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Caldera Linux Business

Linus Corrects Darl on Copyright Law 606

Posted by CmdrTaco from the neither-of-them-are-lawyers dept.
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."
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Linus Corrects Darl on Copyright Law More

Linus Corrects Darl on Copyright Law

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  • Quoth Linus (Score:5, Funny)

    by Pingular ( 670773 ) on Tuesday December 09, 2003 @11:36AM (#7669204)
    "They are smoking crack."

    • Re:Quoth Linus (Score:5, Funny)

      by tds67 ( 670584 ) on Tuesday December 09, 2003 @01:12PM (#7670353)
      "They are smoking crack."

      Sure enough, the legal code Linus refers to is:

      The term ''financial gain'' includes receipt, or expectation of receipt, of anything of value such as crack, or including the receipt of other copyrighted works in lieu of crack.

    • Linus is smoking crack (Score:4, Insightful)

      by bluesbrosfan ( 729454 ) on Tuesday December 09, 2003 @02:17PM (#7671214)
      ...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)

      • Re:Linus is smoking crack (Score:5, Insightful)

        by avdp ( 22065 ) * on Tuesday December 09, 2003 @02:30PM (#7671354)
        You're misunderstanding him.

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

        Linus is saying that - even by McBride's standard - the GPL is fine, because of the definition of financial is broader than McBride thinks.

  • SCO, FUD, GPL, US... (Score:4, Funny)

    by ViolentGreen ( 704134 ) on Tuesday December 09, 2003 @11:37AM (#7669216)
    Acronyms, Acronyms, Acronyms.... What do they all mean??????????????

  • Excellent.. (Score:3, Interesting)

    by herrvinny ( 698679 ) on Tuesday December 09, 2003 @11:39AM (#7669233)
    Darl said in his letter that this was only the first of many letters... Is Darl going to try and rebutt Linus' statement in the next letter, or is he going to go spread more FUD?

    • Re:Excellent.. (Score:5, Funny)

      by IWorkForMorons ( 679120 ) on Tuesday December 09, 2003 @11:40AM (#7669255) Journal
      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?

    • Re:Excellent.. (Score:5, Insightful)

      by Artifex ( 18308 ) on Tuesday December 09, 2003 @11:43AM (#7669290) Journal
      Is Darl going to try and rebutt Linus' statement in the next letter, or is he going to go spread more FUD?


      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.

    • Re:Excellent.. (Score:4, Insightful)

      by Liselle ( 684663 ) * <slashdot&liselle,net> on Tuesday December 09, 2003 @11:45AM (#7669312) Journal
      Well, since he probably didn't write it anyway, the follow-up letters are only limited by the stamina of SCO's PR department when it comes to spitting out legalese. It's in their best interest to avoid getting into tiffs that expose their flabby case, so I expect them to avoid Linus like the plague, except to offhandedly insult him.

    • Re:Excellent.. (Score:5, Funny)

      by GreyWolf3000 ( 468618 ) on Tuesday December 09, 2003 @11:47AM (#7669341) Journal
      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...

    • Re:Excellent.. (Score:5, Interesting)

      by Surt ( 22457 ) on Tuesday December 09, 2003 @12:03PM (#7669523) Homepage Journal
      The better strategy from Darl's point of view will be to rebut something that is not Linus' argument at all.

      For example, darl might rebut as follows:

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

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

      • Re:Excellent.. (Score:5, Insightful)

        by Dashing Leech ( 688077 ) on Tuesday December 09, 2003 @12:19PM (#7669692)
        The better strategy from Darl's point of view will be to rebut something that is not Linus' argument at all.

        ...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.

      • Re:Excellent.. (Score:5, Informative)

        by anthony_dipierro ( 543308 ) on Tuesday December 09, 2003 @12:31PM (#7669821) Journal

        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.

        • Linus and the Law (Score:5, Insightful)

          by Anonymous Coward on Tuesday December 09, 2003 @02:57PM (#7671686)
          > 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.

  • And that's why Linus Leads (Score:5, Insightful)

    by Ridgelift ( 228977 ) on Tuesday December 09, 2003 @11:43AM (#7669287)
    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.

  • Another great linus quote (Score:5, Funny)

    by pbug ( 728232 ) on Tuesday December 09, 2003 @11:43AM (#7669294) Homepage
    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.

