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McBride's New Open Letter on Copyrights
dtfinch writes "An open letter was posted today by Darl McBride, where he restates his claim that the GPL violates the U.S. Constitution, patent laws, copyright laws, and the DMCA. Mostly he just builds up a false image of the Free Software Foundation and open source supporters claiming that they have no respect for intellectual property and believe copyrights should be eliminated, then attacks that image, AKA the straw man attack. Nothing we haven't seen before."
Nothing we haven't seen before.
Yet it qualifies as news here. No wonder McBride keeps running his mouth (:
WHY post about it? I mean, come on. We're going to hear nothing but bullshit from SCO until they go under, why even bother listening? The only possibly important part will be the court hearings and we have awhile before those.
Everyone, breathe in, breathe out. Chill. Just chill.
====
Crudely Drawn Games
from the article:
"The software license adopted by the GPL is called "copy left " by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the "copy right " laws adopted by the US Congress and the European Union."
This makes it seem as though software writers are being persecuted by having their code forcibly ripped from their hands and given away for free. What new (or revivalist?) idiocy is this? They left out the whole part where the creator chooses to release it under the GPL or not.
Esoteric reference.
Technology leadership? In 1986?! During the height of the Japanese bubble? This guy cracks me up! You're such a card, McBride.
--AC
In speaking of the DMCA
"...without protection, American companies would unfairly lose technology advantages to companies in other countries through piracy, as had happened in the 1970's.
This statement offers no explanation, whatsoever.
It's a little clever, actually. The DMCA is opposed by many who also support the GPL, the common ground being that both groups tend to be deeply concerned by the proper application of intellectual property rights. The DMCA is also opposed by scofflaw copyright infringers, those being the people it was nominally designed to fight. Therefore, people who support the GPL are copyright infringers and scofflaws.
It's not a tactic that works against people who habitually apply logical analysis to what they read, but that isn't the majority of people, is it? (If it were, many a war would never have taken place.)
Darl is saying that all rights for non profit are disabled.
More like he's saying that a code author has no right to restrict their work in such a way that it can be distributed anywhere and modified freely by anyone within the terms of the licence provided by the original author. In Darl's view, copyright law is concerned with restricting works from being distributed without compensation, not with ensuring that authors are allowed to control distribution of their work as they see fit. He can't seem to wrap his head around the fact that many people have chosen to use their rights, as authors, under copyright law, to choose a set of restrictions that promotes copying and changing of their code, as long as anyone else can do the same. He only understands copyright in terms of sales and exclusivity.
Short version: in Darl's world, you can choose to restrict your works, but you can't choose to restrict your works into openness. Everything must be proprietary and closed, everyone must view each other as competitors to be fought instead of companions to collaborate with.
This seems to be the only logical way, outside of the obvious "pump 'n dump scheme" guess, to explain Darl's view of FOSS.
Someday, you're going to die. Get over it.
I used up all my sick days, so I'm calling in dead.
It's amazing how McBride can continuously attack the GPL and open source. Yet in the back of my mind all I can think is, "Caldera Linux... Caldera Linux..." If McBride is so against the GPL, then why did he agree to take the CEO position of a company with it's foundations built upon everything he attacks? Quote:"However, there is a group of software developers in the United States, and other parts of the world, that do not believe in the approach to copyright protection mandated by Congress. In the past 20 years, the Free Software Foundation and others in the Open Source software movement have set out to actively and intentionally undermine the U.S. and European systems of copyrights and patents." Funny how he forgets that for a good couple of those 20 years, the company he now leads was a part of the Open Source software movement he despises. "Yes your honor, we would like to sue IBM for being more sucessful with open source than we were. We hate it because we lost all our money in it." Back in beginning months these stories really made me angry, now it's my weekly /. humor!
Mcbride may be playing loosely with the term, but still he made aver rediculous statement that i would like to point out:
We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work.
If any real scince was carried out that way, we would still be in the dark ages. Real science is developed through scientific journals. Open publication of their discoveries and progress. How far would we be if lived in a society where Mathematicians had to pay roalities for using other peoples theroms in their proofs?
