More SCO fud, this time insulting the constitution
I apologize for the silence, but we've been in Japan this week announcing iCommons in Japan. (More on that soon). But after reading this extraordinary document by Darl McBride of SCO infamy, I couldn't resist canceling this morning's meetings to respond.
From the start of this pathetic lawsuit, Eben Moglen of the Free Software Foundation has argued that there was nothing behind the SCO claims. His arguments are persuasive. But if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO.
McBride's argument is grounded in the Constitution. (Well, close to the constitution. He quotes the text of the constitution to be:
Congress shall have Power [t]o promote the Progress of Science and useful Arts, open-source advocates argue against copyright and patent laws, and whatever measures they take to by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.Actually, the framers didn't say anything about "open source advocates.")
As he rightly argues, the Constitution requires that Congress only grant copyrights where those copyrights "promote the Progress of Science." Thus, if Congress granted copyrights in a context where they didn't "promote progress" one might well ask whether such a law was constitutional (e.g., a law that extended the terms of existing copyrights, but let's leave that aside for the moment).
But the key move in the McBride-FUD is his claim that proponents of free software and open source software are somehow against copyright.
He claims that "GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union"; that "Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights"; that "the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support "free" - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?"; that "SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension"; and that "We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."
Let's take each of these claims in turn:
• "GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union"
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.
• "Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights See - http://www.redhat.com/legal/patent_policy.html
Well, go see just what Red Hat says in the policy statement it makes. What Red Hat (and any one sensible in this debate) argues is that software patents are bad policy and should be abolished. But no where does Red Hat argue that copyrights should be abolished.
• "the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support 'free' - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?"
That's exactly right. The issue is clear: Do you support the property rights that Congress gives the creators of software -- the right to decide to (1) sell your software, (2) license your software, or (3) give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right.
Again, the owners of Free Software, like owners of Microsoft software, choose option (2). They choose to license their property. They don't sell it, or simply give it away. The terms under which they license it are, of course, different -- they require openness; Microsoft requires money (mostly). But still, both get to "require" something because both are relying upon the property right that Congress has given them.
• "SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension"
This is the most interesting (and silly) claim made in the whole of McBride's piece. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material. If JD Salinger writes a novel that he doesn't want to be published, copyright law gives him the right to put the novel in a drawer, and never sell it at all. Indeed, the law would punish anyone who stole the book and published it without his permission -- even if the "motive" of the thief was "profit."
This again follows from the nature of a property right -- it is the right of the owner to decide what to do with his resources. Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more "profit," he decides instead to use the money to save millions of lives in Africa?
It is therefore perfectly permissible for the owner of a copyright to do nothing with it. And it would be perfectly permissible for the owner of a copyright to give it away -- to dedicate it to the public domain. (And if you'd like to do that, Creative Commons will help). But again, GPL'd software is not dedicated to the public domain.
McBride, however, goes even further than claiming that there's some constitutional problem with giving IP away (deciding not to take advantage of the "profit motive.") The implication of his argument is that somehow the framers of the constitution were mandating that the only laws that Congress could pass would be laws that protected copyright owners who purported to sell their creative work. That unless the owner follows "the profit motive," the right is, in some sense, illegitimate.
Well, first, and again, there are plenty of companies that are developing and releasing GPL'd software because of the profit motive. IBM/HP/etc. have adopted this model for developing software because they believe it will make them more money than any other. They don't adopt it exclusively; they don't adopt it for all kinds of software; but they adopt it where it serves their profit motive, and so, even under McBride's test, there should be no problem with GPL'd software for them.
But more fundamentally, where is there any legal authority anywhere for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created? Answer: No where. There is no such authority, anywhere. It is, like most of the SCO suit, simply made up.
• "We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."
We should all believe that the "progress of science" is best advanced when "Authors" have the right to do with their property whatever it is they want to do -- consistent with the law, and so long as the property right is properly balanced. And we should all believe that the "progress of science" is best advanced when that right is "vigorously protect[ed]".
But the owners of GPL'd software are doing no more than exercising this right, just as Microsoft would exercise its right. They are profiting from the right to choose the terms under which they release their software, and the terms they have chosen also have a great benefit to other software innovation. They exercise their property right; they and we benefit.
But if we are to protect that property right "vigorously," then we should take steps to protect property owners from baseless lawsuits against their right to use their property as they wish. So when it comes to the matter of sanctions against the lawyers in this case, the judge might well want to consider how important it is that the property right of copyright owners be "vigorously" defended.
----
Finally, notice what McBride doesn't say. He does not say that the GPL is unconstitutional. To say that, he would have to say that Congress doesn't have the power to create a copyright that gives authors the right to license their software in the way the GPL does. To say that, he'd have to believe that Congress's decision about how best to grant copyrights was subject to strong judicial review. To say that, he'd have to believe Eldred was wrongly decided. But instead, he seems to like Eldred just fine.
