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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."
It's not just a crazy idea that some lefty Commie hippie dreamed up in a drug-induced stupor.
So if Darl calls that notion unconstitutional, he is actually attacking the U.S. code as it stands today.
Clear. Concise. Accurate. Funny. That's why people trust and love Linus Torvalds. He is the uber-geek that so many of us aspire to be like.
Ruby on Rails Screencast
Don't think for a moment that Darl-ek is interested in a dialogue. If he had been, none of this would have unfolded the way it has. He's writing to keep the investors confused. The last thing he wants to do is respond, and give them time to think there's doubt.
Get off my launchpad!
Just because a bunch of high level people call somthing a property right, does not mean that it is, and with copyrights and intellectual property - it's gotten way out of hand.
The GPL is good not because it upholds copyrights or intellectual property but moreso because it fights fire with fire. It undoes much of the damage caused by copyrights, which might have been bearable 25 years ago when the biggest issues were cassete tapes and xerox machines, but in the information age will just not work.
Apparently I'm not quick enough to avoid being redundant.
philcrissman.com.
It doesn't sound like the judges are at all swayed by SCO's legal antics, and that's only been regarding SCO showing proof of violated code. I think they'll be dead in the water before they even get to the GPL bit.
Maybe someone can explain to Darl that the GPL is designed so that people receive the value of other peoples copyrighted works in return for having made their own contributions. That is the fundamental idea of the whole license -- everything else is just legal fluff.
Said it better than anyone on /. has :)
Slashdot: Where people pretend to be twice as smart as they really are by behaving like children.
why just not admit that one is stupid and leave it there. at least DMcB would then save face. but at this rate, all he will have in his face is a creampie on the next public speech...
linus: thanks for the link. actions speak louder than words... and DMcB has spoken too many...
Linus is correct about copyright law, but he's got to watch getting too involved in a back-and-forth with SCO. Imagine Linus on the witness stand in a year and a half (if it ever gets to that) being asked if he said that everything else in the GPL besides the expectation of some form of return is "legal fluff."
I'm not looking at my Murphy's Law poster right now, but isn't there a saying like 'never argue with an idiot, people might not know the difference'? And, the more serious side is the possible legal significance of any statement. SCO is all but finished, but nevertheless, they should probably be allowed to continue shooting off their collective mouth and digging their hole deeper, while everyone else just sits back and waits. Sure, some of the statements are so silly, stupid, or outrageous that they just beg to be countered, but...
Well, since he probably didn't write it anyway, the follow-up letters are only limited by the stamina of SCO's PR department when it comes to spitting out legalese. It's in their best interest to avoid getting into tiffs that expose their flabby case, so I expect them to avoid Linus like the plague, except to offhandedly insult him.
Auto-reply to ACs: "Truly, you have a dizzying intellect."
... here
is it just me, or do i recently see heaps of old stuff appearing on the front page?
Buy all your crazy japanese videogames from
Ugh, I'm sorry, but regardless of it being inline with the views of 90% of those who are reading, I find the word "corrects" in the subject line of this story to be more biased than should be occuring on a site where people often rip others for their biases.
I want to know whether the people writing this schlock actually believe it, or if they're just getting paid by the word.
Frankly, I'm not sure which is worse.
End of lesson. You may press the button.
So what else is new? Linus has showned that the framers of the US copyright law were unusually far sighted people, who saw that money was but one of the mediums of profit. Darl however in interpreting profit in monetary terms only, is wrong. He knows this of course, and is merely trying to confuse other people.
...left-wing commie hippie. There is nothing wrong with copyrights. We have problems with forcing others to enforce them by questionalble means. We have problems with expanding them indefinitely and stretching definitions beyond reason. We have problems with assuming that those with tools capable of bootlegging could not be doing anything else... etc. But the principle of copyright is sound, usefull to society, and the basis of the GPL!
Any technology distinguishable from magic is insufficinetly advanced.
Any technology distinguishable from magic is insufficiently advanced. - Geek's corollary to Clarke's law
Last week, we were arguing about how believing that everything is profit-oriented, including the Constitution is just cheap and bad. Infact, Linus starts off by hinting at something like that - since it would hinder scientific progress (universities/etc).
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.
An Indian-American Hindu committed to non-violent thought/speech/action alarmed by the global explosion of radical Islam
While some of his responses are rather terse to Mr. McBride, Linus certainly is being a bit more forgiving than he is in some of his Linux related newsgroup responses.
I expected something like:
"Mr. McBride. Obviously you cannot read so I have decided not to put any effort into a response. Maybe you should try the SCO-general list instead."