Well.. maybe. Or Maybe not. But Definitely not sort of.
There's nothing particularly wrong with Copyrights (although terms are now excessive) but it is SCO who is assaulting them by trying to steal the work of thousands of developers, not the other way around.
Check with Groklaw.net... I think that they only have to defend their reluctance to provide IBM with the materials that they have asked for, or defend their "motion to avoid discovery and compel IBM to give them money"....
I don't believe that tommorrow means the close of items which they could possibly bring to trial... The issue is that, IBM has twice demanded information, they have claimed that IBM needs to give them some too (so they're bad too..).
Most interesting is Darl's statement that "this nonsense will continue for 18 more months...we've got a schedule with MS to keep..."
THAT'S INTERESTING!!!!...he's finally put a schedule behind how long they are going to keep this up.
I don't get it. How can the GPL be unconstitutional ? It's not a law, it's just a license -- a private contract between two parties. The Constitution simply doesn't apply. Now, SCO can claim that the GPL is unenforceable, but that's a different story altogether. What next ? Reading is declared unconstitutinal because it can potentially detract from the market of audio books ?
>|<*:=
honestly, he doesn't care if anyone on this site believes him or not (unless his mom is reading that is...)
2 1337 4 u!
(As a diclaimer, IANAL, but I have read Eldred and I am familiar with public policy issues on copyright.)
Straw man is the correct term for this letter, as the entire case McBride makes is on a complete misunderstanding of both the GPL and Eldred.
First of all, his use of Article I Section 8 of the US Constitution illustrates absolutely nothing. There is nothing in the GPL that precludes or infringes upon this statute in the least. Congress has the power to grant exclusive rights to a creation but has no power to legally mandate what the terms of those rights are. (See Graham v. John Deere Co. of Kansas City 383 US 1.) Congress has the right to grant me a patent, and if I want to take that patented product and license it to whomever, there is nothing that Constitutionally prevents me from doing so. In other words, if IBM patents a new storage device and they want to make those specifications publicly available through GPLed drivers they have every right to do so. If they want to license such technology to only one company, they may do so. If they want to take every existing model and shove it up their ass, they have every legal right to do so.
Furthermore, precedent sets that the patent power is limited only for the purpose of the "progress of science" - as Bonito Boats v. Thunder Craft Boats, Inc 489 US 141 states:
What McBride argues is that the public domain itself is somehow contradictory to the very notion of copyright, and argument which simply does not hold to much scrutiny. Even the majority opinion in Eldred acknowledges that the Constitution does not allow for a perpetual system of copyright, and that at some point material must fall into the public domain.
The argument that profit motive is the best way of ensuring the public good is fine, but it is essentially a non-sequitor in this case. If the Linux kernel contains SCO code then that code has to be legally removed. However, SCO has no right to dictate that only proprietary licenses are legally valid, and that argument does nothing to advance their particular case. Moreover, any judge who has to rule on such a prima facie idiotic argument will quickly rule that SCO has no legal ground. The GPL is, as many have already mentioned, based on an acknowledgement of copyright law and relies on copyright law as a basis for its licensing terms. SCO has no right to say that a copyright holder must use a proprietary license any more than Red Hat says that SCO must drop all claims to their proprietary source code. There is no legal foundation for such a position and McBride clearly has no understanding of the revelant law.
'Where did you make the change from Liberal Democrat to Conservative Republican?'
He said, 'Well, I was in Northern California in 1964 and I was making a film, Major Dundee. I was driving down the road and there was a Barry Goldwater for President billboard and it said, 'In Your Heart You Know He's Right'. I looked at the billboard and it was almost a vision and suddenly in my heart I knew he was right - and at that moment I made the switch'.
George Orwell, "1984":
He gazed up at the enormous face. Forty years it had taken him to learn what kind of smile was hidden beneath the dark moustache. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast!
Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.
