More SCO fud, this time insulting the constitution

Lawrence Lessig

December 4, 2003

I apologize for the silence, but we’ve been in Japan this week announcing iCommons [ ] in Japan. (More on that soon). But after reading this extraordinary [ ] document by Darl McBride of SCO infamy, I couldn’t resist canceling this morning’s meetings to respond.

From the start of this pathetic lawsuit, Eben Moglen of the Free Software Foundation [ ] has argued [ ] that there was nothing behind the SCO claims. His arguments are persuasive. But if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO.

McBride's argument is grounded in the Constitution. (Well, close to the constitution. He quotes the text of the constitution to be:

Congress shall have Power [t]o promote the Progress of Science and useful Arts, open-source advocates argue against copyright and patent laws, and whatever measures they take to by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Actually, the framers didn't say anything about "open source advocates.")

As he rightly argues, the Constitution requires that Congress only grant copyrights where those copyrights "promote the Progress of Science." Thus, if Congress granted copyrights in a context where they didn't "promote progress" one might well ask whether such a law was constitutional (e.g., a law that extended the terms of existing copyrights [ ], but let's leave that aside for the moment).

But the key move in the McBride-FUD is his claim that proponents of free software and open source software are somehow against copyright.

He claims that "GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union"; that "Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights"; that "the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support "free" - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?"; that "SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension"; and that "We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."

Let's take each of these claims in turn:

Despite RMS's aversion to the term, the GPL trades on a property right that the laws of the US and EU grant "authors" for their creative work. A property right means that the owner of the right has the right to do with his property whatever he wishes, consistent with the laws of the land. If he chooses to give his property away, that does not make it any less a property right. If he chooses to sell it for $1,000,000, that doesn't make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesn't make it any less a property right.

The laws of the US and the EU don't purport to restrict the conditions under which the owner of a copyright in software might license his software (except in ways that are not relevant to this debate). Under those laws, the owner of this property right has the right to sell his property, or license his property, or lock his property in a drawer. Again, it is his property, and he gets to do with it as he wishes.

The GPL thus precisely advances the "effect" of Congress's and the EU's copyright laws: it gives the owner of a property right the right to do with his property what he wants.

Well, go see [ ] just what Red Hat says in the policy statement it makes. What Red Hat (and any one sensible in this debate) argues is that software patents are bad policy and should be abolished. But no where does Red Hat argue that copyrights should be abolished.

That's exactly right. The issue is clear: Do you support the property rights that Congress gives the creators of software -- the right to decide to (1) sell your software, (2) license your software, or (3) give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right.

Again, the owners of Free Software, like owners of Microsoft software, choose option (2). They choose to license their property. They don't sell it, or simply give it away. The terms under which they license it are, of course, different -- they require openness; Microsoft requires money (mostly). But still, both get to "require" something because both are relying upon the property right that Congress has given them.

This is the most interesting (and silly) claim made in the whole of McBride's piece. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material. If JD Salinger writes a novel that he doesn't want to be published, copyright law gives him the right to put the novel in a drawer, and never sell it at all. Indeed, the law would punish anyone who stole the book and published it without his permission -- even if the "motive" of the thief was "profit."

This again follows from the nature of a property right -- it is the right of the owner to decide what to do with his resources. Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more "profit," he decides instead to use the money to save millions of lives in Africa?

It is therefore perfectly permissible for the owner of a copyright to do nothing with it. And it would be perfectly permissible for the owner of a copyright to give it away -- to dedicate it to the public domain. (And if you'd like to do that, Creative Commons [ ] will help). But again, GPL'd software is not dedicated to the public domain.

McBride, however, goes even further than claiming that there's some constitutional problem with giving IP away (deciding not to take advantage of the "profit motive.") The implication of his argument is that somehow the framers of the constitution were mandating that the only laws that Congress could pass would be laws that protected copyright owners who purported to sell their creative work. That unless the owner follows "the profit motive," the right is, in some sense, illegitimate.

Well, first, and again, there are plenty of companies that are developing and releasing GPL'd software because of the profit motive. IBM/HP/etc. have adopted this model for developing software because they believe it will make them more money than any other. They don't adopt it exclusively; they don't adopt it for all kinds of software; but they adopt it where it serves their profit motive, and so, even under McBride's test, there should be no problem with GPL'd software for them.

But more fundamentally, where is there any legal authority anywhere for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created? Answer: No where. There is no such authority, anywhere. It is, like most of the SCO suit, simply made up.

We should all believe that the "progress of science" is best advanced when "Authors" have the right to do with their property whatever it is they want to do -- consistent with the law, and so long as the property right is properly balanced. And we should all believe that the "progress of science" is best advanced when that right is "vigorously protect[ed]".

But the owners of GPL'd software are doing no more than exercising this right, just as Microsoft would exercise its right. They are profiting from the right to choose the terms under which they release their software, and the terms they have chosen also have a great benefit to other software innovation. They exercise their property right; they and we benefit.

But if we are to protect that property right "vigorously," then we should take steps to protect property owners from baseless lawsuits against their right to use their property as they wish. So when it comes to the matter of sanctions against the lawyers in this case, the judge might well want to consider how important it is that the property right of copyright owners be "vigorously" defended.


Finally, notice what McBride doesn't say. He does not say that the GPL is unconstitutional. To say that, he would have to say that Congress doesn't have the power to create a copyright that gives authors the right to license their software in the way the GPL does. To say that, he'd have to believe that Congress's decision about how best to grant copyrights was subject to strong judicial review. To say that, he'd have to believe Eldred was wrongly decided. But instead, he seems to like Eldred just fine.

Instead, the most he can be understood to have said here is that the property right of copyright should be defended. I know of no one in the FSF, or Free Software movement generally, who doesn't believe that. Copyrights, properly defined, like any property right, properly defined, should be defended; and the right of authors to make their work available under a license such as the GPL is just one more example of how property rights ought properly to be defended.

The SCO case has been dragging through the courts for months now. McBride threatens another 18 months before he gets to trial. But if this is all they've got, then again, Eben had it right at the start. This is nothing more than a failed company using a failed legal system to make money rather than producing great software. Don't tell me this is what the Framers had in mind when they drafted the Progress Clause of our Constitution.

Updated: thanks to Richard Morin and John Riedl for corrections; and added the following:

Many have written to correct my statement that McBride "doesn't say" that the GPL is unconstitutional. I didn't mean that. I meant he doesn't make the argument. The claim that the GPL was unconstitutional was what got me to respond in the first place. But the letter merely asserts that absurd claim; it doesn't (and couldn't) defend it. Sorry for the mistake and thanks for the corrections.

5:05 PM

Copyright 2003