SCO gets crazier by the minute

Recently Darl McBride, the cuckoo-clock CEO of SCO, has been making weird assertions about the GPL — specifically that it violates the US Constitution. Here’s what a real constitutional lawyer (Larry Lessig) has to say about that:

“As the December 4th letter asserts (but does not defend), “SCO asserts that the GPL … violates the United States Constitution.” McBride makes the same claim less directly in his January 8th letter to Congress (“the GPL … is in direct contradiction to .. the recent Supreme Court decision in Eldred.”) And thus, it follows, that the US Congress, and US government, should do what they can to assure that the GPL “not be allowed to continue to undermine” US copyright industries.

But this argument makes a category mistake. The US Constitution is a restriction on governments, not individuals (except perhaps the 13th Amendment which seems to apply directly to individuals.) If McBride, for example, were to lock RMS up and forbid him from talking, he wouldn’t be violating RMS’s “free speech” rights. Only a government (or someone acting under government authority) can violate “free speech” rights. Likewise, if McBride were to take RMS’s computer, that wouldn’t be a “taking” in violation of the 5th Amendment. It would be theft, but every theft is not a constitutional violation.

Likewise with the GNU GPL. The GNU GPL is a copyright license. It is the creation not of a government, but an individual. There is no way that an individual can violate the constitution merely by writing a contract. And the argument that he can reveals that the author has no understanding of the way constitutional law functions.

It might be that McBride is saying that it would be unconstitutional to enforce the GNU GPL, because any copyright law that would “free” content would be inconsistent with the Copyright Clause. That, unlike the former claim, would at least be a coherent constitutional claim. Coherent, but false. It would constitute a radical departure from the historical interpretation of copyright law, for the Copyright Clause has always been understood to give Congress the right define the property right that copyright is however it wants. If Congress allows people to waive copyrights, that’s fine under the Constitution. SCO’s claim against this tradition would be that Congress acted unconstitutionally in when it wrote a Copyright Act that allows copyright owners to waive some of their rights.

This is, again, a silly interpretation of constitutional law. And more importantly, it is a totally baseless interpretation of the Supreme Court’s decision in Eldred. If Eldred means anything, it means that Congress has a broad discretion to balance the rights of copyright as it deems best — within the express limits of the clause. There is no express limit in the copyright clause that mandates proprietary production.

SCO is flailing, and failing. If this is all it has, then it will soon be forgotten.”

The tyranny of extreme copyright

From an article by Robert S. Boynton in today’s New York Times Magazine:

“Last fall, a group of civic-minded students at Swarthmore College received a sobering lesson in the future of political protest. They had come into possession of some 15,000 e-mail messages and memos — presumably leaked or stolen — from Diebold Election Systems, the largest maker of electronic voting machines in the country. The memos featured Diebold employees’ candid discussion of flaws in the company’s software and warnings that the computer network was poorly protected from hackers. In light of the chaotic 2000 presidential election, the Swarthmore students decided that this information shouldn’t be kept from the public. Like aspiring Daniel Ellsbergs with their would-be Pentagon Papers, they posted the files on the Internet, declaring the act a form of electronic whistle-blowing.

Unfortunately for the students, their actions ran afoul of the 1998 Digital Millennium Copyright Act (D.M.C.A.), one of several recent laws that regulate intellectual property and are quietly reshaping the culture. Designed to protect copyrighted material on the Web, the act makes it possible for an Internet service provider to be liable for the material posted by its users — an extraordinary burden that providers of phone service, by contrast, do not share. Under the law, if an aggrieved party (Diebold, say) threatens to sue an Internet service provider over the content of a subscriber’s Web site, the provider can avoid liability simply by removing the offending material. Since the mere threat of a lawsuit is usually enough to scare most providers into submission, the law effectively gives private parties veto power over much of the information published online — as the Swarthmore students would soon learn.

Not long after the students posted the memos, Diebold sent letters to Swarthmore charging the students with copyright infringement and demanding that the material be removed from the students’ Web page, which was hosted on the college’s server. Swarthmore complied. The question of whether the students were within their rights to post the memos was essentially moot: thanks to the Digital Millennium Copyright Act, their speech could be silenced without the benefit of actual lawsuits, public hearings, judges or other niceties of due process.

After persistent challenges by the students — and a considerable amount of negative publicity for Diebold — in November the company agreed not to sue. To the delight of the students’ supporters, the memos are now back on their Web site. But to proponents of free speech on the Internet, the story remains a chilling one….”.

CDs a dying breed — according to Forrester Research

Reuters report:”Music downloads will render the ubiquitous compact disc all but obsolete in the next five years, yet half of all companies that begin selling digital songs online will fail by year-end, a researcher warned on Saturday.

By 2008, one third of music sales in the United States and nearly 20 percent in Europe will come in the form of downloads and streaming music over the Internet, building a multi-billion dollar business for the battered music industry, according to a new study by consultancy Forrester Research.

“The industry is going through a complete change in the way people consume music,” Josh Bernoff, a Forrester Research analyst told a gathering of music and technology executives at the annual MidemNet conference.

He said the U.S. market alone for downloads and subscriptions to online music stores will top $300 million this year from a virtual standing start a year ago.

“By 2007 or 2008, CDs will be something only old people have,” Bernoff said.”

The ethics of downloading

The NYT asked Aaron Schwartz to contribute a piece defending downloading. He wrote the piece, but apparently the Times chopped it (presumably the notion of someone arguing that downloading music was not unethical was a bit strong for that venerable organ). Anyway, Aaron’s unexpurgated piece is interesting. And it has some useful stats and references.