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Linus Corrects Darl on Copyright Law
cybermancer writes "ITWorld.com has a rebuttal by Linus Torvalds to Darl McBride's latest FUD on copyrights and Open Source. In a nutshell Darl states "SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws" and Linus points out that "the notion that the GPL has, of "exchange of receipt of copyrighted works," is actually explicitly encoded in U.S. copyright law". With Linus of course providing a link allowing the reader to see the law for themselves."
SCO: Santa Cruz Operation, aka Smoking Crack Organization
FUD: Fear/Uncertainty/Doubt
GPL: General Public License, aka GNU Public License
US: United States
HTCTU.
I could see how some people might be confused because it's kind of a complicated issue, but it seems pretty clear to me that Linus was arguing over Darl's definition of "profit motive".
1. Darl claims that the GPL removes the "profit motive" inherent in U.S. copyright.
2. Linus points out that the definition of "profit motive" includes the exchange of copyrighted material, which is exactly what the GPL provides for.
So he's basically saying that the GPL does not in fact destroy profit motive.
The Constitution definitely does have something to do with copyright.
i en ce/constitution_transcript.html
Section 8 of the US constitution contains this:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
http://www.archives.gov/national_archives_exper
Pavlov wouldn't be so famous if he'd used a can opener instead of a bell.
Mr. Lessig had an equally interesting rebuttal of the latest FUD from Darl the other day:
l
http://www.lessig.org/blog/archives/001611.shtm
Despite RMS's aversion to the term, the GPL trades on a property right that the laws of the US and EU grant "authors" for their creative work. A property right means that the owner of the right has the right to do with his property whatever he wishes, consistent with the laws of the land. If he chooses to give his property away, that does not make it any less a property right. If he chooses to sell it for $1,000,000, that doesn't make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesn't make it any less a property right.
The laws of the US and the EU don't purport to restrict the conditions under which the owner of a copyright in software might license his software (except in ways that are not relevant to this debate). Under those laws, the owner of this property right has the right to sell his property, or license his property, or lock his property in a drawer. Again, it is his property, and he gets to do with it as he wishes.
The GPL thus precisely advances the "effect" of Congress's and the EU's copyright laws: it gives the owner of a property right the right to do with his property what he wants.
Basically, Darl seems to be saying that copyrights exist only where financial gain is to be made...and somehow overlooks the fact that a copyright is a property and thusly may be dealt with as the owner wishes within the context of law.
It's easy to see why SCO recklessly continues their pursuit of a fatally flawed litigation when the management of SCO has such a skewed and obviously fallacious view of American law. At the same time, you have to wonder why their legal team continues this pursuit with them. Surely they are smart enough to know at the end of the day (hopefully real soon now) they are all going to end up with large chunks of egg all over their collective faces.
I think he expressed his ideas quite well; perhaps you are lacking in reading comprehension.
/expected/ exchange of other copyrighted works, which is exactly what the GPL requires. Therefore (and ergo, vis a vis, et cetera), the GPL does, in fact, meet the criteria for "financial gain".
He said that, in the context of the US copyright laws, "financial gain" is not limited to refering to capital: it includes the
IOW, he said, "That word... I do not think it means what you think it means."
It's always a long day... 86400 doesn't fit into a short.
SCO's contention that copyright is primarily for the economic benefit of the copyright owner is utterly without merit. Copyright law exists to promote the advancement of knowledge. One of the tools it uses is allowing authors to be rewarded.
The classic example is "Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary." (House Hearings on Copyright Term Extension Act of 1995, at 165.)A better example would be "Linus Torvalds, who used the notoriety he received from Linux to allow him to do what he wanted to do: write code."
(I'm a computer geek, not a lawyer)
sigs, as if you care.
Darl's claim is that because there's no actual $$ changing hands with GPL licensed software, that it doesn't qualify as "financial gain" under U.S. copyright laws, and is therefore illegal.
Linus is just clarifying what "financial gain" means in terms of the copyright code. Although most people see "financial gain" and instantly think $$, he points out that the legal definition of the term "financial gain" includes not only $$, but anything of value and actually goes so far as to specifically include access/use of a copyrighted work.
It all depends on what your definition of "is", is, so to speak. But in this case the law defines the meaning of the term, which McBride has apparently gotten incorrect.
