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Caldera Government The Courts News

McBride's New Open Letter on Copyrights 770

Posted by CowboyNeal
from the can't-go-a-day-without-some-sco dept.
dtfinch writes "An open letter was posted today by Darl McBride, where he restates his claim that the GPL violates the U.S. Constitution, patent laws, copyright laws, and the DMCA. Mostly he just builds up a false image of the Free Software Foundation and open source supporters claiming that they have no respect for intellectual property and believe copyrights should be eliminated, then attacks that image, AKA the straw man attack. Nothing we haven't seen before."
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McBride's New Open Letter on Copyrights

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  • by cgranade (702534) <{moc.liamg} {ta} {edanargc}> on Friday December 05, 2003 @01:23AM (#7636278) Homepage Journal
    Hm... Darl McBride writes an open letter. I thought that openness was against the US Constitution, ad nauseum.
    • I think he feels that if he repeats his diatribe often enough that even he will begin to believe it.
      • Re:Irony abounds. (Score:4, Insightful)

        by Frymaster (171343) on Friday December 05, 2003 @02:21AM (#7636604) Homepage Journal
        whether he believes it or not isn't important... the people who "need" to believe this (from sco's point of view) are - in no order:

        • investors - so they buy stock for his pump-n-dump
        • corporate linux users - so they put more consideration into getting licenses
        • sco staff - so they don't spend their workday surfing workopolis [workopolis.com]
        • his mom - so she's not so embarassed that she goes back to her maiden name

        honestly, he doesn't care if anyone on this site believes him or not (unless his mom is reading that is...)

        • Re:Irony abounds. (Score:5, Informative)

          by Urkki (668283) on Friday December 05, 2003 @04:03AM (#7636980)
          No, it's only for investors.

          They couldn't care less about the "Linux license" pocket money. And as it is, all SCO needs is a PR and law departments, so if other employees go away, that would only be convenient. And somehow I don't see him caring the slight bit about what his mom thinks of SCO business practices, either...

        • Re:Irony abounds. (Score:5, Interesting)

          by RoLi (141856) on Friday December 05, 2003 @05:45AM (#7637267)
          No, you can't buy a Linux license from SCO because that would be illegal (because of the GPL) so SCO won't sell it to anybody.

          They have stated that "one anonymous Fortune 1000 company" has bought a license and I deeply suspect it's either Microsoft or that holding firm (the Canopy group IIRC)

          There are only 2 groups here:

          • Microsoft must believe SCO is doing a good job at spreading anti-Linux FUD - then they will continue to let money flow to SCO
          • Investors must believe that SCO has either a case or will get enough money from Microsoft to survive
    • Re:Irony abounds. (Score:5, Interesting)

      by saden1 (581102) on Friday December 05, 2003 @02:00AM (#7636500)
      McBride didn't write it! You can clearly tell the lawyers wrote it and on top of that it was written after it was revealed that several of their employees contributed actively to Linux with management knowledge. They want to distract the press by publishing this letter.

      SCO won't survive the IBM counter claim for sure.
      • Re:Irony abounds. (Score:5, Insightful)

        by Anonymous Coward on Friday December 05, 2003 @03:31AM (#7636884)

        Disclaimer: I work in Public Relations.

        That having been said, CEOs and the like never, ever, write press releases themselves. And an open letter is just that -- a press release. Call it whatever you want, but that's the purpose it serves.

        CEOs and CFOs and Presidents and the like don't write letters themselves because writing is generally not what they're good at -- and if they are, that's incidental. Most large corporations have an entire PR department whose only purpose is to handle, wait for it, public relations.

        The mark of any good manager is the ability to delegate responsibility effectively. You may be a fair writer, but if your reputation and your company's are at stake, why not hire an expert?

        For the record, I think Darl McBride is a fscking moron. But the fact that he didn't write the open letter shouldn't come as a surprised to anyone familiar with corporate culture.

        • Re:Irony abounds. (Score:3, Interesting)

          by saden1 (581102)
          Usually there's some guidance from the person who want the letter writer. The person who actually writes it and articulates is not important but the person who sets the agenda and makes the request to have the letter written is. That person will most likely dictate the finner points they want to get out there. I was merely pointing out that McBride isn't pushing the buttons.
        • by Anonymous Coward on Friday December 05, 2003 @04:43AM (#7637112)
          Disclaimer: I work in Public Relations.

          I find the word "work" and phrase "Public Relations" to be inconsistant with each other.

          I suggest you use the alternative statement, "I lie for money."
          • Re:Irony abounds. (Score:5, Insightful)

            by dasmegabyte (267018) <das@OHNOWHATSTHISdasmegabyte.org> on Friday December 05, 2003 @10:20AM (#7638148) Homepage Journal
            That's cold, kid. Hey, scenario for you. I own a company. I make a product. It is a really really awesome product that everybody wants.

            But I work in a non-descript brick building in a small town in upstate New York. How ever will people learn of our product?

            Advertising -- and Public Relations.

            Now, I want to tell you why you want to buy it. But it's kind of complicated. I only have a 15 second radio spot. Which of these messages do you suppose is more effective?

            1) Widgets are designed to PDQ your YSZ using ASD technology licensed from ZX. They are sufficient for small to medium clients.

            of

            2) Widgets are freakin' awesome, man. I don't need to tell you. There's all this technology in there but you'll never know anything about it except that you have more time and more room to breath when you use it.

            #2 is full of exaerations, vague descriptions and is incomplete. But if they entice you to take a closer look, BAM! Good enough.

            You're all taking a VERY close look at SCO's arguments at the moment. Ordinarily that would be a marketting success, but since SCO only has old or stolen products, I'd say maybe they should be averting your gaze a little bit...
      • Re:Irony abounds. (Score:5, Informative)

        by pjrc (134994) <paul@pjrc.com> on Friday December 05, 2003 @04:17AM (#7637029) Homepage Journal
        They want to distract the press by publishing this letter.

        Indeed. That's why it was published on Dec 4th... one day before Dec 5th when the judge has scheduled oral arguements the 3 motions to compel discovery (2 by IBM against SCO and 1 by SCO against IBM).

        I'm not going to make predictions about what the judge will say or do tommorrow... but I will predict that this diversionary tactic doesn't prevent coverage of whatever the judge says.

      • by penguin7of9 (697383) on Friday December 05, 2003 @04:32AM (#7637077)
        You can clearly tell the lawyers wrote it

        That letter can't have been written by a lawyer: it just makes no sense whatsoever. Even someone who ordered his law degree by mail would know better.

        The letter argues that because the FSF takes a certain political view of copyrights, its copyright-related contracts are invalid and violate the US constitution. That's roughly like saying that you would lose your drivers license because you have stated that cars are bad for the environment.

        Fortunately, we live in a country where one's political views don't generally affect the validity of the contracts we enter in.
      • Re:Irony abounds. (Score:5, Informative)

        by Anonymous Coward on Friday December 05, 2003 @07:07AM (#7637465)
        >the lawyers wrote it...

        IAAL. I can assure you that the PR people wrote it with a smattering of legalese dusted on top. The "arguments" are incoherent, the "authorities" are off the point while the rant at the outset about copy-left, etc. is completely irrelevant.

        I must admit to admiring the ability to spout this rubbish with a straight face. :)
    • by Ieshan (409693) <ieshan AT gmail DOT com> on Friday December 05, 2003 @02:03AM (#7636518) Homepage Journal
      Dear Person Reading this Letter:

      You are in violation of copyright law, as I have copyrighted this letter and encoded it using an advanced version of english which we have developed at SCO group.. Each sentence, as you can see, ends in two puncuation marks, however, you seem to be able to read the text just fine..

      We regret to inform you that there is no possible other implementation for this english derivative, is our copyright, and therefore, you must be circumventing our extremely intelligent and work with the intent of profit..

      Sincerely,
      Darl McBride
      • by mwooldri (696068) on Friday December 05, 2003 @02:36AM (#7636670)
        Dearest Darl... Thou hast a problem with ye English language? Then ye shalt readeth of the Bible of GPL until ye hearts bleed. As thou canst tell, I am using ye ancient version of ye English language, which hast been placed in ye public domaine many moons ago. Besides, hast thou hearest of ye King James Bible? Remindest ones of ye Ancient Unix. humbly your servant...
      • Re:Closed Letter (Score:5, Informative)

        by sy161e (615745) on Friday December 05, 2003 @03:48AM (#7636932)
        I'd say the funny part about the author's rants and raves about Red Hat are contradicted in the link provided:

        Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights.

