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| 5/24 |
| 2003/12/7-8 [Politics/Domestic/Election, Politics/Domestic] UID:11344 Activity:nil |
12/7 Most people probably already know this, but just in case for those
who are not aware of it..
http://www.sco.com/copyright
\_ Do you know how many of the senators and representatives now
in the presidential race stood up against the DMCA or the
copyright extension act? none. not kucinich, not kerry,
not liebermann, not gebhart. no one from either party stood
up against this. the only way we're going to beat these
evil cocksuckers is by becoming as effective a lobby as the
media moguls. i'll bet a million nerds who make about 100k/year
can beat a dozen or so media moguls in a out and out brawl
to buy congressmen.
\_ and i'll bet 5 million nerds who make 100k/year won't be
as successful buying congressman than a few corporations
that rake in billions every year.
\_ Interesting. But I don't see any logical basis for his assertion
the GPL itself is unconstitutional/illegal.
\_ I didn't think so neither. But it's just my personal opinion.
An somewhat related issue: copyright suppose to be a temperary
protection. Yet, the current copyright last just couple years
short of life expentacy of Average Americans, thus, for pratical
purposes, permanent. In this regard, our current copyright law
can be argued as unconsitutional itself. :p
\_ I agree with that. It's clear congress was acting in the
interest of Disney rather than the public with that extension
although I'm not sure it's unconstitutional. But what I meant
was, the guy says GPL is unconstitutional but doesn't directly
say why. He just blathers about whether there should be copy-
rights, but GPL uses copyrights.
\_ lessig argues on his blog that the copyright extension
could possibly be considered unconstitutional because
it is not in the best interests of promoting the "progress
of science and the useful arts," as mandated by the
constitution.
http://www.lessig.org/blog/archives/001611.shtml#001611
of course, i'm not an expert on the constition, or
constitutional law, but Lessig sure is.
\_ An important part of his argument regarded retroactive
extensions-- the Constitution explicitly mentions
'limited times' for copyright, but by extending the
term for 20 years every 20 years, Congress is creating
a regime of perpetual copyright.
\- i tried to get through this but it was so stupid i
couldnt do it. it's an interesting question where did
the letter come from, is this to change the topic etc. --psb
\_ it's trying to gather up substance behind what it's saying
by relying on eldred. but eldred wasn't even a software case. |
| 5/24 |
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| www.sco.com/copyright -> www.thescogroup.com/copyright/ Each of these letters will examine one of the many issues SCO has raised. In this letter, well provide our view on the key issue of United States copyright law versus the GNU GPL General Public License. SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the United States copyright and patent laws. This Constitutional declaration gave rise to our system of copyrights and patents. The foundation for current copy protection in technology products is grounded in the 1976 Copyright Act. The 1976 Act grew out of Congressional recognition that the United States was rapidly lagging behind Japan and other countries in technology innovation. In order to protect our ability to innovate and regain global leadership in technology, Congress extended copyright protection to technology innovations, including software. The United States economy responded rapidly, and within 10 years had regained global technology leadership. Most recently, Congress has adopted the Digital Millennium Copyright Act DMCA to protect the intellectual property rights embodied in digital products and software. Congress adopted the DMCA in recognition of the risk to the American economy that digital technology could easily be pirated and that without protection, American companies would unfairly lose technology advantages to companies in other countries through piracy, as had happened in the 1970s. It is paramount that the DMCA be given full force and effect, as envisioned by Congress. The judgment of our elected officials in Congress is the law of the land in the United States copyright arena, and should be respected as such. If allowed to work properly, we have no doubt that the DMCA will create a beneficial effect for the entire economy in digital technology development, similar to the benefits created by the 1976 Copyright Act. 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 United States and European systems of copyrights and patents. 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. 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 stance against intellectual property laws has been adopted by several companies in the software industry, most notably Red Hat. Red Hats position is that current United States intellectual property law impedes innovation in software development and that software patents are inconsistent with open source/free software. Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights. 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. 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. 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. As SCO prepares new initiatives to protect our intellectual property rights, we do so with the knowledge that the most powerful voices in our democratic process give clear support to the intellectual property laws we seek to enforce. As stated above, the United States Congress has adopted the Digital Millennium Copyright Act to give clear and unequivocal protection to copyright management information distributed with software. We are also in accord with important decisions of the United States Supreme Court in the copyright area. Ashcroft, decided earlier this year, the United States Supreme Court gave clear and unequivocal support to Congresss authority to legislate in the copyright arena. The European Union remains firmly in support of intellectual property laws, as embodied generally in the Berne Convention. Thus, SCO is confident that the legal underpinning of our arguments is sound. We understand that the litigation process is never easy for any party involved. But we believe that we will prevail through the legal system, because our position is consistent with the clear legal authority set down by the United States Congress, the United States Supreme Court and the European Union. To understand the strength of this authority, it is interesting to read the recent United States Supreme Court case, Eldred v. 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 United States Supreme Court. This suggests that however forcefully Open Source advocates argue against copyright and patent laws, and whatever measures they take to circumvent those laws, our intellectual property laws will carry the day. The majority opinion in Eldred was delivered by Justice Ginsberg, in which Chief Justice Rehnquist and Justices OConnor, Scalia, Kennedy, Souter and Thomas joined. Dissenting opinions were filed by Justice Stevens and Justice Breyer. In Eldred , the petitioner argued that the Copyright Term Extension Act enacted by Congress in 1998 was unconstitutional. The United States Supreme Court disagreed, ruling that Congress had full constitutional authority to pass the Extension Act. The Courts analysis of the constitutional foundation of the Copyright Act applies directly to the debate between SCO and FSF / Red Hat regarding intellectual property protection for software. SCO argues that the authority of Congress under the United States 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. 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. Red Hat speaks for a large community of software developers dedicated to this purpose. However, the United States 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. In Eldred , the United States Supreme Court addressed for the first time in recent history the Constitutional meaning of the term promote the Progress of Science and the useful arts Seven Supreme Court justices defined the term one way and SCO agrees with this definition. Justice Breyer articulated a dissenting view that the Constitutional objective of promot ing the Progress of Science is oriented to benefit the general public good, rather than create a private reward for authors. Justice Breyer posited: The Clause does not exist to provide a special private benefit, but to stimulate artistic creativity for the general public good. Under this view of the United States Constitution, Justice Breyer would find a Congressional act unconstitutional if, among other things, the si... |