I think you're right. Linus is saying that copyright law and the GPL is about financial gain/profit motive. He's saying that McBride is wrong about GPL not being about financial gain/profit motive.
His proof is in U.S. Code Collection, Title 17 (copyrights), Chapter 1, Section 101: "Definitions" where is says, "The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works".
The tar baby is that this definition is not part of the US Constitution and can be changed by the same people who have essentially extended the copyright term to infinity, the US Congress, in the middle of the night.
Or do you think that, because what I've created isn't "physical", I'm not allowed to "own" it?
Actually, you're not. Not even under current law, and not under any copyright law since the American Revolution. Copyright is a limited-term monopoly granted by the government. You DO NOT own the work you hold copyright on - it is the property of society, whose resources you used to create it. You do own the rights to a temporary monopoly on the reproduction of that work.
That's copyright my man! The part that has been bent over and turned into goatse.cx is the "limited time." It used to be only four years now it is untill the end of the world.
NarratorDan
"If you're not confused by quantum mechanics, you really don't understand it." - Niels Bohr
Linus is from Finland.
Finland has never been part of Norway(only Sweden and Russia have invaded/occupied it).
By GPLing your work, you recieve the right to use any derivatives of your work.
That has value, and that exchange is the basis of the GPL.
The definition Linus relies on for "exhange of copyrighted works" is actually from the NET ACT ("No Electronic Theft") and is only used in the law to define criminal infringement, e.g. swapping CDs with no dollars exchanging hands. Context and intent of the law, even portions of it, is very important. With this example, Linus has pretty much shown himself to be a fraud or a tool when it comes to the law.
0 5-147.htm
Please, before you criticize, look up the NET ACT, read it, put the definition in context, and see if you can reasonably conclude that the definition in question is in any way what Linus claims.
Here's a link to get you started:
http://www.techlawjournal.com/courts/eldritch/pl1
The article pretty much assumes you read Darl McBride's letter, that's why you were given a link to it. Taken in that context, Linus' article is pretty clear.
The better strategy from Darl's point of view will be to rebut something that is not Linus' argument at all.
Actually, I think the best thing would be to point out that the definition Linus referred to wasn't put into copyright law until 1999. And then ask the rhetorical question of whether or not Linus is saying that the GPL was Unconstitutional until 1999.
Attacking off topic is generally much more effective in the public forum than actually debating your opponent.
As we see from these two legal morons, on both sides. Linus makes a completely irrelevant statement on a term which is used to determine whether or not copyright infringement is criminal, and the Slashdotters eat it up with "ha, see, he even provided a link to the actual law!" Too bad the part of the law he pointed to was irrelevant.
And he ends up with a quote/explanation, which backs up the fact that the Constitution does include wording to ensure financial gain (does it really?)...albeit in the form of copyrighted work.
No. It doesn't really. The definition of "financial gain" is used to determine whether or not copyright infringement is a criminal offense. If you commit copyright infringement for "financial gain," you can be charged criminally. It has nothing whatsoever to do with whether or not a license is valid.
- The definition Linus mentions.
- Sec. 1201. - Circumvention of copyright protection systems where nonprofit exceptions broken for commercial advantage or financial gain can lead to civil remedies and then the loss of exceptions.
- Sec. 110. - Limitations on exclusive rights: Exemption of certain performances and displays. Here financial gain excludes performances from being copyright exempt where they could otherwise be.
- Sec. 1204. - Criminal offenses and penalties
- which states the penalties which apply for people who break the code for commercial advantage or private
- financial gain.
- Sec. 506. - Criminal offenses
- which tells you that willfully breaking a copyright for commercial advantage or private
- financial gain or by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, sends you to Title 18 - Crimes and Criminal Procedure
:: Crimes :: Stolen Property :: Criminal infringement of a copyright to find out your punishment.
So basically the phrase "financial gain" is simply used as a standard for deciding whether something is eligble for an exception, or whether punishments apply. What this means for what Darl and SCO are really trying to say thoughNever underestimate the dark side of the Source
There's an article over at Motley Fool that gives some insight into the minds of investors on this issue:
...on Friday, The SCO Group postponed filing its fourth-quarter earnings report until December 22. The reason: To allow time to hammer out the details of its $50 million private placement.