Instead, the most he can be understood to have said here is that the property right of copyright should be defended. I know of no one in the FSF, or Free Software movement generally, who doesn't believe that. Copyrights, properly defined, like any property right, properly defined, should be defended; and the right of authors to make their work available under a license such as the GPL is just one more example of how property rights ought properly to be defended.
The SCO case has been dragging through the courts for months now. McBride threatens another 18 months before he gets to trial. But if this is all they've got, then again, Eben had it right at the start. This is nothing more than a failed company using a failed legal system to make money rather than producing great software. Don't tell me this is what the Framers had in mind when they drafted the Progress Clause of our Constitution.
Updated: thanks to Richard Morin and John Riedl for corrections; and added the following:
Many have written to correct my statement that McBride "doesn't say" that the GPL is unconstitutional. I didn't mean that. I meant he doesn't make the argument. The claim that the GPL was unconstitutional was what got me to respond in the first place. But the letter merely asserts that absurd claim; it doesn't (and couldn't) defend it. Sorry for the mistake and thanks for the corrections.
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Comments (97)
In court filings SCO claims that the GPL is "void"[1], unenforceable[2] and “violates the U.S. Constitution”.[3] So, they are arguing that the GPL is unconstitutional, no?
[1] Sixth Affirmative Defense at pg. 16 of Ammended Answer to Counterclaims ( http://www.groklaw.net/pdf/AnswerAmendCC.10-24-03.pdf or http://www.groklaw.net/article.php?story=200310291549399 )
[2] Id., Seventh Affirmative Defense at 16.
[3] Id., Eighth Affirmative Defense at 16.
I'd been trying to figure out what they meant by the Eighth Affirmative Defense. The open letter didn't make it any more plausible. My further comments are here.
Excellent response to McBride.
I certainly hope the part about "sanctions" against SCO's lawyers holds true. This needs to be treated for what it is: a complete nuisance to the legal system.
I tend to believe this was McBride's "last stand" before he get's laughed out of court.
How does SCO justify their profit motive position? They have consistently lost money. So, do you get to claim copyright or patents for your software if you can not make money with it? They may have a profit motive but they have no profit-ability.
I think the reference to "open source advocates" in Article 1, Section 8 of the Constitution is a goof on the part of Newsforge. In http://www.sco.com/copyright/, we see this:
Congress shall have Power … [t]o 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.
Not that this suddenly fixes their precarious position...
It almost looks like this letter was designed to infuriate supporters of Free Software, Open Source, and other Internet movements.
SCO specifically cites two hated legal events:
the DMCA
the Eldred verdict
as support in attacking the GPL, the FSF, Red Hat, and Linux in general.
What do they have to gain from making us all mad?
While McBride is indeed "silly," I don't believe that he is actually arguing "that there's some constitutional problem with giving IP away".
Instead, I believe he is referring to the so-called viral nature of the GPL. SCO will argue that the GPL deprives creators of their right to profit from their creations when they incorporate GPL'd code into their creation.
SCO have made reference to the GPL "virus" in previous (nonsensical) claims that the GPL would prevent, e.g., a brokerage firm from 'distributing' an application that uses GPL code internally within the company.
Perhaps someone needs to teach our dear Mr. McBride the difference between copyrights (which Red Hat does not oppose), and patents (which Red Hat does oppose in regards to software, only). He claims that Red Hat, FSF, etc, all want to destroy INTELLECTUAL PROPERTY LAWS. I've never seen Red Hat, FSF, or even RMS take a stand against trade secret, or trademark laws. On, the other hand, I've seen all three take exception to recent changes to copyright laws, and to software patents in general. As I understand it, all of these are very different, and have different obligations for the owner.
Now, the big question is, does he make this error on purpose? Is this malice or incompetence? If it's malice, he ought to be careful. It's hard to complain that you're being misquoted when you constantly misquote others.
Jessica Litman's excellent essay on the different approaches to copyright enforcement for facts and expression seem relevant.
She argues persuasively that the open reproduction of facts on the internet has indubitably advanced the progress of science and the useful arts, whereas the fragmentation and chaos of restricted copyrights on music has done the opposite.
Really happy to see you getting involved in this legal debate Professor Lessig. Having a respected opinion leader in the field of law, like yourself, stand up against the SCO FUD machine is essential in order to minimize the damage that SCO is able to do to Open Source software.
from the SCO letter:
However, there are a group of software developers in the United States, and other parts of the world, that do not believe in the approach to copyright protection mandated by Congress.
fully the rest of the world does not believe in the approach to copyright protection mandated by the US congress. contrary to the view of many americans, the US constitution has no significance outside the borders of the US, its territories, and the colony of iraq. (it is arguable if the US constitution has any significance within these territories, but that is another discussion.)
for the US, "promotion of the arts and sciences" is a straightjacket which cannot be removed.
