decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
OSAIA Releases a Letter Purportedly from SCO to Congress Attacking Open Source and the GPL
Wednesday, January 21 2004 @ 01:51 AM EST

SCO is reportedly making moves on the governmental front, sending lobbying letters to at least some members of Congress. Newsforge has the story. If the letter is authentic, I gather the goal is to have Linux made illegal, or at least made off-limits for governmental use.

The Open Source & Industry Alliance (OSAIA), which describes itself as an organization that "represents the interests of the broad array of companies, organizations, and individuals that comprise the open source community", has released a letter that it says McBride has been sending to Congress.

I first saw this letter last week, and I contacted several congressmen and women to try to confirm the letter's authenticity. None that I contacted had received the letter, but one legislative assistant told me that a letter mailed on January 8, the date of the letter, would not make it through the anthrax-testing process for two weeks and suggested I call back later. I was told by someone who asked to remain anonymous that one Congressperson did receive the letter by fax last week. I decided not to publish the letter until I could get either a second source or someone willing to go on the record, because that is Groklaw policy. However, now that it has been released, I am reporting OSAIA's release of the letter. I do not yet know if the letter is authentic or, if it is, if it is being sent to Congress.

Having so many tell me that they have not received the letter indicates that either the letter isn't being sent to all legislators but only to selected ones or that they haven't reached everyone yet and it will eventually arrive. It also crossed my mind that the letter could be deliberately leaked by SCO in an attempt to get the Linux community upset enough to make some wild comments, or maybe set the stage for SCO to make further claims of being "attacked" by Linux enthusiasts, or just to get some headlines around the time of their scheduled rendezvous with IBM in court on the 23rd. (Actually, it's been postponed until February 6.) I don't know yet if the letter is authentic, but I am reporting that OSAIA is releasing it. It's on Slashdot now too.

Did your representative receive this letter, if you are in the US? Sending such a letter alleging that the GPL is unconstitutional and a security threat and that Open Source software must be stopped while simultaneously writing to firms around the world that they can continue to use Linux as long as they pay SCO for a license to "legally" use it is cynical in the extreme. My hypocrisy detector also reports that it seems odd for a company that includes Samba in their products, which is software released under the GPL, to attack the GPL while simultaneously making money from its use. Further, if releasing software that is "free as in beer" is a danger to the economy, somebody better do something about Microsoft. They are releasing software for free this very minute. Over the internet too.

If this letter is authentic, it's about as underhanded a move as we've seen yet. Here is how OSAIA describes it, and the issue will also be a primary topic at a session hosted by OSAIA at LinuxWorld New York, in the Javits Center, Room BOF 10 at 5:45 PM, on January 22 (if you attend, please provide us with a report):

The company has been spreading FUD through past letters and lawsuits, and now SCO executives are telling Congress that Linux, open source software in general, and specifically, the General Public License (GPL), which protects most open source software is:

* a threat to the U.S. information technology industry;
* a threat to U.S.í competitive position; and
* a threat to national security.

All of these assertions are outrageous and false.

The letter is offensive in many ways, and there are several obviously untrue things in it, but the most egregious is the assertion that open source is a security risk. If Linux is a security risk, why is there a National Security Agency version of Linux, Security Enhanced Linux? As OSAIA points out, open source software is subject to exactly the same export licensing restrictions as is SCO. Obviously SCO must know that, because they were until recently distributors themselves of open source software. Actually, the last I heard, they still are offering Linux for download from SCO's servers. But the letter implies that open source software is freely available without restrictions, whereas SCO's software is carefully controlled. That is ridiculous. Ask yourself: if someone in North Korea really wanted SCO's software, would it be a difficulty for them to get it? All they'd have to do is get someone to buy it for them and hand it over. Caldera was a Linux company. If there were a security risk, SCO is and has been part of the problem for years.

Microsoft's products are also subject to export restrictions and they are also available over the internet. Do you honestly believe that people all around the world in China or North Korea have any difficulty getting a bootleg copy of Microsoft's products or have any compunction about lying and saying they are US citizens so as to download it off the internet? Further, is his argument that only Americans should write software? If so, aside from being a little late, maybe outsourcing to India, as I've heard SCO does, and to other places should be stopped this very minute as a security risk.

