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Re: [ox-en] Impaired - is it SCO? preliminary thoughts.


It's good to have some contribution to this other than Felix and myself 
batting the ball to each other across the net as it where.  

I am trying to digest your comments as in some ways you are coming at it in a 
different way to others I have read. In saying this  don't (at this point!) 
disagree with anything you have said. 

But what might come into play in your anyalysis and the case itself is any 
inconsistency between the SCO - IBM contracts and the GPL. I fear that we are 
collectively being too optimistic, too damning of SCO and too sure of the OS 
legal position for our own good. Hence I welcome this discussion which is in 
part what I sought to provoke. There is too much laughing and pointing at 
SCO's "misrepresentations" or their former willingness to play the GPL game 
and not enough cool hard analysis. Some of this might be useful if the case 
was about conscionability, equity, fiduciaries etc etc but no one has couched 
it in those terms and neither is the GPL couched in those terms. Its all 
about property and contracts at its core.

Here is a snip of something I said earlier this year in another context but 
maybe it helps illustrate what i am trying to grope for here:

"To go back to Deleuze "If exchange is the criterion of generality, theft and 
gift are those of repetition. There is, therefore, an economic difference 
between the two?. Similarly, the idea of equity acts, in personem, on the 
conscience and conduct of people towards an end, where the concept of law 
acts in rem, on property, based upon rules. Thus there is an economic 
difference between a law that acts over property and an equitable idea that 
acts on the person's conscience. Equity's language, like repetitions, is also 
of gift and theft. Equity deals with gifts (fiduciaries, trusts, wills, 
intention) and with theft (undue influence, unconscionability, restitution 
and other breaches of equitable duties). It may be here that in their 
economic and quality and in their language, equity and repetition are most 
closely related.
Equity can be said not to be about the concept of rules but about an idea, a 
bevaviour. It not only looks to substance, over form it regards as done, what 
ought to have been done, thus one who seeks equity must come with clean 
hands, they must have done equity themselves to be entitled to equity's 
relief. It will not reward those that it regards as scoundrels, those lacking 
in conscience or virtue."

Now to go back to what you have said - I agree that in order to properly 
understand the FLOSS perspective in law we need to understand the FLOSS 
logic. I think what I have snpped above is consistent with that ... But were 
I start to worry is that what the FLOSS logic/rhetoric assumes as the law and 
the logical outcome may not be what capital and the LAW assume it is. That is 
OS'ers may act in a way that is essentially based upon their behaviour but 
law doesn't do so in its hard stark positive sense. A while back (a week or 
two that is) someone (sorry I didn't go back and search - please forgive me 
thin indiscretion) posted the Wired Interview with L. Torvalds. He said in 
that soemthing that I think is not really considered when OSers talk up their 
"With the US legal system, it's always hard to tell what the hell is going to 
happen," Torvalds says. "So I can't just dismiss the lawsuit as the complete 
crapola I think it is." Linus Torvalds Wired Magazine 11.11

Taking this line up in part the OSI position simply dismisses the SCO claim as 
crapoloa - and in my view with dodgy legal analysis. What I fear in part is 
that the LAW will feel more sympathy the sort of rhetoric SCO is expounding 
rather than that set out in the OSI Position Paper. The following is closer 
to the mindset of most lawyers that the anti-FUD of the OSI:
"We need to step back and take a look at the open source business model, which 
doesn't provide [private enterprises like ours] with inherent protections," 
SCO chief executive Darl McBride charged in August.

I read that as saying that the free pool of labour that OS provides is good 
for capital but that GPL like restrictions are inconsistent with the global 
logic of rule. Law is a tool in mantainign that rule and as we have seen all 
the Lessig like pleas to remain faithfull to the "founding fathers" come to 
nought in this day and age. Havinf said all that SCO is not the be all and 
end of the struggle - a luta continua; and you can be sure capital will 
continue on in its game to capture for their benefit the advantages of this 
new model of organisation and production. (As an aside this is too how I read 
the Benkler article posted here recently - it looks at P2P as a new way of 
doing business...somethign capital can capture in a world beyond the firm and 
markets (a term he uses I think in a different way to how some of us think 
about it) ...not something liberatory as we talk about it here).

But top really talk about your other stuff: as I said I am still trying to 
think about in terms of where I have been coming from over the last week But 
at face value you too seem to suggest that law should refelct the practices 
of the community and that the community should not be retsrained by law - or 
find its understanding of what is law at odds with the LAW. This is why I 
think it is important for us to reimagine law in this context. As I have 
tried to say it is no point moving to new ways or organising, producing and 
creating but denying that we can imagine law in new ways as well. A peer to 
peer system needs law that is based at its core in peer to peer relations - 
maybe not contract and property.

I hope in soem way I have met your contribution. But i will continue reading 
it and your submisison tot he Standing Cttee to get a better grip on it

Best to all


On Monday 27 October 2003 17:41, Russell McOrmond wrote:
On Mon, 27 Oct 2003, Martin Hardie wrote:
SCO say they own the System V (is that the one) UNIX that they go from
Novell.  Much of the anti SCo stuff is based upon a confusion of legal
terms and ideas (it is anti FUD and as such not much more helpful than
FUD) but the details will all come out in the evidence.

  I find this perspective interesting.

  I summarize my perspective on the SCO case in my submission to the
Canadian House of Commons Standing Committee on Canadian Heritage in
relation to Canadian copyright reform:

    Infringement still a problem, but with intermediaries

   While FLOSS solves a problem relating to infringement by private
   citizens, this does not mean we no longer need to protect our works
   from infringement. The current legal battles surrounding The SCO
   Group23 provide an example of the problems we must deal with.

   Important to this case is a lack of understanding of FLOSS
   methodologies either in the media or in the courts. With all the
   lawsuits and counter-lawsuits it is far too easy to loose the forest
   for a single relatively insignificant tree.

   This is a case involving allegations by SCO against the Linux Kernel24
   project of copyright infringement. To understand the case you first
   need to understand how FLOSS projects work.

   The Linux kernel as with most FLOSS projects is the open collaborative
   work of literally hundreds of software developers25. Each of these
   software developers retain their own copyright on their own
   contributions. In order for all these different contributions to be
   compiled together as one program each contribution has to be offered
   in a license agreement that is compatible with each other. In the case
   of the Linux kernel all contributions must either be licensed under
   the GNU General Public License version 226, or in a license agreement
   that is compatible with the GPL27. These software developers may also
   offer their contributions to different users under different license
   agreement terms, and many software developers do this.

   In the current court cases there is a dispute as to whether The SCO
   Group is one of those hundreds of contributors. The SCO group have
   thus far not disclosed what part of the Linux kernel is allegedly
   under their copyright, not allowing individuals or distributors of
   Linux to remove any infringing code. There is also a dispute as to
   whether The SCO Group intentionally contributed the code in a license
   agreement that was compatible with the GPL, making any use of that
   code in the Linux collection not infringing of their copyright.

   What is not under dispute is the copyrights of the hundreds of
   intentional contributors to Linux. What the SCO has asked for is a
   royalty payment for their contribution, but for one contributor to
   request a royalty payment is an infringement of the rights of those
   hundreds of other copyright holders. Where The SCO Group has made the
   situation difficult by not disclosing what part of Linux they consider
   to be under their copyright so that the origins of that software could
   be investigated, the other contributors to Linux are offering the most
   transparent and accountable access to their software: the full public
   disclosure of their source code contribution under a FLOSS license.

  Let me know how and where you disagree with this if you do.

 Russell McOrmond, Internet Consultant: <>
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than
 politicians should be bought.  --


"Mind you, I am not asking you to bear witness to what you believe false, 
which would be a sin, but to testify falsely to what you believe true - which 
is a virtuous act because it compensates for lack of proof of something that 
certainly exists or happened."
Bishop Otto to Baudolino


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