My responses to the SCO arguments.

Kevin McBride posted a comment on a Lantham Act case, and Andreas Kuckartz pointed out the possible Lantham Act implications concerning SCO.

Kevin ran out of time to respond to all the people like me who wanted to add their two cents, so I'm adding my two cents here. I wish I had time to do more than express my own opinions  and make naked assertions, or even to convert it from the open letter format it became:

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Hi, Kevin,

I appreciate your willingness to open up a conversation about the wisdom of SCO vs. IBM and the related law suits.

I thought I'd respond to your "last word", I'm sure I'm not the only one.

One problem we have is that too many of the experts are experts in computers or in the law, but not both, and the odd impression, often not admitted, that there is something very similar between the two.

It's important to understand that there is a similarity, but also that the similarity will trip up an expert in the one field when trying to operate in the domain of the other. However, computer science does allow us, as a race and as an amalgamate culture, the opportunity to understand the intersection between our mathematics and our laws. Well, those are side points that aren't really that far aside, but back to my response to your last word.

IP:

I know I'm picking a fight with your specialty when I ask this, but is "Intellectual Property" really the best word we have for what were originally temporary grants of rights to exercise a stewardship in the commons, that is a right to control a new piece of the marketplace for a time?

Commoditization:

Why should the software industry be any more protected against commoditization than any other?

To the extent that participants in any industry should be protected from commoditization, isn't copyright and trademark about the best we can get without shooting ourselves in the foot? (I reference the fashion industry and admit that copyright doesn't provide nearly the protection that players in the fashion industry currently seem to think they want.)

I know I'm treading awfully close to your toes, but I don't think the present world really is a world without IP protection. As an individual software developer, my point of view (through painful experience with Microsoft, in particular) is that I think I have a much better chance of making any money at all from my software using the GPL or MIT license than I would have trying to work withing the IP framework the big IP players claim.

The GPL, in particular, gives me a lot more control over my projects under that license than any agreement I could make with a corporate steward. (Something of an oxymoron, that "corporate steward" thing.)

Groklaw:

Poisoning the well isn't nice, but there has been a bit of that going around on all sides, so, well, let's leave the issue of poisoning the well aside.

The critical analysis of Groklaw's work is an ongoing process. I suppose there is a bit of rah-rah at Groklaw, but there is also plenty of critical analysis. When PJ is wrong, we tell her so.

PJ is not unbiased, and her point of view is not unflawed. But that's okay. I think I hear you laughing at that and asking why it could be okay, but are you unbiased? Is your point of view unflawed?

The problem here is that we hear plenty of people pounding the drums you pound. We don't hear anywhere close to enough on any other side, and the industry is way out of balance.

Professor Lessig has some odd ideas. Some just seem odd in the present context, kind of like the idea that governments should recognize their dependency on (relatively free) individuals once seemed odd. Others of his ideas are truly way out there.

But how does that tie to the fact that, in the current world dominated by IP holders, the only places I can make enough money to feed my family, pay the rent, and send my kids to school just happen to be places using free and open source software?

Different strokes for different folks, but if Microsoft's dominance of the industry had not been stanched, I'd be faced with real commodity wages building add-ons to add-ons to add-ons to add-ons to Microsoft's latest fads. That's where the world was heading back in the early 1990s, and that's where a world dominated by Intellectual Property is heading.

By the way, don't forget that the Macintosh OS was essentially saved by the FreeBSD community.

RMS:

Stallman is a crackpot. The world needs more crackpots, including more like him. When industry moguls recognize it helps their promotional campaigns, they admit it, but it is true. The pool of crackpots is the pool of talent that moves the industries forward.

But, yes, Stallman understands copyright, and many of us don't. That's something we are working on, getting more people to understand the laws of copyright.

I might add, for what it's worth, many in the "IP" camp fail to understand copyright.

As for information wanting to be free, I think even Stallman admits that the meme might have been a tactical error.

We are, after all, bundles of information, we want to be free, and we aren't always willing to do what it takes to maintain our freedom. Of course, we are fundamentally free, until when we sell our freedoms away.

But that's all a red herring. The real issue is not whether information wants to be, or should be free. The real issue is how do we allot people their stewardships over their intangible properties which they create? How do we do it fairly, how do we balance the inventor's stewardship against the stewardships of others in society?

How do we integrate the stewardships of the various people who want to join in the work developing a particular intangible property when we don't want to make money the gate to the market segment? The GPL works well for that for many people. The ISC license also works well for some people, although it takes more activity and effort.

