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."

Comments

Excellent..

[herrvinny]

Darl said in his letter that this was only the first of many letters... Is Darl going to try and rebutt Linus' statement in the next letter, or is he going to go spread more FUD?

Re:Excellent..

[Surt]

The better strategy from Darl's point of view will be to rebut something that is not Linus' argument at all.

For example, darl might rebut as follows:

Linus must be crazy to think that the united states can be overthrown from within by a bunch of poorly funded communists!

Attacking off topic is generally much more effective in the public forum than actually debating your opponent.

Re:Excellent..

[Anonymous Coward]

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.

its probably a retroactive decision like most of copyright law is. ask yourself why the sonny bono copyright extension act was allowed to retroactively extend copyrights on already created material. the copyright for mickey mouse cartoons was not 95 years when those cartoons were made, why should the government be able to change the rules on materials which were created on a pretense thats eighty years old.

Linus is guilty of the same sin as Darl

[boxless]

Everyone blasted Darl last week for his challenging use of the english language.

To be fair, I must say that Linus's piece is not very cogent, either. At the end of it, I'm left wondering what he's really trying to say. Is he saying that Darl is right (in a sense), that copyright does require profit motive, but the GPL has it because people are exchanging copyrights? On one level, that seems to agree with Darl, doesn't it?

I'm confused. I think Linus should leave this one to all those EFF lawyers.

Re:Linus is guilty of the same sin as Darl

[Dashing Leech]

To be fair, I must say that Linus's piece is not very cogent, either.

It seems you aren't a very experienced debater or in logical argument construction. If your "opponent" has stated a list of bad premises and reached a bad conclusions, the worst thing you could do is attack all of the premises and conclusions at once. That confuses the issues.

What Linus has done here is pretty close to the right way to make the counter-argument. First, accept all of Darl's premises for the moment, that a "profit-motive" is required, and demonstrate how the GPL meets those premises. If Linus had explicitly attacked the "profit-motive" premise and his conclusions relied on this attack, the arguement would then turn into one about "profit-motive", not the validity of the GPL.

What Linus did was say, "OK, lets assume your premises are true, then the GPL meets all of your premise requirements and hence the proper conclusion is that the GPL is valid." This makes the argument very clear and concise and keeps it on the topic (validity of the GPL). If Darl can make a convincing argument about why the GPL does not meet his premises, then that's the time to attack the premises. You should always work backwards in an argument, starting from the conclusion.

That being said, Linus did partially attack Darl's premise on "profit-motive", using the public university example. (Essentially, the arguement is that profit is a possible motive for progress, but not a required one.) I think Linus' university argument would have been better if he had attacked the premises after the conclusion, and do it more thorougly that the simple example given or don't do it at all. It's a good example, but he doesn't explicitly state what is wrong with Darl's premise, just an example in which it does apply.

maybe they aren't smoking crack

[meatbridge]

does anyone else think these sco guys are just releasing all these inflamatory statements just to bait the leaders of the oss movement. playing on their passions to force them to make comments that will eventually be used against them in court?

Re:OK, but the fact is copyrights are still wrong

[Ridgelift]

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.

Then what do you propose? I want something to protect my work, and allow me to profit from it whether that be financial gain, street cred' from my peers, or any other profit motive.

Any ideas?

Linus makes Darl's point

[spells]

I think Linus should be very careful when he starts discussing the law. Look at the quote he uses:
"The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."
I think it's a tough argument that releasing code under the GPL includes receipt, or expectation of receipt, of anything of value.
When I release code under the GPL, there is definitely no receipt of anything of value, and I would argue that there is no expectation of receipt of anything of value.
The fact that copyrighted works are included in anything of value does not validate the GPL in any way.
Explain to me how I get more access to copyrighted works (my financial gain according to Linus) by releasing code under the GPL.

other news

[daniel23]

While the front page article looks like some one just felt the need to show the caldera icon once more there seem to be interesting things happening at SCO, apparently some of the investors are not that happy with the current state of events:

SCO Finalizes Agreements With Investors and Law Firms

and...

Santa Claus Operation

A new look for SCO - not supreme but funny enough to take a look.
sco_christmas

Call me an anarchist, but-

[subjectstorm]

isn't government, at best, just a necessary evil?

