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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."
"They are smoking crack."
When anger rises, think of the consequences.
Confucius (551 BC - 479 BC)
Acronyms, Acronyms, Acronyms.... What do they all mean??????????????
Not everything is analogous to cars. Car analogies rarely work.
Is Darl going to try and rebutt Linus' statement in the next letter, or is he going to go spread more FUD?
Uh, isn't that the same thing?
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!
Talking in reference of GPL.
"It's not just a crazy idea that some lefty Commie hippie dreamed up in a drug-induced stupor."
I just love how Linus say what is on his mind.
Get Movie Posters
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...
Uhhhh... *points behind Linus* What the hell's that!
*While Linus is distracted, Darl jumps into a giant Bob's Big Boy statue, launches himself into orbit and freezes himself for 30 years*
Technoli
You mean, is Darl's PR team going to throw out another factless diatribe about how the GPL destroys financial incentives to innovate, and thusly violate the spirit of copyright law, or are they going to throw out another factless diatribe about how Open Source destroys financial incentives to innovate, and thusly violate the spirit of copyright law...
Slashdot: Where people pretend to be twice as smart as they really are by behaving like children.
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?
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.
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?
of a programmer from Norway having a better understanding of U.S. law than a CEO from Utah? Hahahahahah
It's like when 20/20 or 60 minutes does a special on how kids from China know US Geography or History better than US students.
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.
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.
Otter: Ladies and gentlemen, I'll be brief. The issue here is not whether we broke a few rules or took a few liberties with our female party guests -- we did. But you can't hold a whole fraternity responsible for the actions of a few sick, perverted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you ... isn't this an indictment of our entire American society? Well, you can do what you want to us, but we're not going to sit here and listen to you badmouth the United States of America!
Hold the broken rules, substitute profits for females, open source community for fraternity, and Darl for Dean Wormer.
If Slashdot were chemistry it would look like this:Cadaverine
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
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
605413? Yes, it's a prime.
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.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
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.
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.
** Chigusaaa!!! You're the coolest girl in the WORLD!!! **
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.
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?
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.
...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.
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.)
Speak for yourself.
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!
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.
Give me Classic Slashdot or give me death!
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.
Do you think SCO is just keeping these lawsuits up to pay for the bandwidth of being Slashdotted four times a day?
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.
But one should be cautious...
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.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,
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...
...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)
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.
> 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.