Money itself is not evil, as long as there remain things that you can't buy with it.

IBM:

IBM has IBM's future in mind in the games they play. Most of us trust IBM only as far as we can throw them, but as long as they play by the rules, we'll work with them.

Linux did not save their faltering business. The kernel and the OSses and the community helped out somewhat, but the attitude helped even more. The fact is that they had gotten stuck in the mode of licensing as their business model, and they shifted to a mode of providing services, and the shift pulled the company out of the dive.

Licensing as an implicit services model has its uses, but it also has its limits, and it will kill any business that forgets the implicit services part.

The idea that IBM violated IP rights of SCO is, well, sorry to say so out loud, but it is just plain wrong. It's re-writing history.

Old SCO bought a business supporting the dying UNIX. It was a valid, athough not extremely lucrative, business model. Novell wanted to go other places, the old SCO figured there would be lots of business opportunities helping UNIX customers switch to Linux.

I remember the ads and the publicity campaign, I am not depending on Groklaw's cache of found documents.

There was more work involved than was expected, and there was more necessity for patience than was expected. Linux was, in many cases, not yet quite ready, and that meant that many of the customers needed a lot more support Unix, more than was expected, before they would be ready for paying for the support in moving to Linux.

And the Unix expertise was a bit harder to come by than the Linux expertise.

And then, when somebody dug around to make sure new SCO had the rights to do the Unix support, it was discovered that an intern had realized that old SCO didn't seem to have the IP rights without some sort of explicit agreement about the "IP". Falsely, because the agreement between AT&T and UCB made the question moot. And so we have a half-baked left over from that in the APA, which, at any rate, was only meant to give SCO the evidence for their customers that they had sufficient rights to maintain UNIX and to move the customers' applications to Linux when the time was right.

And then somebody (sorry to say it this way) got suckered into the old licensing-as-a-business trap.

Darl should have known that Novell would not have voluntarily just walked away from a gold mine. It would be huge hubris to for him to believe himself to be able to see a real gold mine where Novell had not. It would be even stranger for him to have believed that Novell was trying to leave the gold mine alone just to nurture their own piece of the nascent Linux market and convince himself that Novell would have then been willing to let SCO kill the market in Novell's place.

It's hard to see any sort of reasonability in Darl's behavior.

I'm not going to try to read his mind, because it doesn't make sense the way he tells it, whether you assume the IP could really be enforced or whether you understand the implications of the agreement between AT&T and Berkeley.

Dynix or otherwise, there were no protectable methods and concepts left after AT&T and Berkeley settled. This is common knowledge among the Free/Net/OpenBSD community. It's hard to argue with the question of why neither Berkeley nor AT&T bothered shutting down the BSD projects.

Some/most of the early technical users of Unix (engineers) would say that the methods and concepts in Unix were so basic and so understood by practicioners of the art of the time that they were unpatentable anyway, completely aside from the question of whether or not software in general should be patentable.

Copyright cannot be substituted to control an invention that is unpatentable.

There is nothing there, nothing except Darl's insistence that he should have been allowed to say, "No, I didn't really mean it." about something that was, if you have to take the IP point of view, was given away before SCO ever came into the picture.

The Monterey arguments, well, Groklaw raises a lot of questions about the trail any new IP from that might have taken into Linux. To convince any of us, you're going to have to demonstrate that there was meaningful new IP that didn't take any of those trails in.

The standards bodies argument, you're going to have to unpack that one, too.

IP discipline? I don't know. If I were to take any of this seriously, I don't think "discipline" would be the right word. "Fear", maybe.

Now, we are not telling anyone they have to give their software away for free.

It would be nice if the whole world suddenly came to their senses about Microsoft. It would also be nice if the whole world suddenly came to their senses about religion. And freedom. It ain't gonna happen. There will always be plenty of people willing to buy proprietary, non-free software, as long as there is any market for software.

But if it did suddenly happen, I think the problems you are seeing would solve themselves.

You see, there will also be plenty of people willing to buy service agreements for free/open source software. People who pay me for the software I've put out there are not buying the software. They are buying my time, and they pay me the same, whether I slap a restrictive EUA on it or give it to them under the GPL.

The problem of competition is not a problem either because my clients are not buying the software. They are buying my time. And if it comes down to forcing them to buy my time, why should I?

You can have your IP, as long as you let me have my GPL/ISC. Different strokes for different folks.