Linus makes an excellent case for the legality of the GPL under the constitution as it stands, but who's to say that the constitution, in its current incarnation, is anywhere close to adequate? What if, for once, Darl actually got something right and the constitution DID say that copyrights REQUIRED a pure profit motive? What sense is there in enforcing an antiquated law if the result of that action ran contrary to the best interest of society, progress, or just general common sense?

I mean, fundamentally speaking, all governments begin with the purest form of democracy - a person or group of persons decide what is in their best interest and then act upon that decision. It is only later, when a group becomes too large to govern itself effectively, that it chooses to allow some other person or group to act on its behalf. There is always choice involved; even dictators would be powerless if their soldiers simply laid down arms and said "screw you buddy".

All i'm saying is that MAYBE we (and by we, i mean "the government") should be debating wether Darl's ideas on copyright are in anyone's best interest other than his OWN rather than trying to decide if he has some shaky, defunct legal leg to stand on.

The constitution is and has always been a dynamic document . . . else women would still be a silent majority.

Some Points of Contention

[bubba_ry]

... the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof.

Since when has the GPL prohibit[ed] any proprietary use of software? One is free to sell or give away their software.

Red Hat's position is that current U.S. intellectual property law ?impedes innovation in software development? and that ?software patents are inconsistent with open source/free software.?

These comments by RedHat are taken way out of context to bolster SCO's arguments! Shame on SCO!

...do you support ?free? ? as in free from ownership...

Whoa! I thought is was "'free' as in beer, not 'free' as in money". Anyone can own the software. Really, though, the community owns the software.

... our position is consistent with the clear legal authority set down by the U.S. Congress, the U.S. Supreme Court and the European Union.

Not to slight the Euros, but when did legal precedent in the EU bear any relevance to US law?

What Darl needs to learn is that the Open Source idea/belief/movement is all about choice and the betterment of the community at large.

Linus, YHBT.

[anthony_dipierro]

This whole SCO thing has become such a joke. I find it hard to believe that anyone can take it seriously. I find it amazing that a company with such idiotic management can survive this long.

In any case, I don't think Linus should grace this crap with a response. He's shown in his discussions on binary modules that he doesn't understand copyright law. If he wants to respond with legal arguments, he should get a lawyer who knows a lot about copyright law to do it for him. In this particular case, it seems he got it right, though.

Re:Rebut or spread more FUD?

[aldousd666]

One has to wonder if maybe Boise et al weren't railroaded into signing up for this case in the first place. They may have thought better if they knew what ground they'd eventually be treading on. Now on the other hand, they may just be greedy lawyers rooting for the bad guys, but in the past Boise has had nothing but a good reputation. Kinda makes you wonder, or at least makes me wonder. Contracts are contracts and there probably is no turning back for the lawyers at this point. (IANAL but then again, most of us aren't so I probably don't really need to put that.)

Re:OK, but the fact is copyrights are still wrong

[Hatta]

Yes, this is important because authors never made any money before copyright. Amazing how with one act of law, whole fields of human endeavour, writing, music, art, finally become worthwhile. Thank you Government, I don't know what we'd do without you.

Re:OK, but the fact is copyrights are still wrong

[Anonymous Coward]

Thomas Jefferson was extremely opposed to the notion of copyright. He felt all work should enter the public domain immediately. The general idea being is that, this is a work that's made to benefit society. If it weren't, then why are you making copies to let everyone see? These are not 'private' works such as a journal or diary(something to enrich yourself, not others). The concept of controlling something, once made available to all does seem rather silly, kind of like spinning your tires in the mud or suing your mp3 listening fans. Jefferson and the original framers wanted a LIMITED time for an artist to be able to get paid for their work before enriching society, thus promoting more enrichment. Leaving that control solely to Congress was the biggest mistake. 90 years go far beyond what any reasonable person would agree is 'limited'. Transferable rights, extensions after death etc, all go against what copyright was established for in the first place, the reduction of the notion of 'starving artist'. You choose to do nothing but spend a year and a half writing a book and doing nothing else to support yourself, well then good for you. Were it a book on how to cure cancer, how does keeping the rights to it for 90 years benefit society? Information wants to be free.