i assume that the authors of the US constitution considered progress of the arts and sciences as a proxy measure of the general advancement of society, but breyer, in his eldred dissent, literally equates the two:
"The Clause does not exist "to provide a special private benefit," but to "stimulate artistic creativity for the general public good."
it is a rather elitist and snobbish view, but one which seems perfectly consistent with how i read the US constitution. to paraphrase justice black's comment on the US bill of rights that "the words 'no law' mean 'no law,'" "promote the progress of science and useful arts" means "promote the progress of science and useful arts."
the US congress and courts cannot ignore this clause - even if common sense says they should - and as the majority opinion in the eldred case seems to have done:
"[t]he economic philosophy behind the [Copyright [C]lause is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors."
whilst i agree with the majority's thinking, it seems to me inconsistent with the words of the US constitution.
this underscores the problem with debating copyright issues in the context of US-specific law. one may argue that software patents do nothing to promote the progress of software development, but this ignores the impact of societal progess orthogonal to progress in software.
consider a right triangle where the base is progress of the arts and sciences and the height is progress orthogonal to the arts and sciences, the area is the overall progess of society.
those who argue against software patents believe that the area of the triangle only increases as the base lenghtens.
there are others (such as myself) who believe that the area of the triangle can also increased by progress which occurs orthogonal to the base. stagnation of base (progress of software development) may be a necessity for orthogonal developments to occur.
microsoft's windows may, for example, represent a very stagnant progress in software development, but its ubiquity and ease of use has allowed innovation and progress to occur in everything else.
in the realm of copyright and patent law, lawmakers should be able to look at both axes and maximize the area.
it seems to me that this is what the majority in the eldred case tried to do, but in so doing it appears as though they removed the straightjacket requiring them to only look at the "progress of arts and sciences."
this simply underscores the futilty of arguing copyright law in the one-dimensional context of the US constitution. in this, as in many other things, US leadership is an unwelcome development for the rest of the world.
as a final remark, SCO is not the dragon which once slayed will make the Linux world safe from dragons. SCO is merely the first dragon. it is the near total lack of respect for private property (patents and copyrights) exhibited by the open source movement will ultimately bring more dragons. slay SCO and another will quickly take its place.
if the open source movement learns respect for the patent and copyright laws of all nations and there may yet be hope for a peaceful co-existence.
Lessig: "Finally, notice what McBride doesn't say. He does not say that the GPL is unconstitutional."
Well, actually he does say right near the top: "SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws."
So I would say: McBride does say the GPL violates the Constitution (without apparently backing up that claim), but the bulk of his document is about profit motive and his belief that using the GPL is bad for progress, the U.S., those wishing to make money, etc.
And of course, given that he said the above, I'd like to know how he thinks SCO (formerly Caldera) can have been distributing Linux, GNU, etc. code (for which they have no copyright) all this time.
This kind of thing makes me sick to my stomach. There is another example of a corporate powerhouse trying to bully consumers to make some extra money: Northwestern Mutual has done the same type of tactics to its OWN agents. The site linked to discusses this.
Greed drives to many of these companies.
Three Blind Mice: What do you mean by claiming that the open source community lacks respect for copyright and patents?
The open source community (to the degree that it is meaningfull to describe this losely know group as a collective entity) has great respect for copyright and patents. As far as copyright is concerned I would think you saw reading Lessig article that the whole concept of the GPL is based upon the enforceability of copyright. And if you had followed open source projects somewhat close you would have known that a lot of time is spent on licensing debates (meaning what license to use for what piece of code).
As for patents. Yes, most in the free software community think software patents are counterproductive and anti-competitive. (A view shared by capitalist publications such as the Economist). But as you state yourself patents are not global so even if stuff is patentend in the US it does not hinder people in the rest of world in implementing them. US free software companies do work hard at not shipping patented technology however, which is why Red Hat doesn't have mp3 support out of the box for instance.
It is also based on the respect for the law of the land, here represented by patents, that the open source community are working on creating unencumbered media formats like the popular music format Ogg Vorbis and the Matroska video format.
It is also worth nothing that the code SCO claims has their copyright which has gone into Linux is put there not by the private member of the open source community, but by large corporations which have the kind of legal verification systems that SCO claims free software lacks.
Am I crazy to think that McBride is whipping up this frenzy just to increase the use of Linux, and present the increase to SCO's shareholders as more potential income from SCO's IP License for Linux program?
Well, if you want to find out how large/big your opposition is, then you need to get them on the baricades. Infuriating the FOSS community serves exactly this. Look at the storm SCOX/McBride has caused.
I think that the more relevent question here should be: for whom is he doing this?
on preview, Christian Schaller makes an excellent point.
my statement that the open source community lacks respect for copyright is not supported by the facts which he presents.
i withdraw the statement and thank Christian for his reply.