        However, after visiting the site, the only word used is "patent," the only occurance of "copyright" is at the bottom of the page claiming that it's a &copy of Redhat.
        • exactly (Score:3, Insightful)

          by Dave_bsr (520621)
          Exactly. I noticed the bait n switch technique too -

          Darl's argument:
          #1, Red Hat is anti-american, because we say they are against Patents and copyrights.
          #2, evidence is shown that they are against software patents, with a copywright notice at the bottom.
          #3, Conclusion: Red hat is bad because we say they are against patents and copywrights.

          This is idiotic. It's obvious he's just making unsupported claims here. Darl & SCO are retarded and have no leg to stand on. I just hope the NYT points it o
  • Ok then. (Score:4, Insightful)

    by dema (103780) on Friday December 05, 2003 @01:24AM (#7636281) Homepage
    Nothing we haven't seen before.

    Yet it qualifies as news here. No wonder McBride keeps running his mouth (:
    • Re:Ok then. (Score:5, Insightful)

      by Zeelan (533372) on Friday December 05, 2003 @01:29AM (#7636316) Homepage
      Ah... but we haven't had a good SCO letter of FUD to harp on for a couple of days.

      Myself... I found the part where he talked about the glory of copyright where the author could do anything he wanted with it and then moaned and complained that he can't take GPL code and make it proprietary rather poetic.
    • Re:Ok then. (Score:5, Insightful)

      by Frymaster (171343) on Friday December 05, 2003 @02:33AM (#7636654) Homepage Journal
      if anything, this whole debacle reminds me of the bre-x scam in alberta four or so years ago...

      bre-x was a mining company with a large stake in indonesia. although the stake was considered to be mediocre at best, bre-x brought back some core samples for assay that showed insanely high gold concentrations. shortly thereafter, bre-x announced that they had a 210 million oz find (at $300 an ounce... well, do the math)

      it was all faked, of course. they had "salted" the core samples (literally sprinkling gold into the crushed "ore") and then spun the results as far as they would go. the result was an astronomical stock price and a lot of very very rich directors and geologists.

      by the time that anyone had figured out that the whole thing was a pum and dump, most of the directors had fled to the grand caymans - except for one who "fell" (possibly pushed) from a helicopter over the indonesian jungle.

      bottom line: five people got wealthy of a pack of lies, thousands lost their life savings on stock, one lost his life. it's the exact same business model with sco... yet apparently investors haven't learned a damn thing.

  • basis in law! (Score:5, Interesting)

    by potpie (706881) on Friday December 05, 2003 @01:24AM (#7636288) Journal
    From Linuxtoday.com: "The GPL is based on copyright law, unlike the 'shrink wrap' licences we are familiar with, which are based on contract law. Most countries worldwide have signed the Berne Copyright Convention, which protects software automatically upon creation. So the GPL has a more solid international grounding than if it were based on contract law, which can vary greatly from country to country..."
  • by Valar (167606) on Friday December 05, 2003 @01:26AM (#7636296)
    WHY post about it? I mean, come on. We're going to hear nothing but bullshit from SCO until they go under, why even bother listening? The only possibly important part will be the court hearings and we have awhile before those.

    Everyone, breathe in, breathe out. Chill. Just chill.
  • by Camel Pilot (78781) on Friday December 05, 2003 @01:27AM (#7636307) Homepage Journal
    Hey Dayl please keep your letters like the Unix source and your mind - closed.
  • by KarMann (121054) <[karmannjro] [at] [yahoo.com]> on Friday December 05, 2003 @01:28AM (#7636309) Homepage
    What, nothing about it violating the Ten Commandments to boot?
  • by Anonymous Coward on Friday December 05, 2003 @01:29AM (#7636314)
    Darl missed a few salient points that I will enumerate:

    1) The GPL kills small cute furry animals.
    2) The GPL causes cancer in laboratory animals.
    3) The GPL encourages terrorism.
    4) It hurts THE CHILDREN.
    5) Reciting the text of the GPL backwards will cause the appearance of the Anti-Christ and will initiate the apocalypse.
    • by dominion (3153) on Friday December 05, 2003 @02:21AM (#7636599) Homepage
      5) Reciting the text of the GPL backwards will cause the appearance of the Anti-Christ and will initiate the apocalypse.

      Y'know, that's not wholly untrue. I did that a few years back, when everybody thought Gore had won.
    • by SmallFurryCreature (593017) on Friday December 05, 2003 @02:44AM (#7636698) Journal
      1) The GPL kills small cute furry animals.

      EEEK

  • by potpie (706881) on Friday December 05, 2003 @01:29AM (#7636315) Journal
    from the article:
    "The software license adopted by the GPL is called "copy left " by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the "copy right " laws adopted by the US Congress and the European Union."

    This makes it seem as though software writers are being persecuted by having their code forcibly ripped from their hands and given away for free. What new (or revivalist?) idiocy is this? They left out the whole part where the creator chooses to release it under the GPL or not.
  • by beej (82035) on Friday December 05, 2003 @01:31AM (#7636327) Homepage Journal
    Dear Fucking Linux Hippies,

    Why can't you just pay us. You know you want to.
    Love, SCO
    [Shamelessly ripped from a couple friends of mine. This edition Copyright 2003 by Beej Jorgensen.]
  • by segment (695309) <sil AT politrix DOT org> on Friday December 05, 2003 @01:33AM (#7636338) Homepage Journal
    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

    Nowhere do I recall ever reading anything on compensation, that to me is more of an ethical issue if you ask me, but IANAL so I really don't want to stick my foot in my mouth... Or the kb in my ass. As I take the Constitution regarding copyrights is just as stated 'securing for limited times the exclusive right to their work'. SCO is turning this into a circus fanfare with a) either money the underlying issue, or b) other entities are using SCO as a puppet to do their deeds.

    However, there is 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. In the past 20 years, the Free Software Foundation and others in the Open Source software movement have set out to actively and intentionally undermine the U.S. and European systems of copyrights and patents.

    This is serioulsy bold, and slanderous statement of this guy to make, and I'm wondering who's going to be the first to open a can of lawsuit ass on SCO. It's one thing to make known your beliefs, but to claim someone is intentionally breaking a law is no laughing matter. Pretty ballsy move. Stupid but ballsy.

    Leaders of the FSF have spent great efforts, written numerous articles and sometimes enforced the provisions of the GPL as part of a deeply held belief in the need to undermine or eliminate software patent and copyright laws.

    Know something, I couldn't even finish reading it because it's so dull, overrated, cumbersome to understand, and downright dumb at this point. Isn't it about time someone maybe IBM or some other bigwig came in the picture, did a hostile takeover and demoted this clown to mailroom janitor, or parking lot car washer.

    • by Tony (765) on Friday December 05, 2003 @02:37AM (#7636673) Journal
      This is serioulsy bold, and slanderous statement of this guy to make, and I'm wondering who's going to be the first to open a can of lawsuit ass on SCO.

      His statement was neither libel nor slander. It was a twisting of the truth into something that, while still true, misrepresents intention.

      The FSF (and others) believe that progress is made through openness, just as Darl (and his other brother Darl) says. But, they are not trying to "undermine" all copyright and patents-- just those relating to information. And, "undermine" is a loaded word. Rather, the FSF appears to be trying to modify the current system into something that does not allow the hoarding of information.

      Me, I see that most of the really hard scientific progress was done in the open, when people were free to use ideas and concepts without threat of litigation. So, I agree with the FSF.

      But, YMMV, of course.
    • by jelle (14827) on Friday December 05, 2003 @02:58AM (#7636762) Homepage
      The GPL is designed to keep GPL software free (as in speech). People make their writings and discoveries available for free under the GPL, as long as anybody who distributes an improved version also agrees that the improved version is exactly as free (as in speech). And that is the core of what makes the GPL unique, and which is exactly what made companies like WindRiver very cautious in the beginning: If you distribute GPL-licensed software, you better make sure that you know what is in it, because you're giving it away...