  • Finally... (Score:5, Insightful)

    by GreyWolf3000 ( 468618 ) on Tuesday December 09, 2003 @11:44AM (#7669301) Journal
    Linus is really speaking out. He's made some particularly scathing comments about Darl and SCO previously (I distinctly remember something rather funny about Darl believing that marriage is unconstitutional, as it cuts down on "commercial" prostitution), but this the first "on the record" comment with a good deal of meat to it.

    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 :)

  • Watch Out for the Tar Baby (Score:5, Insightful)

    by judmarc ( 649183 ) on Tuesday December 09, 2003 @11:44AM (#7669303)

    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."

    • Re:Watch Out for the Tar Baby (Score:5, Insightful)

      by Jerf ( 17166 ) on Tuesday December 09, 2003 @11:56AM (#7669436) Journal
      I think that would be OK... it's a defensible statement. The idea that a contract is trying to accomplish something and that a typical contract requires the legal equivalent of error-checking code ("and if one end of the contract keels over dead, the following shall occur:", etc.), and that many times the 'function' of a contract can only be seen by considering the whole as a gestalt, not taking some mechanical, 'error-checking' bit of it out of context, should not be a new one to a judge.

      "Legal fluff" is a bit of a geeky term but it makes sense. SCO could try to make a deal out of this but I doubt it'll do anything but make them look stupid in front of a judge and do little for their stock value. (Remember that despite appearences, they aren't actually trying to look stupid, it all has a purpo$e.)
    • It doesn't matter what he says about the GPL, because that is his *opinion*, not the law. Linus could say the GPL was illegal and it wouldn't matter.

  • never argue with an idiot (Score:5, Insightful)

    by onesandzeros ( 445024 ) on Tuesday December 09, 2003 @11:44AM (#7669306)
    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...

  • Darl's Reply.... (Score:5, Funny)

    by Conspiracy_Of_Doves ( 236787 ) on Tuesday December 09, 2003 @11:44AM (#7669307)
    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*

  • Linus is guilty of the same sin as Darl (Score:3, Interesting)

    by boxless ( 35756 ) on Tuesday December 09, 2003 @11:45AM (#7669318)
    Everyone blasted Darl last week for his challenging use of the english language.

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

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

    • Exactly! Mod Parent Up! (Score:4, Insightful)

      by GillBates0 ( 664202 ) on Tuesday December 09, 2003 @11:53AM (#7669406) Homepage Journal
      This is the exact point that ran through my mind as I read that response from Linus.

      Last week, we were arguing about how believing that everything is profit-oriented, including the Constitution is just cheap and bad. Infact, Linus starts off by hinting at something like that - since it would hinder scientific progress (universities/etc).

      And he ends up with a quote/explanation, which backs up the fact that the Constitution does include wording to ensure financial gain (does it really?)...albeit in the form of copyrighted work.

      • A template (Score:5, Insightful)

        by MarkusQ ( 450076 ) on Tuesday December 09, 2003 @12:23PM (#7669740) Journal

        Here's a template to help understand what they are saying.

        Darl: The $FIZZLE isn't $FOO because it is a $BAR and $BARs aren't $WAZZLE.

        Linux: It doesn't need to be $WAZZLE to be $FOO, but even if it did your argument doesn't work because it says right $HERE [somewhere.gov] that $BARs are $WAZZLE. By definition.

        (Implied: So even if your first assumption were true your conclusion wouldn't hold because your second assumption is demonstrably false)

        Where (roughly):

        $FIZZLE = GPL

        $FOO = legal

        $BAR = an exchange of copyrighted material

        $WAZZLE = a financial transaction

        -- MarkusQ

      • Re:Exactly! Mod Parent Up! (Score:4, Informative)

        by anthony_dipierro ( 543308 ) on Tuesday December 09, 2003 @12:42PM (#7669961) Journal

        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.

      • Re:Exactly! Mod Parent Up! (Score:4, Informative)

