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To read comments to this article, go here
McBride Trolls, Hoping You'll Say Something Legally Stupid
Tuesday, September 09 2003 @ 01:38 AM EDT

One thing McBride doesn't lack is chutzpah, and so he has written a crafty open letter to "the Open Source Community". Ostensibly, he would like you to work with SCO to develop a business model for open source software:
A sustainable business model for software development can be built only on an intellectual property foundation. I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model. Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO.
That of course sounds a little fishy, coming from McBride, who has not evidenced a deep concern for Linux or its coders to date. It's sounds more like the spider inviting the fly to step into the web "to do lunch".

Maybe the news hasn't been able to get over the mountains and into Utah yet, or he'd know the open source community isn't interested in opportunities to monetize software technology with SCO. The responses he is getting might give him a clue.

As usual, you have to read between the lines with SCO. What he has done is present his side of everything to the public at large, twisting the community's position, and he doesn't care what you say back, I don't believe, unless of course you'd sincerely be interested in selling out or would be so kind as to say something usefully stupid that he can trot out in the press or in a court of law.

The wilder the responses, the better he would probably like it, judging from the way he uses Eric Raymond on the alleged "series of Denial of Service (DDoS) attacks" (McBride claims there were 4) and distorts Bruce Perens' words in a way he believes is to SCO's advantage. He lectures the community that it's bad to DoS a business, as if we feel otherwise. Many of us are in business ourselves, Mr. McBride. He just can't get over his hippie concept of Linux users and programmers. But then, he declares his desire to work together, as if he were part of the community, or wanted to be. Here's an example:

Finally, it is clear that the Open Source community needs a business model that is sustainable, if it is to grow beyond a part-time avocation into an enterprise-trusted development model. Free Open Source software primarily benefits large vendors, which sell hardware and expensive services that support Linux, but not Linux itself. By providing Open Source software without a warranty, these largest vendors avoid significant costs while increasing their services revenue. Today, that's the viable Open Source business model. Other Linux companies have already failed and many more are struggling to survive. Few are consistently profitable. It's time for everyone else in the industry, individuals and small corporations, to under [sic] this and to implement our own business model -- something that keeps us alive and profitable.
Us? Who's the "we" in this picture? SCO and Linux are now "we"? Do you think it's possible he isn't being honest? Could it be the battering-husband-when-he's-acting-nice syndrome again? Whatever he is motivated by, there is no "we" for SCO and Linux. He wishes to tempt us with a hint of money? Who is this guy? No, who does he think we are?

I have a piece of news for you, Mr. McBride. We don't want your business model to keep "alive and profitable", and so we won't work with you or buy your products or sell out. That's your misfortune and your miscalculation.

I will let those named defend themselves, but one segment gives me real pleasure, because it's a big, big hint that SCO still doesn't understand the GPL, and that means they can't possibly have anything truly effective up their sleeves. His lecture on the sanctity of IP includes this astounding bit:

In copyright law, ownership cannot be transferred without express, written authority of a copyright holder. Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to this code. Not so -- SCO never gave permission, or granted rights, for this to happen.

Transfer of copyright ownership without express written authority of all proper parties is null and void.

Of course, no one has claimed their copyright. I won't explain it any more clearly than that, because I want them to slip on a banana peel in court. And now I know they will. I feel a deep sense of happiness on reading his oily words on the GPL. Big hint to SCO: Linux kernel coders have copyright rights on their code, and as you say, there can be no transfer without express written authority of all proper parties.

If you share your views with him, or give him a piece of your mind, I hope you will do so in a way to dignify the community. I expect they intend to keep a list. For all I know they are just trying to get people to step forward for that very purpose, the ultimate troll, so to speak, so think before you write. Better yet, ask your attorney.

Here is one response over on Linux World I noted, because it sounds like he speaks from personal knowledge of some of SCO's history. His personal opinion is that McBride is risking a defamation lawsuit:

D. Jeff Dionne commented on 8 September 2003:

1. What a member of a community does is the responsibility of that individual. The actions of one person cannot be used to stigmatize a group (or any others at all). . . .

2. There is considerable evidence that there was in fact no DOS of SCO's machines. If this proves to be the case, SCO will have to be held accountable for its allegations.

3. SGI is on record that its legal team went through the xfs sources to approve the release. The code in question is clean according to this audit... if it is not then that is a mistake. In any case, it was corrected, and the (appropriate, responsible) procedures followed to insure that intellectual property of others was protected is a matter of public record. Stated another way, it can be clearly shown that the accepted industry process (code audit) was carried out and that it was carried out to respect the rights and property of others.

4. Making allegations of not respecting intellectual property comes (at least) close to defamation. In light of 3, and knowing that SCO was a party (as all enterprise linux vendors were) to the very public work SGI did to contribute xfs to Linux, one has to hold SCO accountable for knowingly making such false and damaging statements.

