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:
Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private
financial gain shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense.
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:
Any person who infringes a copyright willfully...or purposes of commercial advantage or private
financial gain...shall be punished as provided under section 2319 of title 18, United States Code.
Again, this is the same. Let's look at another:
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if...the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain...
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.
Because they reach into the private homes of adults and stop people from their exercising their right to pursue happiness in a manner which does not harm anyone else.
As a programer I would like to at least be given credit for my work.
As a programmer I'd like world peace, but that doesn't mean I should get what I want just because I write software.
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...."
Math shouldn't be copyrighted or patented. If anything, patents make more sense wrt to software than copyrights. Copyrights are about protecting art. Patents are about protecting tools. The vast majority of software out there is a tool, not a piece of art. Of course, I don't think we should be granting patents on software either, but if anything, patents make more sense than copyrights.
It makes it clear that the authors of Title 17 considered exchange of copyrights to constitute "financial gain".
Well, first of all, it wasn't the "authors of Title 17," it was the authors of the No Electronic Theft Act. Secondly, it doesn't say the "exchange of copyrights," it says the exchange of copyrighted works, in other words, P2P filesharing. Thirdly, the authors weren't saying that was the only definition of the term, but merely that that was the definition to be used when that term is used in Title 17. And fourthly, the guy from SCO didn't even use the term. He used the term "profit motive."
The authors of Title 17 would not have used that definition had they not believed it to be Constitutional.
The definition is perfectly Constitutional. If you violate copyright wilfully and with the purpose of getting other copyrighted material in return, you're guilty of criminal copyright infringement. That's a constitutional law, and it has nothing whatsoever to do with the SCO argument.
It's not irrelevant; the use of such language in law (Such as the "No Electronic Theft" Act of 1997, where this particular snippet comes from) provides a precedent for translation to future legal situations, such as this particular case.
No, it most certainly doesn't. No law passed in 1997 can ovverride the Constitution. Either the GPL is Constitutional, or it isn't. The NET Act is irrelevant.
It has no relevance in the document that spawned it
And that's the only document that it applies to in the first place. "Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following"
AS USED IN TITLE 17 OF THE US CODE, "financial gain" means foo. That is completely irrelevant to what some guy from SCO meant when he used the term "profit motive," which isn't even the same friggen term as defined in the US Code.
Darl's claim is that because there's no actual $$ changing hands with GPL licensed software, that it doesn't qualify as "financial gain" under U.S. copyright laws, and is therefore illegal.
Darl never used the term "financial gain." He used the term "profit motive."
Linus is just clarifying what "financial gain" means in terms of the copyright code.
As of 1999, when that part of the definition was added.
Although most people see "financial gain" and instantly think $$, he points out that the legal definition of the term "financial gain"
as used in title 17 of the US code, as of 1999 when the definition was changed to include exchange of copyrighted works
includes not only $$, but anything of value and actually goes so far as to specifically include access/use of a copyrighted work.
It includes exchange of a copyrighted work, not access/use of one.
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.
McBride never used the term. He used the term "profit motive," in a colloquial context, referring to the Constitution. The legal definition of "financial gain" as used in title 17 of the US Code, as amended in 1999, is irrelevant.
Linus points out that the definition of "profit motive" includes the exchange of copyrighted material, which is exactly what the GPL provides for.
No, he points out that the definition of "financial gain," as used in Title 17 of the US Code, includes the exchange of copyrighted material. In other words, it's completely and utterly a non-sequitur.
It's like if Darl said "The GPL is evil" and then linus replied, "Nuh uh, Bad is a song by Michael Jackson."
That's not the case, though. The definition of "financial gain" only applies to title 17 of the US Code. It doesn't apply to the Constitution, and it certainly doesn't apply to SCOs arguments about the Constitution.
And he ends up with a quote/explanation, which backs up the fact that the Constitution does include wording to ensure financial gain (does it really?)...albeit in the form of copyrighted work.
No. It doesn't really. The definition of "financial gain" is used to determine whether or not copyright infringement is a criminal offense. If you commit copyright infringement for "financial gain," you can be charged criminally. It has nothing whatsoever to do with whether or not a license is valid.
I don't see how spreading more false statements is going to keep him from getting sued by the shareholders. It seems to me like he knows he's in deep shit and now he's just trolling to have fun with it. But maybe he really is that dumb.
