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Linus Digs Into Copyright Law and Notices Something Useful
Friday, December 05 2003 @ 01:52 PM EST

Linus must be getting over his revulsion at all things legal. He has put his brain to work on the law, and now that he's in Groklaw mode, he has found something beautifully useful and ironic at the same time. Look what he found, and yes, I am impressed:

"I ended up looking up the exact wording of the US copyright law for the definition of 'derivative', and guess what I find a few lines below it:

'The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.'


"This is from US Code Collection, Title 17 (copyrights), Chapter 1, Section 101: 'Definitions'. In short, this is from the very first section in copyright law - the thing that defines terms even before those terms are used. What I'm trying to say - this is some pretty fundamental stuff when it comes to copyrights in the US. Pertinent, if you will.

"And note how copyright law expressly includes 'the expectation of receipt' of anything of value, and expressly mentions 'receipt of other copyrighted works' as such a thing of value. And that's the _definition_ of 'financial gain' as far as copyright law is concerned.

"And guess what the GPL is all about? Maybe you can explain to Darl how the GPL is _designed_ so that people receive the value of other peoples copyrighted works in return for having made their own contributions. That is the fundamental idea of the whole license - everything else is just legal fluff.

"So . . . when he attacks the GPL as being somehow against 'financial gain', that notion that the GPL has of 'exchange of receipt of copyrighted works' is actually EXPLICITLY ENCODED in the US copyright law. It's not just a crazy idea that some lefty commie hippie dreamed up in a drug-induced stupor.

So if Darl calls that notion unconstitutional, he is actually attacking the US code as it stands today.

"If you want to check that legal quote yourself, the place to go is

http://www4.law.cornell.edu/uscode/17/101.html

"Ehh? Irony.

"Linus"

Linus is way cool.


  


Linus Digs Into Copyright Law and Notices Something Useful | 117 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Linus Digs Into Copyright Law and Notices Something Useful
Authored by: pfaut on Friday, December 05 2003 @ 02:13 PM EST
From PJ's discussion of the Boston Tea Party, we already know Darryl and Co.
failed US History. Why should we expect them to know anything about 'barter'
systems? I seem to recall learning about that in the third grade.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:13 PM EST
Yah, linus is a cool guy. :)

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:13 PM EST
yet again it is pointed out that the GPL is a valid and enforcable license. Best
of luck to all those who oppose it.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:14 PM EST
Bravo Linus!

This is starting to break down the notion of coders being in their own world.

Now, if coders were also laywers....Hmm.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:18 PM EST
The GPL really is fireproof.
Like Linus, I appreciate the irony.

[ Reply to This | # ]

What this doesn't mention
Authored by: PJP on Friday, December 05 2003 @ 02:20 PM EST
is the definition of derived work from the same source:
    A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.

Now isn't that interesting? the definition seems to require a large part, if not all of the original to be included for a work to meet the definition of derivative.

Simply being inspired by a work, or even writing something which can perhaps only have value in the context of the original work does not appear to meet this definition, provided you don't package the original with your work.

So much for Darl's idea that anything that ever landed on a disk that SCO owned becomes their IP.

[ Reply to This | # ]

Prediction: Darl spin
Authored by: TheMohel on Friday, December 05 2003 @ 02:22 PM EST
To the (increasingly diminishing) extent that anything coherent comes out of
SCO, I would expect a reply something like "yes, but since the writer of
the kernel might not WANT the modifications that later authors create, there's
no ASSURANCE of financial gain from the GPL, so it's still
unconstitutional."

After all, Darl is happily counting the $billions he's assured of getting from
the IBM suit and Linux licensing (and probably from the elves in his head, these
days). It's not just about the right to profit from your labor, it's about the
right to be GUARANTEED a profit from your labor. Or, in the case of SCO, from
the donated labor of a lot of other people.

After all, the Bill of Rights clearly has the "right to a sure
thing" in there somewhere, doesn't it?

[ Reply to This | # ]

No kidding
Authored by: Jude on Friday, December 05 2003 @ 02:24 PM EST
I pointed out something like this yesterday: Cross-licensing agreements between
patent holders are very common, and in many cases no money changes hands.

One way of looking at GPL is that it's a cross-licensing agreement between
copyright holders: You can use my code today if you'll let me use your code
tomorrow.