5. If there is code (for instance) in the SMP support which is SCO's property, that code is limited to the code itself. There is no legal theory that can be presented that will stand scrutiny that will allow you to claim 1m lines of code derived from it. Put another way, _calling_ a function cannot make the work that calls it a derived work in the general case or all programs would be a derived work of the platform they run on.

6. Open Source and Free Software are not business models. They [are a] process and philosophy which is used to generate software for the benefit of everyone. Stated another way, they are designed to make the benefit of the development effort accrue to the public.

7. There is no such thing as "Free Open Source". The terms "Free Software" and "Open Source" are valid terms, however they are not interchangeable.

8. SCO spent many years as a member of the Open Source community. It knows that the community hold property and the law in high regard and respects those laws. SCO also knows that the GPL relies on copyright. SCO knows this because lawyers for another Canopy company examined the foundations of the GPL in depth and also offered GPL indemnity. This is known to Blake Stowell, who was involved in that effort.

9. If the Open Source movement is based on anti-establishment principals, SCO must also be based on them because it was one of the first companies to be an "Open Source" company. It contributed funding and engineering to the development of, and is partly responsible for, the state of the Open Source movement today.

What SCO is doing is illegal. In the case of this letter, you have come very close to defaming myself and other Linux developers. Seek legal advice before posting such things, we will hold you accountable.

Update: Here's the letter in full, for historians, and thanks to Wayback, it's forever ours, because Darl put it on his site darlmcbride.com, with pictures of himself, and it got sucked into the archive:

*******************************

The SCO Group's Open Letter to the Open Source Community

LINDON, Utah, Sep 9, 2003

Darl McBride, CEO of The SCO Group (Nasdaq: SCOX), sent the following letter, dated Sept. 9, 2003, to the Open Source community:

The most controversial issue in the information technology industry today is the ongoing battle over software copyrights and intellectual property. This battle is being fought largely between vendors who create and sell proprietary software, and the Open Source community. My company, the SCO Group, became a focus of this controversy when we filed a lawsuit against IBM alleging that SCO's proprietary UNIX code has been illegally copied into the free Linux operating system. In doing this, we angered some in the Open Source community by pointing out obvious intellectual property problems that exist in the current Linux software development model.

This debate about Open Source software is healthy and beneficial. It offers long-term benefits to the industry by addressing a new business model in advance of wide-scale adoption by customers. But in the last week of August, two developments occurred that adversely affect the long-term credibility of the Open Source community, with the general public and with customers.

The first development followed another series of Denial of Service (DoS) attacks on SCO, which took place two weeks ago. These were the second and third such attacks in four months and have prevented Web users from accessing our web site and doing business with SCO. There is no question about the affiliation of the attacker -- Open Source leader Eric Raymond was quoted as saying that he was contacted by the perpetrator and that "he's one of us." To Mr. Raymond's partial credit, he asked the attacker to stop. However, he has yet to disclose the identity of the perpetrator so that justice can be done.

No one can tolerate DoS attacks and other kinds of attacks in this Information Age economy that relies so heavily on the Internet. Mr. Raymond and the entire Open Source community need to aggressively help the industry police these types of crimes. If they fail to do so it casts a shadow over the entire Open Source movement and raises questions about whether Open Source is ready to take a central role in business computing. We cannot have a situation in which companies fear they may be next to suffer computer attacks if they take a business or legal position that angers the Open Source community. Until these illegal attacks are brought under control, enterprise customers and mainstream society will become increasingly alienated from anyone associated with this type of behavior.

The second development was an admission by Open Source leader Bruce Perens that UNIX System V code (owned by SCO) is, in fact, in Linux, and it shouldn't be there. Mr. Perens stated that there is "an error in the Linux developer's process" which allowed UNIX System V code that "didn't belong in Linux" to end up in the Linux kernel (source: ComputerWire, August 26, 2003). Mr. Perens continued with a string of arguments to justify the "error in the Linux developer's process." However, nothing can change the fact that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from copyrighted System V code that was licensed to Silicon Graphics under strict conditions of use, and then contributed that source code into Linux as though it was clean code owned and controlled by SGI. This is a clear violation of SGI's contract and copyright obligations to SCO. We are currently working to try and resolve these issues with SGI.

This improper contribution of UNIX code by SGI into Linux is one small example that reveals fundamental structural flaws in the Linux development process. In fact, this issue goes to the very heart of whether Open Source can be trusted as a development model for enterprise computing software. The intellectual property roots of Linux are obviously flawed at a systemic level under the current model. To date, we claim that more than one million lines of UNIX System V protected code have been contributed to Linux through this model. The flaws inherent in the Linux process must be openly addressed and fixed.