Go Linus!
If you think this is fun, maybe SCO will go after Apple/Jobs. I'm sure Steve would hold his tongue?
Look, as much as I enjoy hearing Lessig, Linus, et al dismantle Darl's insane FUD, it's already been done to death. Particularly with this last GPL-violates-constitution lunacy, Darl and SCO have become self-mocking. I fully expect the next press release from Darl to claim that the GPL makes apple pies taste sour, especially ones made by nice old grandmothers. Is this news? "Lunatic continues to babble, tricks 'reporters' into listening" is kinda newsworthy, I guess.
The real news is that SCO got a sizeable portion of their ass handed to them last Friday. SCO has one month to put up or shut up, and all their actions so far (in court!) have shown them very reluctant to put up. In the meantime its unlikely that Darl will shut up, but that is really, truly irrelevent. The FUD portion of this fiasco is over. It's court time now, and we're going to see exactly how shoddy SCO's claims were put together. Nothing SCO does or says until they walk into court next is of any significance.
January. It's not that long to wait. In the meantime, I'm all for ignoring SCO's public spewage.
The enemies of Democracy are
But how on earth could the GPL "violate the United States Constitution". Isn't the Consitution only binding to the Federal govt? ie, even if there was a clause in there saying "RMS is a kook and the GPL == evil and bad, use SCO Unixware instead", that wouldn't prevent anyone but the Feds from using/dealing with the GPL. Right? Have I been smoking too much crack?
(Yes, I know, it's Darl, I shouldn't assume it makes even the slightest bit of sense.)
Because if the GPL is held to be valid (which it of course, IS, to anyone with half the brain of an ant), SCO can't escape the fact that they distributed linux under the GPL for a LONG time, even after their lawsuit was filed.
For charging licensing fees and whatnot for other works, and NOT following the GPL.. sco will either win this suit, or die.
no, the idea behind copyright is that it provides *a* motive to authors creating works. Since nobody can agree on exactly what should be provided to authors as an incentive, copyrights basically say "the author can get whatever he wants."
This idea is flexible enough so that things like the GPL can stand squarely on it. "Copyrights" are never going to go away, The GPL is not a stopgap measure until some future day when Everything is Free (no matter what some people may hope). The GPL is the expression today that some people want things other than money for their work, and they can have it now. The GPL is not, and cannot be, anti-copyright.
So while Darl proposes that Cash Money is the only possible incentive for authors, Linus points out that the success of the GPL in creating new works of the mind for other compensation contradicts him. He catches Darl with his own words.
Well, Darl McTard has under a month to keep blathering on about his hallucinated constructions in copyright law and then the big REALITY BOMB is going to catch up with him and he's going to have to provide real evidence in a real court of law and personally, I suspect he's going to get hit squarely in the middle of his one big ogreous eye by the judge for wasting everybody's time in this matter.
Hic iacet Arthurus, rex quondam rexque futurus.
It is blanantly obvious that SCO is only doing this to make Darl and his buddies as much money as they can, before this issue is finally put to rest (pump and dump anyone?). And there is little or no merit to their claims chatsoever. So given that, is there any merit to grace their blathering with rebuttals?
I appreciate IBM's stance in this whole affair. They have their lawyers do the talking (in the courtrooms), and outside of that they dont bother to comment on it, thereby not providing any more fodder to the scumbags that is SCO.
All you touch and all you see is all your life will ever be
I don't think Linus' rebuttals will have any effect on SCO. SCO seems fixated on the idea the the opensource community stole code from them and GPL'd it. SCOs argument is still on the fact that "their" code cannot be legally distributed simply because a GPL notice is distributed with it.
Any arguments put forth that attempt to clarify the GPL for them won't have any effect because I think that SCO would see this as the OS community avoiding the real issue at hand.
I read the GPL in its entirety once, and it was perfectly clear to me, and I believe it is perfectly clear to SCO as well. But if you put yourself in SCOs shoes and truly believe (as SCO does) that your code has been jacked and the GPL is a way to legalize this action, then SCOs arguments do make sense.
...called a straw man argument, and that is exactly what Darl ('s PR team) did in the first letter. He misrepresented the open source community's beliefs and GPL principles, and then attacked those misrepresentations.
Here's a template to help understand what they are saying. Where (roughly): -- MarkusQ
It's worth pointing out that the GPL is an example of a way for companies to cooperate for mutual benefit without running afoul of antitrust.
There is nothing in the Constitution or common sense or antitrust laws that requires companies to engage solely in cutthroat competition for profit, or that says that companies can't cooperate for their mutual benefit. Care, however, is needed to make sure that cooperation doesn't run afoul of antitrust.