      So my summary of what Darl of SCO is saying is this:

      The GPL is unconstitutional, because the GPL allows people to limit the use and distribution of their writings and discoveries to only those people who do not intent to use copyright or patent law to subdue it.

      So, basically, Darl of SCO is saying that he realizes that SCO has distributed Linux under GPL after he knew about what he claims as his infringement of SCO IP. And because that distribution would negate all his claims of infringed IP, he has no other choice but to dispute the legality of the GPL. Well, maybe he doesn't realize that, but at least his lawyers did.

      The only other alternative, accepting to have knowingly broken the terms of the GPL license by distributing GPL-licensed software while not agreeing with the terms of the license would not make sense, and according to the law of Chewbacca defense lead to immediate aquittal of his case.

      BTW: Who else confuses WindRiver and WinDriver?

      • by Otto (17870) on Friday December 05, 2003 @03:58AM (#7636961) Homepage Journal
        So, basically, Darl of SCO is saying that he realizes that SCO has distributed Linux under GPL after he knew about what he claims as his infringement of SCO IP. And because that distribution would negate all his claims of infringed IP, he has no other choice but to dispute the legality of the GPL. Well, maybe he doesn't realize that, but at least his lawyers did.

        That's a very interesting point you have there, one I had not considered. Of course, I believe he fails to see the flaw in his argument. That flaw is obvious, really...

        SCO's distribution of Linux under GPL wasn't wholly their IP. They didn't create it from nothing here. Perhaps some of it was, certainly, but there's certainly a lot of it that was part of the Linux kernel, or a contribution by hundreds, perhaps thousands, of open source developers. They own the copyright on all that code, and they released it under the GPL. The GPL is essentially their license to let SCO used their copyrighted code. If SCO rejects the GPL or is successful in having it overturned, they don't magically get all that copyrighted code. Instead they get a big class action suit smacking them square in the face for copyright infringement, because now they've used other people's copyrighted material, without permission, for profit, etc, etc...

        I just don't think SCO realizes the depth and power of the GPL. It's based upon copyright law itself. If you overturn it, then you fall back to the normal copyright law, which states that you can't use copyrighted code, period. It doesn't matter that the developer has shown it to the world, it's still that developer's property, and it is not SCO's to use. Fighting the GPL is not smart, because even if you win, you lose.
        • by surprise_audit (575743) on Friday December 05, 2003 @05:03AM (#7637164)
          ...but there's certainly a lot of it that was part of the Linux kernel, or a contribution by hundreds, perhaps thousands, of open source developers.

          You're missing an essemtial part of Darl's reasoning. Darl believes his company owns the rights to Unix and to all derivative works. If true, then all the Linux kernel developers have been extending and improving a derivative of the original Unix (never mind that Linus started from scratch). Not only that, they've been doing it without permission of the copyright holder and it doesn't matter that these derivatives are GPL'd because they're illegal, unauthorized copies.

          Note: I'm not supporting Darl, I'm just trying to show that he could very well be ignoring the possibility of legal retaliation by the kernel developers simply because he believes they don't have a leg to stand on.

  • by Anonymous Coward on Friday December 05, 2003 @01:38AM (#7636369)
    "The 1976 Act had the desired effect. The U.S. economy responded rapidly, and within 10 years had regained global technology leadership."

    Technology leadership? In 1986?! During the height of the Japanese bubble? This guy cracks me up! You're such a card, McBride.

    --AC

    • You're such a card, McBride.

      I think the word you are looking for is asshole, not card.

      McBride started off as funny, but the fact this has already gone on long enough, and Darl McBride is still sitting there trying to ruin open source and all it stands for, has just really started to wear thin with me.

      I can't wait for IBM's lawyers to do him over - "Do you hear me talking hillbilly boy?!" ;)
  • Amusing quote (Score:5, Insightful)

    by SendBot (29932) on Friday December 05, 2003 @01:39AM (#7636375) Homepage Journal
    In speaking of the DMCA
    "...without protection, American companies would unfairly lose technology advantages to companies in other countries through piracy, as had happened in the 1970's.

    This statement offers no explanation, whatsoever.
  • Don't they (Score:5, Interesting)

    by mcc (14761) <amcclure@purdue.edu> on Friday December 05, 2003 @01:43AM (#7636412) Homepage
    Don't they actually have to put up in court tomorrow?

    If I remember right, tomorrow is the oral discovery arguments for their case against IBM. Doesn't this mean that tomorrow they have to actually justify their unwillingness to clarify the nature of their case and answer to a judge for it?

    Can't wait to see what that does to their stock.

    Am I totally mistaking the nature of Discovery, but doesn't it mean that any evidence they haven't submitted by tomorrow, they can't use in the case? Meaning if they don't clarify their violations, rather than just giving the names of a bunch of documents (some of which contain nothing but some #includes and a "not implemented" comment), the "linux community" can then go around confidently stating that no such violations exist?

    When's Redhat's Lanham Act case get to hit court to ask for injunctions?

    Anyway, it probably wouldn't be too far-out to assume Darl's letter is some kind of diversionary tactic. Or that they won't try to do something even bigger and noisier tomorrow to draw attention away from the court.
    • by Dr_Marvin_Monroe (550052) on Friday December 05, 2003 @02:12AM (#7636559)
      Check with Groklaw.net... I think that they only have to defend their reluctance to provide IBM with the materials that they have asked for, or defend their "motion to avoid discovery and compel IBM to give them money"....

      I don't believe that tommorrow means the close of items which they could possibly bring to trial... The issue is that, IBM has twice demanded information, they have claimed that IBM needs to give them some too (so they're bad too..).

      Most interesting is Darl's statement that "this nonsense will continue for 18 more months...we've got a schedule with MS to keep..."

      THAT'S INTERESTING!!!!...he's finally put a schedule behind how long they are going to keep this up.

    • Re:Don't they (Score:5, Interesting)

      by Our Man In Redmond (63094) on Friday December 05, 2003 @03:39AM (#7636909)
      As I understand from reading Groklaw [groklaw.net] (hi PJ), tomorrow is sort of a status hearing. Both sides have filed requests asking the court to compel the other party to do something. SCO is basically asking the court to tell IBM to hand over every file in their possession relating to Unix, Linux, AIX or any other operating system that ends in "X" so they can plow though them to see what they can accuse IBM of doing wrong. IBM, on the other hand, is asking the court, "SCO has been claiming for months that they have evidence that we trespassed on something or other of theirs. Please tell them it's time to put up or shut up. Make them show what evidence they have or admit they have no case."

      That is a gross oversimplification but it's basically what it boils down to. Based on the results of tomorrow's hearing, the parties will probably be required to return to court in a month or two to see if they've followed the court's orders.

      So you're just a bit off on your understanding of discovery. Tomorrow's hearing is not the end of the discovery process; basically, it's a chance for the two sides and the magistrate judge to assess how much progress has been made in discovery so far and what still needs to be done.
  • by kuwan (443684) on Friday December 05, 2003 @01:45AM (#7636418) Homepage
    After reading Darl's wonderful letter of ignorance and greed I'd have to conclude that it was largely written by David Boies or one of his minions. Though it's been mentioned that the author, as indicated from the doc's headers, was not McBride, or one of the lawyers, my guess is that it was just composed by the authors mentioned, but the actual text originated with a lawyer.

    First of all it doesn't sound like the Darl we know and love. I've read enough of his BS and listened to him enough to know his style and this letter just doesn't have it. It tries to show some hint of intelligence which we all know McBride is devoid of. Second, the information about the Supreme Court rulings, the constitution, and the DMCA all read like a lawyer wrote them. It reads like it came from the world's most ignorant and incompetent lawyer, but it was definitely from a lawyer.

    It's too bad for Boies that his name is being put on such utter trash. He did have a good reputation once, but it'll be ruined before this case is over.
    • by Anonymous Coward
      So, anyone have the original html (before sco stripped out that info)?

      http://www.gr oklaw.net/article.php?sto ry=20031204195915515

      "But here is the odd part: SCO's lawyers didn't write this manifesto and neither did Darl, judging by the headers on the Word file. Yes, thanks to Microsoft's utter disregard for user privacy, we know who actually wrote this document, or at least whose computer was used. You see, Microsoft preserves such info as metadata, little pieces of info about you in the headers of each d
  • by DoctorFrog (556179) on Friday December 05, 2003 @01:45AM (#7636420)
    Darl is trying to create a mental association between supporters of the GPL and scofflaws like warez kiddies.