At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source. This is just basic due diligence that governs every other part of corporate dealings. Rather than defend the "don't ask, don't tell" Linux intellectual property policy that caused the SCO v. IBM case, the Open Source community should focus on customers' needs. The Open Source community should assure that Open Source software has a solid intellectual property foundation that can give confidence to end users. I respectfully suggest to Open Source developers that this is a far better use of your collective resources and abilities than to defend and justify flawed intellectual property policies that are out of sync with the needs of enterprise computing customers.

I believe that the Open Source software model is at a critical stage of development. The Open Source community has its roots in counter-cultural ideals -- the notion of "Hackers" against Big Business -- but because of recent advances in Linux, the community now has the opportunity to develop software for mainstream American corporations and other global companies. If the Open Source community wants its products to be accepted by enterprise companies, the community itself must follow the rules and procedures that govern mainstream society. This is what global corporations will require. And it is these customers who will determine the ultimate fate of Open Source -- not SCO, not IBM, and not Open Source leaders.

Some enterprise customers have accepted Open Source because IBM has put its name behind it. However, IBM and other Linux vendors are reportedly unwilling to provide intellectual property warranties to their customers. This means that Linux end users must take a hard look at the intellectual property underpinnings of Open Source products and at the GPL (GNU General Public License) licensing model itself.

If the Open Source community wants to develop products for enterprise corporations, it must respect and follow the rule of law. These rules include contracts, copyrights and other intellectual property laws. For several months SCO has been involved in a contentious legal case that we filed against IBM. What are the underlying intellectual property principles that have put SCO in a strong position in this hotly debated legal case? I'd summarize them in this way:

1. "Fair use" applies to educational, public service and related applications and does not justify commercial misappropriation. Books and Internet sites intended and authorized for the purpose of teaching and other non-commercial use cannot be copied for commercial use. We believe that some of the SCO software code that has ended up in the Linux operating system got there through this route. This violates our intellectual property rights.

2. Copyright attributions protect ownership and attribution rights -- they cannot simply be changed or stripped away. This is how copyright owners maintain control of their legal rights and prevent unauthorized transfer of ownership. Our proprietary software code has been copied into Linux by people who simply stripped off SCO's copyright notice or contributed derivative works in violation of our intellectual property rights. This is improper.

3. In copyright law, ownership cannot be transferred without express, written authority of a copyright holder. Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to this code. Not so -- SCO never gave permission, or granted rights, for this to happen.

4. Transfer of copyright ownership without express written authority of all proper parties is null and void.

5. Use of derivative rights in copyrighted material is defined by the scope of a license grant. An authorized derivative work may not be used beyond the scope of a license grant. License grants regarding derivative works vary from license to license -- some are broad and some are narrow. In other words, the license itself defines the scope of permissive use, and licensees agree to be bound by that definition. One reason SCO sued IBM is due to our assertions that IBM has violated the terms of the specific IBM/SCO license agreement through its handling of derivative works. We believe our evidence is compelling on this issue.

The copyright rules that underlie SCO's case are not disputable. They provide a solid foundation for any software development model, including Open Source. Rather than ignore or challenge copyright laws, Open Source developers will advance their cause by respecting the rules of law that built our society into what it is today. This is the primary path towards giving enterprise companies the assurance they need to accept Open Source products at the core of their business infrastructure. Customers need to know that Open Source is legal and stable.

Finally, it is clear that the Open Source community needs a business model that is sustainable if it is to grow beyond a part-time avocation into an enterprise-trusted development model. Free Open Source software primarily benefits large vendors, which sell hardware and expensive services that support Linux, but not Linux itself. By providing Open Source software without a warranty, these large vendors avoid significant costs while increasing their services revenue. Today, that's the only viable Open Source business model. Other Linux companies have already failed and many more are struggling to survive. Few are consistently profitable. It's time for everyone else in the industry, individuals and small corporations, to understand this and to implement our own business models -- something that keeps us alive and profitable. In the long term, the financial stability of software vendors and the legality of their software products are more important to enterprise customers than free software. Rather than fight for the right for free software, it's far more valuable to design a new business model that enhances the stability and trustworthiness of the Open Source community in the eyes of enterprise customers.

A sustainable business model for software development can be built only on an intellectual property foundation. I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model. Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO.

In the meantime, I will continue to protect SCO's intellectual property and contractual rights. The process moving forward will not be easy. It is easier for some in the Open Source community to fire off a "rant" than to sit across a negotiation table. But if the Open Source community is to become a software developer for global corporations, respect for intellectual property is not optional -- it is mandatory. Working together, there are ways we can make sure this happens.

Best regards to all,

Darl McBride CEO The SCO Group


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