        by bfree ( 113420 ) on Tuesday December 09, 2003 @12:43PM (#7669967)
        I'm still trying to figure out what the hell they are really talking about! One of the things I did was search [warwick.ac.uk] the US Copyright code 17 which he references for "financial gain". It appears in 5 places.
        1. The definition Linus mentions.
        2. Sec. 1201. - Circumvention of copyright protection systems [warwick.ac.uk] where nonprofit exceptions broken for commercial advantage or financial gain can lead to civil remedies and then the loss of exceptions.
        3. Sec. 110. - Limitations on exclusive rights: Exemption of certain performances and displays [warwick.ac.uk]. Here financial gain excludes performances from being copyright exempt where they could otherwise be.
        4. Sec. 1204. - Criminal offenses and penalties [warwick.ac.uk]
        5. which states the penalties which apply for people who break the code for commercial advantage or private
        6. financial gain.
        7. Sec. 506. - Criminal offenses [warwick.ac.uk]
        8. which tells you that willfully breaking a copyright for commercial advantage or private
        9. financial gain or by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, sends you to Title 18 - Crimes and Criminal Procedure :: Crimes :: Stolen Property :: Criminal infringement of a copyright to find out your punishment.
        So basically the phrase "financial gain" is simply used as a standard for deciding whether something is eligble for an exception, or whether punishments apply. What this means for what Darl and SCO are really trying to say though ....

    • Re:Linus is guilty of the same sin as Darl (Score:4, Informative)

      by Hrothgar The Great ( 36761 ) on Tuesday December 09, 2003 @11:55AM (#7669427) Journal
      I could see how some people might be confused because it's kind of a complicated issue, but it seems pretty clear to me that Linus was arguing over Darl's definition of "profit motive".

      1. Darl claims that the GPL removes the "profit motive" inherent in U.S. copyright.

      2. Linus points out that the definition of "profit motive" includes the exchange of copyrighted material, which is exactly what the GPL provides for.

      So he's basically saying that the GPL does not in fact destroy profit motive.
      • So he's basically saying that the GPL does not in fact destroy profit motive.

        Which misses the point, actually. As a copyright holder, my "motive" is actually nobody's business but my own. I am free to copyright something and then sit on it. My copyright is still valid. It is not contingent on me going out and using it to make fistfuls of cash, Darl, nor is it contingent on my receiving free software in return for it, Linus. A right is a right. While rights can be granted with an intended purpose, failing

    • Re:Linus is guilty of the same sin as Darl (Score:5, Informative)

      by Curien ( 267780 ) on Tuesday December 09, 2003 @11:59AM (#7669478)
      I think he expressed his ideas quite well; perhaps you are lacking in reading comprehension.

      He said that, in the context of the US copyright laws, "financial gain" is not limited to refering to capital: it includes the /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".

      IOW, he said, "That word... I do not think it means what you think it means."

    • Re:Linus is guilty of the same sin as Darl (Score:5, Informative)

      by Hallow ( 2706 ) on Tuesday December 09, 2003 @12:03PM (#7669531) Homepage
      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.
    • no, the idea behind copyright is that it provides *a* motive to authors creating works. Since nobody can agree on exactly what should be provided to authors as an incentive, copyrights basically say "the author can get whatever he wants."

      This idea is flexible enough so that things like the GPL can stand squarely on it. "Copyrights" are never going to go away, The GPL is not a stopgap measure until some future day when Everything is Free (no matter what some people may hope). The GPL is the expression today

    • Re:Linus is guilty of the same sin as Darl (Score:4, Interesting)

      by Dashing Leech ( 688077 ) on Tuesday December 09, 2003 @01:22PM (#7670496)
      To be fair, I must say that Linus's piece is not very cogent, either.

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

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

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

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

  • maybe they aren't smoking crack (Score:4, Interesting)

    by meatbridge ( 443871 ) on Tuesday December 09, 2003 @11:49AM (#7669365)
    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?

  • Linus is clear, Darl is confused (Score:5, Insightful)

    by (void*) ( 113680 ) on Tuesday December 09, 2003 @11:51AM (#7669379)
    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.

  • Linus is being very nice (Score:4, Insightful)

    by twocents ( 310492 ) on Tuesday December 09, 2003 @11:53AM (#7669407)
    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?

  • Anyone else see the irony. . . (Score:4, Funny)

    by Anonymous Coward on Tuesday December 09, 2003 @11:55AM (#7669419)
    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.

  • Larry Lessig Corrected Darl Too... (Score:5, Informative)

    by ausoleil ( 322752 ) on Tuesday December 09, 2003 @11:56AM (#7669437) Homepage
    Mr. Lessig had an equally interesting rebuttal of the latest FUD from Darl the other day:

    http://www.lessig.org/blog/archives/001611.shtml

    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.