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.
After looking further into the law, I have to conclude that Linus doesn't even know what he's talking about on this issue. The line about financial gain was added in 1999, by the No Electronic Theft Act, and it is meant to determine when copyright infringement becomes a criminal offense. In other words, if you "trade" one copyrighted work for another over the internet, you are guilty of criminal copyright infringement.
As fun as it would be to see these two legal morons battle it out in the courtroom, I'm glad they're going to have lawyers to do it for them, for the sake of the law being upheld.
At the end of it, I'm left wondering what he's really trying to say.
Especially since the line about "other copyrighted works" was added in 1999, by the No Electronic Theft Act. So by Linus's argument, the GPL was Unconstitutional, before 1999.
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.
With proprietary software, forking generally does not take place since development is centralized within a firm and disciplined by market forces.
Sure, forking doesn't take place, because of copyright issues. Instead you have two different companies working on the exact same thing from scratch. Yahoo Messenger, AIM, MSN Messenger, all worked on separately without any collaboration whatsoever, and completely incompatible with one another. Forking is better than the alternative.
If you're going to do it cross platform, you'd pretty much have to use C. Or maybe java.
In other words, I ain't volunteering. As for the proxy, I'd say definately not. It'd be too easy to block a proxy, and the operator of the proxy could possibly be charged with something. If this is gonna work, it's gotta come from all different directions, just like spam.
The problem is that people aren't going to trust you to make a good product, or that you've made a good product. They're going to want to try it out first, and once you've let them try it out, oops, you've gotta give the source (at least, if it was based on another GPLed product).
Another potential solution is to break the software up into small parts, and then charge a small fee for each part.
Maybe. I'm not so sure the courts would allow this, though. But then again, not too many ISPs are going to have the money for the long court battle to find out.
Slashdot Mirror
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.
Why are copyrights inherently wrong?
Because they reach into the private homes of adults and stop people from their exercising their right to pursue happiness in a manner which does not harm anyone else.
As a programer I would like to at least be given credit for my work.
As a programmer I'd like world peace, but that doesn't mean I should get what I want just because I write software.
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...."
Math shouldn't be copyrighted or patented. If anything, patents make more sense wrt to software than copyrights. Copyrights are about protecting art. Patents are about protecting tools. The vast majority of software out there is a tool, not a piece of art. Of course, I don't think we should be granting patents on software either, but if anything, patents make more sense than copyrights.
It makes it clear that the authors of Title 17 considered exchange of copyrights to constitute "financial gain".
Well, first of all, it wasn't the "authors of Title 17," it was the authors of the No Electronic Theft Act. Secondly, it doesn't say the "exchange of copyrights," it says the exchange of copyrighted works, in other words, P2P filesharing. Thirdly, the authors weren't saying that was the only definition of the term, but merely that that was the definition to be used when that term is used in Title 17. And fourthly, the guy from SCO didn't even use the term. He used the term "profit motive."
The authors of Title 17 would not have used that definition had they not believed it to be Constitutional.
The definition is perfectly Constitutional. If you violate copyright wilfully and with the purpose of getting other copyrighted material in return, you're guilty of criminal copyright infringement. That's a constitutional law, and it has nothing whatsoever to do with the SCO argument.
It's not irrelevant; the use of such language in law (Such as the "No Electronic Theft" Act of 1997, where this particular snippet comes from) provides a precedent for translation to future legal situations, such as this particular case.
No, it most certainly doesn't. No law passed in 1997 can ovverride the Constitution. Either the GPL is Constitutional, or it isn't. The NET Act is irrelevant.
It has no relevance in the document that spawned it
And that's the only document that it applies to in the first place. "Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following"
AS USED IN TITLE 17 OF THE US CODE, "financial gain" means foo. That is completely irrelevant to what some guy from SCO meant when he used the term "profit motive," which isn't even the same friggen term as defined in the US Code.
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.
Darl never used the term "financial gain." He used the term "profit motive."
Linus is just clarifying what "financial gain" means in terms of the copyright code.
As of 1999, when that part of the definition was added.