Even if it were possible to outlaw the GPL in the US, or make it so only Americans got to write software and they were only allowed to write proprietary software, the rest of the world would continue to write and to use software, including GNU/Linux software, and would innovate and move forward more rapidly than the US, leaving the US, in my opinion, not only in a bad position with regard to security but economically disadvantaged.

Notice that the letter says they have already been talking to governmental agencies and allegedly received a warmer reception there than they have from the private sector. Groklaw has a SCO policy too. I believe it when I see something more than vague and unverifiable words from Darl McBride.

The letter attacks the GPL as "a scheme" that they say "some believe, is in direct contradiction to U.S. Copyright law, to the Digital Millennium Copyright Act (DMCA), and to the recent Supreme Court decision in Eldred v. Ashcroft. I have attached a document that describes in detail the problems of the GPL and the ways in which it violates current U.S. statutes.

"Some believe..." Nobody that I know believes it but SCO. And I seriously question if they believe it themselves or are merely asserting it for goals of their own. He then attaches his brother's ghostwritten letter that Darl released as his own on SCO's web site on December 4, the one that got the whole world laughing with its unconstitutionality arguments. Then the letter says this, and one must sigh at the prospect of ever getting these SCOfolk to comprehend the GPL, if only because it appears to be a willing incapacity, judging from this example:

Those who designed the GPL readily admit that they created this license to have the effect of 'freeing' software -- taking it out of the realm of copyright protection by placing it in the public domain. The author of the GPL is well-known for his view that proprietary software (meaning software as an intellectual asset from which the designer can derive profit) is unacceptable.

This is laughable. Vicious, but laughable. I just spent two days at a seminar on the GPL, but even before I went, I knew that the GPL is based on copyright law and is enforced by utilizing copyright law and depends on copyright law to protect it from the likes of SCO. SCO is currently facing a counterclaim by IBM that they, SCO, violated IBM's copyright on GPLd code. They of necessity must know that GPL code is copyrighted code now, even if they didn't have a clue prior to that counterclaim being raised. And, one more time, GPL software is not in the public domain. Therefore, it can't have been the intent of those who designed it to achieve that result.

As for saying that Stallman is against profits, that is untrue as well, since the GPL includes a specific clause that says it's fine to make money from GPL software. It's encouraged. Does Darl not know this? Does he have any lawyers who could explain it to him? What do you think? There is no lack of lawyers in SCOville. Darl's brother Kevin is a lawyer. Can they not read English? Puh-lease. They are saying untrue, provably untrue things, publicly, to induce others to think less of the GPL and its creator, if this letter is authentic. I notice they don't mention Stallman by name, no doubt having been advised by one of their many attorneys that defamation laws do apply to negative and provably untrue statements. Is any recipient of this letter unlikely to know exactly who they mean by their reference to the author of the GPL? Perhaps they want the FSF to step into the arena and duke it out.

And when I say "they want", I think I might as well tell you that it's my impression that this is not a letter just from SCO. The letter reeks of Microsoft to my nose. Why? Note that the letter speaks repeatedly of proprietary software and "innovation". When you hear a software company talk about how vital innovation is, who do you think of? SCO? They have legacy software which they obtained by buying it. Can you think of anything innovative that has come out of SCO? Yet in the letter they repeatedly mention this word. And the second reason I suspect Microsoft might be involved is because one stated goal of the letter is to get legislators to refuse to use GPL software in government. Who would benefit from such a decision? SCO? Or Microsoft? Which company is in the headlines in connection with this issue?

Finally, the letter alleges that open source, because it is "free as in beer" means "fewer jobs, less software revenue and reduced incentives for software companies to innovate. Why should a software company invest to develop exciting new capabilities when their software could end up 'freed' as part of Linux under the GPL?"

