Here is the transcript of the Dan Farber interview with Darl McBride at the Sand Hill Group’s Software 2004 conference in San Francisco, which Groklaw has been given permission to transcribe.
Darl McBride-Dan Farber ZDNet Interview
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Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
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Even if you win your lawsuit, you’re still finished. Do you think by sueing Linux users into oblivion, you’re going to get license fees from them? Heck, I would imagine that most of these people would rather go back to using typewriters and snail mail before they ever gave you a f**king dime.
Even going so far as to assume that Linux is your intellectual property (and that’s a stretch in itself), perhaps it might’ve benefited you to think a little harder on whether trying to protect that IP was worth pissing in companies’ faces, and therefore insuring that they will never, ever do business with you again.
On one hand Darl says there is nothing sinister about Microsoft giving them a few million dollars as they are about to wage a ware against Microsoft largest threat yet, yet there is something so sinister about IBM investing in Novell that it is not even a conspiracy anymore because it is so clear. Talk about semantics.
If you are going to laugh, then here is another one. In Darl’s world it is okay to use Samba and other GPl products while at the same time calling them unconsitional, and a threat to both national security, the software industry.
Well, I think that Daril “McBribe” will move to Washington State in the end. Papa Bill has a new and confy place for him over there. Now humor aside, it was a funny article.
– “It’s not a complicated case…”
–uhm, on the contrary, it is, because not only the claims, but the very nature of the suit changes from time to time. They know that they have no chance, but they continue. Then again, stranger things have happened in the court-rooms.
– How this mambo-jambo started:
–with allot of FUD. Last year SCO started the whole thing and spread FUD. Their idea is this: We try, but we don’t care if we succeed or not. That because some people with high seats at SCO get $$$ anyway from…<insert name here>… They don’t have a solid case. I wouldn’t wanna be in one of those 12 guys in the jury or the poor judge, who has to read between hearings all the crap from SCO. Gotta love memorandums…
Think of the SCO suit as “Yet another FUD campaign against OSS”
oh for god’s sake… i’m sick of this darl/sco news… its not worth reading.. same bullsh** over and over again. They’re dying just look at the SCO stocks…
SCO’s cased is based on one thing: F.E.A.R.!
If they scare the $h1t out of Linux companies, and users, then they win. If businesses and the OSS community stay strong then SCO is toast as in “dead”. I feel sorry for EV1 servers, they did the wrong move here. Even if SCO wins, it will be hardly possible to enforce their crap of businesses and regular Linux users.
Cheers…
PS: There is not one week that I don’t see at least one SCO thread. Must be brain washing or something…
“McBride: Right. Let’s go back to the baseline of when we started this program. We came back, and the Linux community first said, “Look, if your code is in Linux, please show us where it is. And we want to do something about it.” So we came out, laid some code down, they came back and responded and said: “Oh, that wasn’t supposed to be in there. We’re gonna take it out.”
When did they ever show the code to the Linux community?
Darl McBride: “Some other independent third-party attorneys are out there right now saying that this notion of a GPL being a licence and a contract at the same time are pure gibberish.”
International Federation of Library Associations Committee on Copyright and Other Legal Matters, “Licensing Principles”: “2.1 Use of electronic information everywhere in the world is, at this time, usually defined and described by **contractual agreements, otherwise known as licenses**.” [Emphasis added.]
Yes, IAAL, and a license is a contract. If Darl can find one competent attorney to say otherwise, I will kiss his ass in SCO’s largest corporate meeting room at high noon.
Very basic. But at the very least, a contract is an agreement between two parties. Since one party writes a license and another accpets it, and there is agreement, I would also be inclined to think a license is a contract, or at least, once you accept the license you have a contract. I hope Darl does not get an inept jury.
http://finance.yahoo.com/q/bc?s=SCOX&t=1d&c=
SCO stock closed at $8.99 today and it wasn’t all that long ago that it was $10 higher. The Anderer interview and the expose of Micorost’s involvement means no more slush funds for SCO. The SEC has even spoken that they’re watching, and that $20K from licensing is probably all that they’ll ever get.
As they say on usenet: PLONK!
I agree that a license is a contract and IAAAL (I am also a lawyer). The GPL is a unilateral contract, that is able to be accepted by actions. It states clearly in the GPL that the only permission you have to use the software is via the GPL. If you do not accept the GPL, then you have no permission to use the software. Therefore, by using the software, you accept the GPL’s terms, and hey presto, you have an agreement/contract/license. Whatever you want to call it (you can call it Sharon if you want) doesn’t matter, what is important is that the user is bound by the terms of the GPL by using the software. If the user doesn’t want to be bound, then the user must stop using the software. It’s very simple and very elegant – much better than all the shenanigans over shrink wrap/ click wrap.
Matt
It’s over. SCOx stock is now at 8.99. Their small pump and dump operation is now clear for anyone who cares to look.
Canopy may buy back a lot of stock for the next few months to keep the stock from plunging, but when the first ruling against them comes, it will be a race for the door.
The sheer stupidity of this man is amazing. Did you notice how he had no way of explaining why they are using Samba, which is released under the GPL, while he calls the GPL unconstitutional, a threat to national security…
What a pathetic evil loser. HE is not even eloquent or smart, which gives some evil people at least the small redeeming quality of a brilliant intellect. The interview is worth reading and watching because it shows how utterly incompetent this guy is.
Right. The basic point is that when Darl says stuff like “third-party attorneys are out there right now saying that this notion of a GPL being a licence and a contract at the same time are pure gibberish,” I guess that indicates he doesn’t feel he needs to make sense when he talks, or that he supposes no one else can tell the difference.