    It's a little clever, actually. The DMCA is opposed by many who also support the GPL, the common ground being that both groups tend to be deeply concerned by the proper application of intellectual property rights. The DMCA is also opposed by scofflaw copyright infringers, those being the people it was nominally designed to fight. Therefore, people who support the GPL are copyright infringers and scofflaws.

    It's not a tactic that works against people who habitually apply logical analysis to what they read, but that isn't the majority of people, is it? (If it were, many a war would never have taken place.)

  • by Camel Pilot (78781) on Friday December 05, 2003 @01:47AM (#7636432) Homepage Journal
    From this article [infoworld.com] is one the best quotes from Linus yet:

    I'm a big believer in copyrights," Torvalds wrote in an e-mail interview. "Of all the intellectual property (laws), copyright ... is the only one that is expressly designed so that individual people can (and do) get them without having scads of lawyers on their side."

    "If Darl McBride was in charge, he'd probably make marriage unconstitutional too, since clearly it de-emphasizes the commercial nature of normal human interaction, and probably is a major impediment to the commercial growth of prostitution," he wrote.


  • by l0ungeb0y (442022) on Friday December 05, 2003 @01:49AM (#7636443) Homepage Journal
    The jokes are so thin now, that they get a -2 redundant instead of +5 funny and McBride's stupidity seems to quanitify an order of magnitude each week.

    Reading the letter made one thing perfectly clear though.
    McBride like many executives these days seems only interested in the constitutionality of the copyright and patent rather than freedom of speech. ergo, the citizen should have no right to dictate how their creative works can be copied, modified and reused and that only the copyright office can do as such.

    Such a perversion of the terms of the constitution I have never seen, well until 1998... but this line of thinking keeps getting more pronounced each and every year.

    Maybe it's time we stopped pointing and laughing at SCO and looked at the bigger picture. McBride is but one of thousands of execs who wish to lay the smack down upon personal freedoms in order to kill competition and lockout the individual from the marketplace.

    The recent move by the RIAA to secure anti-trust law exemption is based upon the very views expressed today by McBride: That the indivuals rights should be trampled by the government in the name of corporate self interest.

    Just a jack handy moment...

  • by alangmead (109702) * on Friday December 05, 2003 @01:50AM (#7636450)
    According to Darl, the GPL is designed to take profit incentive out of copyright ownership. Copyright is defined in the Constitution. In the case of Eldrid v. Ashcroft, the Supreme Court decided that the constitution's description of copyright existing to an advancement of arts and sciences includes the possibility of profit as a motivation. So, according to Darl, The GPL is unconstitutional.

    I've read other odd things that he has said, but this seems to be a new one.
  • by argoff (142580) on Friday December 05, 2003 @01:58AM (#7636493)
    This was posted several months ago, but I think it still stands now. Copyrights are wrong, and anti free market, and immoral, and too many people are being spoonfeed poor beliefs.

    BITTER PROTEST AGAINST COPYRIGHTS

    If I said I didn't have an incentive to grow oranges unless I could plant a tree in your yard, or if I said I didn't have an incentive to grow cotton unless I could own slaves on the plantation, most people would see this is these as the worthless shallow arguments that they are. But if I said I didn't have an incentive to to make beneficial or creative works without a copyright monopoly, then all of a sudden people just take it on faith, they don't even question it, they just assume that society would fall apart without them. In my humble opinion, this is intellectually dishonest, especially considering that the entire Renaissance happened without copyrights.

    The simple fact is, there is no equivalency relationship between copyrights and property rights - incentive does not a right make. The moral and historical foundation of property derives from the fact that property has physical limits, while the foundation of copyrights dervives from kings who granted publishers monopolies in return for not publishing bad things about the monarchy. The history of copyrights is not one of rights, but control of sharing and restricting the open use of knowledge.

    That is why people who copy are not criminals, thieves, or akin to pirates who board ships and murder people. No, infact they are really victims of a cruel deception. A deception that copyrights somehow financially benefit artists and creators. The simple fact is, that for every artist that makes it "big" there are literally thousands who copyrights haven't helped a bit, even hindered, or destroyed.

    However, this is not the only failure of copyrights - it is just one in many issues related to copyrights that are just blown off ignored, or glossed over. Like the failures of Hollywood culture, the failures of big media to provide quality material, the failures to provide reasonably priced books to college students while tabloids are dirt cheap, and massive anti-trust behavior in the software industry to name a few.

    While the problems associated with copyrights might have been bearable 20 years ago when the biggest issue was Xerox machines, today we are entering into the information age where information is so easy to copy and manipulate that there can be no middle ground. Our society will either have to control all of it or none of it. Our communications will either have to be monitored or free, our privacy to be either contunuiously probed or protected.

    In that sense, copyrights are like a vine that will never stop growing to choke off our freedoms until we cut it off at the root. The DMCA, infinite extensions, billion dollar lawsiuts, are all just symptoms of a poor belief system - not the cause. So the efforts to find a "middle ground" on copyrights are a failure because they do not address the core issue. That contrary to copyrights, the right to copy and distribute creative works and knowledge is a right!

    Like freedom of religion, and freedom of the press, the right to copy things is a right that exists above government. It is a moral right, it is an inherent right, it defines the very nature of the human condition. It is beyond politics and the petition of leaders.

    In fact, the entire foundation of politics rests on the notion that it's better to fight wars with words than wars with bloodshed. But to copy things does not require coercion or viloence at all, the rules are not the same. We will not change the copyright situation by petitioning our leaders, or voting to change the system. No it can only be changed by defiance.

    Defiance by holding the belief that people have rights, even if those rights appear contrary to the popular mob or to the system. Defiance, by shedding off the guilt and shame that those who try to impose copyrights impose on us and understanding that they are

    • This one is far more harsh, but I think makes my point just as well.

      COPYRIGHTS AND PATENTS ARE THE SLAVERY OF THE INFORMATIOn AGE(Part II)

      There seems to be this attitude that the suffering of slaves prior to 1850 was something that only happened back then. That it has nothing to do with now, that we are more civilized, more modern, more mature, and more sophisticated. With it comes the arrogance that what happened then, means nothing now, that what happened there has no value here, that the great torment
  • by zulux (112259) on Friday December 05, 2003 @02:06AM (#7636537) Homepage Journal
    I just came back from a night out.... and I'm drunk...

    and...

    I see this little peice of shit Darle McFuckwit with his stupid "open letter" a I just skimed it...

    So... I pronunce Darle is a complete nin-com-poop. Even drunks like me can see that he's an idiot.

    I'm fucking drunk and I'm smarter than everybody at SCO!!!!!

  • It's amazing! (Score:5, Insightful)

    by Optical-i (705624) on Friday December 05, 2003 @02:08AM (#7636541) Journal
    It's amazing how McBride can continuously attack the GPL and open source. Yet in the back of my mind all I can think is, "Caldera Linux... Caldera Linux..." If McBride is so against the GPL, then why did he agree to take the CEO position of a company with it's foundations built upon everything he attacks? Quote:"However, there is 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. In the past 20 years, the Free Software Foundation and others in the Open Source software movement have set out to actively and intentionally undermine the U.S. and European systems of copyrights and patents." Funny how he forgets that for a good couple of those 20 years, the company he now leads was a part of the Open Source software movement he despises. "Yes your honor, we would like to sue IBM for being more sucessful with open source than we were. We hate it because we lost all our money in it." Back in beginning months these stories really made me angry, now it's my weekly /. humor!
  • SCO and "science" (Score:5, Insightful)

    by Bill, Shooter of Bul (629286) on Friday December 05, 2003 @02:09AM (#7636547) Journal
    Mcbride may be playing loosely with the term, but still he made aver rediculous statement that i would like to point out:

    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.