All of us stupid, short-sighted Free Software idiots:
Finally, we understood. In our hearts, we knew Darl was right. We won the victory over ourselves and mailed in our $699 checks, and we were thankful that we were given a Second Chance to avoid having to pay $1399. We loved closed source.
We loved SCO.
Don't you love a happy ending?
In the second paragraph, McBride writes:
"SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws."
He then spends the rest of the letter explaining why copyright is great, and why the FSF and Red Hat are evil for opposing copyrights. Fine. But *nowhere* is there any reasoning given why the GPL violates the consitution, copyright law or patent law. In fact, by the end of the letter, McBride is forced to write:
"Based on the views of the U.S. Congress and the U.S. Supreme Court, we believe that adoption and use of the GPL by significant parts of the software industry was a mistake. The positions of the Free Software Foundation and Red Hat against proprietary software are ill-founded and are contrary to our system of copyright and patent laws. We believe that responsible corporations throughout the IT industry have advocated use of the GPL without full analysis of its long-term detriment to our economy. We are confident that these corporations will ultimately reverse support for the GPL, and will pursue a more responsible direction."
Note that there's *nothing* about the legality of the GPL. Adopting the GPL may be a "mistake", but nowhere does he even attempt to prove the point that he started with, that the GPL is a violation of the constitution and laws of the US.
Too bad for SCO. The only way they can have a long term money-making plan with Linux is if they get the GPL declared illegal, all developer contributions under it made into code in the public domain (I suppose public domain is against the constitution too?!), then they can assert ownership of the whole product based on whatever proprietary contributions they think were made against their wishes by IBM et al. IANAL, but it ain't gonna happen.
Imposing Libertarian views on everyone online since 1992.
Disclaimer: I work in Public Relations.
That having been said, CEOs and the like never, ever, write press releases themselves. And an open letter is just that -- a press release. Call it whatever you want, but that's the purpose it serves.
CEOs and CFOs and Presidents and the like don't write letters themselves because writing is generally not what they're good at -- and if they are, that's incidental. Most large corporations have an entire PR department whose only purpose is to handle, wait for it, public relations.
The mark of any good manager is the ability to delegate responsibility effectively. You may be a fair writer, but if your reputation and your company's are at stake, why not hire an expert?
For the record, I think Darl McBride is a fscking moron. But the fact that he didn't write the open letter shouldn't come as a surprised to anyone familiar with corporate culture.
I love how the ignore the rest of the first amendment, that, and the very fact that copyright law gauruntees that the authors have the right to distribute as they wish, and impose restrictions upon it's distribution...
SCO in particular, hasn't noticably changed their product since I was saddled with 286 Xenix a decade and a half ago. Neither their product nor their technical support improved from the first time I used it a decade and a half ago to the last time (And I swore it'd be the last time) I used it just about 4 years ago. I bet it hasn't noticably changed in those 4 years either, especially judging from SCO's current posturing.
So instead of cleaning up their own house (Because they don't know how) they'd rather try to destroy the only source of IT innovation around. People with SCO's mentality (Sadly widespread in corporate America) would shit in your dinner because they don't know how to cook themselves.
Currently the publicity's been pretty one-sided. How's about we start dusting off our technical contacts and start working to expose the lies?
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
So, basically, Darl of SCO is saying that he realizes that SCO has distributed Linux under GPL after he knew about what he claims as his infringement of SCO IP. And because that distribution would negate all his claims of infringed IP, he has no other choice but to dispute the legality of the GPL. Well, maybe he doesn't realize that, but at least his lawyers did.
That's a very interesting point you have there, one I had not considered. Of course, I believe he fails to see the flaw in his argument. That flaw is obvious, really...
SCO's distribution of Linux under GPL wasn't wholly their IP. They didn't create it from nothing here. Perhaps some of it was, certainly, but there's certainly a lot of it that was part of the Linux kernel, or a contribution by hundreds, perhaps thousands, of open source developers. They own the copyright on all that code, and they released it under the GPL. The GPL is essentially their license to let SCO used their copyrighted code. If SCO rejects the GPL or is successful in having it overturned, they don't magically get all that copyrighted code. Instead they get a big class action suit smacking them square in the face for copyright infringement, because now they've used other people's copyrighted material, without permission, for profit, etc, etc...