    • Straight from the US Code: (Score:4, Informative)

      by gillbates ( 106458 ) on Tuesday December 09, 2003 @01:23PM (#7670517) Homepage Journal
      "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. [emphasis mine]"

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

      SCO is simply a troll at this point. Under US law, they can't assert ownership of Linux, regardless of the origins. Maybe this is why HP chose to idemnify their customers - they knew that even if SCO's claims of Linux being a UNIX derivative were true, SCO still couldn't collect royalties. (legally, at least).

  • Linus Hits Below the Belt (Score:4, Funny)

    by 4of12 ( 97621 ) on Tuesday December 09, 2003 @11:57AM (#7669450) Homepage Journal

    With Linus of course providing a link allowing the reader to see the law for themselves.

    That's low.

    Darl would have provided a URL to SCO's business model - you know, the one based on RAMBUS -- but he quickly realized that such a business method was likely to already be patented.

  • Linus, and Noah Webster (Score:5, Informative)

    by RealProgrammer ( 723725 ) on Tuesday December 09, 2003 @12:00PM (#7669488) Homepage Journal
    Because I was interested, I tracked down the Senate Judiciary Committee report (PDF) [loc.gov] on the Copyright Term Extension Act of 1995 [loc.gov]. Here is the gist of the part I found most relevant:

    "... the principal behind the U.S. copyright term--that it protect the author and at least one generation of heirs--remains unchanged by the bill....

    "As the foregoing discussion indicates, the primary purpose of a proprietary interest in copyrighted works that is descendible from authors to their children and even grandchildren is to form a strong creative incentive for the advancement of knowledge and culture in the United States. The nature of copyright requires that these proprietary interests be balanced with the interests of the public at large in accessing and building upon those works. For this reason, intellectual property is the only form of property whose ownership rights are limited to a period of years, after which the entire bundle of rights is given as a legacy to the public at large."

    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)

  • Linus' reply reminds me of... (Score:5, Funny)

    by paiute ( 550198 ) on Tuesday December 09, 2003 @12:00PM (#7669490)
    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.

  • January (Score:5, Insightful)

    by Chris Burke ( 6130 ) on Tuesday December 09, 2003 @12:00PM (#7669492) Homepage
    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.

  • other news (Score:5, Interesting)

    by daniel23 ( 605413 ) on Tuesday December 09, 2003 @12:02PM (#7669516)
    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 [sco.com]

    and...

    Santa Claus Operation

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

  • I know I shouldn't even ask... (Score:4, Insightful)

    by randombit ( 87792 ) on Tuesday December 09, 2003 @12:04PM (#7669544) Homepage
    But how on earth could the GPL "violate the United States Constitution". Isn't the Consitution only binding to the Federal govt? ie, even if there was a clause in there saying "RMS is a kook and the GPL == evil and bad, use SCO Unixware instead", that wouldn't prevent anyone but the Feds from using/dealing with the GPL. Right? Have I been smoking too much crack?

    (Yes, I know, it's Darl, I shouldn't assume it makes even the slightest bit of sense.)

  • Call me an anarchist, but- (Score:5, Interesting)

    by subjectstorm ( 708637 ) on Tuesday December 09, 2003 @12:06PM (#7669558) Journal
    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.

  • Well, but ... (Score:5, Insightful)

    by cpn2000 ( 660758 ) on Tuesday December 09, 2003 @12:12PM (#7669621)
    I really appreciate Linus standing up to SCO & company and all that, but honestly, I dont know if it is even worth his time (or anyones time really) to rebut anything coming from that camp.

    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.

  • re: stallman (Score:3, Funny)

    by ignorant_newbie ( 104175 ) on Tuesday December 09, 2003 @12:18PM (#7669678) Homepage
    >It's not just a crazy idea that some lefty
    >Commie hippie dreamed up in a drug-induced stupor.

    So, Linus... why don't you tell us what you really think of RMS?

    • Re: stallman (Score:3, Funny)

      by RevMike ( 632002 )

      It's not just a crazy idea that some lefty Commie hippie dreamed up in a drug-induced stupor.

      So, Linus... why don't you tell us what you really think of RMS?

      Good point! Note that Linus didn't say "It's not a crazy idea that some lefty Commie hippie dreamed up in a drug-induced stupor." The word "just" implies that it is indeed "a crazy idea that some lefty Commie hippie dreamed up in a drug-induced stupor" but that there is more to it.

  • Darl will not get it (Score:3, Insightful)

    by Anonymous Coward on Tuesday December 09, 2003 @12:19PM (#7669691)
    I don't think Linus' rebuttals will have any effect on SCO. SCO seems fixated on the idea the the opensource community stole code from them and GPL'd it. SCOs argument is still on the fact that "their" code cannot be legally distributed simply because a GPL notice is distributed with it.