While the company insists this would not affect its prior guidance for revenues of $22 million to $25 million, it does seem strange that a public company would have problems with what looks to be a relatively routine process. For short sellers, this is a textbook clue that there may be internal disarray or perhaps, even some finagling.
I guess today's post by Linus will also help investors get out while the gettin's good.
Ruby on Rails Screencast
I'm not convinced that Darl et al are capable of such well coordinated machinations. If anything, the statements that SCO has made publicly have already hurt them in court. They were used effectively by IBM to show that SCO was being deceitful in saying they couldn't comply with discovery. Their public statements clearly contradicted their court filings. Further, IBM has opened the door to having all of SCOs public statements brought into court by filing a counter claim stating that SCO is interfering with its business by its public statements. Even if SCOs lawsuit is dismissed, IBMs case will continue and Darl's wild statements will be fully vetted by the court.
Frylock: That's not a toy!
Master Shake: You say that about everything you own. You should own toys. They're fun.
Copyrights is what makes your thing your. Even a drawing is copyrighted to you. The Swedish wording is better "upphovsratt". It's 'the legal right to your creation'.
I do however enjoy some of this fud like the blatant misquote of RedHats patent statement. (They don't even mention copyright, so what pipe did Darl smoke when he saw that??)
Yes, this is important because authors never made any money before copyright.
Well, that was exactly what happened. They made money not as authors, but by other means.
Most writers/musicians had patrons(Leonardo, Michelangelo, Haydn), were performers (Liszt, Chopin) or impresarios (Shakespeare, Moliere, Haendel).
Obviously, the Sixtine Chapel was rather hard to fake, but for musicians the standard copy protection method was: never let the scores out of your sight!
Cheers,
Linus has showned that the framers of the US copyright law were unusually far sighted people
The framers of US copyright law? The definition was just changed in 1999.
I don't feel that is an appropriate comparison. Shakespeare, Mozart, and most other artists prior to the 20th century had an implicit "copyright", since they made their living in one of two ways:
In Shakespeare's case, he controlled access to his plays. You only got to experience a play by going to the Globe Theatre and paying the admission price. The money helped him eat long enough to write something else, whether that was another play, a sonnet, or whatever. Other artists made their living in much the same way, creating works that were presented at local venues that charged admission.
Bach, Handel, Mozart, and many other composers were essentially payrolled. Some worked for the church, some for royalty, and others for wealthy nobles. They were free to work, safe in the knowledge that there was food on the table, but they almost always turned over the finished work to their sponsor / employer.
(Sidebar: Isn't this starting to sound like the same options we have when we write code today? We can work on our own and control it ourselves, including the option to give it away freely, or we work for someone else and they keep what we write.)
Either way, it was difficult for their work to be stolen. The manuscripts could be physically stolen (but that is a physical object, subject to ownership) or their sponsor / partner could refuse payment (but that is breach of contract). The artist had recourse either way.
Copyright law came into play to prevent talented, but unethical people from going to hear the opera or see the play and then depriving the author of their livelihood by recreating it somewhere else. Prior to that, the independent artist's options were very limited. In short, copyright law provided additional protection for the artist's livelihood, but otherwise simply codified what had already been happening for centuries. The main difference is that prior to formal copyright law, the "copyright" expired upon the death of the author, which makes sense because the creator no longer needed to make a living.
How can the eyes be the Windows of the soul when they never blue screen?
So, according to US copyright law, even if Linux is an "unauthorized derivative" of UNIX, SCO still doesn't own the copyright!
SCO is simply a troll at this point. Under US law, they can't assert ownership of Linux, regardless of the origins. Maybe this is why HP chose to idemnify their customers - they knew that even if SCO's claims of Linux being a UNIX derivative were true, SCO still couldn't collect royalties. (legally, at least).
The society for a thought-free internet welcomes you.
Here is a direct link to the insider trading info...
http://finance.yahoo.com/q/it?s=SCOX
Linking is not hard. Searching for it is annoying...
The term you're referring to is part of the NET act, which, yes, was to make file sharing criminal, since it's done with the expectation of getting a copyrighted work in return.
HOWEVER, it does apply to the GPL. While it might not be relevant to the past, the GPL will be judged under current law, not whatever the law was several years ago.
