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By: ACS Sun, 01 May 2005 10:11:58 +0000 To Peter

Its an interesting problem: There would have been an infringement from the time that reproduced code is placed in the open source code. IE there was an infringement when UNIX code gets put into Linux.

But because Linux is open source infringing code is re written somewhere down the track.

The Linux code may be an infringment and at the very least may have been derived from infringing code – after all some one had to look at what the infringing code did to create new code to replace it. Whilst that code may not be infringing there has been an infringment but it doesnt exist anymore because it has been covered over, rewritten and replaced.

Therefore the only way to tell whether infringing code was ever in Linux would be to look at the input that programmers have inserted into the code of Linux.

This is exactly what SCO has asked for and what IBM has taken all this trouble to try and stop. But it makes sense that a court should grant anton piller (discovery) orders for those transmissions of new code – if there is sufficient evidence to warrant (IE the linux architecture is sufficiently similar to UNIX).

Unless the Linux code cannot be altered?

I hope my position is a little clearer.

By: Peter Rock Fri, 29 Apr 2005 22:47:44 +0000 ACS:

The reality is that as an open source system all the infringements could have been covered by altered code.


By: ACS Fri, 29 Apr 2005 01:09:08 +0000 Peter

But many who are watching this spectacle closely are reporting that SCOs claims are extremely weak

The reality is that as an open source system all the infringements could have been covered by altered code. That is probably why SCO is fighting so hard for those original inputs and alterations (which must be well over 3000) by the programmers and IBM is fighting so hard to make use SCO doesnt get them.

I think SCO got about 50.

Anyway, doesnt SCO stilll offer Intel based UNIX, surely that still makes money ;)

By: Peter Rock Thu, 28 Apr 2005 06:07:56 +0000 ACS:

It seems a little confusing to them as well. In either case I am sure that those using Red Hat probably dont get it either.

I don’t think RMS or others at teh FSF are confused about this at all but yes, many who use variants of the GNU system are not aware that Linux did not originate from the GNU Project. Although it is licensed under the GPL, it is not the FSF/GNU Project developers who would be liable if Linux (or IBMs AIX) contained copyrighted code. Personally, I canot say as I have not looked at the supposed “offending” code myself. But many who are watching this spectacle closely are reporting that SCOs claims are extremely weak – while some are simply claiming that SCO did it to aid Microsoft and bring about an increase in company stock value. As far as I know, when the notion of a lawsuit against IBM began making headlines, SCO stock went up. And why wouldn’t it? Create some FUD and get people excited that this company called “SCO” may cash in big on “IP” rights. Even if the claims are thrown out, in the long run the FUD itself may prove to be a financial plus for SCO executives when all is said and done. Many outsiders who invested in SCO – in anticipation of a nig IP cash-in – may be screwed as the company may end up crashing and burning out of existence. But it could be possible that SCO executives don’t necessarily care if SCO goes down the toilet – as long as they make a few quick dollars off the FUD-factory and then get out before the roof caves in.

Of course, I could be WAY OFF and the SCO executives may actually believe in their heart of hearts that they have been ripped-off Linux developers. Perhaps they really are trying to make the world a better place and all they really want is for justice to be served. Perhaps they will pull the “rabbit out of the hat” and prove that Linux developers ripped large chunks of code from SCOs “System 5″. Perhaps there really are “hundred[s] of thousands” of Lines-Of-Code as McBride reports “copied and pasted” from their “Intellectual Property”. However, if SCO really isn’t out just to make money and is in good faith simply trying to set the record straight – then one wonders why the offending code is still elusive after all this time. After all, Darl McBride made these claims YEARS ago. I mean really – if there is an infringement this obvious (“hundred[s] of thousands” of lines of code), why has the offending code not been clearly pointed out and why have justices basically mocked SCOs arguments? Perhaps this is all a commonist conspiracy…? :-)

However, if there are any insiders with more information, please pass it on as my words are mere speculation. I’m ultimately not in a position to critique Darl McBride & Co.’s benevolence in this matter.


