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

On Tue, 28 Oct 2003, Martin Hardie wrote:

But what might come into play in your anyalysis and the case itself is
any inconsistency between the SCO - IBM contracts and the GPL.

  My perspective has been that we as a community should focus on what we 
know, and what is the most important point.

  Neither SCO or IBM should be trusted, and each are seeking to do the
same thing against the community at the moment.

  As part of their case SCO is seeking to expand the legal concept of a
"derivative works" in copyright such that code that was derived from work
done with UNIX becomes the copyright of the current holder of rights to
UNIX rather than the creator of the work.

  IBM is seeking (and has been very successful thus far) to expand the
legal concept of "patents" to information processes such as software and
business models.  IBM is not simply a private sector actor with the 
largest patent portfolio both inside and outside of software, but is also 
the most visible and aggressive lobbiests for unlimited patentability 

  Each of these players is trying to modify current legal regimes such 
that they can claim ownership to software that they are not the creators 
of.  What we in our community need to do is to stop pushing for one of 
these players to win certain legal cases, but to seek to ensure that the 
laws themselves make sense.  Laws are modified in many ways including acts 
of parliament and precedent set in courts, and we should not focus so 
strongly on courts that we loose sight of the importance of parliaments 
and legal reform.

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.

  You can be damning of SCO regardless of what you believe the outcome of
the SCO-vs-IBM case to be.  To be honest I don't expect or want IBM or SCO
to win either case in their entirety.  I only care about the legal
precedent where it comes to interpretations of copyright and other laws.

  If IBM broke a contract and parts of their contributions to Linux must
be revoked, is that really a problem for us?  One problem is SCO claiming
the right to charge third parties beyond IBM for infringement when such
infringement has not been disclosed and no party other than SCO and/or IBM
have had the opportunity to remedy any infringement.

  We need to step back.  We can be damning of both SCO and IBM at the same 
time, which as you'll note from this message that I am.  One seeks to 
claim Linux using odd interpretations of copyright law and the other seeks 
to claim Linux using odd interpretations of patent law.  IBM has been far 
more successful in their efforts which makes them more deserving of 
disgust from our community, but that doesn't mean SCO should be let off 
the hook.

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

  Again, why can you not comment on misrepresentations regardless of the 

  SCO claims the right to collect royalties on the Linux kernel while at
the same time not providing any opportunity for those targeted to remedy
any claimed infringement.  I know of no legal interpretation that allows
them to do this, so ridiculing SCO on that front seems warranted to me.

  SCO also did distribute the claimed infringing code under the GPL.  If
they were unaware of any infringement at the time, and they had access to
both sets of code, then how can they now claim the right to compensation
from third parties who obviously have less access to the code in question?
Either the infringements are obvious and deliberate, in which case
compensation may be warranted, or the infringements are hard to discover
and accidental.  SCO is worthy of ridicule as they are trying to have it
both ways.

  While the copyright side of this case is based on intangible property
law, the possibility of an infringement should not be a great concern to
us.  In a legitimate copyright case the copyright holder would notify the
infringer of their copyright and either the infringement ceases or court
cases move forward.  In the case of remedies there would be an attempt to
determine if infringement was deliberate against the party that did acts
to cause the infringement.

  As a third-party distributor of Linux not involved in the contributions
in question I am not liable for any infringement up to the point where
infringement has been disclosed and I did not remedy the situation.  No
disclosure has yet been made, so whether there is an infringement in Linux
or not is not of concern to me as my distribution of Linux is legal.

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.

  This is where some of our own language has harmed us.  In my submission 
on copyright reform I even include 
references to the fact that in the strictest legal sense that FLOSS is 
proprietary software.  In fact, FLOSS does not have fewer copyright 
holders (as a strict legal interpretation might suggest), but more often 
FLOSS projects have *more* copyright holders.

  It is like all the language that is used in the community.  Some say
"Open Source", other say "Free Software" and some people use the acronym
FLOSS.  While the logic, rhetoric and motivations of these different camps
are different, the license agreements, software and law governing them are
the same.

  This is why I try to turn around some of the perceptions and rhetoric 
in the section of my submission titled "The Free Software movement as a 
creators rights movement".  While the FSF and OSI definitions of the 
terminology speak of citizens rights (copyright has 3 constituencies: 
creators, intermediaries and citizens), we are really a movement created 
by and for creators who have aligned themselves with citizens in order to 
protect both groups from intermediaries.

  There are many in the community who disagree with my interpretation of
things from a creators rights perspective, but the legal analysis suggests
no conflict.  There are those who say that Copyleft only exists because of
Copyright and that the ideal would be if both went away.  I disagree as
copyleft offers both legal and social advantages to discourage peer
production defection over the public domain even in a world where
copyright did not exist.

"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

  I think anyone entirely dismissing the lawsuit is putting their head in
the sand, but "the lawsuit" is a large collection of a large number of
issues.  You can analyze certain parts and come up with a solid legal
analysis, and analyze other parts and recognize that you have no way of
knowing the outcome (such as interpretations of contracts between private
parties outside of copyright law).

  There is also major cause for concern from the other side as well.  It
is my understanding that IBM includes a number of software patents that
SCO is infringing in their counter-suit.  Has anyone done the analysis yet
to determine whether these are methods within the Linux kernel itself?  I
know of no patents license statement from IBM that would make SCO
infringing but the rest of us not infringing.  For this part of the case
we want IBM to loose, whether or not that means SCO wins.  SCO winning the
parts of their case outside their extension of legal definitions of
"derivative works" can have far less negative consequences for our
community than IBM winning the patent part of their case.

