Eben Moglen & SFLC — abusive employer & LGBTQIA+ unfriendly

Wednesday 11 October 2023 by Bradley M. Kuhn

[ 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.

0, 4 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.

Posted on Wednesday 11 October 2023 at 13:15 by Bradley M. Kuhn.

Submit comments on this post to <bkuhn@ebb.org>.

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from standard import disclaimer
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Both previously and presently, I have been employed by and/or done work for various organizations that also have views on Free, Libre, and Open Source Software. As should be blatantly obvious, this is my website, not theirs, so please do not assume views and opinions here belong to any such organization.

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Bradley M. Kuhn <bkuhn@ebb.org>