A Tolkien Response

[buckhead_buddy]

The common (rather than legal) understanding of copyright seems to be what Darl's ghost writer (right-wraith?) is declaring:

"There can only be one Lord of the [Rights]. Only one who can bend others to his will. And he does not share power!"

The fact that there are people who are not succumbing to it's greed and wielding these rights to oppress and profit from the work of others was an unexpected way to defend against the corrupting influence of the instrument of power.

But one should be cautious...

[The GPL] is a gift. A gift to the foes of [Closed Source]! Why not use this [right]? ... Give [the FSF] the weapon of the enemy. Let us use it against him!"

While the SCO menace may be simply a minor diversion (akin to Lurtz) the true menaces may be more corrupting and more difficult to fight.

Defending or defeating attacks from the closed source enemy means a need to unite and to pool the copyrights we each develop individually. But such power placed in any one man is a difficult thing to manage, to defend, and to resist the corrupting greed that arises from it.

Of course there doesn't seem to be much alternative:

• Stay low, hidden in the woods while others feed the corruption of the ruling closed source
• Unmake the power and release all copyright into the public domain. This destroys the corrupting influence, but it strenghthens the enemy as well.
• Continue to weild the GPL until the problems and corrupting influence of the intellectual property system can be worked out and the evil truly unmade.

Sorry, if the above arguments are a bit muddled. I guess I have something else weighing on my mind.

Re:OK, but the fact is copyrights are still wrong

[Ridgelift]

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.

I agree. I'd imagine a lot of the "profit is bad" comments come from the teenage populous. I'm not trying to discriminate against age, but I used to think money was the root of all evil when I was younger. When I turned 20 and wanted to get married, it became apparent to me very quickly that no woman wanted to marry a guy who couldn't support a family. I then checked the "root of all evil" quote and found it was from the Bible, and it actually says "money is the root of all kinds of evil" not "all evil".

If you still need convincing, go to your local library and check out "Just for Fun" by Linus Torvalds. In it he does a pretty good job of explaning the pros/cons of IP rights in the latter part of the book. For those of you who've moved past your aversion towards capitalism, you can go to a bookstore and buy it instead, like I did.

Gotta run. I'm 34 now, married, and my wife and son need me to spend some time with them :-)

Re:OK, but the fact is copyrights are still wrong

[Overzeetop]

Actually, Mozart survived on a combination of royal grants (govermental pork) and income generated from commissions and students (workaday stuff). Works were rarely "pirated" because of the extreme talent needed to transcribe from memory based only on real-time in situ listenings. No recording devices. No photocopiers.

Mozart was one fo the few who could remember a full score from a listening...and IIRC he pissed off at least one composer by transcribing a symphony (from memory, from a single? listening) and then mailing the copy to the composer.

Yes, until the advent of recording and playback devices, one of the few ways to make money was to be a performer or your own art. Writing might be considered in the same boat, with stories and non-fiction being "performed." But since writing came along with the post-(forage/hunt,barter) economy there isn't really a good parallel for written prose.

I do agree that copyright terms have gotten completely out of hand. 20 years from date of publish, or date of register, or claim of ownership should be sufficient. If I patent a new invention (just as "creative" as a written work) I will not receive exclusive right ot that invention for more than 20 years (I think). I suppose in the event of death, the remainder of the term shall be treated as property for the survivors.

Re:SCO, FUD, GPL, US...

[tiger99]

If Linus ever gets fed up with the kernel, or software in general, he certainly has the potential to easily become a very good lawyer. It looks as if he has done some study in that field already. Of course, I would prefer him, and the team, to stick to writing useful software, it really does benefit society.

It makes me wonder if the reason why the US legal system is so needlessly complex, and requires so many lawyers, is perhaps because it creates employment for those with sufficient aggression to be very disruptive to society if they are not in highly paid employment, while not sufficiently intelligent to do something creative, like writing software, or be doctors, teachers, inventors, poets...... Complex financial rules exist so that accountants can be employed for the same reason. A negligible proportion of accountants are in any way creative.

I even wonder if such as McBride, Gates and Ballmer are driven by the fact that in reality they do not have creative potential either, whereas people like Linus certainly do.

