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Darl's "Greed is Good" Manifesto
Thursday, December 04 2003 @ 07:59 PM EST

Have you read Darl McBride's "Greed is Good" and it's constitutional too manifesto? I take it as his PR explanation for what they threaten to do next: imitate the legal tactics of the RIAA. We knew that already, because Darl told us at the very beginning that he meant to do this. There is a plan that they are following, no doubt about it. And of course, it comes on the eve of their appearance in court Friday in the IBM case, so it may have a protective purpose with regards to the stock's value.

It is logical SCO would be drawn to the DMCA. Naturally, one of the most hated companies in the world would think of using one of the most unpopular laws. SCO would like to behave badly in order to make some money, and in case you don't like it, they are, in this manifesto, telling you to submit to "the rule of law" of the DMCA, which they indicate they are about to use in the name of making some "constitutional" profits.

The problem they face, however, is, they have yet to prove to anyone that they have any copyrights to anything that anybody is violating. Would that not be a good first step? At least the RIAA actually have copyrights in the materials they seek to protect by legally bludgeoning grannies and 12-year-old citizens with the DMCA. SCO has yet to prove they have any such rights.

Surely there can be no better news than that SCO intends to use the DMCA in some publicly venal way in its quest for money. Could there be a quicker way to get the law changed once and for all? This is exactly how laws that go too far end up getting changed: when people see the law play out in oppressive and unjust ways, they just change the law, one way or another. America was founded on the principle that laws that aren't working out can be changed, not enshrined.

I am confident that the FSF will answer SCO's constitutional spinach and their lies soon. Yes, lies. The GPL is not against making money. That's just one lie. Eben Moglen is an expert in Constitutional law as well as the world's foremost legal expert on the GPL, after all. Meanwhile, here is Larry Lessig's wonderfully complete response, in which he mocks and destroys Darl's "legal" arguments, point by point. My favorite paragraph:

SCO: GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union

Lessig: Despite RMS's aversion to the term, the GPL trades on a property right that the laws of the US and EU grant 'authors' for their creative work. A property right means that the owner of the right has the right to do with his property whatever he wishes, consistent with the laws of the land. If he chooses to give his property away, that does not make it any less a property right. If he chooses to sell it for $1,000,000, that doesn't make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesn't make it any less a property right.

The laws of the US and the EU don't purport to restrict the conditions under which the owner of a copyright in software might license his software (except in ways that are not relevant to this debate). Under those laws, the owner of this property right has the right to sell his property, or license his property, or lock his property in a drawer. Again, it is his property, and he gets to do with it as he wishes.

The GPL thus precisely advances the 'effect' of Congress's and the EU's copyright laws: it gives the owner of a property right the right to do with his property what he wants.

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 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.

Perhaps you didn't know your Microsoft operating system was keeping track of you like that. If you don't want it to, here are directions on how to make it stop. Or just switch to GNU/Linux and taste freedom.

Naturally, the SCO lawyers wouldn't be caught dead writing such stuff as this manifesto, although they must have been asked, and I surely look forward to Mr. Moglen's response. Maybe they don't teach American history in the Utah school system any more, or else Darl (or his manifesto preparers) forgot an important detail. The US wasn't founded on profits. It was founded on liberty, on a yearning for freedom, as in Patrick Henry's impassioned, "Give me liberty, or give me death!" In that speech he spoke of "the holy cause of liberty" and in truth, people risked their lives and left all property behind in the old countries to try to find freedom in America. Has McBride forgotten the words of the Declaration of Independence? It is an explanation of why the colonists felt it necessary to get out from under an oppressive set of laws and strike out on their own, in a quest for not profits but freedom:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The country was founded, then, on the belief that government has as its proper purpose: to serve the public good. Further, the American Revolution was born out of a rebellion against unjust laws that the people perceived as robbing them of their God-given rights to liberty and out of their determination not to be economically exploited. Has SCO forgotten the Boston Tea Party? Darl's sanctimonious words about the rule of law could have been spoken by England's King George III. Was the Boston Tea Party not an uprising against a law passed by the then legally constituted government? Here is a list of some of the loathesome laws the colonists despised, including the infamous Stamp Act:

Under the Stamp Act, all printed materials are taxed, including; newspapers, pamphlets, bills, legal documents, licenses, almanacs, dice and playing cards. The American colonists quickly unite in opposition, led by the most influential segments of colonial society - lawyers, publishers, land owners, ship builders and merchants - who are most affected by the Act, which is scheduled to go into effect on November 1.

I'll tell you, it's not good to get lawyers upset. They know how to get things done. The Stamp Act was repealed. But that was followed by the Declaratory Act:

On the same day it repealed the Stamp Act, the English Parliament passes the Declaratory Act stating that the British government has total power to legislate any laws governing the American colonies in all cases whatsoever.