If you read Groklaw regularly, you will see that SCO has little chance of success, and their strategy, rather than being "brilliant," has been absurd and pitiful so far. Now if you wish to argue that they are playing to ignorant investors, then you could have a point that waving their arms and pounding the table as they have has made a difference -- witness the rise in the stock so far this year. But once the facts of the case began to leak out (or rather were researched out), the stock rise stopped, the magazine articles turned against SCO, and their momentum quickly ground to a halt.
As for Boies, don't let his reputation dazzle you into thinking there must be a legal basis for SCO's case. Mr. Boies is well-known for not being personally that technically literate. Maybe he uses email now, but it wasn't that long ago that he didn't. It's the law he knows, not tech as much. Given the convoluted history of UNIX, it is entirely conceivable that SCO could have shown him their side of the story and have it make sense to Boies. If you just listen to SCO, they sound properly aggrieved in law. It's only when you see the research done by everyone else that you realize SCO hasn't get a leg to stand on.
I strongly suspect Mr. Boies realized after the fact that he signed onto a sinking ship with little chance of success, and that is why he negotiated an extraordinary deal giving his firm 20% of the company in case of settlement or buyout...in addition to mega-bucks up front. If he's going to lose big time, at least he can make some dough. He'll need it. His reputation has been shot because of this SCO nonsense.
This is the most clear and easy to understand essay about the GPL and copyright that I have EVER read.
Congratulations!
"I couldn't resist canceling this morning meetings" in the first paragraph
should probably read "this morning's meetings."
"As he rightly is argues" in the fourth paragraph should probably be "As he rightly argues." I have a feeling you might get some wide readership on this response...
While I abhor the actions of SCO, it seems that most
people do not know the subtle difference between license
and copyright law.
License is a kind of contract which means that at least
two parties agree to terms and conditions in the license.
What this means is that the terms and conditions can
override the laws unless the laws explicitly forbid such
terms and conditions or such terms and conditions are
against the public policy or unconscionable (such as
selling yourself as a slave).
That is what GPL as well as many other software
licenses does. How is this possible? First, the copyright
law grants authors and artists the rights in their works.
With the rights already in their works, they can create
any kind of license that specifies what the parties can do,
can't do, are required to do, and aren't required to do
with the penalty for violating the terms and conditions.
These terms and conditions in turn can conflict with the
laws.
Is this good policy? In the light of Bowers v. Baystate,
the answer seems to be no. It is very extremely fortunate
for all of us that GPL contains a paragraph (number 5)
which gives you an option to decline the license. However,
this does not eliminate the real concern that people can
misuse the power of license to go beyond the reach of
copyright such as to enforce terms and conditions even
after copyright term expires.
The statements saying that GPL and other open licenses
support copyright law are not wholly accurate. License and
copyright law are two different beasts. It all depends on
what the terms and conditions in the licenses say and do
not say. As the saying goes, the devil is in the details.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions in
this comment in the public domain.
Blaming a presidential administration for the actions of a poor lawyer is indeed the height of ignorance. The office was never intended to be that of god-king.
And neither was our legal system intended to prop up failing companies by allowing them to act as parasites on a profitable business community that also happens to function in many cases remarkably as a public good, especially at the individual level (to say nothing of non-profit sector and NGO's).
Like it or hate it, GPL has given us a number of useful things, and I have seen no strong argument for any harms other than to those that allege some sort of right to a mythical profit value sum - in short, extortion through litigation.
I know of many companies that profit from using GPLed code. Linksys uses the Linux kernel in at least one of their routers. There are numerous TV settop boxes using Linux. Another silly argument without merit from Darl.
This again follows from the nature of a property right -- it is the right of the owner to decide what to do with his resources. Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more "profit," he decides instead to use the money to save millions of lives in Africa?
The author writes the above, I would like to point out the obvious error in the above statement.
This link should do that just nicely.
Gates is not so nice.
Thanks,
David Millar
aka
Spl0it
Why bother with SCO court gesticulations ?
I d rather some hard work was put in improving VNC to the point where it surpasses tarentella.
Then I ll maybe see some entertaining news about an SCO lawsuit against AT&T research labs ;)
why so long?
this first started in january. by july sco had sued ibm. it's now december. it seems likely that this lawsuit will drag on until 2005 or possibly later.
i really abhor conspiracy theories, but it's pretty obvious who is going to benefit from a long a dragged out legal fight. for one thing, we already saw it happen in the early 90's. linux's early days were helped by the fact that bsd unix was held up due to at&t's lawsuit. in this case linux continues to be developed and distributed, but this is affecting people.
how can a company abuse the courts this way and for this long? if sco's case is thrown out in the end will there be any penalties against the company? many of darl mcbrides public comments have been demonstably false is there no way to hold him to account?
since this lawsuit was filed, fox sued al franken and was laughed out of court with the phrase "wholly without merit." and while i'm glad al franken is no longer under threat, i'm wondering why ibm and people who use linux still are?
this case does not give cause to believe in the legal system.