    If any real scince was carried out that way, we would still be in the dark ages. Real science is developed through scientific journals. Open publication of their discoveries and progress. How far would we be if lived in a society where Mathematicians had to pay roalities for using other peoples theroms in their proofs?
  • by Performer Guy (69820) on Friday December 05, 2003 @02:09AM (#7636550)
    There's nothing particularly wrong with Copyrights (although terms are now excessive) but it is SCO who is assaulting them by trying to steal the work of thousands of developers, not the other way around.
  • by roman_mir (125474) on Friday December 05, 2003 @02:12AM (#7636562) Homepage Journal
    Darl says:
    The software license adopted by the GPL is called "copy left " by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the "copy right " laws adopted by the US Congress and the European Union. - But, Darl, you can use GNU/Linux and other Free Software as much as you want. It is when you try to redistribute Free Software under a different licence, it is the moment when you violate the GPL - you violate a licence. GPL is your EULA if you will, only it does not affect your USAGE of Free Software in any way, only your redistribution of Free Software. You do know what a contract means, don't you?

    In taking this position SCO has been attacked by the Free Software Foundation, Red Hat and many software developers who support their efforts to eliminate software patents and copyrights. Internet chat boards are filled with attacks against SCO, its management and its lawyers. Personal threats abound. At times the nature of these attacks is breathtaking - the emotions are obscuring the very clear and important legal issues SCO has raised. This is to be expected when the controversy concerns such deeply held beliefs. - Darl, when you try to STEAL people's copyrighted work, it is the moment when you start getting these kinds of reaction. At the moment when you decide to enslave the free, at the moment when you decide to take away something that belongs to everyone by the expressed permission of the copyright holder, at this moment you become an enemy. When you LIE, you become an enemy and an annoyance.

    Despite the raw emotions, however, 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? There really is no middle ground. The future of the global economy hangs in the balance. - Darl, but it is you, who do not recognize the copyright, you do not want to recognize a contract for redistribution of Free Software that you enter, once you start redistributing Free Software. You are going against simple contract and copyright laws, nothing else.

    The Free Software Foundation, Red Hat and other GPL advocates take the contrary position. The FSF and Red Hat believe that the progress of science is best advanced by eliminating the profit motive from software development and insuring free, unrestricted public access to software innovations. The Free Software Foundation was established for this purpose. The GPL implements this purpose. Red Hat speaks for a large community of software developers dedicated to this purpose. However, the U.S. Supreme Court has dramatically undercut this position with its guidance in Eldred in how to define the term "promote the Progress of Science and the useful arts..." under the Constitution. - Supreme Court is misguided at best and at worst it has a hand in the pie. What you call innovation, others call extortion. If a hundred programmers come up with an exactly same solution algorithm to a problem why should one of them be able to subdue the rest into paying royalties for something that must be free? An algorithm? It is bound to happen simply by the nature of mathematics - anyone familiar with math knows, the Pythagorus theorem could be discovered by many individuals simply because in math it is natural to find the most optimal solutions to problems, and the proven theorems are such solutions. Software is all about algorythms and thus it is about the most optimal solutions, and these solutions can be expressed as theorems. Such ideas must be free for everyone to use, since they are the tools, the building blocks that we use in order to solve our real life problems. If we are not allowed to free
  • by roman_mir (125474) on Friday December 05, 2003 @02:20AM (#7636596) Homepage Journal
    According to the www.groklaw.net article "Darl's "Greed is Good" Manifesto", and to this source from Yahoo [yahoo.com], Darl's open letter was written by Kevin McBride and Dean Zimmerman, (a tech writer). At least the word document meta data says so.

    And there I was hoping Darl at least understood his position well enough to write garbage like this by himself. Does Darl even exist, or is he like the Wizzard Oz, a non-existant entity? Just kidding. He may become a non-existant entity after the court-room is done with him, though :)

  • by Bugmaster (227959) on Friday December 05, 2003 @02:21AM (#7636602) Homepage
    I don't get it. How can the GPL be unconstitutional ? It's not a law, it's just a license -- a private contract between two parties. The Constitution simply doesn't apply. Now, SCO can claim that the GPL is unenforceable, but that's a different story altogether. What next ? Reading is declared unconstitutinal because it can potentially detract from the market of audio books ?
    • by pjrc (134994) <paul@pjrc.com> on Friday December 05, 2003 @05:15AM (#7637200) Homepage Journal
      At the risk of /. blaspheme (trying to understand SCO's arguement rather than immediately discounting it)....

      I don't get it. How can the GPL be unconstitutional ?

      The basic arguement seem to be that the constitution states the purpose of copyright is the "promote progress of science..." AND the supreme court recently wrote "motive of profit is the engine that ensures progress of science".

      There's certainly no disputing that the constitution really does have that, and that the court really did write such an opinon recently.

      They claim the GPL is designed to destroy the profit motive. Suspecd disbelief for a moment and ignore the scant profit Redhat made a couple times.

      So, if you put these three things together, you get:

      constitution = progress = profit_motive;

      GPL = !profit_motive;

      GPL != constitutional;

      I personally suspect there are a dozen reasons why this argument is bad. But that is, as nearly as I can tell from the letter, the basic arguement.

  • SCO the hypocrits (Score:3, Insightful)

    by kmahan (80459) on Friday December 05, 2003 @02:24AM (#7636622)
    So if SCO is so against GPL software why don't they stop using it in their product. And hyping it as core parts of their products. i.e., Samba.

    I guess I'm confused why if they are so against it they don't pull all of the GPL'd software from their products to show their resolve.

    Oh. Wait. Could it be because ALL their software was written by other people?
  • by WombatControl (74685) on Friday December 05, 2003 @02:27AM (#7636629)

    (As a diclaimer, IANAL, but I have read Eldred and I am familiar with public policy issues on copyright.)

    Straw man is the correct term for this letter, as the entire case McBride makes is on a complete misunderstanding of both the GPL and Eldred.

    First of all, his use of Article I Section 8 of the US Constitution illustrates absolutely nothing. There is nothing in the GPL that precludes or infringes upon this statute in the least. Congress has the power to grant exclusive rights to a creation but has no power to legally mandate what the terms of those rights are. (See Graham v. John Deere Co. of Kansas City 383 US 1.) Congress has the right to grant me a patent, and if I want to take that patented product and license it to whomever, there is nothing that Constitutionally prevents me from doing so. In other words, if IBM patents a new storage device and they want to make those specifications publicly available through GPLed drivers they have every right to do so. If they want to license such technology to only one company, they may do so. If they want to take every existing model and shove it up their ass, they have every legal right to do so.

    Furthermore, precedent sets that the patent power is limited only for the purpose of the "progress of science" - as Bonito Boats v. Thunder Craft Boats, Inc 489 US 141 states:

    Implicit in the Patent Clause itself [is the understanding that] free exploition of ideas will be the rule, to which the federal protection of a patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure."

    What McBride argues is that the public domain itself is somehow contradictory to the very notion of copyright, and argument which simply does not hold to much scrutiny. Even the majority opinion in Eldred acknowledges that the Constitution does not allow for a perpetual system of copyright, and that at some point material must fall into the public domain.

    The argument that profit motive is the best way of ensuring the public good is fine, but it is essentially a non-sequitor in this case. If the Linux kernel contains SCO code then that code has to be legally removed. However, SCO has no right to dictate that only proprietary licenses are legally valid, and that argument does nothing to advance their particular case. Moreover, any judge who has to rule on such a prima facie idiotic argument will quickly rule that SCO has no legal ground. The GPL is, as many have already mentioned, based on an acknowledgement of copyright law and relies on copyright law as a basis for its licensing terms. SCO has no right to say that a copyright holder must use a proprietary license any more than Red Hat says that SCO must drop all claims to their proprietary source code. There is no legal foundation for such a position and McBride clearly has no understanding of the revelant law.

  • by Specter (11099) on Friday December 05, 2003 @02:35AM (#7636665) Journal
    Darl,

    I've got to tip my hat to you. It's rare that you can find someone so outspoken and with such an interesting interpretation of reality who is also able to elicit such vociferous and multitudinous responses from your friends and (more often) your enemies. Really, for your family's sake at least, I feel better knowing that when someone finally points out that the emperor has no clothes, you'll have no problems finding employment in the afternoon talk show circuit.

    In the months since you've launched your Sisyphean attack on Linux and Open Source Software in general I've come to regard you with something of a grudging affinity. Like that crazy uncle you hope never shows up for family events but then miss terribly when he's not there, you've become a constant ache that I just know I'm going to miss. Who else can I count on to inspire such fits of laughter and frothing rage?