The GPL provides one of a number of available mechanisms for companies to cooperate for mutual benefit in a way that does not create antitrust problems.
Another way is the creation of voluntary industry standards--such as C, Unicode, the use of 120 VAC 60 cycles for home wiring in the U.S., etc. Presumably SCO opposes this, too.
SCO may win the FUD war if we aren't careful. We should make the point that SCO is fundamentally opposed to the whole notion of cooperation.
"How to Do Nothing," kids activities, back in print!
They are dumping it. Go to SCOX on finance.yahoo.com and click on the 'insider' action. They've been dumping it off and on since this whole thing started. They can't keep on doing it though because there are SEC regulations on insider trading -- you cannot action your stock as an insider for something on the order of 6 weeks (months maybe?) of a big public announcement. While I don't know the details, my dad wasn't able to action any shares in the company he works for when then announced the acquisition of another subsidiary. I don't know if that applies to lawsuits, but I'm betting it does.
Speak for yourself.
So he's basically saying that the GPL does not in fact destroy profit motive.
Which misses the point, actually. As a copyright holder, my "motive" is actually nobody's business but my own. I am free to copyright something and then sit on it. My copyright is still valid. It is not contingent on me going out and using it to make fistfuls of cash, Darl, nor is it contingent on my receiving free software in return for it, Linus. A right is a right. While rights can be granted with an intended purpose, failing to use the right in accordance with that purpose does not invalidate the right.
It was stupid argument and could have easily been rebutted on a more fundamental level. By attacking it on this level, Linus is partially buying into it. Although Linus is mostly addressing his response to Darl's intended audience, so I can see why a more subtle approach might not work.
I think we're all waiting for the other shoe to drop. None of the things McBride has said either via his legal proxies in the courtroom or in the public arena come particularly close to passing a giggle test.
We know he's going to be laughed out of court, and then SCO sued into oblivion by IBM (go, IBM!), and Darling Darl himself will probably be put in jail for his accumulating crimes.
At this point, all we wanna do is hit the fast-forward button and see the punchline. How the rest of this will all turn out is a foregone conclusion at this point.
Should be allowed, encouraged, kept working by stabalizing kernel interfaces and not harassed by any type of intellectual property.
Linux is not so hot on the desktop, where lots of drivers are needed and I suspect most vendors write a Linux driver to make a small minority of users happy, not because it makes them a lot of money. This could be improved perhaps if they only need to update their driver once a year, not for every kernel patch and distribution.
As for releasing the source code, well sometimes they don't own it all in the first place and getting/buing permissions from everyone would be too expensive. Or in case of NVIDIA, driver optimizations could be easily used by competitors. Again, they don't have a huge market to look forward to as a compensation.
I think this is one case where Linus and a few other kernel developers care more about having fun - freedom to change interfaces to do something cool - then the end users of their work. Nothing wrong there too - it's their code and thanks to GPL other people can even make other versions more to their taste. The thing is, someone might do just that with Linux or BSD one of these days.
It was stupid argument and could have easily been rebutted on a more fundamental level.
Whoops. Actually Torvalds did spend a paragraph attacking it at this level with that analogy to public universities, so ignore that sentence.
The surprising thing about all this is the stock price. SCO is locked in a legal battle with IBM, isn't doing well, and is being sued by others. That's not a good position to be in. Yet SCOX is still hovering around $16. Volume is low; yesterday's news doesn't seem to have induced much trading.
Think like the enemy and you will come to understand him.
Business is war. McBride sees open-source as a real threat to his business. He realizes that he can not fight a conventional war against this enemy. How can you under-cut the price when your competition happily gives their product away? How can you build a better product when the enemy doesn't pay it's developers so they can have as many as they want? The only weapon in his arseneal that can gain an upper hand is the legal system.
McBride may be right (in this assumption).
Lawyers, good ones, don't usually work for free. The companies that are exclusivly open source are not (yet) cash rich and don't have much of a war-chest. Companies like IBM and Novell can not fully defend open-source because they have plenty of conventional closed-source software themselves and in some ways have a conflict of interest. They will defend themselves against the charges leveled directly against them but their shareholders wouldn't let them go beyond that.
So this is a war that is being fought in the courtroom, an arena where true open source issues may be under-represented and, under-funded. McBride hasn't found a hole in the defenses but he has found the position most weakly defended and he is attacking there.