It is a bit like the classical UK management structure, the manager is fairly useless and highly paid, his main ability is to use and abuse engineers or other professionals beneath him, take credit for their work, pass the blame for his failures onto them, etc. The no-hopers who by sheer greed, rip-offs, and a certain amount of well-documented dishonesty in getting the Convicted Monopoly established in the beginning, have made it to the top, but command no respect whatsoever technically, naturally get very nervous when people with obvious competence appear, and will do anything to keep them down. The company owned by two very rich incompetent wasters has funded the company run by another modeately rich incompetent waster to attempt to get rid of various pieces of technical excellence for which they can take no credit whatsoever. Simple as that, greed, pride, jealousy (not necessarily in that order).

If the MAC was rising big time (which it may one day), the no-hopers would be going after Apple, and Jobs, who is clearly more astute technically than all of them put together, as they went for Netscape and others.

If I am correct, there will be moves against OpenOffice/Star Office, maybe KDE or Gnome.... The nasty piece of work behind all this will not give up, even when his puppet McBride is in jail. He will simply get someone else or some other method of going for the next target, and when McBride fails, the puppet-master will simply get another, and resume his attack on *nix. It is not just Linux he wants to destroy, in fact Unix will go first, at least the SCO variety, and Bill will have achieved one of his ambitions.

The hatred for *nix is the same mix of jealousy etc. When MessyDOS came out (actually only PC-DOS, there were only IBMs at the time), I was actually using a derivative of Unix V7, which could easily do things that no Windoze system can do today, and no MessyDOS system could either. That is why he hates Unix. IIRC the unix kernel was 52k (total ram 256k), a multi-user multi-tasking system with file and password protection had a kernel about the same size as MessyDOS, and what is more, it had true pipes, not faking it by using files. He is an under-achiever technically, he resents anything and everything that has done better. It is all an extension of his well-documented childish tantrums that he allegedly still suffers from. That is why Xenix was crippled, so it would not show up his personal failure so badly.

Re:OK, but the fact is copyrights are still wrong

[brassman]

If you say corporations can't own copyrights, you are effectively limiting MY right as a natural person to sell my copyrights to a willing buyer. I don't see how that levels the playing field.

Corporations are a natural response to the uncertainty of life. For instance, Stephen King was in a nasty accident not that long ago. If he hadn't pulled through, cancelling his copyrights would have destroyed a sizable company and the value they have accumulated for a number of employees. A modest guarantee -- a fixed number of years with no reference to the author's lifespan -- would seem a more reasonable approach.

Oh, I suppose a publisher could take out an insurance policy on an author -- but that could lead to a whole other set of abuses.

Re:Why do we need to defend the GPL?

[Raphael]

There are several reasons why the GPL is attacked by SCO:

• The main reason is probably because they realized (a bit late) that the GPL forbids them from distributing Linux and at the same time requesting license fees from Linux users. So if the GPL is valid (and it is), then SCO is in big trouble.
• In addition, if the GPL were not valid, SCO would probably be able to steal some code from Linux and put it in SCO UNIX, claiming that they do not have to give anything back because the "share alike" sections of the GPL would not be enforceable. Considering that Linux has several enterprise-grade features that are sorely missing in SCO UNIX, it would be interesting for SCO to be able to get that for free.
• Another reason is that Microsoft is (directly or indirectly) pushing SCO in that direction. They are one of the few companies that gave some substantial amount of money to SCO this year.
• There are probably many other reasons, but that does not really matter because I don't think that SCO stands a chance to convince anybody (especially the judges) that the GPL is invalid.

Re:Straight from the US Code:

[michael_cain]

So, according to US copyright law, even if Linux is an "unauthorized derivative" of UNIX, SCO still doesn't own the copyright!

Despite Darl running his mouth in public on assorted topics, the foundation of SCO's original suit against IBM still comes down to a contract in which IBM purportedly signed away many of the rights that they hold under copyright. If I understand correctly, in the original suit, SCO did not assert that they "owned" the copyright on IBM's work, but that they did have the right to control whether and when that work could be revealed to third parties -- because IBM had signed over that right in order to gain access to the original UNIX source code. Hence the legal theory (emphasis on theory) that IBM revealed certain things, without permission, that made Linux more competitive with SCO's product, and thereby damaged SCO. It's a matter of contract law. Issues such as the GPL came up when IBM countersued and Red Hat sued.

