An Open Letter to Darl McBride

An Open Letter to Darl McBride

By Pamela Jones
Groklaw

August 5, 2003

What you said in your statement today, as I heard it, is this: no one has the right to come up with a business plan that might put yours out of business.

I feel your frustration, but that's like saying if I come up with a better mousetrap, I can't sell it, if it will put prior mousetrap manufacturers out of business. Don't you believe in free markets? Don't people get to choose a better mousetrap, if someone invents one? The GPL is a better mousetrap for software than what you are offering, which is why your software business isn't thriving.

Now, before you have a stroke thinking you are getting a letter from a nasty IP pirate, I want you to know that I never, ever knowingly violate anyone's legal rights. I don't download music unless I have paid for it. No kidding. If you really have infringing code that you are willing to show, I'll definitely not use it. If I have to jump down to 2.2 or up to 2.6, or wait for a clean version of the kernel, or switch to the HURD or BSD, or stop using computers entirely, whatever it takes, I'm happy to do so, if necessary. I really mean it.

I know for sure no one in the GNU/Linux community wants your code. You yourself in your statement acknowledged that Red Hat wants to see the infringing code so it can take it out. The only party refusing to let that happen is you. Do you want it to stay in, if it exists, just so you can make money from licenses? Um...is that legal? I'm not a lawyer, so maybe I've misunderstood, and you can explain it to me.

As I understand it, a copyright must be public, so if you're really finding verbatim code, there really is no reason not to show it. I believe, in fact, the burden is on you, not us, to do so. A trade secret is something else, but there are no secrets about copyrighted material, and besides, according to you, your trade secrets have been outed already by IBM, so no contract that you could possibly have could require secrecy for copyrighted code, unless I have missed something huge. Perhaps you can explain that part of your message more clearly than you did today, unless clarification isn't your intent.

You are the only entity here who can know what infringes your proprietary code, because proprietary means we can't look at it, so you have to identify it yourself. Your unwillingness to mitigate any problem you may have leads us to believe you may not have a legitimate problem or that you may have an illegitimate goal, like maybe destroying GNU/Linux. Say, is that legal? To try to destroy someone else's business? You can ask David about that.

Really, no one wants your code. That's the problem with your business model.

But when you say that the GPL, and releasing code under the GPL, is the same as stealing IP in the internet era, someone needs to explain some things to you.

First, the author gets to choose what licensing terms he or she wishes to release code under, if any. That's his IP right, as you would think of it. The GPL doesn't result in communal property. Each author retains his or her own copyright in the code or can turn it over to another entity, such as the FSF, depending on the author's choice. That, by definition, means it isn't communal property. Somebody owns it and has copyright rights in it. Just like you say you do in UNIX code. It's their copyrighted property, which they require you to respect, just as you would like others to respect your rights.

On top of the copyright, GPL coders choose to give users and other programmers more rights than copyright law itself allows. That's also their legal right. It's no different than Microsoft slapping a EULA on its copyrighted work, except it is different in that their EULA takes away rights, where the GPL gives rights. If the GPL isn't "legal", then neither is Microsoft's EULA. It's the same concept.

Now, I'm a writer, so that means this letter is copyrighted. So is everything else I write. No one can take it and print it anywhere without my permission under copyright law, except for fair use, which I believe in and I'm sure you do too, since it's part of the law.

I choose, however, to use the Creative Commons license for my site, because I want people to use whatever I put up here in accord with broader rights than copyright allows. Reporters "steal" my research results all the time and use it as if they did it themselves, and that is fine with me. I want them to do that. They can't steal anything when I freely give it to them to do whatever they want. I want the widest possible distribution of my work so people will see through your, well, excuse me, but what I would call your FUD.

Are you saying that I can't distribute that way, because other web sites charge for access to their content? If not, what is the difference? The GPL is a choice some programmers make, in some cases because they believe in free software, free as in speech, and others because it leads to tremendous benefits in the end result, the software. It's a legal choice, whatever the motivation. Can't you see the difference between that legal choice and piracy, as you call it?

GPL'd code is meant to be used and improved, unless you use it only privately, in which case you don't have to share anything, even any improvements you feel like making to the code. It's yours and yours alone unless you distribute. Companies that aren't software companies can use GPL code as much as they like safely and they will never have to share any private code they add to it, so long as they never distribute the code. That's my understanding of how the GPL works.

And as for Red Hat's SEC risk disclosures, I have a tip for you. No one, including you, has access to unpublished patent applications and copyright registrations. It's a problem common to all, that one minute before you do your search, someone will file an application that will eventually come to light, once the data is updated, and make your later application void. Take a look on the Copyright Office or the USPTO's web site. They explain that to you.

Nice try.

As to the GPL, I think somebody needs to explain it to you a bit better. You have set it up, you think, so end users can't be in compliance with both your license and the GPL at the same time, so no further distribution can occur, as you said. But there is another option. We can remove your code, if you ever show it, or start from scratch, or switch to the HURD kernel, or BSD, or whatever it takes to diligently avoid your code. Then we'll just keep on coding without you and distributing away. That's if you hadn't already released this code already under the GPL, which I think you did, in which case you can't now take it back and write another license for the same code.

We can also decide to try to defeat your claims in a court of law, and that seems to be the legal choice so far everyone is choosing to follow. How is using the courts to establish rights equivalent to piracy? That's what courts are for: to determine if folks like you have any claimed rights or not. Until that happens, you'll have to admit it's a stretch to compare yourself to the glorious RIAA. At least they have demonstrated some copyrights under the current law. So far, you have not. Inviting flies into your spiderweb to look at code you have hand picked and, from analyst reports, edited, just doesn't qualify as proof of rights. It isn't even showing the code.

I hope you figure the GPL part out real soon, so you don't sink in the quicksand I believe you are standing on. Actually, that's hypocritical. I hope you do sink, in a business sense, grasping your unwanted code close to your proprietary heart.

8:15:28 PM