When goverments start to pass laws like that, you know somebody wants to do harm to somebody and get away with it, for their own profit. And so it proved to be, and in that sense, I think you could argue that America was born in a spirit of rebellion against unjust profits, against Great Britain's unjust, but titularly legal, attempts to make a profit at the expense of the Americans' rights and freedoms. The thing about oppressive laws is, sooner or later, people rebel, and when it starts, the oppressor invariably passes more and more oppressive laws in reaction. But the love of liberty runs too deep to kill, and when a law benefits only a few at the expense of the majority, there is trouble ahead. Of course, those who benefit economically from a law describe those who do not approve of their greed as outlaws, rebels, etc.

December 16 is the anniversary of the Boston Tea Party, by the way, and if you wish to brush up on it, here is a an eyewitness account by a participant and here is a short recounting of what led up to the event:

In 1773, Britain's East India Company was sitting on large stocks of tea that it could not sell in England. It was on the verge of bankruptcy. In an effort to save it, the government passed the Tea Act of 1773, which gave the company the right to export its merchandise directly to the colonies without paying any of the regular taxes that were imposed on the colonial merchants, who had traditionally served as the middlemen in such transactions. With these privileges, the company could undersell American merchants and monopolize the colonial tea trade. . . .

. . .the colonists responded by boycotting tea. Unlike earlier protests, this boycott mobilized large segments of the population. It also helped link the colonies together in a common experience of mass popular protest. Particularly important to the movement were the activities of colonial women, who were one of the principal consumers of tea and now became the leaders of the effort to the boycott. . . .

Various colonies made plans to prevent the East India Company from landing its cargoes in colonial ports. In ports other than Boston, agents of the company were 'persuaded' to resign, and new shipments of tea were either returned to England or warehoused. In Boston, the agents refused to resign and, with the support of the royal governor, preparations were made to land incoming cargoes regardless of opposition. After failing to turn back the three ships in the harbor, local patriots led by Samuel Adams staged a spectacular drama. On the evening of December 16, 1773, three companies of fifty men each, masquerading as Mohawk Indians, passed through a tremendous crowd of spectators, went aboard the three ships, broke open the tea chests, and heaved them into the harbor. As the electrifying news of the Boston 'tea party' spread, other seaports followed the example and staged similar acts of resistance of their own. . . .

When the Bostonians refused to pay for the property they had destroyed, George III and Lord North decided on a policy of coercion, to be applied only against Massachusetts, the so-called Coercive Acts. In these four acts of 1774, Parliament closed the port of Boston, drastically reduced the powers of self government in the colony, permitted royal officers to be trailed in other colonies or in England when accused of crimes, and provided for the quartering of troops in the colonists' barns and empty houses.

Having to house the oppressor's soldiers in their homes and feed them at their own expense was not popular in American homes. The Coercive Acts were called The Intolerable Acts, in America. And can you imagine passing a law you would want to call the Coercive Acts? Here was the result:

Responses came in several forms. Massachusetts, long viewed with suspicion by the other colonies, now received the sympathy and grudging respect of its neighbors. Also, moderates in both England and America were surprised by the harshness of the measures and many began drifting toward radical views. . . . Perhaps the most important result of the Coercive Acts was the summoning of the First Continental Congress in Philadelphia, in September 1774.

In the Declaration of the Causes and Necessity of taking up Arms, dated July 6, 1775, the rebels explained what propelled them, and it wasn't profits:

We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery. -- Honour, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them. . . .

If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, that this dreadful authority over them, has been granted to that body. But a reverence for our great Creator, principles of humanity, and the dictates of common sense, must convince all those who reflect upon the subject, that government was instituted to promote the welfare of mankind, and ought to be administered for the attainment of that end.

The legislature of Great-Britain, however, stimulated by an inordinate passion for a power not only unjustifiable, but which they know to be peculiarly reprobated by the very constitution of that kingdom, and desparate of success in any mode of contest, where regard should be had to truth, law, or right, have at length, deserting those, attempted to effect their cruel and impolitic purpose of enslaving these colonies by violence, and have thereby rendered it necessary for us to close with their last appeal from reason to arms. -- Yet, however blinded that assembly may be, by their intemperate rage for unlimited domination, so to slight justice and the opinion of mankind, we esteem ourselves bound by obligations of respect to the rest of the world, to make known the justice of our cause.

Our forefathers, inhabitants of the island of Great-Britain, left their native land, to seek on these shores a residence for civil and religious freedom. At the expense of their blood, at the hazard of their fortunes, without the least charge to the country from which they removed, by unceasing labor, and an unconquerable spirit, they effected settlements in the distant and inhospitable wilds of America . . .

