SCO's McBride unseals another open letter

Posted on 5 Dec 2003 at 12:55

The SCO CEO has published the first of what he says will be a series of open letters to set out SCO's position on a number of issues. He is off to a controversial start by asserting that the GNU GPL 'violates the United States Constitution and the U.S. copyright and patent laws.'

McBride cites the Constitution thus: 'Congress shall have Power ...[t]o 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.'

What that 'exclusive Right' amounts to, according to McBride, is a right to sell; that this right 'inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension. We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work.' But holders of such a right have other options open to them.

Enter Lawrence Lessig, Professor of Law at Stanford Law School and Chair of the Creative Commons project, who argues: 'This is the most interesting (and silly) claim made in the whole of McBride's piece. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material... more fundamentally, where is there any legal authority anywhere for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created? Answer: No where. There is no such authority, anywhere. It is, like most of the SCO suit, simply made up.'

And of course even IBM isn't disputing copyrights: this is what it claims SCO infringes by breaking the terms of the GNU GPL - so there are protectable copyrights under a GPL licence as far as IBM is concerned. And the company clearly has a profit motive in selling its products, some of which included GPL'd software. Indeed the Free Software Foundation (FSF), which maintains the GNU GPL, says: 'We encourage people who redistribute free software to charge as much as they wish or can... Distributing free software is an opportunity to raise funds for development.'

So McBride's claim that 'Leaders of the FSF have spent great efforts, written numerous articles and sometimes enforced the provisions of the GPL as part of a deeply held belief in the need to undermine or eliminate software patent and copyright laws,' is some way off the mark.

McBride says 'the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support 'free' - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?'

But this mutually exclusive choice is only true if you support SCO's belief that what the Constitution really means by a property right is a right to sell. Lessig responds: 'The issue is clear: Do you support the property rights that Congress gives the creators of software - the right to decide to (1) sell your software, (2) license your software, or (3) give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right.'

The GNU General Public Licence, under which the Linux kernel is distributed, is a key issue for SCO. IBM's counterclaim hinges on the assertion that SCO, with its actions, has violated the terms of that licence and hence infringed IBM copyrights.