In any event, GNU of all types may include aspects of the original AT&T code but have probably been covered over by programmers since. Whether they are derivative works is the basis of SCO v IBM.

If by “types” you mean “Linux variants” then yes. A GNU system running the HURD, for example, would supposedly not include any Unix (or Linux for that matter) kernel code considering the microkernel is a radically different design than the monolithic kernel.

By: ACS Wed, 27 Apr 2005 22:47:07 +0000 To Peter Rock

I apologise, I was a little confused between the GNU and Linux systems. The recursive GNU (GNU not Unix) has always confused me.

Welcome to the GNU Project web server, The GNU Project was launched in 1984 to develop a complete UNIX style operating system which is free software: the GNU system. (GNU is a recursive acronym for �GNU’s Not UNIX�; it is pronounced �guh-noo.�) Variants of the GNU operating system, which use the kernel Linux, are now widely used; though these systems are often referred to as �Linux,� they are more accurately called GNU/Linux systems.

It seems a little confusing to them as well. In either case I am sure that those using Red Hat probably dont get it either.

In any event, GNU of all types may include aspects of the original AT&T code but have probably been covered over by programmers since. Whether they are derivative works is the basis of SCO v IBM.

In any event, I have learnt something which is always good.


There is a big difference between the property rights in choses in action and choses in possession. No one can take away you legally purchased goods if they are out of patent or copyright and furthermore no one can take them away if they are in patent or copyright unless you seek to reproduce them.

True, whether they market them or not is up to them. Glaxo Smith Kline Beecham or whatever can choose not to sell cerebrex or whatever at any time – but why would they if it makes a profit and they spent a million bucks inventing and patenting the damnable thing.

By: Peter Rock Wed, 27 Apr 2005 07:54:32 +0000 JPR:

GNU is standing on the shoulders of proprietary giants.


” ‘GNU is standing on the shoulders of proprietary giants.’
This is the basis of the SCO case against IBM

No it isn’t. The SCO case is a Linux issue. It has nothing to do with GNU. I strongly suggest that time is taken to read the history of the GNU Project at

By: Joseph Pietro Riolo Wed, 27 Apr 2005 07:53:02 +0000 To ACS,

I have some negative opinions about SCO but suffice
it to say that I have lost interest in the case
and will just wait for the final decision.

I am positive that GNU does not contain any of the
copyrighted code from proprietary software. When I
said that GNU is standing on the shoulders of the
proprietary software, I mean two different things
at the same time: 1) GNU was built using the tools
as provided by proprietary software. It is somewhat
like saying that an American car was built using
foregin workers (this is just an analogy, not a
statement!). 2) GNU copied some ideas from the
proprietary software but that is okay because
all ideas are in the public domain.

I don’t give hint that intellectual property right
is a bad thing. It is a very powerful incentive
system to encourage people to make their creative
works available to the whole society. But, too
much of it becomes an obstacle to the whole society.
If there is an analogy, I would use the amount of
iron in body. Too little iron in body makes the
body weak. Just right amount of iron in body makes
the body strong and healthy. Too much iron in body
is toxic to the body. Iron is like copyright and
body is like society. Again, this is just an analogy
but I like it anyway.

There is a strange symbiotic (or paradoxical)
relationship between freedom in intangible things
and non-intellectual property rights. I will use
an example to illustrate it. Every June or around
that month, my local library held used book sale
to raise fund to support its operations. I go
there and look for old books whose copyright has
expired. I buy some of them and bring them to
my house. When I acquire the old books after
purchase, I want to be assured that I have
non-intellectual property rights in my old books.
I do not want anyone to take away my old books.
I do not want anyone to make false claim or
ownership in my old books. Why are non-intellectual
property rights in my old books important to me?
These non-intellectual property rights enable me
to exercise the freedom in copying and sharing
the expressions as found in the old books. Because
the expressions are no longer owned by anyone
(because copyright in these expressions has expired),
there is total freedom in using expressions in any
way that I would like to do. The fact that
the non-intellectual property rights enable me
to exercise the freedom in the public domain
expressions make the non-intellectual property
rights very paramount. Here is another
example. When I am sick, I go to pharmacy
to buy medicine. I want to be assured that I
have non-intellectual property rights in
the medicine that I purchase. I don’t want anyone
to have the total freedom to take away my
medicine. Why is that so important? The
medicine helps me to get better and when I am
well, I will be able to exercise the freedom in
using the public domain intangible things.
In a way, it can be said that freedom in
intangible things is born from the ownership
(non-intellectual property rights) in tangible

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

By: ACS Tue, 26 Apr 2005 22:57:50 +0000 To JPR

Two things:-

GNU is standing on
the shoulders of proprietary giants.