In other words, the congress by passing the NET act agrees that doing something in the expectation of receiving another copyrighted work in return is a 'profit motive' of sorts which is what Darl claimed the GPL lacked.
Anyhow, as we all should know from Eldred v. Ashcroft, the supremes don't like to overrule congress. Congress says that this is a 'profit motive'. Would you like a map?
This text sounds awfully familiar. Wasn't it placed there by the No Electronic Theft Act just a few years ago in response to the Brian LaMacchia case? He was accused of exchanging copyrighted software not for money, but in expectation of receiving other pirated software. At the time, I believe you had to take money or tangible property for piracy to constitute a criminal offense. Non-commercial file swapping didn't qualify; it was merely grounds for a civil suit by the copyright holders. NETA plugged up this "loophole".
That Linus could take a lemon like the NETA and turn it into lemonade like this is just wonderful.
It's not irrelevant; the use of such language in law (Such as the "No Electronic Theft" Act of 1997, where this particular snippet comes from) provides a precedent for translation to future legal situations, such as this particular case.
No, it most certainly doesn't. No law passed in 1997 can ovverride the Constitution. Either the GPL is Constitutional, or it isn't. The NET Act is irrelevant.
It has no relevance in the document that spawned it
And that's the only document that it applies to in the first place. "Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following"
AS USED IN TITLE 17 OF THE US CODE, "financial gain" means foo. That is completely irrelevant to what some guy from SCO meant when he used the term "profit motive," which isn't even the same friggen term as defined in the US Code.
Also note that the yahoo site has no information on purchases available. So we can't see how many shares these insiders may have been purchasing over the same listed two year period.
Selling a few thou shares does not equal dumping. When those sell totals start really climbing, and more importantly the when the total numbers of shares held by these people is being shoveled out the door, then you have dumping.
I also noticed that while the insiders who have been selling have been making a tidy profit, Only one of the people selling is one of the big time holders. Overall, the people officially counted as insiders hold %45.83 of the stock, out of a total of 13.85 million shares that's about 6.3 million shares. When that number starts declining rapidly is when the dumping is occuring.
Oh and Darl has yet to exercise any of the 600,000 options granted him in 2002.
As to when they can sell, yes there are blackouts that the insiders have to observe. I know of companies where the executives are given a one month period each year in which to sell their shares. It was AOL back when I worked there. And every August I believe it was, the AOl haters would start crying Pump and Dump, because suddenly the executives would sell off huge blocks of shares, but it was merely the execs taking the only chance they got each year to sell and get the income those shares meant to them.
As an employee there were frequently blackouts of about a month or less where we could not trade.
I'm too lazy to compose a creative sig.
> Linus is saying that - even by McBride's
> standard - the GPL is fine, because of the
> definition of financial is broader than McBride
> thinks.
Of course that is what is was *trying* to do. I know that. You know that. We all know that. He messed up doing it, though.
The word "financial" in the McBride since has nothing to do with the term "financial gain" as defined in section 101 and used in title 17.
McBride says that financial gain is an underlying motive in our copyright scheme. Then Linus points to rarely invoked provision of the copyright code and says (paraphrasing) "See, look right here, financial gain for the purposes of copyright doesn't always mean money!"
His argument does not weaken McBride's pitiful argument one iota, because McBride claims to draw from sources outside of the code itself to determine the underlying purposes and motives for US copyright law. Any logical counter argument argument about an expansive definition of financial gain in the McBride sense would have to come from somewhere besides sec. 101 to really make any sense, unless the code itself uses financial gain to describe its purpose, which it doesn't.
The Constitution is binding to all the states of the Union. It's the whole point of having a Constitution, it is "the supreme law of the land" (Article VI). The 9th and 10th Amendments (link) provide that anything *not* spelled out in the Constitution is left up to the states or the general public, but everything that *is* stated in the Constitution is binding on all the states and all the people.
You may not have been smoking too much crack, I can't speak to that. You were however misinformed.
-=+>txtracer<+=-
-Those who do not learn from history are doomed.
You're wrong.
First of all 'Boise' is the capital of Idaho. (I know it was the grandparent that started it, but still...)
Boies was a lawyer for the DOJ in their case against Microsoft, not a lawyer for Microsoft. The first google hit for "boies microsoft doj" is here. He actually did quite a good job, and I had a lot of respect for him until he started representing SCO.