[ Reply to This | # ]

  • No kidding - Authored by: Anonymous on Saturday, December 06 2003 @ 10:00 PM EST
Linus Digs Into Copyright Law and Notices Something Useful
Authored by: tazer on Friday, December 05 2003 @ 02:25 PM EST
Excellant point made by Linus, apparently he's been GrokLaw'd.

Off topic, but has anyone else seen this IBM Linux ad? I sure hadn't so I
thought post it for others who hadn't seen it yet.

http://www-3.ibm.com/e-business/doc/content/lp/prodigy.html?P_Site=S94

---
SCO -->Santa Cruz Operation ->Tarantella
SCOG ->The SCO Group -------->Caldera

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:31 PM EST
*clap* *clap* *clap* Well done.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: PolR on Friday, December 05 2003 @ 02:37 PM EST
This covers more than the GPL. It applies to a very fundamental principle of the
open source development process.

When an individual contributor submits some code, he never contributes a fully
functional system. He contributes a module or a patch that is hardly usable by
itself. The contribution is meant to be included into a fully functional system
that includes all contributors' contributions. Of course each contributor
expects righ to access to the whole system in exchange of his contribution.

Even if for the sake of the argument we assume the software is not distributed
at all outside the circle of its authors, there would be "financial
gain" as per the copyright law.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: mdchaney on Friday, December 05 2003 @ 02:43 PM EST
Linus is way cool in my book when he finally sues SCO for numerous copyright
violations:

1. Still distributing Linux even though they are claiming another license is
needed

2. Possibly including Linux code in their own pathetic offerings, Christoph
Hellwig has already told them where to look

I hate to say it, but The Darl's rants on us being against copyrights are
bolstered by SCO openly flaunting the copyrights of Linux while Linus, the
primary copyright holder, does nothing.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: surak on Friday, December 05 2003 @ 02:47 PM EST
Duh. This is exactly what I've been saying all along, both here and on
Slashdot since the beginning of this case.

If you want an example of an unconstutional license, maybe you should check out
Microsoft's EULAs for Windows or Office, or just about any of their other
EULAs. WARNING: Not recommended for those with heart conditions, thyroid
conditions, or those prone to fainting spells. Do NOT read while eating or
operating heavy machinery. You have been warned.

[ Reply to This | # ]

  • Better yet - Authored by: TrentC on Friday, December 05 2003 @ 08:35 PM EST
    • Better yet - Authored by: Anonymous on Saturday, December 06 2003 @ 01:07 PM EST
Linus is spending time learning copyright law...
Authored by: seanlynch on Friday, December 05 2003 @ 02:48 PM EST

The system of laws in the U.S. is one of the most successful open source projects in the history of the world.

I'm thankful to all those who contribute positively to that system for the common good, and to the betterment of society.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 02:48 PM EST

I like the paragraph on the next page for Sec 102 (b).

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

This says to me that since Linux was written from scratch that SCO cannot assume that Linux is derivative of Unix. A story with the same plot is not the same story and thus copyright does not apply...

[ Reply to This | # ]

Programmers and Lawyers
Authored by: Anonymous on Friday, December 05 2003 @ 02:50 PM EST
I always new any good programmer can be as good a lawyer. Only most programmers
are too reluctant to deal with real people and real problems. ;-)
Until they're caught in the crossfire themselves, that is. This example with
Linus just confirms my theory.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: trebonian on Friday, December 05 2003 @ 03:29 PM EST
Another great Linus quote (full story in
http://www.siliconvalley.com/mld/siliconvalley/business/columnist s/gmsv/7422977
Linux author Linus Torvalds was even less kind in his assessment of McBride's position letter. "[McBride has got the] fundamental facts wrong," Torvalds told Network World Fusion. "I'm a big believer in copyrights. 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."

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 03:40 PM EST
litosteel... And looks what the law says about "Independent Works" based over "Preexisting Works" or "Derivatives"...

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material"

TITLE 17, Chapter 1, Sec. 103

Same reference as Linus...

Emphasis mine, but SCO cannot claim too "Ownership" of the IBM contribution, even if they are "Derivative" works as they claim. You cannot take others Works as yours just because they derive from something you Did before

It's the LAW... Thanks (Sorry for my English)

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 03:46 PM EST
<em>Linus must be getting over his revulsion at all things
legal.</em>

And it's probably all your own fault.

I mean, the more I like law (the school topic, of course I love having laws) is
up to the point of watching "Law and Order", but actually reading
this site makes me think "I want to be a paralegal".