This is the basis of the SCO case against IBM (plus the trade secrets and malicious damage mess over project Monterey).
So we dont really know if GNU was built on UNIX or not. We will have to wait for all the bickering over disclosure of the tranfers under the Open Source Licence to end before we can make that observations. (But I am inclined to agree).


Freedom can’t coexist with ownership

Posner may argue (along the lines of the farmer able to protect his crops) that freedom cannot exist without property. After all who is to be free – the people, intelligences cognizant of freedom or the property, neutral in that regard. Freedom of speech (1 Am) applies to the speaker and not the speech. That may be philosophical but if we apply the reasoning to your analogy of the slave and the slave holder we would have to find that the slave is in fact the speech or property. Although you acknowledge that the analogy is flawed this is an interesting deduction we can make about your reasoning, is it not?

The property is in the conveyance – a set reproducable thing – and not the idea. We consider it to be good economic policy to give the first maker of such conveyance a monopoly of its use for a certain period of time and after that for it to be a public work that may be used by anyone. (True the Bono Act is a little crazy in this regard as is naxos records decision)

Nonetheless we should not disregard the property because it is intangible. Such things are as much a building block of society as any institution i can consider.

By: Joseph Pietro Riolo Tue, 26 Apr 2005 20:39:56 +0000 To Peter Rock,

On the other hand, how often do you hear Stallman saying
that he used proprietary software to build his own
psuedofree software? Maybe, rarely. When he does
not say it often, people will forget that he once used
proprietary software. Whether he intends to do that,
I don’t know.

When people look at GNU, what do people think? Of
course, they do not think that GNU was built on
proprietary software. They only think that GNU was
influenced by UNIX, nothing more, nothing less.
And, they just stop there. They do not meditate
on GNU and start to realize that GNU was born out
of proprietary software or something like that. Or,
to paraphrase the common saying, GNU is standing on
the shoulders of proprietary giants.

About freedom…

Freedom do not work the same for both tangible and
intangible things. Your example of firearm is not
a good analogy for intangible things (this is why
Second Amendment does not use the word “freedom”;
it uses “right” instead).

Public domain simply means that the public owns
the domain. In respect to the tangible things such
as land, it means that the U.S. Government (which
is supposed to be a servant to the whole population
in the U.S., that is, the public) owns land on the
behalf of the public such like national parks. In
respect to the intangible things such as ideas,
language, words, expressions, and so on, public
domain means that the whole public, the whole
population in the U.S. owns the intangible things.
When everyone owns an intangible thing, there is
no one to exclude anyone. This is equivalent to the
absence of ownership because there is no need for
anyone to assert ownership on the intangible thing
to exclude anyone else from using it. So, I don’t
agree with your suggestion that public domain is
same as anarchy.

Freedom is not free from consequences. We all are
bound by the Universal Law of Consequence. That
is why we have laws against forgery, libel, fraud,
and so on. These laws focus on the consequences
of exercising your freedom, not on the means of
exercising your freedom. I don’t think that
anybody wants anyone to have total freedom in
respect to the tangible things. Fortunately for
us, we are bound by the natural law that we can’t
have total freedom without consequence in respect
to the tangible things.

In respect to intangible things, they work
differently. The universe that we are in allows
for the intangible things to transcend tangible
things. It is possible for a person to convey an
idea to the next person without taking up any
more physical matter. It is possible for a person
to copy a word from another person without the
need to take any tangible thing from the second person.

I have wandered into philosophy.