Still since he played the "unconstitutional card" I'm wondering how long it will be before the open-source side of the issue says that software is written and that it is a freedom of speech issue? Given the size of the work it has to be expected that some of the sentences used within it may appear in someone else's work? I am sure that a writer like Steven King has probably used a sentence or two that appeared in someone else's book. This alone is not a copyright violation. If someone copied an entire chapter out of his book he would be compelled to show that his work was copied before a court would hear his complaint. That is pretty much what is happening to McBride right now. Show us the stuff or go away.
Personally, I think he will go away.
...well, probably not, but he should stick to writing code, not about law. His understanding of the law is nearly as messed up as Darl's.
Whenever the law provides definitions, those definitions are valid ONLY WHEN THOSE TERMS ARE USED IN THE THE LAW ITSELF. The sec. 101 definition of financial gain therefore applies only to uses of the term "financial gain" in title 17. Linus's analysis would be correct if somewhere else the law said something like "Copyright law should be interpreted to promote financial gain." But it doesn't.
The only time "financial gain" is used in the copyright law (that I am aware of) is to show when certain copyright violations are elevated to criminal, as opposed to civil, wrongs. See http://www4.law.cornell.edu/uscode/17/506.html
The fact that sec. 101 defines financial gain doesn't mean a anything outside of that very narrow context which is inapplicable to the discussion.
Darl's "interpretation" is clearly bogus, of course. I won't get into why here, but I could tear apart his argument very easily. Anyone who knows anything about US copyright law got a good laugh from the screwed up analysis of both articles.
IANAL (I will be eventually, but that doesn't mean this is legal advice, it isn't)
Their latest was issued hours before a _very_ adverse judge's ruling, forcing SCO to comply with IBMs discovery. Clearly, the letter was designed to distract attention from the financial press.
USENET also has a response: "Don't feed the Trolls"
> As we see from these two legal morons
If the law is written in such a way that even Linus can't understand it, the law should be changed. The layperson ought to be able to understand it fully. Obviously it's now full of contradictions and special cases and exceptions and it's just way too large (U.S. tax code alone is 46,000 pages).
A non-lawyer is just as likely to be right as a lawyer -- look at what SCO is doing with their excess of attorneys and deficit of developers.
Lawyers are right, on average, LESS than 50% of the time. In every case, at least one side loses; and you may win not because of your arguments, but because the judge finds something applies that the winning side didn't think of, or because of a technicality.
"Seek legal advice" -- how many times have we all read that? And yet, the advice differs so much from attorney to attorney that we have a constant stream of legal cases to settle them, and APPEALS after that!
All that the convoluted, arbitrary and ambiguous laws and regulations get us is an endless succession of lawsuits and employment for lawyers.
640 laws ought to be enough for anybody.
I think you're missing the point entirely. Linus is saying that, according to McBride, the GPL is unconstitutional and violates US copyright law. Linux is pointing to the fact that the GPL is in fact coded into current copyright law because the expectation that you will receive the copyright of other work in exchange for your copyright is, in fact, financial incentive according to law. He is simply striking down one of Darl's arguements. Whether Darl's argument was relevant is irrelevant.
--
www.nitemarecafe.com
Linux is pointing to the fact that the GPL is in fact coded into current copyright law because the expectation that you will receive the copyright of other work in exchange for your copyright is, in fact, financial incentive according to law.
The GPL is not coded into current copyright law. The expectation that you will receive the copyright of other work in exchange for your copyright is not financial incentive according to the law. That's not at all what the law says. The laws says that, for the purposes of Title 17, "The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works." Copyrighted works. Not the expectation of copyright of other work.
Now, let's look at the context of the use of that term:
I think this makes it clear that they weren't talking about the GPL at all. What this definition is saying, is that if you "trade" one copyrighted work in exchange for another, such as on a P2P network, a bbs, hotline, or whatever, then you are considered to be doing so for the purpose of financial gain.
Let's look at other uses of the term:
Again, this is the same. Let's look at another:
Again, nothing to do with the GPL.
So if Linus is saying that the GPL is coded into current copyright law, then he's quite simply incorrect.
Selling a few thou shares does not equal dumping.
Yes and no. The current situation is that the stock is not strong enough, and there aren't enough shares in circulation, to support true dumping. If the execs were to try to really unload, they wouldn't get much for their stock because the price would go through the floor. They're far better off selling a trickle at higher prices.
On a more conspiratorial note, there's pretty solid evidence in the SCO charts of "painting", which is large-scale institutional buying designed to prop up the price of a stock. If that is what's happening, the SCO execs would really piss off the people they've got propping them up if they were to start dumping significant quantities of stock. That would push the price down and the painters would have to spend even more to push it back up.
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