    It's with this new found amiability towards you that I make the following offer. I know you've been wanting someone to buy up The SCO Group and in the interests of not seeing you completely financially devastated, I'd like to buy your company. I'd like to offer you a one crisp United States dollar bill for the entirety of The SCO Group. You may find the amount a little less than you'd hoped for, but as Homer Simpson was once counseled (if I may paraphrase) "I think you should take it."

    You see I've been both amused, enraged, and more recently dismayed as the scope of your intellectual property land grab expands. I finally decided that some sort of intervention was necessary after I read your latest diatribe in which you both demonstrated a profound lack of understanding of intellectual property law as well as the GPL and made thinly veiled threats to employ the Digital Millennium Copyright Act (DMCA) to further expand your legal assault against Linux. Darl, have you even read the DMCA? Do you know what it is or says? Were you aware that you've got to actually demonstrate you've got copyright in something that's been infringed before you can even open that can of worms?

    I'm sure it may have slipped your mind what with all the heavy composition you've apparently been engaged in, but although you've talked a lot about your lawsuits with IBM and RedHat, you haven't actually won either of them yet. As such, that presents a real problem for your DMCA strategy because so far you've been unable to demonstrate an intellectual property interest of The SCO Group that's been infringed in any way. Sort of putting the cart before the horse aren't we?

    Surely it's also obvious to you now that you've painted yourself into a corner with respect to the GNU Public License (GPL)? If you prevail and the GPL is declared invalid, as a distributor of many works (including Linux) which were formerly licensed under the GPL, The SCO Group would appear to be guilty of copyright infringement on a rather unprecedented scale. (Without the GPL Darl you can't distribute Linux or Samba.) If you fail, and the GPL is valid, you've released all your supposedly infringed works into the Open Source community under terms where you lose all ability to make infringement claims on pretty much any IP grounds. In which case any value of any intellectual property left in the corpses of your versions of Unix is pretty much gone.

    So please, I urge you, it's time to stop the madness. Take me up on my offer, let Mr. Boise have his cut of my buyout, and walk away a winner Darl. I'm pretty sure it's the best offer you're going to get.

    Your friend,

    Specter
  • Nothing really new (Score:3, Interesting)

    by zurab (188064) on Friday December 05, 2003 @03:07AM (#7636792)
    Except that Mr. McBride argues that copyrights are in effect invalid if they are not used "for profit". That's definitely not in the Supreme Court decision - nowhere that I am aware anyway. If that were the case, Disney should have been stripped of all old copyrighted material they fought so hard to defend and extend that they never intend to publish or sell ever again. What kind of profit or personal gain is that?

    And of course that's not the case - RedHat (the case he presents) actually makes profit selling GPLed software and associated tech support.

    Basically, he is saying - I don't like the GPL, therefore I feel free to violate it, and with it, relevant copyright laws. I said it before and I'll say it again - Mr. McBride, by continuing to distribute and sell Linux without any authorization, you are continuing to violate the same copyright laws you are "fighting" so hard to defend. That's a criminal violation these days.

    Can I arbitrarily declare that I feel the Microsoft Shared Source or even regular EULA violates the U.S. Constitution and the spirit of copyright laws and start distributing bootleg Windows XP and 2003 server ISOs? Are you kidding me? I'd have FBI at my door in no time. So should SCO!

    What else do the Feds need? Where are the criminal copyright prosecutors that /. interviewed few months ago [slashdot.org]? How more plainly can SCO spell it out for them?
  • by leoaugust (665240) <leoaugust@g m a i l . com> on Friday December 05, 2003 @03:12AM (#7636815) Journal

    When McBride argues about the legal underpinnings and defending it by court decisions, he is backward looking. Courts are restricted to only looking at the past and existing laws and legislations in making decisions.

    On the temporal scale the Judiciary has control over the past. The legislature is forward looking and has control over the future. So, any law that the legislature passes now, will become the touchstone by which the courts will judge later. And on the temporal Scale the Executive has control over the present. I beleive in this case, the Execution should be done by the Market forces, rather than by an arm of the Government. (And SCO must be executed too.)

    Based on the results of the market forces, the legislature should then frame "forward looking legislations" that then become the laws which the courts must address. Currently, and in all the arguements that McBride advances, the fact is that the courts were restricted to INTERPRETING "Progress of Science and useful Arts" in the LEGAL sense only - obviously the legal framework is vvery restrictive in identifying what really "Progress" means, and is it must be understood that the courts had their hands toed behind their backs - thier's is a legal interpretation of Progress and not a broader economic, social, cultural, and political meaning of Progress.

    The meat of my comment is above - the rest of the comment is just trying to build my case more ...

    However, 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?

    There really is no middle ground. The future of the global economy hangs in the balance.

    The global economy is not hanging in the balance, waiting breathlessly for SCO/McBride to vulturize millions so the "global economy" can breathe a sigh of relief. This is just another bluster from the McBride. McBride is nothing but a fly on the wall in terms of the current efforts and "real work" that are really advancing the state of the global economy. I highlight this McBride quote, because it captures bluster of the rest of his sophomoric argument.

    Constitutional authority to enact patent and copyright laws was granted to Congress by the Founding Fathers under Article I, 8 of the United States Constitution: 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. ..... This Constitutional declaration gave rise to our system of copyrights and patents. ... (later he writes) Thus, SCO is confident that the legal underpinning of our arguments is sound. ... But we believe that we will prevail through the legal system ...

    It is interesting that he talks about the "legal underpinnings" being sound. If tomorrow the Legislature passes a law (legislations are forward looking), that makes it clear that there is no room for interopretation, and SCO is wrong and stupid, that will be the easy end to the SCO/McBride Extortion story. Like McBride says " Internet chat boards are filled with attacks against SCO, its management and its lawyers," and I think they are filled with attacks for a good reason. And since the chatboarders are also voters, it would be possible for them to choose the right representatives, who would go and legislate, and then carry the legal "attacks" on SCO rather than just have flame wars.

    In Eldred , the petitioner argued that the Copyright Term Extension Act enacted by Congress in 1998 was unconstitutional. The U.S. Supreme Court disagreed, ruling that Congress had full

  • by Bob9113 (14996) on Friday December 05, 2003 @03:20AM (#7636843) Homepage
    I [netcraft.com] think [netcraft.com] some [netcraft.com] companies [netcraft.com] increase [netcraft.com] their [netcraft.com] ability [netcraft.com] to [netcraft.com] create [netcraft.com] wealth [netcraft.com] by [netcraft.com] using [netcraft.com] Free [netcraft.com] Software [netcraft.com].

    That last one is Oxford. They run Debian. Cool.
  • by Thomasje (709120) on Friday December 05, 2003 @03:28AM (#7636870)
    Charlton Heston, being interviewed by Michael Moore:

    'Where did you make the change from Liberal Democrat to Conservative Republican?'

    He said, 'Well, I was in Northern California in 1964 and I was making a film, Major Dundee. I was driving down the road and there was a Barry Goldwater for President billboard and it said, 'In Your Heart You Know He's Right'. I looked at the billboard and it was almost a vision and suddenly in my heart I knew he was right - and at that moment I made the switch'.

    George Orwell, "1984":

    He gazed up at the enormous face. Forty years it had taken him to learn what kind of smile was hidden beneath the dark moustache. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast!
    Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.

    All of us stupid, short-sighted Free Software idiots:

    Finally, we understood. In our hearts, we knew Darl was right. We won the victory over ourselves and mailed in our $699 checks, and we were thankful that we were given a Second Chance to avoid having to pay $1399. We loved closed source.
    We loved SCO.

    Don't you love a happy ending?

  • Specious reasoning (Score:3, Insightful)

    by UnknowingFool (672806) on Friday December 05, 2003 @03:30AM (#7636876)
    It's amazing how Darl wraps himself in unclear and misleading arguments but behind that there's very little substance.
    In Eldred , key arguments similar to those advanced by the open source movement with respect to copyright laws were fully considered, and rejected, by the U.S. Supreme Court.

    First of all, Eldred v. Ashcroft was about whether the 1998 Copyright Term Extension Act (CTEA) could change the lifetime of copyrights from 50 to 70 years. The main challenges were that the CTEA (1) overlooks the requirement of "originality," (2) fails to "promote the Progress of Science," and (3) ignores copyright's quid pro quo. The case only narrowly answers these questions for the CTEA. While some decisions have larger ramifications, not all decisions can be extended to other areas.

