Free software
Martin found and briefly quoted an LWN piece on the implications of Caldera/SCO's claims about software development.
The piece makes a good point, which I'll discuss in a moment.
What I find most remarkable about the Caldera/SCO statements is that they seem to revolve around an intuitive idea of "ownership" of technology. In the free software world, most informed people have been led to place great emphasis on the fine distinctions between copyright, patent, trademark, trade secret, and contract (and other areas of law). For example, copyright, patent, and trademark are "rights against the world"; trade secret and contract are not. Copyright and patent are temporary; trademarks must be renewed; trade secrets and contracts are potentially temporary but may be destroyed in certain ways. Independent re-creation is a defense to copyright infringement (and, in a slightly different sense, to trade secret misappropriation), but not to patent or trademark infringement.
This focus on these distinctions is significant in two ways. First, it promotes a better understanding of the actual state of the law. Second, and in my opinion possibly more importantly, it leads to a certain kind of scorn toward claims of "ownership" in technology. If we learn distinctions among bodies of law relating to proprietary control of technology, we cultivate an intuitive skepticism toward "ownership" claims. When someone makes such a claim, we first demand to know which body of law the claim is rooted in; then we point out the particular limitations which are inherent to that particular body of law. And in the absence of a specific legal claim, we recognize that the default is a lack of proprietary control over technology. That is, there is no "ownership" of technology except whatever "ownership" might be for an uncertain time granted by some statute, and then that "ownership" is constrained to the particular enumerated rights provided for in the statute. And outside of that, the "owner" has nothing.
Caldera/SCO's intuition appears to be the opposite -- it appears to be that technology can be owned in a very broad sense, including, for example, some kind of proprietary right in designs and APIs (outside of patent), and some kind of derivative-work right outside of copyright and potentially outside of trade secrecy. I say this not because of something they've said in court, but simply because of things they've said to the press.
One way to counter that intuition is to ask whether the ownership is a matter of copyrights, patents, trademarks, or trade secrets.
In an interestingly disguised piece of Christian evangelism called The Best Things in Life by Peter Kreeft (it doesn't quite advance Christian theology, just undermine some of its traditional cultural rivals), a closely parallel strategy is used by the character of Socrates.
Socrates: What kind of love did you make?Felicia: Do you want details? Why, that's none of your business, you dirty old man!
Socrates: I mean, was it agapê or philia or storgê or eros?
Here the point isn't just to get Felicia to answer the question, but to try to undermine her impression that she understands what love is. Since she doesn't even know the distinction between these four kinds of love, she may start to doubt her former confidence and to think that the question is more complicated than she had realized. (Of course, that's precisely what does happen to her.)
The Free Software Foundation advocates drawing these distinctions, but first and foremost as a way of promoting clear thinking. But elsewhere, people have attacked the term "intellectual property" as a harmful propaganda term. Among other things, it tries to induce us to see these legal interests as a sort of moral entitlement rather than as a government subsidy, like farm subsidies, to promote certain kinds of behavior. There's been a lot of discussion of this tendency, but too little discussion of just how the fine distinctions undermine it.
One way that I think they tend to disparage the interests of the "owner" is by letting the air out, so to speak, of a puffed-up rhetorical version of exactly what the owner's interest was supposed to have been. In other words, clarifying the distinctions exposes an illusion:
The Lion thought it might be as well to frighten the Wizard, so he gave a large, loud roar, which was so fierce and dreadful that Toto jumped away from him in alarm and tipped over the screen that stood in a corner. As it fell with a crash they looked that way, and the next moment all of them were filled with wonder. For they saw, standing in just the spot the screen had hidden, a little old man, with a bald head and a wrinkled face, who seemed to be as much surprised as they were. The Tin Woodman, raising his axe, rushed toward the little man and cried out, "Who are you?""I am Oz, the Great and Terrible," said the little man, in a trembling voice. "But don't strike me -- please don't -- and I'll do anything you want me to."
Our friends looked at him in surprise and dismay.
"I thought Oz was a great Head," said Dorothy.
"And I thought Oz was a lovely Lady," said the Scarecrow.
"And I thought Oz was a terrible Beast," said the Tin Woodman.
"And I thought Oz was a Ball of Fire," exclaimed the Lion.
"No, you are all wrong," said the little man meekly. "I have been making believe."
"Making believe!" cried Dorothy. "Are you not a Great Wizard?"
"Hush, my dear," he said. "Don't speak so loud, or you will be overheard -- and I should be ruined. I'm supposed to be a Great Wizard."
"And aren't you?" she asked.
"Not a bit of it, my dear; I'm just a common man."
"You're more than that," said the Scarecrow, in a grieved tone; "you're a humbug."
"Exactly so!" declared the little man, rubbing his hands together as if it pleased him. "I am a humbug."
(L. Frank Baum, The Wonderful Wizard of Oz)
(The movie version is interestingly different from this.)
As to what LWN actually had to say about free software, I urge you to read Martin's excerpt, or subscribe to LWN and read the article. The main point is that Caldera/SCO's litigation against IBM doesn't show that free software licensing is risky so much as it shows that proprietary software licensing is risky. The defendant in the litigation is not a free software licensee, but a proprietary software licensee, accusing of breaching a proprietary software license by making unauthorized derivative works. The conclusion is that making derivative works of proprietary works may be much riskier than making derivative works of free works. The LWN editorial makes this point much more forcefully.
A more general and conventional point would be to remind people that the GNU GPL is much less restrictive than any proprietary license, because it tries to grant rights not granted by copyright, whereas most proprietary licenses purport to abrogate by contract rights already granted by copyright. And most proprietary licenses completely forbid making derivative works, whereas the GNU GPL simply imposes restrictions on making derivative works. But I think LWN's point is much more interesting. As Martin quotes it:
We all owe SCO a debt of gratitude for showing us how unsafe proprietary software can be. That company is using proprietary licensing to press a truly staggering set of claims over the work of others and power to disrupt organizations worldwide. [...]SCO, it would seem, owns everything. Compared to that claim, the allegedly "viral" nature of the GPL (if you distribute something derived from a GPL-licensed product, the derived product must also be licensed under the GPL) seems weak indeed. SCO is laying claim to decades of work done by dozens of proprietary Unix vendors, and that's just the starting point.
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