[ale] Are our Ethernet drivers in danger?

[Benjamin Scherrey]

On Wednesday 04 July 2001 02:19 pm, aaron wrote:
> Again, since it's independence day, I'm feeling patriotically
> obliged to continue the GPL free speech discussion... :-)

	As a member of the Libertarian party and alternate representing the 4th 
Regional District of the Libertarian National Committee, I am happy to oblige 
a fellow patriot in continuing this discourse with a rational individual who 
may reasonable disagree with my opinions.

> Previously, Benjamin Scherrey typed into the ether:
<snip>
> >The GPL is an extremely
> > restrictive license and does act, in a sense, as a virus of sorts even
> > though that is a very pejorative term.
>
> The pejorative "virus" wording is pure M$ slander. By implication of
> their own distorted application of the term, they are themselves doing
> nothing but purveying and distributing computer viruses.

	I feel obligated to clarify and correct your statements. It is not a slander 
or defamation unless it is false. As you correctly observe, Microsoft is 
being incredibly hypocritical in their use of the term but I cannot fault its 
applicability to the GPL.

> There is absolutely nothing "restrictive" in the GPL: it simply states
> the already implied residual commitment of "public domain"; the GPL is
> simply reiterating that once public domain ideas are submitted to the
> community, they should remain in the public domain, regardless if they
> are employed with commercial or non commercial applications.

	This is an interesting view given the specific circumstances that originated 
this discussion. Outside of such circumstances, however, I would expect that 
you would agree that the GPL is, by necessity of its purpose, quite 
restrictive for those who perceive a need to protect their intellectual 
property through the use of trade secrets.

	Back to your specific clarification, however, what aspects of the ethernet 
code are therefore in the public domain versus under the GPL? Is there a way 
of clearly identifying these differences? This should be quite relevant to 
the issue at hand.

> > That is, in fact, the stated intent of its creator who
> > espouses the elimination of intellectual property rights which goes
> > against the Constitution of the United States of America.
>
> I hope you can please show me from which article(s) of the U.S.
> Constitution you are interpreting this declaration of rights of
> "intellectual property".

	Taking out my handy pocket copy of "The Delcaration of Independence and the 
Constitution of the United States of America", I would cite Article I Section 
8 which enumerates the powers of Congress and states, in part, "To promote 
the Progress of Science and useful Arts, by securing for limited Times to 
Authors and Inventors the exclusive Right to their respective Writings and 
Discoveries;"

> I ask because I find that this is an area where a lot of people in this
> country are confused in their patriotic fervor. Most all of us have
> lived our entire lives saturated in the propaganda of an exclusively
> capitalist ideology and environment, often without any critical personal
> inquiry into those theories or any dispassionate evaluation of the
> real costs and benefits that they impose on our social environment.

	I would welcome your reexamination of your claim that capitalist ideology 
has any significant hold on the current law making bodies, government 
educational systems, or major media today. When's the last time that John 
Locke or Adam Smith were proscribed reading and even commonly understood? Our 
country was founded on capitalist principles and ideology but they exist now 
only because of intertia and the fact that no other system works because 
capitalism is the only mechanism, thus far, that doesn't try to deny the Law 
of supply and demand. This is a law every bit as true as the laws of physics. 
You can try to deny or ignore them but they will never ignore you.

> So said, I feel it is my own patriotic duty <grin> to point out that,
> while the concept of "patent" for physical invention was not unfamiliar
> to our Constitution's founding authors (especially Ben Franklin), the
> idea of "intellectual property" for language, authorship and speech was,
> indeed, foreign to them. I believe the evidence for this lies in the
> fact that our guarantees of free speech comprise the very first
> amendment of their U.S. Constitution.

	I think I have adequately corrected this notion now as the "Bill of Rights" 
did not exist at the time the Constitution was written. Authorship is 
explicitly stated although it took quite a while to develop the copywrite 
laws that could adequately protect these rights. Note that the United States' 
publishing market suffered greatly as a result. 

	You also place a false sense of value on, and display a misunderstanding of, 
the 1st Ammendment. (I'm not diminishing the value of the 1st Ammendment, 
just clarifying the fact that you are assigning it values which don't exist.) 
The Article of the "Bill of Rights" that protects the rights of free speech 
(and others) from *laws* of the government was actually the 3rd Article 
proposed in the list of 12. The first two pertained to proportionment of 
Representatives and when pay changes to Representatives and Senators take 
place. These Articles were all passed by Congress but the first two were not 
ratified (although the second was eventually made part of the Constitution as 
Ammendment 27 in 1992). However, "free speech" does not equal forced speech 
and nothing in the GPL has any bearing whatsoever on the First Ammendment.

> > The GPL is certainly a valid license, and I fully support the
> > rights of private authors to utilize it, but it is not legal under
> > the conditions of intellectual property developed at taxpayer
> > expense.
>
> On the contrary, I think legal history shows how the validity of the
> GPL is protected under the first amendment for all applications of
> this license involving public domain material.

	This is an interesting issue which I'm curious to pursue further. Again you 
haven't established how the 1st Ammendment is relevant at all but the issue 
of public domain material within a GPL licensed work demands further 
investigation. I'd appreciate any prior history of examples of how this has 
been addressed and what the arguments were.

> peace
> (after justice)
> Aaron Ruscetta
>
> PS:
> Happy 4th of July!

	For that matter Happy 5th of July but I think you meant "Happy Independence 
Day!". I concur.

	regards,

		Ben Scherrey

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