"I was recently sent a copy of SCO CEO Darl McBride's Open Letter on copyright law. As usual, Mr. McBride portrays the Linux community as the enemy of copyright. As always, he gets fundamental facts wrong.

Their argument about copyright law is totally specious, and fails any sensible test. They claim that the U.S. Congress' authority under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive.

This is an obvious misrepresentation of facts. It's akin to saying that public universities are fundamentally unconstitutional, since they "promote the Progress of Science" yet they aren't motivated by profit.

There is nothing unconstitutional in not being motivated by money alone, although clearly money -- rather than sense, law or anything else -- is what motivates Darl McBride.

Recently, we had an unrelated copyright discussion on the Linux kernel discussion list (some people still want to have binary only modules and try to argue that the GPL doesn't ever cover them).

Anyway, that's beside the point, though it does show that some people want to take advantage of open source without giving anything back. But after the discussion, I ended up looking up the exact wording of the U.S. copyright law and guess what I found:

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

This is from U.S. Code Collection, Title 17 (copyrights), Chapter 1, Section 101: "Definitions." In short, this is from the very first section in copyright law -- the section that defines terms even before those terms are used. This is some pretty fundamental stuff when it comes to copyrights in the U.S.

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 very definition of "financial gain," as far as U.S. copyright law is concerned.

Now guess what the GPL is all about?

Maybe someone can explain to Darl that the GPL is designed so that people receive the value of other peoples copyrighted works in return for having made their own contributions. That is the fundamental idea of the whole license -- everything else is just legal fluff.

So not only is Darl wrong when he attacks the GPL as being somehow against "financial gain;" the notion that the GPL has, of "exchange of receipt of copyrighted works," is actually explicitly encoded in U.S. 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 U.S. code as it stands today.

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

 

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