Groklaw: making law interesting. It's like the old mistery books.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: BigTex on Friday, December 05 2003 @ 04:27 PM EST
Now I know I am slower than most of you but it just occured to me why Boise was
hired by SCO. SCO is basing their claims of ownership of UNIX and all
derivitive works on the DCMA...Boise tried to fight the DCMA when he was the
attoney for Napster and was spanked by it...I think he belives it is enough to
try to us ethe DCMA as a virtual thug in their collections racket

BigTex

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 05:16 PM EST
SCO can argue that the earth is flat, but that doesn't change the reality.
I don't know what het thinks het could gain by spreading this fud, but it
would make any difference anyway i think.

Jer

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: jcgratz on Friday, December 05 2003 @ 05:40 PM EST
Clever.

The "exchange for other copyrighted works" bit was added as part of the 1997 No Electronic Theft Act. It was intended to allow criminal prosecution of copyright infringers who just swapped copyrighted works (especially software) with each other, with no money ever changing hands. Happily, it hasn't been used much. I've always thought it was rather draconian and irritating; if Congress wants to criminalize noncommercial copying, they should SAY so, instead of changing the definition of "financial gain" to include actions that don't involve money. It's sort of like the Oxford Debating Society's rule that no dogs are allowed on the premises, and that seeing eye dogs are defined as cats.

But, hey, if we can do jiujitsu on the NET act (as Professor Benkler would say), I'm all for it.

Joe Gratz
www.joegratz.net

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Friday, December 05 2003 @ 10:52 PM EST
Aside from the ethics, there is little to choose between a lawyer and a software engineer ;)

The law is a "programming language" and it is amenable to analysis. Who better than someone who analyses for a living to look at law, once he gets over the bad taste it brings. Of course Linus (and many others in the software community) can look at this from a viewpoint that makes sense (if anything can make sense of law :)

Not to denigrade Linus, but the question I have is - why didn't one of the legal experts (or wanabes) out there find or tell us about (having discovered it in pre-law) the same point? - richard

[ Reply to This | # ]

A Diversion?
Authored by: Anonymous on Saturday, December 06 2003 @ 12:46 AM EST
Has anyone considered that the SCO farce could be a diversionary tactic to stall
Linux development long enough to keep Linux from gaining a significant foothold
in the mainstream computer market during the time when Microsoft is focusing on
developing Longhorn (and/or a 64 bit OS to take advantage of the new AMD
processors)?

The Linux community, which is normally concerned with technical issues, is
apparantly riveted to the saga of the SCO case, like watching a daily soap
opera. It is, after all, a very important case that potentially has serious
ramifications on the future of computing, and therefore society itself, since
the infrastructure of our society is growing increasingly dependent upon
computers. (This issue is something the mainstream media has apparently not yet
picked up on. Also, this is precisely the reason why Microsoft's overwhelming
domination of the OS market share must not be allowed to continue for much
longer. No single entity should be allowed to exert the kind of political and
economic power resulting from that domination.) The fact that Linus, who
reportedly tries to avoid legal issues whenever possible, is researching
copyright law to refute SCO's allegations and claims shows that some
diversionary effect is occurring.

With the release of AMD's 64 bit CPUs into the mainstream market (no doubt to
be eventually followed by an Intel offering), Linux has a tremendous opportunity
to gain wider acceptance. For once, Linux is leading Microsoft in compatibility
with a vital new hardware component: Linux is already 64-bit ready while
Microsoft is still developing 64-bit Windows. If we are to avoid increased
Microsoft-driven hardware and standards lock-out within the next few years, the
Linux community needs to push hard to take advantage this opportunity.

The main advantage that Windows currently offers over Linux is that, because of
the overwhelming Windows market share, virtually all hardware and software
manufacturers ensure that their products are compatible with Windows. But with
the minimal market share that Linux currently has, most hardware and software
developers are less willing to expend the effort to support Linux. Linux is
already doing well in the server market, but the true path to success is on the
home desktop. That is the target customer of the manufacturers of most computer
peripherals. Remember also that Windows started out as a desktop OS. I believe
that a major reason that Windows NT/2000 was so widely and rapidly adopted for
server use has much to do with the fact that the people who made purchasing
decisions were already familiar with Windows (albeit in a different
manifestation) from their home use.

What incentives do home users have for adopting Linux on their desktops? They
will lose compatability with most of the Windows software that they have already
purchased. They will have to learn a new operating system. They don't see any
shrink-wrapped applications and games for Linux at Circuit City and Best Buy.
They don't know where to get Linux software. Linux doesn't come preinstalled
on the HP/Dell/Sony computer that they bought.