With all due respect to Mr. Riolo, he is wrong.
It is true that a license is a contract, but it is not true that a contract overrides the law. (That would be illegal.)
What a license agreement, like any contract, may do is specify how the parties will choose to or not use their legal rights. The GPL is based on the legal rights of copyright, and the rights the GPL passes on, consequently, are also those of copyright. All the GPL says is that the copyright holders choose to use their rights in a manner consistent with teh GPL.
There is no contradiction. While it is true that a contract to sell my property or donate my property is not the same as the property itself (the sole correct detail in the Riolo analysis), it is not a violation of property rights to say I donate the property for common use (which is what the GPL does.)
Larry -
I'm so glad you're using your powers for good, not evil!
Thank you so much for everything you're doing to protect our freedoms, you _are_ appreciated.
- Blake Caldwell
There are only two possible interpretations of this sort of statement from SCO. 1) They're idiots. 2) They are conducting their case in the media for financial gain. (I suppose a third interpretation is "both".) Clearly from the financial arrangements made with Boies's law firm as reported elsewhere in the media, it is the latter that is most likely the case, certainly as far as the law firm is concerned.
However, I would like to point out again on this site that advocates for intellectual property leave themselves open for this sort of attack because they do not question the underlying logic of the concept of intellectual property itself (as opposed to specific implementations of the philosophy such as copyright and/or patent.) Again, if you are fighting with one hand tied behind you and one foot off the ground because of flawed reasoning about the nature of property, you will not be successful. (Which, however, does not imply that SCO will be successful in this particular instance, merely that SCO's argument will find resonance among many in favor of the concept of intellectual property who do not understand the ramifications of US copyright law as explained by Mr. Lessig - possibly including whatever judges the case comes before.)
EXCELLENT!
Bang on! I has just finished a commentary on this myself, and it was refreshing to see someone else grab the same silliness from Darl and hold it up to review.
There is however, one little thing everyone seems to be overlooking. Nowhere in the constitution or in any other legal document that I am aware of is it stated that profit of the soul is not profit. This too strikes at what vague legal underpinnings Darl managed to bring up. Even if we accept his profit motive cruft, there still is no legal maxim which states profit must be measured in dollars and cents. The feeling of well being and accomplishment and recognition that go aloing with successful participation in a FOSS project is also profit.
There is only two possible motives for the McBride letter.
1) Stupidity or at least incompetence - which we can not wholly blame mcbride for since the .doc contents of the letter revealed that the original author was an underling or 2) Intent to inflame for the purpose of causing the other side to over react or do something rash .
If I'm understanding things correctly, McBride is arguing that not even the copyright owner is allowed to freely distribute their own copyrighted work?
Also, if I'm understanding the law correctly, pretty much anything written is automatically copyrighted by the individual who wrote it. Thus even this message is copyrighted by me (an informal copyright).
So by writing an "open" letter (which is copyrighted), isn't McBride breaking the law based on his own definition? IOW as far as copyright law is concerned, ins't an "open" letter pretty much the same as "open" software?
Guess that's why IANAL
"we should take steps to protect property owners from baseless lawsuits against their right to use their property as they wish"
actually the baseless lawsuits were targeting customers who use the property ownser's property under the license that the property owner granted. They did not target the copyright owners. Correct?
three blind mice sure likes to breed FUD.
Proprietary licenses are less secure than Open Source licenses, contrary to his claim. In the GPL, copyrights are treated exactly the same way as with proprietary licenses. The contract to republish GPL'd code is merely what is different. If Three Blind Mice thinks that a company will be less inclined to use (but not republish) code, then he's wholly wrong. If the GPL is ruled invalid at any point, ever, the authors can simply chose to relicense it under a different license.
The SCO case is about what code was adopted into Linux. This is a problem that affects both proprietary and Open Source licensed programs, and, as we've seen, many proprietary licensed programs have used GPL'd code in their products and have had to be C&D'd by the FSF or the Authors. Since this has never happened with an Open Source licensed program, except in this case with IBM, which, as we've seen, was groundless, the facts say that Free Software is in fact more secure, even in TBM's way of thinking.
When we consider the security of systems released under open licenses, most people consider security by obscurity to be weak and the advantages of peer review to be wholly superior to even the internal paid audits by Microsoft.
When we consider the security of an IT investment, we see that proprietary solutions typically aren't as future-proof as Open Source solutions, and if you're unable to modify your existing structure freely as OS/FS solutions allow and most proprietary solutions do not allow (because they often do not include the source code and use compilation to obscure it), you're putting your company in a precarious position to be either exploited by the vendor or, if the vendor goes under or stops supporting the product (which is common after only a few years), to have to totally redisign your IT infrastructure for a mere single necessary modification.
Moreover, TBM makes the vacuous claim that Open Source advocates ignore progress of the arts and sciences orthogonal to progress in software. Clearly the above benefits I listed were not limted to progress in software, but included things orthogonal to progress in software, for example, future-proofness of the company.