Darl’s off his nut.
If McBride had a point when he made his statement about contracts, licenses, and third-party attorneys, then I don’t know what it could possibly be. It makes quibbling over the meanings of these words seem a little silly. But what the hell.
Contracts always involve an exchange. An example of a contract is a person agreeing to paint a house in exchange for a fee.
With the GPL, there is no exchange. You may think you are “agreeing” to license derivative works under the GPL, but in fact you had *no right to distribute* a derivative work without the GPL. The GPL does not take away any rights you already had, and no payment is required, so there is no exchange.
For there to be a contract in the common law jurisdictions, there must be a meeting of the minds (agreement), and an exchange of promises (consideration). However, a unilateral contract is slightly different. You don’t have a meeting of the minds in a contemporaneous sense. Someone says:
If you do X, I’ll do Y. If I do X, you must do Y. We have a contract. I don’t have to do X, but if I choose to, and there are conditions attached to Y which have been made clear to me, then you have to do Y subject to the conditions you have made known to me. We have a meeting of the minds on the terms of the bargain.
With the GPL, there is a meeeting of the minds. I read the GPL, and either I choose to abide by its terms, or I don’t. If I choose to use it, then I am bound by the terms the developer has imposed on me in the GPL. There is also an exchange of promises. The owner of the copyright promises to allow me to use his/her work so long as I abide by the terms of the GPL. I promise to use it on the terms set out in the GPL. Consideration does not require someone to suffer a detriment. It just requires an exchange of promises.
Matt
Small correction: GPL claims that if you don’t accept it, you don’t have a permission to redistribute or modify the software. In this case the software is subject to a copiright law provisions, which only allow you to use software and make one backup copy of it.
No need to be confused.
Darl has his talking point: we showed them the code, they took it out. we were proven right.
What this refers to is:
there was infringing code at one time, that was taken out because it was badly written, in hindsight its refringing nature was detected, no harm no foul. After that, Darl showed BSD code and obfuscated comments in a slide show, and he was ridiculed by all.
He just has his timeline and his ownership rights wrong, other than that he’s completely correct.
Based on the above incident, ever since then he’s been saying that where there’s smoke there’s fire, and basically yelling “Fire! Fire!” constantly, even though the only detectable smouldering cigarette butt had been extinguished before he started yelling.
One thing though, in the interview he’s replaced his “millions of lines of code” talking point with a “millions of Linux servers” talking point, meaning millions x 1 infringing line = still millions of lines of code. The old rascal! *chuckle*
Still waiting for that line. Maybe it’s (for i = 0; i < n; ++i) {
My view of the GPL as a license but not a contract is in accordance with the views of Eben Moglen and the FSF. That doesn’t make it right of course. Further discussion is available at http://lwn.net/Articles/61292/
dumbkiwi wrote:
> The owner of the copyright promises to allow me to use his/her work so long as I abide by the terms of the GPL.
I disagree with that statement. The copyright holder made no promise and can revoke the license at any time. Consider the case of me giving you permission to use my pool on Thursdays. I am not bound to allow you to use my pool indefinitely. To revoke your “pool license” I need only communicate my new desire to you.
IMHO, the counter-intuitive fact is that you have no rights to create a derivative work under copyright law. That is a fact which I find ridiculous and unfair, and I think many people intuitively agree. That is why it seems like you are giving something up when you license a derivative work under the GPL.
-Stephen
“McBride: Right. Let’s go back to the baseline of when we started this program. We came back, and the Linux community first said, “Look, if your code is in Linux, please show us where it is. And we want to do something about it.” So we came out, laid some code down, they came back and responded and said: “Oh, that wasn’t supposed to be in there. We’re gonna take it out.”
I don’t think I’ve seen a more bold-faced liar in my entire life. And I’ve known some good ones.
Has anyone figured this out yet? He’s lying to the (as-yet-unchosen) jury. Only he wants to make sure *everybody* with even pickled brains is already prejudiced. The only people they’ll be able to seat on such a jury by the time he’s finished will be total dolts.
At this point, I’m beginning to hope somebody gives him a really effective longevity drug, then sentences him to life.
“What this refers to is:
there was infringing code at one time, that was taken out because it was badly written, in hindsight its refringing nature was detected, no harm no foul.”
That’s debatable. I seem to remember that the above-mentioned code had *questionable* heritage, nothing more.
And even then, what of it? He probably doesn’t even own the copyrights.
I’ve been searching for points by SCO which are actually “strong” or in which they’re probably right or where it is 50/50. Except for the latter, i’ve not found such point, obviously. The only one which we all can’t be certain about and which one Darl is 50/50 right about is Novell vs SCO on the Unix license. It is basically SCO’s word versus Novell’s (whereas other points about copyright are pathetic and any specific claims have been pushed). Which doesn’t matter in SCO versus IBM or SCO versus GPL cases anyway.
I see where Professor Moglen and PJ are going with the property-law rather than contract-law notion of “license,” though I disagree with it. (Though considering our respective qualifications in this area, I disagree with more than a little trepidation.)
But I did make a certain promise if “one competent attorney” said otherwise, and Professor Moglen is certainly that. OK, I’m puckered up! Darl, where are you?
That’s debatable. I seem to remember that the above-mentioned code had *questionable* heritage, nothing more.<p>
Yeah, that was SGI who added some malloc code IIRC, The code was System V but it might have been in the public domain as well, at least it was floating around like it was.
please see:
http://www.technewsworld.com/perl/story/31769.html
and
http://slashdot.org/articles/03/10/02/1346258.shtml?tid=106&tid=139…