Back to your demand how the GPL is not freedom. Here,
it is important to realize that what GPL actually
protects is not the freedom but the rights. The
freedom does not need protection because it means
the absence of rules, laws, constraints, restrictions,
and so on. This is why the First Amendment uses
“freedom”. It means that the Congress can’t set up
laws that will reduce the freedom but Congress is
not obligated to protect freedom. In other words,
Congress is not obligated to help you to spread your
speech or press. Congress is not obligated to finance
your printing press. But, Congress can’t make law
that will reduce your freedom of speech and press.
Does GPL protect your freedom to use software? No,
all GPL does is to protect your rights to use software.
How is it possible that GPL can protect your rights?
Through copyright law and contract law? How is it
possible that GPL can use copyright law? Through
ownership in the copyrighted software. This is
the key concept – the ownership. This is why
intellectual property right has the word “property”
in it. You can have property only if you can assert
ownership in tangible or intangible thing. GPL
depends on the concept of ownership to assert rights
in the software that is covered by GPL. Without
ownership, there is no way to assert rights.

Freedom can’t coexist with ownership. Freedom
seeks to be free from external control. If there
is an analogy that I would use as the last resort,
it is slavery. When a person (called slave) is
owned by another person (called slaveholder), the
slave has no freedom. GPL strongly depends on
ownership to exert controls over other people’s
behavior. That is never freedom. The public domain,
on the other hand, exerts no control over you.
That is freedom. (I am fully aware that freedom
is always double-edged and that is what it is
always meant to be.)

(Don’t need to tell me that copyright holders are not
same as slaveholders. I only use an analogy to
explain the concept of ownership but they are not
equivalent, I know.)

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

By: Peter Rock Tue, 26 Apr 2005 16:50:35 +0000 p.s.

Before anyone (like those sneaky mice) tries to paint me as a deluded and irrational extremist -

I’m well aware that “neighbor Bob” is hyperbole.

Murderers != Software Developers Who Apply Non-Free Copyright Licenses and Patents To Their Work

By: Peter Rock Tue, 26 Apr 2005 13:18:32 +0000 Joseph Pietro Riolo:

He likes us to forget that he once used proprietary software long time ago to build his pseudo-free software.

That is simply not true. In fact, he often reminds us of the fact that he and others “used” Unix as a model to begin the GNU Project. He is quite honest about this and never have I heard him give any indication that “he likes us to forget that he once used proprietary software”. In fact, I would say the exact opposite is more likely – that he encourages us all to remember the history of how the GNU Project started from Unix. Besides, if he really wanted us to forget, I don’t think he would have used the word “Unix” in the acronym — no? The name GNU itself brings attention to the history of how it developed from the proprietary Unix. Not a good choice if you intend for people to “forget”. So to say that “he likes us to forget” is completey unfounded. I’ve never once seen any proof that he actively tries to avoid talking about the reverse engineering he and others did in order to create the GNU system. Richard is the last person who wants anything “forgotten” about how the GNU Project came about. Your perception of this is not only wrong, but the exact opposite of actual reality.


Also I’d like to add that “freedom” does not mean freedom to do whatever you want. I understand your semantical argument that free culture and free software isn’t really free, but one can easily twist your rhetoric around and then call the public domain “anarchy”. Your argument is like saying that I’m not really free because the law doesn’t allow me to pick up a firearm and shoot you. You are saying that a truly free society would allow me to do this but if it doesn’t then I’d be misusing the term “free”. I guess if you want to define freedom as – “free to do whatever one likes without regard to the world around you” – then I see your point. But I don’t want that kind of a world either.

So please, explain to me how the GPL is not freedom. If you watch carefully, every point you try to make will say something like – “It isn’t free because once I accept it I can’t turn around and use it for my own selfish end.” But unless you are confusing freedom with anarchy that doesn’t stand. Please show me – please explain to me – use an example if you can – of how the GPL does not provide for and protect freedom. If you are going to say –

I can’t turn a GPL program into my own proprietary package.
I can’t take some GPL code and put it into my own proprietary package.
I can’t take an unmodified GPL program, claim authorship, and turn that into my own proprietary package.

then I’ve heard it all before.