    The majority position specifically acknowledges the importance of the profit motive as it underpins the constitutionality of the Copyright Act.

    Profit motivates copyrights. Congress has power to legislate copyrights according to Constitution. And?

    Based on the views of the U.S. Congress and the U.S. Supreme Court, we believe that adoption and use of the GPL by significant parts of the software industry was a mistake.

    There's no logical flow here but I think what Darl is saying is that: GPL not motivated by profit. Therefore, GPL violates copyrights. Therefore, GPL violates Constitution.

    Darl, given that logic, I would say that you are a good candidate for a future Darwin award.

  • by tabdelgawad (590061) on Friday December 05, 2003 @03:30AM (#7636877) Homepage
    In the second paragraph, McBride writes:

    "SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws."

    He then spends the rest of the letter explaining why copyright is great, and why the FSF and Red Hat are evil for opposing copyrights. Fine. But *nowhere* is there any reasoning given why the GPL violates the consitution, copyright law or patent law. In fact, by the end of the letter, McBride is forced to write:

    "Based on the views of the U.S. Congress and the U.S. Supreme Court, we believe that adoption and use of the GPL by significant parts of the software industry was a mistake. The positions of the Free Software Foundation and Red Hat against proprietary software are ill-founded and are contrary to our system of copyright and patent laws. We believe that responsible corporations throughout the IT industry have advocated use of the GPL without full analysis of its long-term detriment to our economy. We are confident that these corporations will ultimately reverse support for the GPL, and will pursue a more responsible direction."

    Note that there's *nothing* about the legality of the GPL. Adopting the GPL may be a "mistake", but nowhere does he even attempt to prove the point that he started with, that the GPL is a violation of the constitution and laws of the US.

    Too bad for SCO. The only way they can have a long term money-making plan with Linux is if they get the GPL declared illegal, all developer contributions under it made into code in the public domain (I suppose public domain is against the constitution too?!), then they can assert ownership of the whole product based on whatever proprietary contributions they think were made against their wishes by IBM et al. IANAL, but it ain't gonna happen.
  • by atriel (679849) on Friday December 05, 2003 @03:31AM (#7636885)
    I love how the ignore the rest of the first amendment, that, and the very fact that copyright law gauruntees that the authors have the right to distribute as they wish, and impose restrictions upon it's distribution...
  • by Greyfox (87712) on Friday December 05, 2003 @03:38AM (#7636901) Homepage Journal
    But the community from which open source software springs is the only place you can get real innovation in the IT Industry. Companies won't try new ideas. None of the commercial UNIX vendors has done a whole lot to advance the state of the operating system from where it was 30 years ago. Oh they might have glommed on a filesystem or two, but I bet those ideas didn't originate with them.

    SCO in particular, hasn't noticably changed their product since I was saddled with 286 Xenix a decade and a half ago. Neither their product nor their technical support improved from the first time I used it a decade and a half ago to the last time (And I swore it'd be the last time) I used it just about 4 years ago. I bet it hasn't noticably changed in those 4 years either, especially judging from SCO's current posturing.

    So instead of cleaning up their own house (Because they don't know how) they'd rather try to destroy the only source of IT innovation around. People with SCO's mentality (Sadly widespread in corporate America) would shit in your dinner because they don't know how to cook themselves.

    Currently the publicity's been pretty one-sided. How's about we start dusting off our technical contacts and start working to expose the lies?

    • by mandolin (7248) on Friday December 05, 2003 @05:39AM (#7637250)
      But the community from which open source software springs is the only place you can get real innovation in the IT Industry. Companies won't try new ideas.

      Plan9. Inferno. NeXTStep. Arguably the original Macintosh and the Xerox PARC work they extended.

      Meanwhile, in the open-source world, we're fundamentally tweaking UNIX clones. Totally kick-ass, love-'em, best-of-breed unix clones, but still. You might cite Hurd but, comparatively speaking, it's a toy.

      None of the commercial UNIX vendors has done a whole lot to advance the state of the operating system from where it was 30 years ago.

      Isn't Apple a commercial UNIX vendor now?

      SCO in particular, hasn't noticably changed their product since I was saddled with 286 Xenix a decade and a half ago

      Sadly, that's probably true..

  • Crafty scheme: (Score:3, Interesting)

    by Dr. Mu (603661) on Friday December 05, 2003 @03:38AM (#7636904)
    1. Post some incendiary drivel about the GPL on the corporate website, hoping to lure the Slashdot crowd.
    2. Leave if up overnight, and check the logs next morning, quivering with anticipation.
    3. Pick through the catch for stuff like:
      123.45.67.89 - - [05/Dec/2003:02:09:28 -0500] "GET /myblog/more_blather.html HTTP/1.1" 304 - "-" "Opera/7.23 (X11; Linux i686; U) [en]"
    4. Ooh! A Linux user agent! Transfer it to the hit list.
    5. Send out the DMCA subpoenas ...
    Well, you know the rest. The RIAA wrote the refrain to that song.
  • by Lane.exe (672783) on Friday December 05, 2003 @03:39AM (#7636910) Homepage
    SCO claims that the GPL violates existing copyright laws because it "grants" a copyright. But the GPL doesn't grant any copyright. In fact, it works as just the opposite. Instead of allowing any one person to claim an open project for themselves, it remains in a sense public property so long as the original source is cited and the code remains open for anyone to tinker with. That's not the case with copyrights. I can't remix a song and release it without paying for rights. I can't go rewrite Lord of the Rings and publish it because it's copyrighted. But I can download an OSS project, modify it, and then I HAVE to release my modifications if I want to publicly distribute my modifications to the source. It's not a copyright. EOS.

  • by Our Man In Redmond (63094) on Friday December 05, 2003 @03:47AM (#7636930)
    Take a look at this document [tuxrocks.com] (note: it's a PDF file). It's written in legalese, but if you read between the lines, it shows what happens when a lawyer loses patience. Basically, IBM's law firm can't call SCO a bunch of liars, cheats, four-flushers and shysters in a court document, but this document sure makes it sound like they wish they could. Highly entertaining, and highly recommended.
  • by chickenwing (28429) on Friday December 05, 2003 @04:18AM (#7637032) Homepage
    When I was in grade school, there were always some alpha kids for whom rule and reason did not seem to apply. They could get their way by plugging their ears saying "LaLaLaLa" or whining until everyone gave in out of frustration.

    I looked forward to the day when we would all be adults and those who had nothing to contribute would be swept aside. Sadly, I see that these bratty children are now all grown up, in charge and their manipulative behaviors are polished. And still the smart people are groveling at their feet for attention.

    Darl and his kind are not concerned about programmers making money on software. Hell, thats what India is for. He is worried that people like him, who couldn't write "Hello World" to save their life, will not be able to make money off software anymore.

    Notice he does not mention the word "Jobs" once in his open letter but mentions corporate interestes like IP and DMCA ad nauseum. Those represent the devices by which a company can stop producing and start fleecing.

    And by God, what could be more American than that. Our Founding Fathers(TM), Congress (a division of Worldcom), and Supreme Court(R) have determined this is what is best for us. To question them would be unpatriotic and would be allowing the Terrorists to win.
  • by joebeone (620917) on Friday December 05, 2003 @04:45AM (#7637120) Homepage

    check this out (from groklaw [groklaw.net]):

    [...]

    But here is the odd part: SCO's lawyers didn't write this manifesto and neither did Darl, judging by the headers on the Word file. Yes, thanks to Microsoft's utter disregard for user privacy, we know who actually wrote this document, or at least whose computer was used. You see, Microsoft preserves such info as metadata, little pieces of info about you in the headers of each document you write in Word. Someone on Yahoo took a look [yahoo.com] at the document's Properties, and the document records that it was written by Kevin McBride and Dean Zimmerman, who is apparently a tech writer [caldera.com].

    [...]

  • by nickco3 (220146) on Friday December 05, 2003 @04:50AM (#7637136)
    Darl's diatribe can basically be summed up by the last paragraph:

    We take these actions ... knowing that those who believe "software should be free" cannot prevail against the U.S. Congress and voices of seven U.S. Supreme Court justices who believe that "the motive of profit is the engine that ensures the progress of science."