Most people that I know have heard of Linux but don't know what is really is.
For Linux to gain acceptance, people must be educated. They must be told how
FOSS development works and how the process and the resulting software promotes
true freedom in the computing world. They must be shown that, when properly
configured, it is just as easy to use as Windows. They must be told how and
where they can download FOSS software that runs on Linux and also be provided
with commercial shrink-wrap options for specialized applications and elaborate
games not available as FOSS. The few remaining gaps in the span of available
useful Linux applications must be filled. (I have yet to see color negative
transparancy scanning software for Linux that comes close to the quality of
Lasersoft's SilverFast or a Linux OCR with even a fraction of the functionality
of OmniPage or FineReader PRO.)

We need advertising. I have seen IBM's commercials promoting server Linux, but
I have never seen a TV or radio commercial promoting Linux for home use. I can
envision a TV commercial in which the true advantages of Linux can be presented
to the mainstream public...flexibility and freedom:

freedom from proprietary lock-in and expensive software upgrades

freedom from 99.99% of existing computer viruses

the freedom of being able to reinstall your OS after a hard drive replacement
without having to first call some company to beg for permission

the ability to have easy access to an OS installation or recovery CD, something
which many new computers currently lack

the ability to allow your children to do whatever they want on your home PC
without fear that they will screw up some system setting or download a virus
that will trash the entire system, because they have a user account that denies
them write access to system-level files

the ability to concentrate the spending of your money on things that actually
cost money to reproduce - hardware - so you can get the best bang for the buck

the ability to do what you want with your computer, when you want to do it, and
the flexibility to make its interface look or behave any way you want.

Linux also provides an ideal environment for college students on a budget to
handle programming assignments.

Sometimes, I think that the most effective way to gain market share would be for
some major Linux-oriented company with deep pockets to purchase Valve so they
can develop and release Half-Life 3 for Linux only, packaging it with a
well-designed Linux installation CD. Okay, maybe a FreeBSD port could also be
released. :)

Now is the best time to act, because I suspect that once companies begin
developing applications for Longhorn, Wine will be ineffective and other
compatibility aspects with "the rest of the world" may be lost.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: All_for_One on Saturday, December 06 2003 @ 06:34 AM EST
Pamela,
Off topic I know, but just read the interview with you on Linux Universe.
Outstanding stuff
Just keep doing what you're doing its well worth it; and there's a lot of very
appreciative people out there, as you must know by now.

My hat has already been taken off to you !!!

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: jaydee on Saturday, December 06 2003 @ 06:45 AM EST
Does anybody know what the latin means?

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Saturday, December 06 2003 @ 01:34 PM EST
IANAL but I looked though "TITLE 17 > CHAPTER 1 > Sec. 102.
subject matter of copyright: In general" And found another note of
interest:

" (b)
In no case does copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work
"

It seems to me that software is a "procedure" (Computer, do this,
then do this, then do this ...). So does this mean the software is not covered
under copyright????

[ Reply to This | # ]

Copyright vs Corporate
Authored by: Anonymous on Monday, December 08 2003 @ 11:08 AM EST
Isn't the whole SCO vs IBM/Linux/GPL/OSS thing strikingly similar to the
Employer vs Employee Copyright/IP thing where an employment contract
for the average programmer often thieves IP over non-work produced or
related technologies produced by an employee in their own time? My
previous employers shackled me with such contracts.

The simple fact that I was 'employed' removed my right to 'innovate' as
an individual, at least contractually. Hopefully the legality of such
contracts will be one step closer to history after SCO single-handedly
discombobulates itself over the coming year.

I suspect that if such shackle-contracts were made illegal that the OSS
community might treble or quadruple in size. There are many
programmers like me just waiting to give back to OSS as soon as issues
like that are resolved.

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Monday, December 08 2003 @ 12:58 PM EST
This is ironic.

Once again, Linus is given credit for something that Richard Stallman did. The
GPL wasn't written by a hacker and dumped on the internet, its the basis for
the Free Software Foundation.

"Copyleft--all rights reversed"

[ Reply to This | # ]

Linus Digs Into Copyright Law and Notices Something Useful
Authored by: Anonymous on Tuesday, December 09 2003 @ 09:46 AM EST
The GPL is as American as a pot-luck supper... everybody contributes and shares
as they can. Do pot-luck suppers threaten restaurants? Only the bad ones.

[ Reply to This | # ]

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