No, you are not allowed to go run over the next door neighbor with your car because you want to either. But being denied the “freedom” to vroom-vroom over neighbor Bob’s body doesn’t mean that “freedom” is an inappropriate description concerning your status as an individual in society. Perhaps you are not free for other reasons/circumstances – but it is not you being disallowed by law to murder neighbor Bob that makes you shackled.

In everyday life, Freedom != Doing anything you want

By: Joseph Pietro Riolo Tue, 26 Apr 2005 09:34:38 +0000 To James Day,

You made a good observation that the license chosen by the
Free Culture Movement is far less restrictive than GPL. How
many people actually know the subtle differences between
free as used by the Free Culture Movement and free as used by
Free Software Foundation? Not too many.

What is the Free Culture Movement trying to prompt? Is
it trying to promote the truly free culture? No, because
the pieces of culture that it is prompting are still owned
by authors and artists. As long as the ownership is still
there, there is no thing called free. Then, what is the
movement trying to prompt? It only wants to increase the
openness in culture, not to increase the freedom (meaning
the absence of ownership) in culture.

Regarding other comments:

Stallman is too self-righteous. He likes us to forget
that he once used proprietary software long time ago to
build his pseudo-free software. Moreover, we the sinners
do not have the luxury to use open and public domain
software exclusively. We the sinners need everlasting
atonement to forgive our sins for using proprietary software.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

By: Peter Rock Tue, 26 Apr 2005 06:51:23 +0000 Stallman’s response concerning BitKeeper was interesting. He did a good job of saying “I told you so” without actually being petty about the situation. I felt he brought insightful information regarding the history behind BitKeeper and could have been much more chastising. Perhaps McVoy may have a differing opinion…

And as RMS said – “Success will require firmness and determination.

For me, moving to exclusively free software was, I admit, painful. There are many things I miss out on – and although it sucks eggs, I’ve gotten used to it. I get funny (or so I hear) videos and audio clips sent to me by family and friends and I never watch them. Websites that require a flash plug-in I just surf away from and leave the “puzzle piece” icon there waiting to be clicked “to install plug-in”. It’s simply more content that I am forbidden to see because I value freedom over convenience. Being an insignificant coder myself, I suppose it is my way of appreciating the work that so many have done in order to let me use a computer in freedom at all. I pay a little for free software and avoid (as much as possible) proprietary software…this is close to all I can do considering I couldn’t code my way out of a wet paper bag compared to those who have brought me GNU/Linux.

On another note though – in some contexts, I would think it wise to avoid pointing out who is or isn’t using free software. Instead of spending energy pointing out what appears to be a contradiction, I’d like to know more details. I don’t know if Lawrence has time, but it would be interesting to hear more specifically (like a detailed list perhaps?) what software he uses and what features he feels he “needs” that current free software cannot handle. I would not intend this examination to change the way Lawrence works – that is his business. Besides, I don’t think anyone can question Lessig’s “firmness and determination” – his passion, like Stallman’s, is undeniable. But I would be fascinated to hear what someone who “blogs over Godthab” believes is essential software to his work. :-)

By: J.B. Nicholson-Owens Mon, 25 Apr 2005 21:27:50 +0000 Ross Messing: If what you say is true, then Prof. Lessig isn’t using what you call “the best tool for the job”, nor should he base the decision of what program to use on such narrow criteria (which even those who champion the message don’t consistently believe in—see recommendations of MP3 instead of Ogg Vorbis). He’s not using Powerpoint, he’s using Keynote, Apple’s proprietary presentation software.

As for Lessig’s contribution to society, I don’t doubt it. I know firsthand that his work is important and will be recognized as such for a long time. But Prof. Eben Moglen is also on the FSF board for legal expertise. He’s one of the authors of the GNU GPL, if I recall correctly. Moglen contributes a great deal to society as well. He also teaches law, and (from what I recall of one of his talks) he uses free software to do his work.

The issue at hand is not what license any of us would apply to’s presentation program or any proprietary alternative. These programs are already licensed by their copyright holders. The issue is whether that license qualifies as a free software license or not, and what message free software advocates send by using a non-free software program.