With hearts fortified with these animating reflections, we most solemnly, before God and the world, *declare*, that exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.

And the rest, as they say, is history. Just a little refresher course for those poor folks in Utah, who don't know a thing about the history of America. They don't know a thing about the Constitution, either, and they never have been able to figure out the GPL. But we'll leave that to Professor Moglen. But I said all this to say one thing: the GPL is about your freedom. And that is why it's as American as apple pie. You might enjoy to read "The GNU GPL and the American Way" by Richard Stallman.

The GPL is based on copyright law. I just wrote an article about that, which LWN has published [sub req]. It's explaining how the GPL is a license, and it's based on an interview with Professor Moglen. It's a license which relaxes some of the restrictions of copyright law, but it depends upon copyright law for its enforcement. That being the case, it's obvious that those who release their code under the GPL are making use of copyright law, not fighting against it or trying to defeat it. We are counting on it to protect us from the corporate bad boys who wish to steal our creative work for their own economic profit.

And by the way, SCO, if you don't like the GPL, we suggest you stop using GPL code in your products.

With that, here's the letter:

*******************************

December 4, 2003

An Open Letter:

Since last March The SCO Group ("SCO") has been involved in an increasingly rancorous legal controversy over violations of our UNIX intellectual property contract, and what we assert is the widespread presence of our copyrighted UNIX code in Linux. These controversies will rage for at least another 18 months, until our original case comes to trial. Meanwhile, the facts SCO has raised have become one of the most important and hotly debated technology issues this year, and often our positions on these issues have been misunderstood or misrepresented. Starting with this letter, I'd like to explain our positions on the key issues. In the months ahead we'll post a series of letters on the SCO Web site ( www.sco.com ). Each of these letters will examine one of the many issues SCO has raised. In this letter, we'll provide our view on the key issue of U.S. 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 U.S. copyright and patent laws. 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. Congress has enacted several iterations of the Copyright Act. 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 1976 Act had the desired effect. The U.S. 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 1970's. 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 U.S. 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 U.S. 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 Hat's position is that current U.S. 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. (see http://www.redhat.com/legal/patent_policy.html ).

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.

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. 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.

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. In the case of Eldred v. Ashcroft, decided earlier this year, the United States Supreme Court gave clear and unequivocal support to Congress's 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. Our stance on this issue has made SCO very unpopular with some. 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 U.S. Congress, the U.S. Supreme Court and the European Union.

To understand the strength of this authority, it is interesting to read the recent U.S. Supreme Court case, Eldred v. Ashcroft , 123 S.Ct. 769 (2003). 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. 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 O'Connor, 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 U.S. Supreme Court disagreed, ruling that Congress had full constitutional authority to pass the Extension Act. The Court's 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 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.

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.

In Eldred , the U.S. 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. Two dissenting justices defined the term differently.

Let's consider the dissenting view. 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…. The "reward" is a means, not an end.

123 S.Ct. at 802-03. Under this view of the U.S. Constitution, Justice Breyer would find a Congressional act unconstitutional if, among other things, "the significant benefits that it bestows are private, not public." Of course, this argument is at the very core of the positions advanced by the Free Software Foundation, Red Hat, and the General Public License. According to the FSF, Red Hat and under the GPL, private benefits are impediments to the general advancement of science and technology, and need to be eliminated entirely from the software industry and the process of software development.

But, unfortunately for the FSF, Red Hat and others, this dissenting view was squarely rejected in the majority opinion delivered for the Court by Justice Ginsberg. The majority position specifically acknowledges the importance of the profit motive as it underpins the constitutionality of the Copyright Act. In expressing this position, the majority opinion stated as follows:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law … understates the relationship between such rewards and the relationship between such rewards and the "Progress of Science." As we have explained, "[t]he economic philosophy behind the [Copyright [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." … Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science."… Rewarding authors for their creative labor and "promot[ing] … Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides … with the claims of individuals." The Federalist No. 43, p. 272 (D. Rossiter ed.1961.) Justice Breyer's assertion that "copyright statutes must serve public, not private, ends" … similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

123 S.Ct. at 785, fn. 18; emphasis in original.

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.

In the meantime, the U.S. Congress has authorized legal action against copyright violators under the Copyright Act and its most recent amendment, the Digital Millennium Copyright Act. SCO intends to fully protect its rights granted under these Acts against all who would use and distribute our intellectual property for free, and would strip out copyright management information from our proprietary code, use it in Linux, and distribute it under the GPL.

We take these actions secure in the knowledge that our system of copyright laws is built on the foundation of the U.S. Constitution and that our rights will be protected under law. We do so 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."

Sincerely,

Darl McBride
President & CEO
The SCO Group, Inc.


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