Slashdot Mirror
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 (:
Because someone new to the controversy, like some small-time CEO that thinks Linux is a character in Peanuts, might read it and wet his pants over it, so we have to respond to it, and make ourselves aware so that if our companies get cold feet about Linux adoption, we can rebut each SCO argument, and reassure our CEOs.
#define DRM chmod 000
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.
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 ?
>|<*:=
(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.
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.
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.
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.
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..
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