| www.lessig.org/blog/archives/001611.shtml#001611 -> www.lessig.org/blog/archives/001611.shtml Entry Archive More SCO fud, this time insulting the constitution I apologize for the silence, but weve been in Japan this week announcing iCommons in Japan. But after reading this extraordinary document by Darl McBride of SCO infamy, I couldnt resist canceling this mornings meetings to respond. From the start of this pathetic lawsuit, Eben Moglen of the Free Software Foundation has argued that there was nothing behind the SCO claims. But if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO. Actually, the framers didnt say anything about open source advocates. As he rightly argues, the Constitution requires that Congress only grant copyrights where those copyrights promote the Progress of Science. Lets take each of these claims in turn: GPL is exactly opposite in its effect from the copyright laws adopted by the US Congress and the European Union Despite RMSs 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 doesnt make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesnt make it any less a property right. The laws of the US and the EU dont 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 Congresss and the EUs copyright laws: it gives the owner of a property right the right to do with his property what he wants. The issue is clear: Do you support the property rights that Congress gives the creators of software - the right to decide to 1 sell your software, 2 license your software, or 3 give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right. Again, the owners of Free Software, like owners of Microsoft software, choose option 2. The terms under which they license it are, of course, different - they require openness; But still, both get to require something because both are relying upon the property right that Congress has given them. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material. If JD Salinger writes a novel that he doesnt want to be published, copyright law gives him the right to put the novel in a drawer, and never sell it at all. Indeed, the law would punish anyone who stole the book and published it without his permission - even if the motive of the thief was profit. This again follows from the nature of a property right - it is the right of the owner to decide what to do with his resources. Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more profit, he decides instead to use the money to save millions of lives in Africa? It is therefore perfectly permissible for the owner of a copyright to do nothing with it. And it would be perfectly permissible for the owner of a copyright to give it away - to dedicate it to the public domain. McBride, however, goes even further than claiming that theres some constitutional problem with giving IP away deciding not to take advantage of the profit motive. The implication of his argument is that somehow the framers of the constitution were mandating that the only laws that Congress could pass would be laws that protected copyright owners who purported to sell their creative work. That unless the owner follows the profit motive, the right is, in some sense, illegitimate. Well, first, and again, there are plenty of companies that are developing and releasing GPLd software because of the profit motive. But more fundamentally, where is there any legal authority anywhere for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created? We believe that the progress of science is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work. We should all believe that the progress of science is best advanced when Authors have the right to do with their property whatever it is they want to do - consistent with the law, and so long as the property right is properly balanced. And we should all believe that the progress of science is best advanced when that right is vigorously protected. But the owners of GPLd software are doing no more than exercising this right, just as Microsoft would exercise its right. They are profiting from the right to choose the terms under which they release their software, and the terms they have chosen also have a great benefit to other software innovation. The open source community to the degree that it is meaningfull to describe this losely know group as a collective entity has great respect for copyright and patents. As far as copyright is concerned I would think you saw reading Lessig article that the whole concept of the GPL is based upon the enforceability of copyright. And if you had followed open source projects somewhat close you would have known that a lot of time is spent on licensing debates meaning what license to use for what piece of code. Yes, most in the free software community think software patents are counterproductive and anti-competitive. But as you state yourself patents are not global so even if stuff is patentend in the US it does not hinder people in the rest of world in implementing them. US free software companies do work hard at not shipping patented technology however, which is why Red Hat doesnt have mp3 support out of the box for instance. It is also based on the respect for the law of the land, here represented by patents, that the open source community are working on creating unencumbered media formats like the popular music format Ogg Vorbis and the Matroska video format. It is also worth nothing that the code SCO claims has their copyright which has gone into Linux is put there not by the private member of the open source community, but by large corporations which have the kind of legal verification systems that SCO claims free software lacks. Now if you wish to argue that they are playing to ignorant investors, then you could have a point that waving their arms and pounding the table as they have has made a difference witness the rise in the stock so far this year. But once the facts of the case began to leak out or rather were researched out, the stock rise stopped, the magazine articles turned against SCO, and their momentum quickly ground to a halt. As for Boies, dont let his reputation dazzle you into thinking there must be a legal basis for SCOs case. Boies is well-known for not being personally that technically literate. Maybe he uses email now, but it wasnt that long ago that he didnt. Given the convoluted history of UNIX, it is entirely conceivable that SCO could have shown him their side of the story and have it make sense to Boies. Its only when you see the research done by everyone else that you realize SCO hasnt get a leg to stand on. Boies realized after the fact that he signed onto a sinking ship with little chance of success, and that is why he negotiated an extraordinary deal giving his firm 20 of the company in case of settlement or buyoutin addition to mega-bucks up front. As he rightly is argues in the fourth paragraph should probably be As he rightly argues. I have a feeling you might get some wide readership on this response posted by Paul Huff on Dec 5 03 at 8:40 AM While I abhor the actions of SCO, it ... |