I was browsing Jason’s recent entries when I ran across a link to this document. It contains a letter sent by SCO to Congress and an “Open Letter” from SCO to whomever chooses to read it. Now in the interest of full disclosure, you should know that from the outset I haven’t been very sympathetic to SCO’s legal claims, and I am suspicious of their funding by Microsoft, though the amount of funding funneled to them by Microsoft is very much in dispute. Until I read these letters, though, I didn’t realize that the people at SCO have completely lost their marbles. Let me see if I can briefly summarize one of their arguments, which is so completely insane that I couldn’t have made it up if I tried.

SCO claims (and says that arguing in court) that the GPL (Gnu Public License) violates the constitution. The GPL, for the uninitiate, is a software license which is used by many open source software packages. I am not a lawyer, but my understanding is that the GPL says, in short, that the author makes the source code of the software freely available for most any purpose. If you make a derivative piece of software, though, and choose to release it, then you must release the derivative version under the GPL (including the source code). In this manner, free software is perpetuated, because you can’t take a GPLed program which meets 80% of your requirements, add the remaining 20% functionality, and then sell it as a commercial software package and keep the source code (the 20% you added) secret. Note that you are free to add your 20% and keep the resulting program secret; if you release it, though, you must do so under the GPL.

So, here’s SCO’s argument in brief. The constitution gives Congress the authority to enact patent and copyright laws. The Free Software Foundation (the primary sponsor of the GNU project and, by extension, the GPL) “actively and intentionally” undermine the copyright system via the GPL. Hence, the GPL is in violation of the constitution.

The number of ways in which this argument defies logic is truly staggering. First of all the GPL is a software “license.” Without the existence of the copyright system, all created works, including software, would belong in the public domain, and the GPL would not and could not exist.

Second, the copyright law, as I understand it, explicitly allows you to require other copyrighted works in exchange for yours. This is the essence of the GPL. I give my copyrighted code to you. If you want to rerelease it as part of your product, though, then you must also place your copyrighted code under the GPL. Note that you are perfectly free to develop your own code 100% from scratch. No one is twisting your arm and forcing you to make your code derive from a GPLed software package. In fact, if it weren’t for GPL you would probably have to develop the code from scratch, because there would be no code out there for you to copy. So, its a free transaction. You can use my code in exchange for letting other people use yours.

Next, the SCO letter tries to invoke the recent Supreme Court decision of Eldred vs. Ashcroft. The essence of the case argued by Eldred was that Congress had exceeded its authority, as granted by the constitution, to grant copyrights for a limited time by essentially grating copyrights in perpetuity by repeatedly extending the copyright term. The Supreme Court ruled against Eldred, stating that Congress had not exceeded its authority. Now, I personally believe that Eldred was wrongly decided, but so be it. A pivitol point argued in the decision and the dissention, though, was whether the copyright clause in the constitution was intended primarily for the public good or for private reward. The dissenters claim that the public good (of having copyrights expire, causing works to enter the public domain) trumps the private reward. The majority claimed that, at least so far, Congress had not exceeded its authority by continuing to extend copyright terms (to promote the private reward of copyright holders).

Now, any sensible person realizes that there is a balance between these two benefits. The idea is to make the private reward high enough to encourage production of copyrighted materials, but to limit that reward so that eventually those products pass into the public domain and benefit humankind. SCO argues, however, that this was an absolute victory for private reward over public good. Therefore, they seem to say (or at least insinuate) the GPL, by forcing derivative software to be open source, advances the public good rather than private reward, hence violating the Eldred decision. Do you see what utter lunacy this is? The exact same argument could be applied to claim that it was illegal to release things into the public domain (which it is not).

The last claim which I will refute is SCO’s claim that open source is bad for the economy. This claim is mostly insinuated, by claiming repeatedly that by defending the copyright system against the perils of open source, they are helping the economy. SCO claims that by giving away software, rather than selling it, open source hurts the economy. Anyone who has had Economics 101 should instantly recognize that this is a fallacy.

Let us proceed by way of allegory. Let’s suppose that in your town there is a retired businesswoman who is a genius. Every day, she is able to generate an idea which will, in the next year, earn $1 million dollars. Since she is already well off, though, she decides to publish these ideas each day on the internet, rather than using them to start companies or selling them to other entreprenuers. Is the economy worse off because she gives away her ideas? Of course not! There is economic value in the ideas which can be mined to create profit making enterprises even though the ideas are given away rather than sold. People implementing the ideas start businesses, create jobs, and maybe even create markets for whole new categories of goods or services. Furthermore, many people can use the ideas off the website, allowing for the creation of many new businesses in locations around the globe. (It is impossible to say for sure whether the economic benefit of giving the ideas away is more or less than the economic benefit of selling them. My intuition says that it is more, but you can’t really make a fair comparison, because many of the ideas might never have been generated in the context of a profit making enterprise. For instance, our businesswoman might be too busy implementing or selling yesterday’s idea to produce today’s. The point is that in either case the net economic benefit is positive.) Of course, the businesswoman herself could get richer by keeping the ideas to herself, but she is the only one who experiences an economic loss by giving the ideas away; the net result for everyone else is positive.

Open source software is the same way. It can be used over and over again in a variety of applications to support businesses of all kinds. The creators of open source packages might be economically hurt by giving their code away rather than selling it, but the effect on everyone else of making free software available is certainly positive. Open source allows for the creation of applications which are needed, but which fill a niche or serve a purpose which may make it economically impossible for them to be created in a for-profit fashion.

This post has turned into a book, I am tired, and I have 50 other things I should be doing, but I hope I’ve made my point. If I previously wondered if the SCO case had any merit, my doubts have been settled. These guys are utter crackpots, and the world would be a scary place indeed if the courts were to adopt their worldview.