Then he says the following:
"microsoft's windows may, for example, represent a very stagnant progress in software development, but its ubiquity and ease of use has allowed innovation and progress to occur in everything else."
It is its ubiquity that has stagnated progress and hampered ease of use. Does anybody here really think that Microsoft is easier to use than the non-ubiquitous player, Apple? The fact is that diversity combined with generally-acceptable, industry-accepted protocol and interoperability standards is what has allowed innovation. Microsoft missed the boat on the Internet, and it was developed primarily on the free BSD operating system and standardized in an open process at the ISI with international public and private input. Nobody here can deny that the greatest general innovation in software and (one of the greatest in) society in the last two or three decades has been the Internet.
Implementation ubiquity stagnates innovation and progress. I'll remind TBM that the vast majority of the non-client-side Internet runs on Apache, Linux (or some Unix), and Cisco-style routers with non-MS OSs. That MS has a de facto monopoly on the "client side" and to say that this is the cause of the innovation on the Internet ignores the fact that the innovation is not on the client side at Microsoft (the browsers were innovated on Next and Unix stations) either, and that the server side is where the innovation is really happening. Google, Amazon, Ebay, Yahoo, Hotmail -- innovated on Microsoft? Nope. Microsoft runs no useful innovation on the net, today, even with its huge pockets. All it can claim is to run a number of shopping-cart style websites of a number of larger companies not in the software innovation business (mostly because pointy-haired-bosses not so tech-savvy get scared at anything not on their client computers, which is a wholly irrational manifestation of the imperfect market). Virtually every other Internet business model has not been a successful area for Microsoft software.
And we know why Microsoft won the client side of the Internet. The Courts already told us that Netscape, the main browser innovator that gave Microsoft the ability to even connect to the Internet, was unfairly targetted with anti-competitive and illegal monopoly practices. That this could be said to be leading to innovation ignores the much better Mozilla-based browsers. IE has seen very little development since the browser war was won by it, sadly enough. IE for Mac was discontinued and we were told no new major updates until Longhorn -- which is a lifetime away in Internet years.
TBM needs to learn more about reality before making such sweeping accusations of Open Source advocates and errors in regards to Innovation and progress in software and the Internet. He seems to think that the ubiquity of Excel has actually been a good thing for businesses. Even with small businesses, storing anything in Excel is a death wish for losing data if it's been put on a network for shared access -- I've seen many businesses do this to their own downfall.
Open Source != Hackers
This has probably been stated many times before, but I believe that it cuts to the heart of this matter. In a nutshell, SCO is trying to convince unknowledgeable business-persons, that the Open Source advocates et al are attempting to make everyone's IP "free". "You wrote that? We don't care! It's GPL'd now so you're out of luck! You get nothing! You lose!"
I would imagine that they are having a moderate amount of success using this method. From trying to discuss this matter with several people who aren't familiar with Open Source, they failed to understand this situation at all. I'm used to hearing responses such as, "That doesn't make sense. Why would anyone want to give away their software for free? If it's so popular, why wouldn't they try to sell it? Something sounds fishy to me..."
Because McBride is creating his argument in this way, he intentionally makes it sound like the Open Source movement is really about trying to steal the secrets (IP) of other companies and make them public domain, similar to what some hackers may attempt to do. Recently, he has even gone so far as to state that SCO is simply behaving like the RIAA. By making these types of statements, the FSF is equated with "copyrights-be-damned-file-sharing-hackers."
I hate to admit it, but this type of rhetoric is probably having some effect on many poorly informed managers, who are being made to feel like they've purchased stolen goods.
This type of behavior is very upsetting. I personally filed a complaint with the Better Business Bureau as well as the Federal Trade Commission. While I don't expect much from this, I feel that I, as a consumer and user of Linux, am being targeted and threatened. I don't take that lightly.
One thing you didn't pick up on was this. Let's suppose the court did rule that the GPL was unconstitutional, for whatever reason. I can't think of one, but lets just imagine there was.
How does that help SCO's case?
IBM wrote some software for the linux kernel, which, like all software, is protected by copyright laws. They chose to licence it to the community under the GPL. It probably isn't relevant to this case, but I'm sure there was a profit motive in doing this - if their computers can run operating systems which contain the linux kernel, then perhaps more people will buy them. Maybe that isn't good enough, I don't know.
SCO took this code, the software written by IBM, and included it in their "SCO Open Linux" distribution. To do this, they need the permission of the copyright holder - IBM. We are told that the GPL is not a legal way to grant permission, so what permission do they have to distribute IBM's copyrighted software?
You will quite often hear people from the BSA, the RIAA, the MPAA and so on talk about distributing copyrighted works without the permission of the copyright holder. They call this piracy, and they say that the people who do this are involved in theft.
