The Great Change: Turning Cathy into a Lawyer

Several years ago there was a cartoon show called Animaniacs with several sets of characters, including two lab mice named Pinky and The Brain. Each ill-fated episode invariably concluded with Pinky asking The Brain, "What will we do tomorrow night, Brain?" and The Brain always answering, "Same thing we do every night -- try to TAKE OVER THE WORLD!" (The mice never succeeded, of course, but the producers were able to make a series out of their various attempts.) As SCO officials ['SCO'] have said one megalomaniac statement after another, statements to the effect of "our view of intellectual property is the correct one, and we won't rest until the world does things our way," I couldn't help but make the comparison. The obstinate narrow-mindedness of their view, the zeal with which they promote their inaccurate and uninformed interpretation of the relevant laws, the utter hubris with regard to their litigious behavior, their adamant refusal to take voluminous critical outcry as a sign that their claims may be damaging to say nothing of entirely wrong, and their willingness to wield any weapon available (e.g., lawsuits, FUD) in efforts to make the everyone else do things to their satisfaction made me realize that they, in fact, are trying to take over the world.

But that was just an impression gleaned from reading dozens of articles. Perhaps in person they would inspire a more favorable opinion.

On Monday night I attended a presentation at Harvard by SCO CEO Darl McBride and senior executive Chris Sontag (I'm unsure of his title these days) where they presented their case to explain why they are suing IBM, Novell, and an "end-user" to be named later, along with lobbying Congress to disavow open source software and sending letters to various companies requiring payment if they wish to continue to use Linux. To their credit both men are polite, professional, and willing to play to a hostile crowd. Which is not to say that the crowd was actively hostile, but there seemed to be few in attendance who did not regard SCO's recent litigation and public comments without a lot of suspicion or outright disgust. Though the event took place at the law school the crowd seemed to be comprised mostly of concerned technical professionals and students. People for whom what SCO is doing feels very, very wrong intuitively but who know too little about how the law works to be able to understand why. I seemed to have been one of only a handful of law students there.

In all of SCO's actions and public statements they seem to be making two general points, and they use each point to substantiate the other. One is that they are a wronged party seeking compensation. This argument is the general assertion that they had intellectual property (of some kind) that got contributed to Linux without their permission, and as such they are entitled to legal remedy. The specifics of the argument are numerous and several, ranging from contractual violations to licensing disagreements, and the remedies also various, although most seem to involve monetary payments to SCO, either as licensing fees or damages.

The second argument is that, even without the concerns about their IP being in Linux, open source software is incompatible with copyright law and the Constitutional mandate to promote the progress of science. SCO describes open source software as a scourge that must be rooted out, and they will lead the effort to do so. This view seems to be predicated on the notion that copyright requires that profit be made, so giving software away, thereby making no money, must not be legal. This is a paraphrasing of their argument so it may miss some subtleties that they think important, but even at their most articulate and verbose they fail to address the inherent inconsistencies in their claim. For instance, their view is inconsistent with the fact that many, many vendors (such as IBM, their number one nemesis) have made money with open source software. Their view also doesn't account for the fact that nowhere in the copyright statute is monetary profit mandated. SCO does, however, address the assertion that open source encourages innovation by saying that everything in Linux that makes it in any way valuable today isn't a product of open source development at all but rather because of SCO's allegedly stolen IP allegedly having been inserted into Linux. Without that IP, SCO has said before and said again on Monday, Linux would effectively be useless in any environment more sophisticated than "hobbyist." So SCO combines their "woe-be-us" arguments with the pretense that through their actions (lawsuits, Congressional lobbying, etc.) they are trying to save not only other vendors from having their IP misappropriated but the advancement of civilization itself.

Unfortunately SCO repeatedly refuses to address (in any substantive way) the criticisms that their stolen IP arguments are factually indefensible and that their legal claims on Linux resemble little more than an intellectual landgrab. Whenever SCO is confronted with the apparent fallacies of their legal position, SCO switches to their meta-message about the defects of open source. In one sense they may have to do this - they may have to impugn the GPL or else some of their legal arguments may immediately collapse. In another sense it justifies a deeply cynical view of their behavior. Like a magician employing misdirection, they prey upon their audience's ignorance of actual IP law to cast themselves as authorities in the area. Whenever they are challenged, they pull the rhetorical equivalent of "Look! Shiny object!" to redirect any ire to something else. An example of this tactic has been, and was again on Monday night, the reference to terrorism.

Unfortunately for all who favor civilized discourse as a means to solve disputes, SCO was the victim of a few Internet attacks, flooding their webserver and essentially forcing it offline. Although there was some speculation that the first attack had been wrought by a misguided Linux supporter, SCO used the incident as an excuse to excoriate the entire Linux community. SCO repeated these baseless claims against the community on subsequent occasions of denial-of-service ['DoS'] attacks, repeating their accusations more voraciously than they actually protected themselves from such attacks. The most recent "attack" stemmed from the MyDoom virus. SCO wasted no time last week erroneously and publicly impugning the Linux community. Monday was the first time I'd heard them acknowledge what experts had been saying days earlier, that the real source of the virus was spammers in Russia, possibly with mob ties, and that the SCO DoS was really a diversion against the real damage the virus caused. But rather than apologize for jumping the gun in castigating Linux supporters, McBride seized the revelation of the true source of the virus to drive home his arguments. People are angry at us, he said, because we are using the law to support our rights and people are trying to get even by doing bad things beyond the bounds of the law. See how important the law is? Now watch: when open source developers give software away for free, they are also acting beyond the bounds of the law. And we know how dangerous illegal activity can be; look at all the damage the virus caused. So isn't it time to stop this illegal problem of giving software away before we suffer any more damage?

He went on to link Linux with terrorists directly but the argument is far too baseless and farcical to even attempt to replicate here. I'm not sure I even could: I like my sentences to make some sort of sense and I don't think I could manipulate SCO's premise into anything remotely logical without distorting it into its exact opposite. I could point out, as someone did Monday night, that it was only proprietary Microsoft software that was vulnerable to the virus and not open source Linux, but I think it's more important to note how tactically SCO tries to defuse skepticism about their position by playing a provocative rhetorical card like terrorism.

And that's just one example. The presentation Monday night was essentially a rehashing of most of the things SCO has been quoted has saying in recent months past, although somewhat toned down (which makes sense, what with it being a hostile crowd and all.) I took notes the entire time and am linking them here. The notes are as accurate as I could make them, and they are interspersed with my own comments and analysis, some of which I have referred to above. I'm not a trained lawyer yet, but what I do know about IP bears little relation to what they believe they know. In typing the notes I referred to the relevant section of the copyright statute if I could. I may not know enough about copyright yet to be able to fully analyze their arguments, but I can read the law and note when it and their statements don't match.

Groklaw has some additional reports from people in attendance (or who watched the webcast) that make good points and are worth reading (in particular, scroll down to "Notes from Harvard" posted by 'jrc' at Tuesday, February 03 2004 @ 12:46 AM EST). Also Eric Jonas at MIT posted a good summary on his blog. And Groklaw has pictures of the event which prove I was there (lowest shot, lower left corner, green sweater.) [Edit 3/1/04: the pictures seem to have been removed. I was still there, however - honest!]