Well, Bill, oh, woops, it sounded so much like him, I forgot for a moment... Well, Darl, if you would attend a GPL seminar (or just look around Groklaw), you would discover that you never have to free your proprietary software under the GPL. Innovate excitingly all you like. Just don't grab other people's GPL code and use it in your exciting software, and there will be no problem. Here is the response to this point by Ed Black, President and CEO of OSAIA:

A company that is being out-innovated by the open source community wants us to accept a bizarre notion: that top of the line, enterprise grade software produced at a low cost is a threat to the economy. Software adopted by hundreds of the nation's largest tech and non-tech companies is no threat except to those who canít innovate and compete. Software embraced by the likes of Novell, Oracle, IBM, HP, Gateway, Sun and 10s of thousands of companies worldwide does represent a sea change in our industry. It will spur even greater value added innovation, which will ride upon open source products, and is a hallmark of competition that should be driving the nation.
Darl also in the letter claims there is Unix code, allegedly belonging to his company, in Linux. The OSAIA statement includes this response:
OSAIA will actively engage Congress to explain the full benefits of open source software to the economy, how the GPL relies upon and is consistent with U.S. copyright law, and refute SCOís baseless claims of IP theft.
So, with all those caveats, here is the letter OSAIA released today, as text.

UPDATE:

Blake Stowell acknowledges the letter in an interview in EWeek, saying it was sent to 535 members of Congress. *************************************************

The Honorable _____
____ Cannon HOB
Washington, DC 20515

Dear Honorable _______________:

I am writing to draw your attention to an important controversy that has become one of the dominant issues in the software industry. The way in which this issue is resolved will have very important ramifications for

* our nation's economy
* our continued ability to lead the world in technology
* our international competitive position in the global software industry, and even for
* our national security.

The source of this controversy is the rapid spread of a form of software called "Open Source software." The most widely used Open Source product is a software environment called Linux. Open Source Linux software is developed and enhanced by a loose, worldwide group of volunteers usually called "the Open Source community." Through the work of this community of volunteers, lately abetted by the efforts of several major computing companies, Linux software has become a popular way to run computer server systems, Web sites, networks and many applications.

Innovation in software in itself is not a problem -- the new computing technologies have long been an engine of growth for our nation. But there are two serious problems associated with the spread of Linux and the Open Source approach to software development and distribution.

First, Linux and Open Source software are developed and distributed (often at no cost) under a scheme called the GNU General Public License (GPL) which, some believe, is in direct contradiction to U.S. Copyright law, to the Digital Millennium Copyright Act (DMCA), and to the recent Supreme Court decision in Eldred v. Ashcroft. I have attached a document that describes in detail the problems of the GPL and the ways in which it violates current U.S. statutes.

Those who designed the GPL readily admit that they created this license to have the effect of "freeing" software -- taking it out of the realm of copyright protection by placing it in the public domain. The author of the GPL is well-known for his view that proprietary software (meaning software as an intellectual asset from which the designer can derive profit) is unacceptable.

The GPL seeks to commodatize software by reducing its monetary value to zero and making it freely available to anyone. The GPL is carefully designed to have a viral effect -- it "frees" the software that is proprietary, licenseable, and a source of income from the companies that developed it. Until now it has been generally agreed that the GPL has never faced a legal test. SCO is involved in a major software intellectual property case through which the GPL will face such a test.

The second problem with Open Source software is that it is not all original. Linux software contains significant UNIX software code that has been inappropriately, and without authorization, placed in Linux. I know this because my company, the SCO Group, owns the rights to that UNIX code originally developed by AT&T. SCO holds licenses to this valuable asset with more than 6,000 companies, universities, government agencies and other organizations. But as the use of Linux has grown, license revenue from UNIX has shrunk. Why wouldn't it? Why would someone license UNIX code from SCO and other legitimate providers when they can get much of that same code, for free, in Linux? The damage this has inflicted on SCO's UNIX business is an example of what could happen to the entire software industry if the current Open Source model continues. For this reason, SCO has taken legal action against those who, we believe, have misappropriated our most important corporate asset. By taking action, our company has become a target for sometimes vicious attacks -- including online attacks that have repeatedly shut down our company Web site. Despite this, we are determined to see those legal cases through to the end because we are firm in our belief that the unchecked spread of Open Source software, under the GPL, is a much more serious threat to our capitalist system than U.S. corporations realize. I believe that this threat is manifest in these important areas:

1. The threat to the U.S. information technology industry. Our economic recovery appears to be well underway, but it is still fragile and could be thrown off track. Just as technology and innovation have led the U.S. economy during previous boom periods, many assume that this will happen again. But imagine a major new technology buying cycle in which revenue from software sales shrinks. Free or low-cost Open Source software, full of proprietary code, is grabbing an increasing portion of the software market. Each Open Source installation displaces or pre-empts a sale of proprietary, licensable and copyright-protected software. This means fewer jobs, less software revenue and reduced incentives for software companies to innovate. Why should a software company invest to develop exciting new capabilites when their software could end up "freed" as part of Linux under the GPL?

