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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.
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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!
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.
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."
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.
The Free Software movement had the right ideas, but lacked a working model for community development. OSS offered a new way to develop software; make every user that wants to take place in development do so freely.
I don't think "intellectual property" is such a bad thing, but I think OSS/FSF has offered a better solution that sits atop "capitalism" quite nicely. The pragmatist in me loves corporations; the idealist in me loves free software.
Slashdot: Where people pretend to be twice as smart as they really are by behaving like children.
...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?
What the hell is so bad about copyrights? Okay, I create a work. It's not a physical creation, but rather an intellectual work. A book, a piece of music, a new recipe. It's a product of my own effort, and it's uniquely my own. Now, what the heck is wrong with me having the rights to that work, at least for a limited amount of time? Am I not allowed to control my work? Or do you think that, because what I've created isn't "physical", I'm not allowed to "own" it?
Frankly, I think your apparent dislike of copyright is a misguided reaction to the disaster that is the US patent system. As it stands, the PTO is seriously hindering scientific advancement, at least IMHO, because it allows what the patents were never intended to allow: patenting of a thought, an idea, something where there is no concrete invention. Hell, back when patents were invented, in order to get one, you had to demonstrate a *working prototype*! But, those days are gone now, and I think that, in general people can agree that things have gotten out of hand.
However, don't think that, just because the patent system is a disaster, all "intellectual property" is a bad thing. Copyrights are a very good thing, if used correctly. And I would argue that the concept of copyright is very natural. After all, if I write a poem or a book, I refer to it as "my poem" or "my book", and I would be very offended if someone "stole" my work (notice the word "stole"... it immediate implies ownership), copied it, and made gobs of money off of it. Of course, the system is abused by some (eg, RIAA), but overall, I can see no real reason to abandon the concept of copyrights.
Won't work now. SCO is being counter-sued by IBM, and is facing lawsuits from other parties as well. They're in this for good, with or without Darl. SCO is a corporation, and as such has no choices to make at this point; they must hold position and keep the shareholders' stocks as high as possible. Anything else will result in massive legal action against Darl'N'Friends by the shareholders themselves. He's really backed himself into a corner, and he must get out by trying to plow through IBM... or at least go down fighting. Otherwise he, personally, will be held responsible...
End of lesson. You may press the button.
I think what has gotten out of hand is granting patents for software as, PJ said in her interview on Linux Universe, "Software is math. There are only so many ways to write 1 + 1 = 2. If you let math be patented, you are bound to choke off the ability to write new software eventually, because programmers can't write without eventually needing to write 1 + 1 = 2, and if they can only write it by paying a toll to the big guys who can afford to patent 1 + 1 = 2, you've limited who can write software and/or what they can write. Meanwhile, other countries that don't do patents the way the US currently does will be innovating like crazy and leaving the US and Europe, if it follows their lead, in a walled-in software prison controlled by the Microsofts of the world."
Just because some chose to ask for money for ther work dosent make it wrong, since if its only copyrighted someone can go out and reimplement it for free, in that way Copyright promotes competiton.
in sumary:
patents->bad;
copyright->fair (as in fair use);
Did Glenn Beck rape and kill a girl in 1990? gb1990.com
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.)
Several ideas...
1) Non-transferrable copyrights, that expire when you die and cannot be owned by a corporation, only by humans (after all, corporations don't have ideas, humans do).
2) Required five-yearly renewal of copyrights to keep them active (would allow all sorts of untracked materials to fall into the public domain naturally, and still allow Disnazy and co. to keep their precious Mickey Mice).
3) Remove the "viewing/listening/reading" right from copyright law. The fact is, once you've released something into the wild you have no rights as to who may view it or listen to it. Return copyright law to its original purpose: protecting artists from malicious publishers, not from their audience.
Those are just of the top of my head, recalled from past discussions...