That said, I still think SCO will eventually get their head handed to them on a platter: (1) IBM has a separate document in which AT&T appears to have waived some of the terms of the original contract, (2) there's a lot of question about whether current AIX may still be regarded as being "derived from" the original UNIX, (3) some of the technology in question (such as JFS) may have been developed in a non-AIX context, and (4) SCO's distribution of Linux could be interepreted as a waiver of their rights under the contract.

I think the judge is starting to get irritated. The latest ruling seems to have the flavor of "IBM has given you a lot of material, now it's time for you to point at specific chunks of code where you think you can prove your rights were violated."

Why "financial gain" is defined

[bluesbrosfan]

Just thought everyone might be interested in knowing where the definition of "financial gain" came from in section 101.

I think Linus's reliance on the definition is misplaced; see my above post.

The term "financial gain" was defined as part of the No Electronic Theft (NET) Act in 1997. The purpose of the phrase "including the receipt of other copyrighted works" was to create criminal copyright liability for file swappers. Criminal charges for copyright infringement would otherwise only be applicable when the infringement was done for financial gain in the traditional sense of the term. By adding "including the receipt of other copyrighted works", Congress expanded criminal liability to include file swapping, not just the resale for cash of illegally copied works.

Section 101's definition of financial gain really has nothing to do with the underlying purpose of copyright law and certainly does not equate to "explicit encoding" of the idea into copyright law as Linus seems to think. (Not that McBride has any logical legs to stand on.)

See the text of the bill.

Re:Why "financial gain" is defined

[rdean400]

While what you say is true, it doesn't change the validity of the law's argument. The bottom line is that Congress changed the law to specifically include copyrighted works in the definition of "financial gain." In the end, it doesn't matter why it's there....Congress had the authority to define the definition for the purposes of copyright law, and that's the definition they chose.

Further, the lawyers defending against SCO could make the case that the return of an improved copyrighted work is a thing of value, which a judge could legitimately rule is a financial gain even without the benefit of statutory definition.

Re:Darl/SCO are trolls!

[silentbozo]

It's also interesting how they dangle "the revealing of a new copyright violation suit" against IBM in front of investors via PR releases in order to distract from their other PR release... the one that says that they've delayed their earnings announcement till Dec. 22 (practically up against the holidays.) The news about the judge issuing the ruling against SCO was top news... for two days... on the weekend. By yesterday it had fallen off the headlines (and probably was out of sight of most investors.)

You gotta wonder, what kind of crap are they going to spout next to distract from the earnings announcement on the 22nd? Or is the earnings announcement going to be nothing but a giant BS session?

Re:Linus is smoking crack

[luckyXIII]

I agree somewhat that Linus's rebuttal misses the point. I'm with you on the fact that McBride's argument falls completely flat.

I will get into why, though - according to US copyright law, the owner of copyright has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords
2. to prepare derivative works based upon the copyrighted work
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership,
   or by rental, lease, or lending
4. (and others)

This is exactly what the GPL covers.

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.

lucky

Re:Linus is smoking crack

[monkeydo]

Darl (not Linus) said that "Copyright law should be interpreted to promote financial gain" - which everybody pretty knows to be false.

No he didn't. He said the article of the Constitution which grants Congress the authority to make copyright law should be interpreted to promote financial gain. If this argument is accepted it would follow that any copyright laws passed by Congress which were not intended to promote financial gain would be unconstitutional.

The problem with Linus's 'rebuttal' is that it's just a strawman. He's chosing the defininition of financial gain that he wants to argue against, but it isn't necessarily the definition that McBride would use. McBride didn't claim that the requirement for financial gain originates in ths USC, he claims that it originates in the Constitution. He also wasn't refering to the USC's definition of financial gain. Financial gain was merely his shorthand interpretaion of "progress in the arts and sciences."

If McBride's argument is correct (I don't think it is) then you can quote the USC all day long, but any part of it which doesn't promote financial gain is moot since unconstitional laws have no power. It doesn't matter how the USC defines financial gain, it matters how you interpret "progress in the art and sciences" in the Constitution.