Just today I came across RMS’ note about BitKeeper. For those of you not in the know, BitKeeper is a proprietary program which came to fame in recent years as Linus Torvalds’ preferred Linux kernel source code revision tracking program. RMS’ letter mentions that by using BitKeeper, free software Linux kernel hackers were “teach[ing] others to give freedom low priority”. I figured something similar would go for FSF board members giving presentations with non-free presentation software, particularly where free alternatives to do the same work exist and even run on the same hardware Lessig already has.

Perhaps I misunderstand being on the board of the FSF, or perhaps I misunderstand the degree to which people in the free software world actually believe their own rhetoric about using the software they endorse. I was led to believe that this counts for something in the free software community. So you can understand why I think it embarassing that: the logo for an official GNU project (GNOME) is built on a non-free font (Microsoft’s “Trebuchet MS” which is available gratis but would not qualify as free software), audio files this community would be interested in are distributed in formats that can’t be played without violating patent law or installing proprietary software, or an FSF board member running non-free software to do their publicly-visible work.

By: Ross Messing Mon, 25 Apr 2005 10:33:46 +0000 J.B. – It seems like “suicide pact” didn’t mean actually killing yourself, but rather an irreversible decision, like applying one of the “once this license is applied to the work, no other license, even revisions of the current one, can ever be applied to it” licenses.

And on requiring Dr. Lessig to use Free Software – come on. There’s already surely some pressure on him to do so, but he’s a law professor, and his role on the FSF board is presumably because of his legal expertise, not his coding contributions to FSF projects. He’s a man who’s gone far out of his way for this movement already, and for anyone, whether or not they’ve done more than him, to ask more of him, seems overly demanding. Powerpoint is, at present, the bes tool for the job, and there’s no reason why someone whose time is clearly valuable needs to spend it learning another.

By: J.B. Nicholson-Owens Mon, 25 Apr 2005 01:05:34 +0000 James Day: I fail to see what is suicidal about using free software and it doesn’t strike me as too much to ask that an FSF board member should actually use the software that that organization promotes, but perhaps I misunderstand the role of the FSF board. It sounds to me like you’re just being mean.

By: James Day Sun, 24 Apr 2005 14:00:31 +0000 Joseph, not really free, mostly. But at least much of it is less restricted than copyleft and its “I’m only compatible with myself” licensing, so there’s some hope for the long term.

J.B.Nicholson-Owens, I’d be pleased to see that “non-free” software in use. “Free” isn’t a suicide pact and it’s good to make it very clear when there’s still more work to do.

Happy birthday to freeculture!

By: Joseph Pietro Riolo Sun, 24 Apr 2005 10:30:31 +0000 Free? It is really “open” that is dressed in the clothing
of “free”. Free Culture Movement is available to people who
agree to abide by the terms and conditions in the licenses.
It ain’t free. But then, Free Culture Movement is free to
misuse the word of “free” to mislead people in believing that
it is free when it actually is not.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

By: J.B. Nicholson-Owens Sun, 24 Apr 2005 05:13:26 +0000 Congratulations on your successful movement, may you see many more years of successes in the future.

Speaking of “stand[ing] by their principles”, as Craftsman was, I hope to see you, Prof. Lessig, running a free software OS, and free software presentation & movie playing software on your “gigs”. I watched your Library of Congress talk and it was awkward to see someone on the FSF board of directors giving a lecture while running a non-free OS and proprietary presentation software. Free software programs might be a little less convenient than the non-free software you’re used to, but’s Impress program and Totem work well to play presentations and movies, respectively.

When you go out on gigs that record your talk, might I suggest asking your hosts (or anyone recording the event) to release a copy of the recording in a format free software users can play and licensing the work under a CC license so we all can share it without spreading what amounts to an invitation to install non-free software. Ogg Vorbis+Ogg Theora for audio+video is free, most QuickTime codecs people commonly use are proprietary, and it should go without saying that Windows Media codecs are proprietary.

Again, all in the spirit of sticking to (what I perceive to be) your values: supporting free software and Creative Commons licensing.