Economic damage to the U.S. software industry could have serious repercussions if this continues unchecked. International Data Corporation forecasts that the global software industry will grow to $289 billion by 2007. Beyond the economic stimulus provided by the software industry, U.S. sales taxes on that amount of software will be somewhere between $17 billion to $21 billion.

Our economy has already been hurt by offshore outsourcing of technology jobs. I'm sure you've seen this among your constituents. What if our technology jobs continue to move offshore at the same time the economic value of innovative software declines? For more than 20 years, software has been one of the leading examples of innovation and value-creation in our economy. When software becomes a commodity with nearly zero economic value, how will our economy make up for this loss?

2. The threat to our international competitive position. In a growing number of countries, including Britain, Germany, France, Israel, Brazil, Japan, South Korea, China and Russian,[sic] national and municipal governments are requiring that government entities use Open Source software. Instead of UNIX from any number of U.S. companies or Windows from Microsoft, governments throughout Europe and Asia are using Linux, often downloaded for free from the Internet. I find this particularly galling because that Linux software contains thousands of lines of my company's proprietary UNIX code -- for which we receive no revenue. SCO has a strong, involuntary presence in certain non-U.S. government markets -- but this is only through unauthorized use of our code in Linux software.

U.S. software companies are already finding it difficult to compete with highly capable Open Source software that has gained many of its capabilities through the illegal incorporation of code "borrowed" from the rightful owners. We need to look no further than the declining revenues of the music publishing industry -- undermined by free, online downloading -- to see a warning of what could be next for our software industry.

Through the years, Congress has repeatedly dealt with the tough issues of predatory pricing and "dumping". I contend that the ultimate predatory price is "free". There is no more damaging example of dumping than the widespread availability of highly capable software that devalues intellectual property by making it available at no cost -- in direct competition with the products from which it is derived.

3. The threat to our national security. I assert that Open Source software -- available widely through the Internet -- has the potential to provide our nation's enemies or potential enemies with computing capabilities that are restricted by U.S. law. SCO's UNIX software is subject to export licensing restrictions, and for good reason. With the powerful multi-processing features of UNIX software, someone could build a supercomputer for military applications. My company must adhere to these restrictions: we cannot sell to North Korea, Libya, Iran, Sudan and several other nations. But a computer expert in North Korea who has a number of personal computers and an Internet connection can download the latest version of Linux, complete with multi-processing capabilities misappropriated from UNIX, and, in short order, build a virtual supercomputer.

When I talk about this, some people think I'm an alarmist. I have a different view -- I think that this may have already happened. Open Source software and the GPL, unchecked, are an easy way for our adversaries to circumvent our software export restrictions.

I'm bringing these troubling issues to your attention to ask you to consider them whenever you are discussing or voting on issues of the economy, intellectual property and national security. The Open Source community now includes several major corporations. These companies have been lobbying for increased government support of Open Source software. Some want government RFPs to specify Open Source software. I urge you to consider the other side because I believe that Open Source, as it is currently constituted, is a slippery slope. It undermines our basic system of intellectual property rights, and it destroys the economic reasons for innovation.

As part of the effort to protect our intellectual property rights, The SCO Group has met with several U.S. government agencies. We have been encouraged to see that, unique among the organizations with which we've met, most government agencies understand the implications of SCO's case. Government agency leaders readily understand the value of copyrights, and they do not want to be in violation. This is in contrast to many corporations, who seem to have a "don't ask, don't tell" policy when it comes to understanding the source of the software they are using.

Our nation's economic system is reflected in the concept and practice of Copyright. In 1980 and again in 1998, Congress took action to solidify the rule of copyright in the software industry. The GPL (which its authors call "copyleft" to emphasize that it is the opposite of copyright) should not be allowed to continue to undermine the foundation of one of our most important industries. I ask that you consider this very carefully in your role as one of our nation's leaders.

Sincerely,

Darl McBride
President and CEO
The SCO Group, Inc.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )