Darl FUDs again

Lawrence Lessig

January 22, 2004

Apparently encouraged by the warm reception to his December letter [ http://www.newsforge.com/trends/03/12/04/2024240.shtml?tid=85 ], SCO Group CEO Darl McBride has now been writing letters to members of Congress. This [ http://www.lessig.org/blog/archives/sco_hill.pdf ] is a template of a letter he is apparently distributing generally throughout Washington. Like his last letter, this one too has no relation to the truth. Indeed, it is even more extreme than the last.

I've addressed one issue that recurs in this missive here [ http://www.lessig.org/blog/archives/001687.shtml ]. But the core argument of this letter is policy, not constitutional law. Turns out McBride is just as bad at policy as he is at constitutional law.

McBride writes: "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." Actually, of course, GPL'd software is not in the public domain. It is copyrighted material governed by the GPL. There are important examples of creative work that is in the public domain. TCP/IP for example. (Oh no, Mr. Bill! The Internet is unconstitutional!)

"The GPL is carefully designed to have a viral effect -- it "frees" the software that is proprietary..." Wrong again. There's no way under the license that GPL can free "proprietary" code, unless the copyright owner chooses to free the proprietary code. McBride says that choice is unconstitutional. But if such code is freed, it is not because of the GPL.

SCO of course asserts that at least part of GNU/Linux is "stolen." While we don't yet know exactly what part he thinks is "stolen," he apparently believes it is a significant portion. As he writes, "Why would someone license UNIX code from SCO ... when they can get much of that same code for free..." "Much of that same code"? How much exactly?

"Each Open Source [sic] installation displaces or pre-empts a sale of proprietary, licensable and copyright-protected software." The mistakes here a many. First, and again, GPL'd software is "licens[ed] and copyright-protected software." So what McBride means to say is that each "open source [sic] installation displaces or pre-empts a sale of proprietary" software. That's true, but I thought economies grew through efficiency, not unnecessarily high prices. The modern brand of mercantilism [ http://en2.wikipedia.org/wiki/Mercantilism ] that McBride promotes was disproved in economics by Marshall a century ago. By the same reasoning, McBride should be arguing that the Internet destroyed value -- because its non-proprietary protocols displaced, e.g., Novell's and Microsoft's and IBM's protocols. That argument too is silly.

"Congress has repeatedly dealt with the tough issues of predatory pricing and "dumping." I contend that the ultimate predatory price is 'free.'" Oops. There goes Microsoft's support. Is Internet Explorer too unconstitutional?

"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." This really is terrifying, though cluelessness [ http://www.lessig.org/blog/archives/001436.shtml ] in government about these issues is nothing new.

"The GPL ... should not be allowed to continue to undermine the foundation of one of our most important industries." Should not be "allowed"? Is the Bush Administration now contemplating banning GPL?

That the president of failing company would be driven to utter such silliness is of course nothing new. (See, e.g., the annual reports of Enron). But if there are members of this government that take this malarky seriously, then indeed we are in serious trouble.

3:52 PM

Copyright 2004 http://www.lessig.org/ - http://creativecommons.org/licenses/by/3.0/us/