would not
justify these abusive behaviors. Nevertheless, I admit that
if this post were made by someone else, I’d be curious about what the
policy disagreements were, so I decided to answer the question. I
think that my overarching policy disagreement with Eben Moglen is
with regard to how and when to engage in enforcement of the GPL and
other copyleft licenses through litigation. I think Moglen explains
this policy disagreement best
in his
talk that the Linux Foundation contemporaneously promoted (and
continues to regularly reference)
entitled “Whither (Not Wither) Copyleft”. In this
talk, Moglen states that I (among others) are “on a jihad for
free software” (his words, direct quote) because we continued
to pursue GPL enforcement through litigation. While I agree that
litigation
should still remain the last resort, I do think it remains a
necessary step often. Moglen argues that even though litigation was
needed in the past, it should never be used again for copyleft and
GPL enforcement. As Moglen outlines in his talk, he supports the
concept of “spontaneous compliance” — a system
whereby there is no regulatory regime and firms simply chose to
follow the rules of copyleft because it’s so obviously in their own
best interest. I’ve not seen this approach work in practice, which is
why I think we must still sometimes file GPL (and LGPL) lawsuits
— even today.
Moglen and I have plenty of other smaller policy disagreements: from
appropriate copyright assignment structures for FOSS, to finer points
of how GPLv3 should have been drafted, to tactics and strategy with
regard to copyleft advocacy, to how non-profits and charities should
be structured for the betterment of FOSS. However, I suspect all
these smaller policy disagreements stem from our fundamental policy
disagreement about GPL enforcement. However, I conclude by (a)
saying again no policy disagreement with anyone justifies
abusive behavior toward that person — not ever, and
(b) please do note the irony that, in that 2016-11-02 speech,
Moglen took the position that lawsuits should no longer be used to
settle disputes in FOSS, and yet — less than 10 months later
— Moglen
sued Conservancy (his former client) in the TTAB.
