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FSF Statement on SCO vs. IBM
tomdp writes "Eben Moglen, Law professor and general counsel for the Free Software Foundation, has written a statement about SCO's lawsuit against IBM."
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This article frames the issues in a way that cause me to consider that this lawsuit is a legal metaphor for a computer virus. Let me explain what I mean.
This article seems to confirm my suspicion that this lawsuit is a business strategy rather than a principled legal action. If it is also true they they themselves distributed the code under the GPL for which they now seek copyright protection, then maybe the GPL is really the target. Perhaps their lawyers believe that if they can make an argument that invalidates the GPL then they can indeed make a claim against IBM.
But, it is important to note that the exploit here would be of the copyright laws rather as a remedy for some improper action by IBM.
In this sense, the lawsuit is the legal equivalent of a virus. It is seeking to exploit a weakness in the code . Rather than doing something just and benevolent (as lawsuits are intended), this suit seems to seek to exploit a weakness for selfish gain or malevolent satisfaction.
Beyond that, the lack of distinction between GNU and Linux in their pleadings as described in the EFF statement is just lame on SCO's part. Lord knows, both Mr. Stallman and Mr. Raymond have done what they could to ring that bell. Some SCO investigator should have picked up on that.
The best way to do is to be.
This article seems to confirm my suspicion that this lawsuit is a business strategy rather than a principled legal action. If it is also true they they themselves distributed the code under the GPL for which they now seek copyright protection, then maybe the GPL is really the target. Perhaps their lawyers believe that if they can make an argument that invalidates the GPL then they can indeed make a claim against IBM
Law suits imho (I teach media law) are far more often strategies than principled legal action. Sometimes the strategy is principled, and sometimes not. Many famous law decisions by the US Supreme Court were "set up" by one or even both parties to render a decision. So, in U.S. v. Haggerty (the federal flag burning case) someone deliberately burned a flag during a protest in order to bring the law suit. In another example, corporations are required by law to "defend" their trademarks, or risk them entering the public domain, so not that long ago Intel began to demand that a non-profit group that teaches yoga to young people in juvanile detention called "Yoga Inside" change their name because it violated the trademark "Intel Inside." Sometimes principles come out of law decisions, but lawsuits are strategies. My exmaples are two of the less henious strategies out there, but the law is a self-replicating virus even when its biproducts are principled.
The blitz of press about SCO leaves one very confused about all of this. This press release doens't seem to contain a whole lot that is new, and unfortunately does little to resolve any of the significant issues.
The IBM vs. SCO dispute appears to be something that Linux itself is not involved in except as a matter of evidence of violation of contract, unless I misunderstand what the initial lawsuit was about. (IANAL.) IBM does not have any control over the Linux kernel.
The involvement of free software, and I think the reason many of us are so up in arms, is certain statements SCO has made which seem to indicate it thinks a) it can treat Linux, and all the contributions made to Linux by people everywhere, as SCO property and b) that any Unix like system, of any type, also owes SCO for IP use. Those are the really dangerous thoughts, because a lot of us don't trust the court system to acknowledge common sense. The whole IBM thing is just a prelude as far as Linux is concerned - contract disputes between IBM and SCO are secondary. It's whether SCO thinks they can go after Linux that is the real issue. And the reason for the sound and fury is they seem to think they can, or at least they say that. Not to mention their statements that they don't believe the Linux kernel could be enterprise ready so quickly (whatever that means) without commercial software being included. How do they know that? The attitude of "well, we know you aren't capable of creating this, so if you have it it must be from us" is extremely insulting and arrogant. No one has ever put a bounds on what the free software community can achieve with any success. It's just too diverse.
The nightmare scenario seems to be this: A US Court grants SCO the right to all Linux IP, based on some bizarre reading of derivative work definitons. Consequently, if people in the US want to use Linux they now have to license it from SCO, despite the fact that SCO did not create most of the code in Linux. Our efforts will have essentially been stolen out from under us - most developers for Linux have worked in good faith to create a totally free system. If SCO is allowed to destroy that, the result is many years of work down the drain, because free software and open source both would sooner abandon Linux than pay SCO anything. Indeed, if SCO succeeds in such an attempt, Linux will become non-free. The effort will have to be recreated elsewhere, and if SCO's claims to all Unix like operating systems holds up it will have to be on something completely new. Plan9 perhaps, or Hurd, or maybe something totally new. But in any case, years gone.
The mistake SCO seems to be making is that they can grab Linux and make people pay for it. That is, of course, utter nonsense. People would sooner abandon it and start over. Linux is not special because of its technology. It is the freedom of Linux that makes it a powerful force in the software world. The technology is secondary. SCO controlling the technology would, by definition, destroy that which makes Linux worthwhile. We would be pissed as heck if they somehow managed it, but maybe just for that reason the rise of a new system without any IP ties would probably be all the faster. SCO is like the child who wants to hold a snowflake in their hand - the mere act of grabbing it destroys it.
What their motivations might be, there has been a lot of speculation. The obvious possibilities have already been mentioned time and again. SCO will not succeed if their goal is to make money from controlling open source software, because any software they control is not, by definition, open source. We will go elsewhere.
Do I think it will come to that? No. But the law is a strange animal, and one is never 100% sure what will happen. So the sooner this is over with, the happier we will all be. And whatever happens, SCO can forget about ever being a viable commercial business again. I would not do business with any company who uses methods such as those I have seen from them.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org