Sleep is just a poor substitute for caffeine, anyway. -Bob Lehmann
Yes, he's making a rhetorical argument against Darl's interpretation, a rhetorical argument that DOESN'T WORK when you take the time to really analyze it.
I'm not feeding you bull just to make myself look good. I'm honestly concerned that such a prominent member of the Linux community (and really smart guy) came up with that bit of illogical propaganda. I have no delusions that critisizing the almighty Linus would make me popular or respected here.
I'm looking at this the way a judge would when asked to evaluate the merits of the argument. I really do know how to do that. I promise. I may not be able to hack my kernel, but I know Title 17 pretty well.
The fact is Linus is countering Darl's assertion using a provision of the copyright code that is inapplicable and, humorously, was only adopted recently as part of the NET Act to impose criminal liability on file swappers. See NET Act.
Darl's argument isn't inconsistent on this point because the definition of "financial gain" in sec. 101 is inapplicable to determining the purposes of copyright law.
There are some GREAT arguments out there that Darl and SCO are full of crap. Linus's just isn't one of them. It's just plain bad legal analysis that seems to make sense at first glance to the layperson.
What McBride is saying is that I, as the developer of software released under the GPL, do NOT have the right to authorize reproduction or distribution of my works, or derivatives of those works. By my (admittedly non-copyright attorney) reckoning, the GPL falls completely in line with US law.
I could not have said it better myself!
If you go further and look at case law on copyrights, you will find even more justification for "our" view and a better argument that SCO is full of it.
Case law makes it clear that the fundamental purpose of copyright is to promote invention. Compensation of authors is important to promote that end, but promoting invention and progress is always more important than compensation.
I wish I had the time now to give an exaustive list, but here is one Supreme Court case that is illustrative. Follow the link for the complete opinion.
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow access to the products of their genius after the limited period of exclusive control has expired." Sony Corp of America v. Universal City Studios 464 U.S. 417 (1984).
Such decisions fly squarely in the face of McBride's baseless assertion that voluntarily waiving copyright rights is somehow "wrong" because it thwarts the profit motive of copyright. Hogwash. Profit is not the motive for granting copyright protection.
You are forgetting that, embeded in the constitution, itself, is a phrase that allows a treaty to override all laws and the constitutaion as well. How's that for puting our sovereignty on the line.
Wrong.
From the US Supreme Court ruling on Reid v. Covert, 354 U.S. 1 (1957) (emphasis mine)
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
You're welcome. I'm also no constitutional law expert (and, to be frank, this citation was given to me by an expert on another forum -- Groklaw), but also find it very interesting. This particular issue, the interpretation of article VI, is one that has bugged me for a while, so I was really glad to run across this USSC citation.
Personally, I think correctly parsing the plain language of article VI makes clear that treaties are not supposed to overrule the Constitution, and the point from the USSC ruling about how a treaty-supremacy interpretation would be inconsistent with article V really puts the nail in the coffin. It also helps when reading article VI to notice that the Constitution always uses the phrase "This Constitution" when referring to itself, which makes clear that the phrase "the Constitution" refers to a state constitution.
However, the practice of government doesn't always agree with the letter of the law, and courts only review laws that are challenged. We know there are unconstitutional laws that have yet to be reviewed; it makes sense that there may be treaties as well.
One other thing I found in my research on this topic (while trying and failing to find the ruling I quoted), is that there are a few different USSC rulings in which a treaty is ruled to take precedence over *state* constitutions. That, however, is exactly what article VI says, that the supreme law of the land (US Constitution, Federal Law and ratified treaties) supersede state constitutions and laws.
Another thing I found in my research is that although the courts do treat the Constitution as the ultimate authority, they treat Federal Law and *ratified* treaties as equals (unratified treaties have no legal force at all). That's sensible given that the ratification process is performed by the US legislature (specifically, the Senate). It made even more sense that ratified treaties could supersede states when senators were actually state representatives, rather than popular representatives as they are now.
So, since US law and treaties are equal, the courts give precedence to whichever was passed last. New treaties overrule old laws, and vice versa, just like new laws overrule old ones.
The Constitution, however, reigns supreme over all of them. When it's applied, at least.
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