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

  Like many things it will matter who the judge is and how the arguments 
are put forward for some of the less obvious areas.  Whether OSI or SCO is 
right on the origins of UNIX copyright is not really that much of a 
concern for us.

  I think you would be better off reading some legal interpretations by
lawyers rather than software developers.  The paper by law Professor Eben
Moglen of Columbia University seems more relevant to the case that the ESR 
paper on the OSI site

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.

  The problem with this is that Darl is wrong, and it is our job to try to
explain to policy makers and policy interpreters why. What protections is
Darl suggesting should exist, and protection from who?

  As an example the indemnification question is interesting as businesses
are only needing to indemnify themselves against rogue peers such as SCO.  
Properly interpreted copyright law provides far more protection than any
of these third-party indemnification agreements.  When you look at who is
talking about them, such as Microsoft and Sun, you again see players that
were never peers in this peer production process in the first place.

  Maybe he is wanting inherent protections against third party
appropriation of works?  Again, the villain in this situation they need
protection from are rogue peers trying to defect such as SCO (and on
patent issues, IBM which is an even greater threat to the peer production
FLOSS methodologies than SCO).

  My multiple submissions on copyright reform since 2001 have had that aim
which is to educate those interpreting current law about FLOSS.  We need
to be doing this preemptively, not waiting for lobbiests from IBM or court
cases from SCO to set the path for us.  That said, we should embrace the
opportunity to move forward-looking public policy forward by using cases
such as SCO and IBM to provide adequate legal tools to protect peer
production from various forms of rogue defection.

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.

  Open Source does not provide a free pool of labour, but provides for a
peer production methodology where peers can be from all sectors of the
economy (public, private, ..and yes, volunteer).  It provides a 
methodology that allows for resource amplification and efficiencies which 
may seem like you are getting something for nothing, but that does not 
make it a free pool of labour.

  The GPL restrictions are entirely consistent with copyright law.  Any
lawyer who seeks to limit the GPL will only be limiting the scope of what
can be determined in contract law by a copyright holder.  Those in the
Free Software movement that think that Copyright is the problem will be
happy about that as how the GPL is interpreted will be precedent in how
any other copyright license agreement is interpreted.

  It is one thing to try to make these arguments in the court of public
opinion which is where SCO is fighting much of its battles, but it is
unlikely that much of this will be brought to legal courts given the
non-FLOSS players have more to loose with limits to contract law than the
FLOSS community.

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.

  Within the USA there is an interesting battle, but not all of us are in
the USA.  The situation in Canada is interesting given the audiences I've
been able to get for the ideas I bring forward.  I am just a private
citizen, but have had many meetings already with the relevant departments
and other policy makers.  There is a hunger for knowledge in this area 
that just needs to be filled.

  What Lessig and others are saying is being heard worldwide.  Law is
sometimes slow moving, and you may not know what type of effect current
work has had until much later.

  As an example, check out the references in my paper to the Canadian 
Creators Rights Alliance.  I have had a number of meetings with a group 
that some assume (incorrectly) that there would be no communication with 
by our community.  Key people have recognized that our communities have 
more in common than different.  The first outline of my paper was in fact 
my speaking notes for a meeting with the CRA where I spoke about FLOSS in 
the context of copyright reform.

  Where will this go?  If creator copyright holders start to separate 
themselves from non-creator copyright holders, much of the 
anti-creator/anti-citizen rhetoric that the intermediaries have been 
pushing will cease to have any power or relevance.  I really believe that 
we are already witnessing the beginning of the end of the dominance of 
intermediaries in legal reforms in this area.

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 with any tragedy of the commons they can't benefit from this new
model without adhering to the social norms of that model.  If any single
private actor tries to appropriate the benefits of this commons then the
commons will fold.  In order to benefit from the model you need to join
the model, which is itself a good thing.

  Having many commercial players participating as peers in open
collaborative models for the creation of public goods is a good thing.  
They just need to play by the rules, and as this model grows it is likely
the social norms of these commons will be adequately codified in law as

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.

  I am not suggesting that in the short term, although law is just a 
codification of social norms.  It is only against the law to steal 
something because society decided that this is something they wanted to 
create laws about.

  In the short term, current laws already protect the FLOSS community.  
The only thing we need to ensure now is that improper interpretations of
the law that are based not on law but rhetoric do not prevail.

A peer to peer system needs law that is based at its core in peer to
peer relations - maybe not contract and property.

  This is a longer term project, and one that requires us to get political
and involved with policy makers.  One way I believe can be successful is
to show that this "new model" isn't a radical departure from current law
but simply a refinement of it that requires proper consideration.

  To bring it down to copyright law, we do not need to abolish copyright
law in order to protect peer production. We do need to clarify what is
protected by copyright (expressions), what is not (communication
interfaces), and a more modern interpretation of moral and material rights
in copyright.

  As an example in my submission I have a section "Royalty payment as a
single business model, not a right" trying to ensure that copyright reform
does not codify royalty payments as the only interpretation of material
rights.  The right to have works enter a open collaborative peer
production model must also be recognized as protected under copyright law.

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

  Any and all feedback is greatly appreciated!

 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.  --


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