Open-Source Legal Experts Dismiss SCOs Copyright Claims

Legal experts sympathetic with the open-source movement have little patience for SCO's claims of copyright in its fight against the GPL.

The SCO Group has declared that copyright law is on its side in its fight against the General Public License (GPL). There are plenty of legal experts who come down firmly on the side of open source, however; not surprisingly, those with whom I spoke this week gave me an an earful.

"The SCO letter is rubbish dressed up like a culinary masterpiece," declared Tom Carey, a partner at Bromberg & Sunstein, a Boston intellectual property law firm. Carey continues, "As an IP lawyer, I believe in the importance of IP protection, and the incentive that copyright and patent rights give to the promotion of technology. Eldred v. Ashcroft, the recent Supreme Court case cited by SCO, stands for the proposition that Congress has wide latitude in extending those protections. So far, SCO is on solid ground."

But, Carey went on, "SCOs letter asserts two opinions about the GPL. First, that it is a mistake. And, second, that it is contrary to the U.S. Constitution. The first opinion is a judgment call. Perhaps the contributors to the open-source movement are making a mistake, but they are free to do so.

"The second opinion is where the rubbish lies," Carey said. "While the U.S. Constitution grants Congress broad powers to protect authors and inventors, it does not grant Congress to power to prevent authors and inventors from giving their work away (or from licensing it for free on the condition that derivative works also be licensed for free). Nor has Congress ever attempted to prevent authors and inventors from giving their work away, or licensing them for free. It is not illegal, immoral or unconstitutional to be generous with IP. Heaven help us if such an intellectual-property regime ever comes to pass."

Lawrence E. Rosen, general counsel and secretary of the Open Source Initiative (OSI), was even harsher. "I am astounded at the idiotic arguments propounded by McBride. He has completely misstated the legal underpinnings of free software licenses, which do not seek to destroy copyright law but depend on it for their enforcement. His comments on the DMCA and the Eldred case are entirely inappropriate, and what he says about those legal issues is irrelevant to the issues in the SCO case. Either hes misreading the law and the decisions, or hes just blathering for political effect. Im confident that no reputable federal judge will ever let such absurd arguments be made in court."

Rosen finished with a flourish: "Darl McBride will be laughed out of the courtroom if he pursues these arguments. Im only sorry that the legal system works so slowly, so that he can promote this confusing legal gibberish more than it deserves."

Pamela Jones, paralegal and editor of Groklaw, a popular legal blog site that specializes in the SCO case, comments, "I call it constitutional spinach. In my view, the open letter was written for investors, out of alarm that Eben Moglens recent broadside, SCO: Without Fear and Without Research was too effective. Perhaps they felt they had to say something."

Jones added, "It is simply not true that the GPL is designed to get rid of copyright law or is against it. It is based on it. You enforce the GPL by means of copyright law. It is dependent on copyright law. Programmers rely upon copyright law to protect their code from greedy types who might want to grab some code they are not entitled to use. It isnt against making money either". Here in the GPL FAQ." is its answer as to whether you can sell your GPL software." Jones quoted, "Does the GPL allow me to sell copies of the program for money? Yes, the GPL allows everyone to do this. The right to sell copies is part of the definition of free software. Except in one special situation, there is no limit on what price you can charge. (The one exception is the required written offer to provide source code that must accompany binary-only release.) "

Indeed, even Linus Torvalds himself (a great programmer but no lawyer) has found a hole in SCOs copyright argument. In a Dec. 5 letter to Groklaw, Torvalds wrote, "I ended up looking up the exact wording of the U.S. copyright law for the definition of derivative, and guess what I find a few lines below it: The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works. "

"And note how copyright law expressly includes the expectation of receipt of anything of value, and expressly mentions receipt of other copyrighted works as such a thing of value. And thats the definition of financial gain as far as copyright law is concerned.

"And guess what the GPL is all about?" Torvalds asked. "Maybe you can explain to Darl how the GPL is designed so that people receive the value of other peoples copyrighted works in return for having made their own contributions. That is the fundamental idea of the whole license—everything else is just legal fluff. So ... when he attacks the GPL as being somehow against financial gain, that notion that the GPL has of exchange of receipt of copyrighted works is actually EXPLICITLY ENCODED in the U.S. copyright law. Its not just a crazy idea that some lefty commie hippie dreamed up in a drug-induced stupor." Linux & Open Source Center Editor Steven J. Vaughan-Nichols has been using and writing about Unix and Linux since the late 80s and thinks he may just have learned something about them along the way.