Daniel
Carpe Diem
I'm a full-time writer, and I've been living off savings for the past eighteen months writing a new book. Thanks to copyright, I can reasonably expect to earn enough money once my book is published to stay afloat financially, and to tackle additional projects.
When I see posts like the parent one, it makes me think that there's a lot of Slashdot people who truly believe that every creative product that can be digitized or photocopied should enter the public domain.
I'm a huge advocate of open source, and I think I'm very generous with allowing access to my own work. Fr'instance, I made my first book a free PDF download on my website. But I keep seeing a sizable number of posts on Slashdot that argue that every piece of computer code, writing, music, or art ought to be exempt from copyright. That's nonsense, and it would destroy the foundation that allows a vast amount of our best art to be created.
I'm the first one to agree that today's Bono-fied, Disney-fied copyright terms are outrageous. I tend to think ten or twenty years on a book or film ought to be plenty. After that, the public domain would be enriched -- while the people who created it would still have time to be compensated for their work. But take away all copyright protection and people like me would be stripped of our financial viability, and our ability to contribute.
This book I'm finishing now has taken me eighteen months, and every day I've woken up and worked until I could no longer think clearly. Writing this thing, to make it as good as it is, in this short of a time, would never have been possible if I had a day job. And without the prospect of future financial return that copyright delivers, I could never have devoted myself full-time to this project. Take copyright protections away and my work, plus a whole lot of other great music/art/writing, could never be created.
Sure, there will always be some people who can afford to create and give away their work, and some of these creations will be superb. But copyright vastly increases the number of people out there who can devote huge chunks of their time to putting their heart and soul into creative projects. Just because my stuff can be digitized doesn't mean it should be seized by law and put into public domain the moment I show it to anybody. If the parent poster sincerely feels that way, perhaps he can apply that same spirit and send me his next paycheck -- by his standard, I'm just as entitled to it as he is.
I'm generally "Interesting," "Insightful," and even "Funny" here. What the hell happens to me at parties?
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
Or do you think that, because what I've created isn't "physical", I'm not allowed to "own" it?
And what if it is physical? Remember, in the words of a great philosopher: "You can't, like, own a potato, man. Potatoes are mother nature's creatures."
More seriously now: in some sense, all property is a legal fiction. How does it make sense that drawing lines on a map allocates a region of the ground to be my property? How is it that I can accumulate goods, and others are prevented from taking or using them, even if they are left unprotected?
Of course, all property is legal fiction in the natural world -- but a useful one. Property permits us to engage in commerce with knowledge that there will be legal consequences for those who deprive us of our property. As such I don't buy the arguments of anti-copyright folks who claim that because intellectual property is legal fiction, it should not exist.
Toronto-area transit rider? Rate your ride.
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.
Bít, zabít, jen proto, ze su liska!
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.
Then you'll need to throw out the whole concept of copyleft, upon which the Free Software Foundation is based. You cannot have copyleft without the legal basis for the ownership of creative works. And that's copyright. You cannot control the distribution of a work unless you own it.
Of course, there will be those that argue that without copyright there would be no need for copyleft, but that ignores the fact that the four "freedoms" of the FSF cannot be guaranteed without it. One might be able to legally share copies of a copyright-less binary, but without the source code to it, no one can improve it.
Don't blame me, I didn't vote for either of them!
In software, there's always another way to do it. In a sense, some proprietary copyrights (when not abused) simply spark innovation. If Joe Developers writes an app everyone likes, then Sue Programmer can work on making a similar/better product. How many office suites were there before MS squashed the competition like a bug? For a while there, each was trying to outdo the other in features, and the public benefitted from that competition.
Back to the (when not abused) part, however. Fast forward to today where innovation is either quelled by copyrights, or innovators are eliminated by buyouts and monopolies.
Saying Android is a family of phones is akin to saying Linux is a family of PCs.
So why would I ever create anything of value?
If you have to ask, it's very improbable you'll ever do.
Cheers,
...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.