    Any arguments put forth that attempt to clarify the GPL for them won't have any effect because I think that SCO would see this as the OS community avoiding the real issue at hand.

    I read the GPL in its entirety once, and it was perfectly clear to me, and I believe it is perfectly clear to SCO as well. But if you put yourself in SCOs shoes and truly believe (as SCO does) that your code has been jacked and the GPL is a way to legalize this action, then SCOs arguments do make sense.

  • CounterFUD: SCO fundamentally opposes cooperation. (Score:5, Insightful)

    by dpbsmith ( 263124 ) on Tuesday December 09, 2003 @12:24PM (#7669750) Homepage
    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.

  • Bandwidth (Score:5, Funny)

    by Shadwell ( 709447 ) on Tuesday December 09, 2003 @12:29PM (#7669804)
    Do you think SCO is just keeping these lawsuits up to pay for the bandwidth of being Slashdotted four times a day?

  • A Tolkien Response (Score:5, Interesting)

    by buckhead_buddy ( 186384 ) on Tuesday December 09, 2003 @12:36PM (#7669876)
    The common (rather than legal) understanding of copyright seems to be what Darl's ghost writer (right-wraith?) is declaring:
    "There can only be one Lord of the [Rights]. Only one who can bend others to his will. And he does not share power!"
    The fact that there are people who are not succumbing to it's greed and wielding these rights to oppress and profit from the work of others was an unexpected way to defend against the corrupting influence of the instrument of power.

    But one should be cautious...

    [The GPL] is a gift. A gift to the foes of [Closed Source]! Why not use this [right]? ... Give [the FSF] the weapon of the enemy. Let us use it against him!"
    While the SCO menace may be simply a minor diversion (akin to Lurtz) the true menaces may be more corrupting and more difficult to fight.

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

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

    • Stay low, hidden in the woods while others feed the corruption of the ruling closed source
    • Unmake the power and release all copyright into the public domain. This destroys the corrupting influence, but it strenghthens the enemy as well.
    • Continue to weild the GPL until the problems and corrupting influence of the intellectual property system can be worked out and the evil truly unmade.
    Sorry, if the above arguments are a bit muddled. I guess I have something else weighing on my mind.

  • Investors Seeing the Cracks at SCO (Score:4, Informative)

    by Ridgelift ( 228977 ) on Tuesday December 09, 2003 @12:47PM (#7670020)
    There's an article over at Motley Fool [fool.com] that gives some insight into the minds of investors on this issue:

    ...on Friday, The SCO Group postponed filing its fourth-quarter earnings report until December 22. The reason: To allow time to hammer out the details of its $50 million private placement.

    While the company insists this would not affect its prior guidance for revenues of $22 million to $25 million, it does seem strange that a public company would have problems with what looks to be a relatively routine process. For short sellers, this is a textbook clue that there may be internal disarray or perhaps, even some finagling.

    I guess today's post by Linus will also help investors get out while the gettin's good.

  • Linus' citation from No Electronic Theft act? (Score:4, Informative)

    by Phil Karn ( 14620 ) <karn@@@ka9q...net> on Tuesday December 09, 2003 @02:12PM (#7671135) Homepage
    Linus cites this defintion from the US copyright act:
    "The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."

    This text sounds awfully familiar. Wasn't it placed there by the No Electronic Theft Act just a few years ago in response to the Brian LaMacchia case? He was accused of exchanging copyrighted software not for money, but in expectation of receiving other pirated software. At the time, I believe you had to take money or tangible property for piracy to constitute a criminal offense. Non-commercial file swapping didn't qualify; it was merely grounds for a civil suit by the copyright holders. NETA plugged up this "loophole".

    That Linus could take a lemon like the NETA and turn it into lemonade like this is just wonderful.

  • Darl/SCO are trolls! (Score:4, Insightful)

    by redelm ( 54142 ) on Tuesday December 09, 2003 @02:30PM (#7671344) Homepage
    Darl McBride and SCO are trolls in the USENET sense of the term. They are posting for the purposes of eliciting a reaction, not to question, inform or debate.

    Their latest was issued hours before a _very_ adverse judge's ruling, forcing SCO to comply with IBMs discovery. Clearly, the letter was designed to distract attention from the financial press.

    USENET also has a response: "Don't feed the Trolls"

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