If SCO are distributing copyrighted software without the permission of the copyright holder, and if the GPL is invalid then that is exactly what they are doing, then what they are doing is exactly what the BSA and others describe as software theft.
I really appreciate your words on this.
I think the interesting question it not "Does McBride make sense?" rather "what cents is McBride trying to make".
People should watch their media providers for how they carry this news and look for disclosure of their financial interests. SCO may have simply gone too far out on a limb, only to have Novell and IBM cut it off. They may be in strategic freefall with nothing to lose or they may be trying to satisfy a partner beyond the current trial -- Microsoft for example. Its no secret that they have very few industry friends left -- their political motives should be considerred.
The big Win would be to make some of this posturing financially damaging to SCO. Hurt the company enough that shareholders reject this sort of strategy in the future. Losing this case will decimate SCO's IP portfolio beyond what it was worth at the beginning. I think Caldera never pushed this because they had a better view of the own Intelectual Property stake. The Canopy Group, I think the root cause of this strategy, is taking all the money they can out of SCO but its McBride who will never work again. I hope the repercussions spread up the ladder as much as possible. Boise, Canopy, their role in this should be discovered remembered and publicized. They should bear the responsiblity for their actions.
Lets see if SCO can flush some rotten media links out in the open. Keep an eye on which media sources look for both sides of the arguement. Realise that IBM's closed-mouthedness doesn't generate easy copy for lazy reporters -- encourage them to check Groklaw, this blog, the FSF etc.... Praise is often more powerful than flames. In all things like this being reasonable and accountable is a necessity.
The Open source movement is necessarily more Open & Accountable than many forces out there. We deserve appreciation for that by the media. Educating them how to report us could be a another real win out of this.
bv
Your world is won by your own efforts - nobody else can promise otherwise.
From the above blog by Professor Lessig:
"I know of no one in the FSF, or Free Software movement generally, who doesn't believe that. Copyrights, properly defined, like any property right, properly defined, should be defended; and the right of authors to make their work available under a license such as the GPL is just one more example of how property rights ought properly to be defended."
From Professor Eben Moglen's home page, describing his Research Agenda at http://emoglen.law.columbia.edu/research-agenda.html :
"Free Software, Not the Other Thing
Eben Moglen*
I am a historian and a computer programmer, but primarily I am a lawyer. My research, ongoing for a decade, follows a purely experimental paradigm:
1. Try to create freedom by destroying illegitimate power sheltered behind intellectual property law.
2. See what happens.
Early results are encouraging."
Isn't Professor Moglen saying that power sheltered behind intellectual property law is illegitimate? Isn't this in tension (at the least) with the statement that everyone in the Free Software Movement believes that Copyrights should be defended?
I would like to add that I am all for Free Software (as defined by the FSF) but I am having more and more doubts about the continuing appropriateness of the GPL in advancing the cause of Free Software. Indeed, I tend to believe that cooperatively built information goods, like Free Software, like Wikipedia or like a natural language should not be subject to individual property rights.
Long live the public domain!
Shame on SCO and whoever is behind them!
Respectfully,
Imre Simon
is@ime.usp.br
http://www.ime.usp.br/~is/
Perhaps SCO has just started the end-game. SCO sounds like they are running out of fantastical things to say.
Maybe, I'm just paranoid. Maybe, it's just gut-instinct, but...
Check out the SCO execs' sales of SCO stock, correlate that with the SCO 'press releases' over the last 8 months, the SCO stock value, and Darl's "press media events".
Do you think SCO is pulling a double con-job, on the people they are attacking and the people that have 'invested' and 'funded' them?
The extended time frame for the suit, as well as the publicity releases would seem to indicate that the only purpose is to get someone to buy out SCO to stop the interference with the business operations of thousands of companies. Not just IT companies but those who merely use computers in their normal course of business are having to put a lot of extra time and effort into future planning.
One thing I find myself wondering is why, when it seems obvious that the law is simply being used as an instrument of extortion, aren't the members of the legal profession (Unless it has been completely hijacked by ambulance chasers.) even more incensed than the OSS people.
I think many companies started seriously looking into Linux because of the BSA's tactics of sending threats to everyone who ever registered a piece of their members software for corporate rather than home use which increased the costs of keeping track of often Byzantine licensing schemes. Now this. Will America eventually grind to a halt, gridlocked by frivolous lawsuits?
Generally, I am a big supporter of the arguments and positions that Lessig takes. However, I believe his position that GPL'ed software does not seek a profit motive is wrong.
Profit is "a valuable return." Profit is "the compensation accruing to entrepreneurs for the assumption of risk as distinguished from wages or rent". In fact SCO, Microsoft, or any other vendor does not demand profit for their software they demand rent for their software. This is evident in many Microsoft products where the cost of development and distribution far exceeded the price charged to the customer. Microsoft and many other software companies have created many products and never received a profit.