I just don't think SCO realizes the depth and power of the GPL. It's based upon copyright law itself. If you overturn it, then you fall back to the normal copyright law, which states that you can't use copyrighted code, period. It doesn't matter that the developer has shown it to the world, it's still that developer's property, and it is not SCO's to use. Fighting the GPL is not smart, because even if you win, you lose.
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
When I was in grade school, there were always some alpha kids for whom rule and reason did not seem to apply. They could get their way by plugging their ears saying "LaLaLaLa" or whining until everyone gave in out of frustration.
I looked forward to the day when we would all be adults and those who had nothing to contribute would be swept aside. Sadly, I see that these bratty children are now all grown up, in charge and their manipulative behaviors are polished. And still the smart people are groveling at their feet for attention.
Darl and his kind are not concerned about programmers making money on software. Hell, thats what India is for. He is worried that people like him, who couldn't write "Hello World" to save their life, will not be able to make money off software anymore.
Notice he does not mention the word "Jobs" once in his open letter but mentions corporate interestes like IP and DMCA ad nauseum. Those represent the devices by which a company can stop producing and start fleecing.
And by God, what could be more American than that. Our Founding Fathers(TM), Congress (a division of Worldcom), and Supreme Court(R) have determined this is what is best for us. To question them would be unpatriotic and would be allowing the Terrorists to win.
You can clearly tell the lawyers wrote it
That letter can't have been written by a lawyer: it just makes no sense whatsoever. Even someone who ordered his law degree by mail would know better.
The letter argues that because the FSF takes a certain political view of copyrights, its copyright-related contracts are invalid and violate the US constitution. That's roughly like saying that you would lose your drivers license because you have stated that cars are bad for the environment.
Fortunately, we live in a country where one's political views don't generally affect the validity of the contracts we enter in.
The preamble to the General Public License (para 2) says:
No need to panic everyone, the profit motive is alive and well.
-- Nick "Hallo this is Beel Gates, und I pronounce weendows as
The share price dipped yesterday, and has been on a decline for few days anyway, so we were due a public statement. You can predicate press releases from SCO, just watch their share price.
Plan9. Inferno. NeXTStep. Arguably the original Macintosh and the Xerox PARC work they extended.
Meanwhile, in the open-source world, we're fundamentally tweaking UNIX clones. Totally kick-ass, love-'em, best-of-breed unix clones, but still. You might cite Hurd but, comparatively speaking, it's a toy.
None of the commercial UNIX vendors has done a whole lot to advance the state of the operating system from where it was 30 years ago.
Isn't Apple a commercial UNIX vendor now?
SCO in particular, hasn't noticably changed their product since I was saddled with 286 Xenix a decade and a half ago
Sadly, that's probably true..
Doesn't mean that I (or anyone else) has to necessarily agree with it though.
I've not read any other comments yet, so I apologise if I repeat what's already been said.
But I have read though the Article, and want to present my first opinions on parts of it.
I think his use of the terms "$186 billion global software industry" and "technology business" certainly show SCO's position on technological advancement.
Mainly that they think it's primary purpose is to generate a profit.
Darl has a point though. Such laws are critical in the survival of what could be called "The current model".
It's just that GPL, FSF, Linux, etc, are operating on another model. Yeah, they pose a threat. But to say that such a threat is illegal/unconstitutional/whatever is just plain arrogant.
Oh, and speaking as a Brit, there is one other thing that has to be taken into account.
What has the US Constitution got to do with companies/organisations outside of the US? Should European/Asian/etc software houses be stifled/restricted by what's good for the American economy?
"Oh, the drama!"
OK, so it's one side against the other. But, personally, I'm firmly on the side of "you can't own an idea".
You can be responsible for the specific application of a though or idea, but to own abstract concepts that one person happened to think of before another? I just find that a bit wrong really.