Although most people see "financial gain" and instantly think $$, he points out that the legal definition of the term "financial gain"
as used in title 17 of the US code, as of 1999 when the definition was changed to include exchange of copyrighted works
includes not only $$, but anything of value and actually goes so far as to specifically include access/use of a copyrighted work.
It includes exchange of a copyrighted work, not access/use of one.
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.
McBride never used the term. He used the term "profit motive," in a colloquial context, referring to the Constitution. The legal definition of "financial gain" as used in title 17 of the US Code, as amended in 1999, is irrelevant.
Linus points out that the definition of "profit motive" includes the exchange of copyrighted material, which is exactly what the GPL provides for.
No, he points out that the definition of "financial gain," as used in Title 17 of the US Code, includes the exchange of copyrighted material. In other words, it's completely and utterly a non-sequitur.
It's like if Darl said "The GPL is evil" and then linus replied, "Nuh uh, Bad is a song by Michael Jackson."
That's not the case, though. The definition of "financial gain" only applies to title 17 of the US Code. It doesn't apply to the Constitution, and it certainly doesn't apply to SCOs arguments about the Constitution.
And he ends up with a quote/explanation, which backs up the fact that the Constitution does include wording to ensure financial gain (does it really?)...albeit in the form of copyrighted work.
No. It doesn't really. The definition of "financial gain" is used to determine whether or not copyright infringement is a criminal offense. If you commit copyright infringement for "financial gain," you can be charged criminally. It has nothing whatsoever to do with whether or not a license is valid.
I don't see how spreading more false statements is going to keep him from getting sued by the shareholders. It seems to me like he knows he's in deep shit and now he's just trolling to have fun with it. But maybe he really is that dumb.
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.
After looking further into the law, I have to conclude that Linus doesn't even know what he's talking about on this issue. The line about financial gain was added in 1999, by the No Electronic Theft Act, and it is meant to determine when copyright infringement becomes a criminal offense. In other words, if you "trade" one copyrighted work for another over the internet, you are guilty of criminal copyright infringement.
As fun as it would be to see these two legal morons battle it out in the courtroom, I'm glad they're going to have lawyers to do it for them, for the sake of the law being upheld.
At the end of it, I'm left wondering what he's really trying to say.
Especially since the line about "other copyrighted works" was added in 1999, by the No Electronic Theft Act. So by Linus's argument, the GPL was Unconstitutional, before 1999.
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.
With proprietary software, forking generally does not take place since development is centralized within a firm and disciplined by market forces.
Sure, forking doesn't take place, because of copyright issues. Instead you have two different companies working on the exact same thing from scratch. Yahoo Messenger, AIM, MSN Messenger, all worked on separately without any collaboration whatsoever, and completely incompatible with one another. Forking is better than the alternative.
But they did give their citizens the ability to fight it in court, just like Washington, Kansas, Virgina, and many others.
SFW? It didn't accomplish anything. It was completely useless.
It's saying to the state's that they aren't capable of passing effective anti-spam legislation.
They aren't.
It's saying the the citizens of those states that their elected state officials can't do the job so we, the feds, are going to do it for them.
Yep, that's exactly what I said they were saying.
Hmm, that's probably not legal.
C'mon, do you think the spammers rely on updated lists? We don't need to get them all 100%.
Why not accept all the offers?
I have a friend in California. He still gets tons of spam. California most certainly did not do something to stop spam.
If you're going to do it cross platform, you'd pretty much have to use C. Or maybe java.
In other words, I ain't volunteering. As for the proxy, I'd say definately not. It'd be too easy to block a proxy, and the operator of the proxy could possibly be charged with something. If this is gonna work, it's gotta come from all different directions, just like spam.
The problem is that people aren't going to trust you to make a good product, or that you've made a good product. They're going to want to try it out first, and once you've let them try it out, oops, you've gotta give the source (at least, if it was based on another GPLed product).
Another potential solution is to break the software up into small parts, and then charge a small fee for each part.
There were several states with bills passed that actually did something useful to stop spam.
Really? Name one.
This one makes it easier to spam.
True. That's why I put the quotes around my statement. It was what the government was saying, not what I was saying.
Maybe. I'm not so sure the courts would allow this, though. But then again, not too many ISPs are going to have the money for the long court battle to find out.
More like, "You can't solve the problem, so we'll give it a try."
This isn't common law, this is statutory law.