The GPL license is one of the only licenses that truely requires a profit. To utilized GPL software you must allow the source code to be distributed freely. If an entity makes a modification to a GPL'ed product that modification must also be distributed freely. There is inherently no cost to the remainder of the GPL community for the development of this modification but there is a return -- a better product.
GPL developers take risks of their time, skills, and efforts in contributing to GPL'ed products. In return they receive profits by other developers making other improvements. McBride has it right. There is a profit motive inherent in copyright. But McBride has successfully made people only look at the money. Profit is not limited to just the cash in my pocket. Profit occurs when I get a greater value in return for a small value of investment.
CEK wrote near the beginning of this discussion:
So don't use GPL'd code. I don't see this as any different than not being able to copy big chunks of someone else's copyrighted book into your own. GPL protects the author's right in certain specific ways, as copyright is intended to do. If you don't like the GPL, then don't download GPL sources. End of discussion.
Actually, McBride does claim that the GPL is unconstitutional:
"SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws."
Shouldn’t you point to Darl McBride’s own site (http://www.sco.com/copyright/) rather than NewsForge's copy of it? The SCO site doesn’t have the ridiculous editing error in the Constitution quote…I wonder if that was a NewsForge error instead or if SCO has just corrected its version.
I was afraid before -- when the SCO case debuted in the headlines, but now I'm more amused (though still infuriated -- I'm a linux user and I feel personally 'accused' by SCO and their cohorts) at what's coming down the pike lately. I see this all as the beginning of the end as well. SCO seems to be fighting about laws and patents in general in lieu of the actual case they are trying to pursue. That, to me, is laughable.
I do still have a knot in the pit of my stomach that a judge will not be as informed on the stance of the OSS movement as would be required to make an entirely rational decision. These guys are good at feeding the public, as well as other non-technical persons sob stories and pity pleas.
The lawyers at SCO may only be fighting this battle because they themselves were taken in and signed on the dotted line before realizing it was a loser. Certainly the whole idea of challenging the GPL wasn't their basis for this undertaking at the beginning, but rather a crutch they were forced to fall back on when their first attempts failed. (IE, the conventions in Las Vegas) We didn't even hear about the GPL in relation to this case until after two or three rounds of bickering ended up going nowhere.
SCO will sell out cheap before going to trial, the company buying them would inherit whatever dubious claim they have to the UNIX codebase. IBM might just pay them off, declare they own whatever rights SCO claimed for themselves, and release the UNIX codebase to the public domain. On the other hand, Microsoft could decide to buy SCO at the 11th hour, in an attempt to use its power and influence to bully the court. I of course would like to see them exposed for the thugs they are and lose everything, as well as anyone who foolishly followed these stock market pirates on this ridiculous adventure.
GPL Virual
This is BS excuss. If I write software and I want to license it, I can choose what way I want. If I want all people to release the source if they _use my property_ they I have that right. If I want to allow people to make a profit from _my_property_ then I can use BSD/LGPL. This is not a difficult concept to understand all it comes down to is it is _my_property_
I think that it is an abandonment of ethics rather than greed that far too many corporate entities have taken to heart. End runs around laws are quite commonly reported, and even Enron execs thought that they were doing something that was not illegal. You cannot argue that they thought that they were acting ethically.
Darl is subject to the same mindset, or so it appears. If he were really the IP champion he portrays himself as, he would drop Linux distribution, even in binary form instead of stealing from the GPL developers. He may think that what he is doing is not illegal, but he knows with certainty as a LDS Christian, that what he is doing is unethical.
I'm just plain confused.
The US Constitution is a document that, for the most part, specifies what the Federal government may do, must do, and must not do. In what way could an agreement between two parties (which is what a software license is) have anything to do with the Constitution?
Second, as you say, copyright law does not limit what an author may do with his rights. It limits (or augments, in the case of certain recent and controversial legislation) what those rights may be, as in fair use, but says nothing at all about whether, how, when, or to whom he may assign them.
And I still don't understand what the GPL has to do with this case, except that a) SCO claim injury by IBM's denying their rights in code that they released under GPL; and b) they themselves have violated the GPL. In a) the legality of the GPL is irrelevant; the question in b) isn't part of the case.
This is a response to Mr. Paul Harrigan’s comment.
I suggest that you become familiar with the ruling in
Bowers v. Baystate. That ruling said that it is okay for
a contract to prevent people who agreed to the contract
from doing reverse engineering in spite of the fair use as
permitted by the copyright law.
The current GPL, if you agree to it, does not allow you
to quote any small portion of the code and insert the
portion in a proprietary program. On the other hand,
the copyright law allows you to do that as long as it is
fair use.
The current GPL does not provide an exemption for
the public domain portions in the code. That means
that you can’t copy these portions and reuse them in
any way even though the copyright law allows you to
do that.
Other difference is that there is no time limit on the
terms and conditions in GPL. Theoretically speaking,
the terms and conditions can last longer th