Doesn't the GPL predate the DMCA?
Though I'm not sure what - if any - effect that would have on the legal nature of things.
One thing, though. Is the DMCA US-only?
If so, that means that the GPL - being an itnernational license, as far as I know - is certainly legitimate in non-US companies irrespective of whether it's legan int he US. But certainly that would mean that US companies can't complain about it, wouldn't it? After all, surely it's outside of US jurusdiction that way?
if I'm wrong, let me know. I can rebuild a PC with no worries, but legal-matters lose me in no time flat!
Again with the "Profit Motive"
Actually, I kind of agree with the profit motive. What I don't agree with is the way that some companies (including SCO) want to use it.
Yeah, come up with an idea then you have the right to make money from it - well, as long as the idea isn't "ransom Darl McBride for ca$h" or something blatantly illegal and reckless like that. But I think such a profit motive has to be time-limited. If fact, if it's really to "promot
Tiggs
"120 chars should be enough for everyone..."
When they were making Linux sales? ... Hmm.... Odd...
The entire letter is amateurish though. The GPL doesn't prevent any sort of ownership or control. You can release code for GPL then later release it as PD, BSD, whatever else you want. It's your code. The GPL only controls what *other* people can do with your code.
Tom
Someday, I'll have a real sig.
Note that all of Darl's arguments become invalid when dual-licensing or BSD licensing is used. There really IS a desire by some in the free software industry to market leverage proprietary software out of the Linux market. This is unfortunate.
While I myself choose to give the software away for free, I do recognize the legitimate tradeoffs involved in copyright law. There are businesses that simply are not viable without a short-term (I favor 14 years) payment for use of their software. I don't think that the games that I play would be anywhere near as good if the developers were not paid for them --- it is very expensive to produce the fancy animations and graphics I enjoy.
Those of us who are (barely in my case) able to make it with free software businesses should not lock out others who cannot make it without charging. This is why I make all my software available under a non-GPL license for those who are willing to pay for such a license. That way they can make proprietary enhancements of my software, and sell them, and good for them!
I am one of the more technically successful developers in my industry, yet my business has been bouncing from one fiscal scare to another its entire existence. People who think GPL is the only way should try supporting a family and a payroll (the payroll is harder...) on free software for a few years, and they may find their ideology becomes less fervently fixated on the superiority of one way of doing business.
All that said, I still believe that copyright should require full disclosure of the source code, and the allowance of improvements to be made and sold by others, or else it serves no US constitutional purpose of advancing the arts and sciences.
We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work.
What he seems to be arguing here is that it is unconstitutional to give inventions or works away without charging for them.
The FSF and Red Hat believe that the progress of science is best advanced by eliminating the profit motive from software development and insuring free, unrestricted public access to software innovations.
This passage (and the first one) seem to stem from a belief that there are forces out there trying to forcibly remove the right of inventors to receive patents and authors to maintain copyright over their works.
Does he not understand what "voluntary" means? No one is trying to take those rights away.
That's cold, kid. Hey, scenario for you. I own a company. I make a product. It is a really really awesome product that everybody wants.
But I work in a non-descript brick building in a small town in upstate New York. How ever will people learn of our product?
Advertising -- and Public Relations.
Now, I want to tell you why you want to buy it. But it's kind of complicated. I only have a 15 second radio spot. Which of these messages do you suppose is more effective?
1) Widgets are designed to PDQ your YSZ using ASD technology licensed from ZX. They are sufficient for small to medium clients.
of
2) Widgets are freakin' awesome, man. I don't need to tell you. There's all this technology in there but you'll never know anything about it except that you have more time and more room to breath when you use it.
#2 is full of exaerations, vague descriptions and is incomplete. But if they entice you to take a closer look, BAM! Good enough.
You're all taking a VERY close look at SCO's arguments at the moment. Ordinarily that would be a marketting success, but since SCO only has old or stolen products, I'd say maybe they should be averting your gaze a little bit...
Hey freaks: now you're ju