    The preamble to the General Public License (para 2) says:

    When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish)

    No need to panic everyone, the profit motive is alive and well.
  • Excuse me (Score:3, Interesting)

    by ajs318 (655362) <sd_resp2 AT earthshod DOT co DOT uk> on Friday December 05, 2003 @05:07AM (#7637174)
    Could McBride or one of his apologists please explain to me how for Linus to give other people permission to use something that the law quite clearly says belongs to Linus, on Linus's own terms, violates any law anywhere in the world? What law says you can't use your own property in the way you think fit?

    I am interested to know this.
  • My letter to SCO (Score:3, Interesting)

    by theolein (316044) on Friday December 05, 2003 @05:11AM (#7637187) Journal
    I must admit, as a CIO of a Netware/Windows shop that is moving some of its server space over to Linux that I have been at first worried, and now simply utterly confused as to what SCO is actually trying to achieve with these extremely inconsistent public attacks on allmost all areas of the industry remotely related to SCO. First it was IBM, then it was Linux, then it was faked copyright issues at that conference earlier this year, then it was Novell and now it's the GPL.

    Does SCO have any idea what this actually sounds like to serious professionals in the industry? People who were worried are now simply shaking their heads, and this letter claiming that the GPL is somehow against copyrights is simply misleading. Even I know that. I can read the GPL, and what I see, and what most lawyers will probably see is that the GPL is a software licence. It in no way damages copyrights as these are kept by the individual authors. It also has nothing to do with software patents. Does SCO actually know that even if the GPL were to be deemed invalid that it would make itself open to thousands of claims of copyright abuse by all the open source developers whose software SCO has distributed/is distributing?

    I find this whole matter to be irritating. Rest assured that I will never recommend SCO software in any form, as SCO seems highly irresponsable at best.


    What a joke. SCO is simply amazing in its childish fantasies.
  • Profit Motive (Score:5, Interesting)

    by chuckw (15728) <chuckw@quantumlinux.com> on Friday December 05, 2003 @05:49AM (#7637289) Homepage Journal
    I had to read 3/4ths of that stupid letter to finally get to the point. Apparently they contend that a license, like the GPL, strips the profit motive from a work, and is inherently illegal. To justify this, it pontificates broadly on some recent court cases and the constitutional basis for copyright law.

    Just because the constitution defined copyright to help protect profit motives and thus speed along innovation, that does not mean we cannot use copyright law in a different way.

    I'd like to direct Darl McBride to the ninth ammendment to the constitution of the United States of America. To paraphrase, it basically means that if something hasn't been outlawed, it's legal. Or in other words, nothing is illegal until it has been outlawed. When it comes to using copyright in a different way, that means that there's no law saying that we cannot use an existing law in a way that it wasn't intended (so long as that doesn't break any existing laws).

    Yeah, it's a rather weak legal point, but if that's what you're screaming, then you've probably missed my larger point. Every (weak and rambling) point that the article puts forth can be countered by hundreds of examples that prove that this new use of copyright law fits in the mold of what the founding fathers intended. Innovation is happening under this model, the masses have found a way to be involved and to contribute to OSS and the greater good is being served every step of the way. To anyone who cannot see that, I would respectfully question their motives and/or their awareness of temporal reality.

    -Chuck
  • by TiggsPanther (611974) <tiggs.m-void@co@uk> on Friday December 05, 2003 @06:50AM (#7637431) Journal

    Doesn't mean that I (or anyone else) has to necessarily agree with it though.

    I've not read any other comments yet, so I apologise if I repeat what's already been said.
    But I have read though the Article, and want to present my first opinions on parts of it.

    At SCO we take the opposite position. SCO believes that copyright and patent laws adopted by the United States Congress and the European Union are critical to the further growth and development of the $186 billion global software industry, and to the technology business in general.

    I think his use of the terms "$186 billion global software industry" and "technology business" certainly show SCO's position on technological advancement.
    Mainly that they think it's primary purpose is to generate a profit.

    Darl has a point though. Such laws are critical in the survival of what could be called "The current model".
    It's just that GPL, FSF, Linux, etc, are operating on another model. Yeah, they pose a threat. But to say that such a threat is illegal/unconstitutional/whatever is just plain arrogant.

    Oh, and speaking as a Brit, there is one other thing that has to be taken into account.
    What has the US Constitution got to do with companies/organisations outside of the US? Should European/Asian/etc software houses be stifled/restricted by what's good for the American economy?

    Despite the raw emotions, however, 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? There really is no middle ground. The future of the global economy hangs in the balance.

    "Oh, the drama!"

    OK, so it's one side against the other. But, personally, I'm firmly on the side of "you can't own an idea".

    You can be responsible for the specific application of a though or idea, but to own abstract concepts that one person happened to think of before another? I just find that a bit wrong really.

    Most recently, Congress has adopted the Digital Millennium Copyright Act ("DMCA") to protect the intellectual property rights embodied in digital products and software.

    Doesn't the GPL predate the DMCA?
    Though I'm not sure what - if any - effect that would have on the legal nature of things.

    One thing, though. Is the DMCA US-only?
    If so, that means that the GPL - being an itnernational license, as far as I know - is certainly legitimate in non-US companies irrespective of whether it's legan int he US. But certainly that would mean that US companies can't complain about it, wouldn't it? After all, surely it's outside of US jurusdiction that way?

    if I'm wrong, let me know. I can rebuild a PC with no worries, but legal-matters lose me in no time flat!

    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. 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.

    Again with the "Profit Motive"
    Actually, I kind of agree with the profit motive. What I don't agree with is the way that some companies (including SCO) want to use it.

    Yeah, come up with an idea then you have the right to make money from it - well, as long as the idea isn't "ransom Darl McBride for ca$h" or something blatantly illegal and reckless like that. But I think such a profit motive has to be time-limited. If fact, if it's really to "promot

  • by Karellen (104380) on Friday December 05, 2003 @07:49AM (#7637543) Homepage
    Interesting that this letter is published the day before all 3 motions to compel in the case between SCO and IBM are scheduled for oral arguments? (http://www.groklaw.net/article.php?story=20031123 184010235)

    I reckon this is just a ruse to get their stock price as high as possible before they get their ass handed to them later today and it crashes through the floor.
  • by hansreiser (6963) on Friday December 05, 2003 @09:55AM (#7637997) Homepage
    Note that all of Darl's arguments become invalid when dual-licensing or BSD licensing is used. There really IS a desire by some in the free software industry to market leverage proprietary software out of the Linux market. This is unfortunate.

    While I myself choose to give the software away for free, I do recognize the legitimate tradeoffs involved in copyright law. There are businesses that simply are not viable without a short-term (I favor 14 years) payment for use of their software. I don't think that the games that I play would be anywhere near as good if the developers were not paid for them --- it is very expensive to produce the fancy animations and graphics I enjoy.

    Those of us who are (barely in my case) able to make it with free software businesses should not lock out others who cannot make it without charging. This is why I make all my software available under a non-GPL license for those who are willing to pay for such a license. That way they can make proprietary enhancements of my software, and sell them, and good for them!

    I am one of the more technically successful developers in my industry, yet my business has been bouncing from one fiscal scare to another its entire existence. People who think GPL is the only way should try supporting a family and a payroll (the payroll is harder...) on free software for a few years, and they may find their ideology becomes less fervently fixated on the superiority of one way of doing business.

    All that said, I still believe that copyright should require full disclosure of the source code, and the allowance of improvements to be made and sold by others, or else it serves no US constitutional purpose of advancing the arts and sciences.
  • by jkabbe (631234) on Friday December 05, 2003 @10:17AM (#7638133)
    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.

    What he seems to be arguing here is that it is unconstitutional to give inventions or works away without charging for them.

    The FSF and Red Hat believe that the progress of science is best advanced by eliminating the profit motive from software development and insuring free, unrestricted public access to software innovations.

    This passage (and the first one) seem to stem from a belief that there are forces out there trying to forcibly remove the right of inventors to receive patents and authors to maintain copyright over their works.

    Does he not understand what "voluntary" means? No one is trying to take those rights away.

Wasn't there something about a PASCAL programmer knowing the value of everything and the Wirth of nothing?

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