Reply to Darl McBride's Open Letter to the Open Source Community

September 9, 2003
 
Open Letter to Darl McBride,
 
I would like to briefly respond to your open letter to the Open Source
Community, dated today. I consider myself to be a member of that community,
having developed Open Source software myself, although I do not claim to be
any kind of "leader", or to represent the views of other members of the
community.
 
Firstly, I would like to join you in condemning the Denial of Service
attacks that took place against your web servers. Using vandalism and
illegal tactics is not an appropriate way for people to respond, however
strongly they disagree with you or SCO's words or deeds. In your open
letter, you quoted Eric Raymond's reaction to the DoS attack, but you seemed
to suggest that he knows the identity of the perpetrator. I can't speak for
Mr Raymond, but I believe that in the letter you quoted from, he actually
said that he DID NOT know the perpetrator; it was an associate of the
perpetrator who contacted him. Do you have any evidence to suggest that Mr
Raymond is not co-operating with the authorities in helping them to bring
the perpetrator to justice?
 
The memory allocation code you mentioned, does, at first blush, appear to
have indeed been copied illegally by SGI, and perhaps SGI have got some
explaining to do. However, this is a very tiny part of Linux as a whole, and
the notion that "one million lines of UNIX System V protected code have been
contributed to Linux" is obviously based on an incredibly improbable reading
of copyright law in terms of what you consider to be "derivative works" (one
that if upheld, would turn copyright law on its head).
 
Contrary to what you suggest in your letter, in my experience members of the
Open Source community understand very well and fully respect copyright laws.
 
In fact, a very telling remark in you letter where you talk about
"transferring copyrights in contributed code to Open Source", leads me to
believe that we understand it better than you do Mr McBride. Open Source is
NOT THE SAME as Public Domain. Open Source software relies on Copyright Law
to protect the authors. There is no "transfer" to some nebulous Open Source
status. When I write a piece of software, I as the author, hold the
copyright on that work. When I choose to release it, I license it to my
customers using the GNU General Public License, the BSD license, or some
other Open Source license. My customers agree to the terms of the license.
If they violate the terms of the license (for example, they attempt to
sublicense my work in violation of the GPL), they are in breach of our
agreement, and they are misappropriating my work.
 
In your letter, you refer to "problems that exist in the current Linux
software development model". The Open Source development model, by its very
nature, is transparent. Any intellectual property problems can be quickly
identified and addressed because the code is out in the open. I contend that
there is absolutely no way for SCO to tell whether a closed-source system
such as Windows, AIX, etc. has code copied within it. You are holding the
Open Source community to a higher standard than the proprietary software
community.
 
Finally, I'd like to address the 5 points in your summary.
 
"1. Fair use applies to educational, public service and related applications
and does not justify commercial misappropriation."
 
I agree.
 
"2. Copyright attributions protect ownership and attribution rights-they
cannot simply be changed or stripped away."
 
Absolutely agree. Perhaps SGI have some explaining to do here. But also, I'd
like to hear your explanation of why the Regents of the University of
California attribution is missing from the Berkley Packet Filter that showed
up in your slides at the Las Vegas presentation?
 
"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."
 
Again, I agree. And there certainly is nothing in the GPL that even mentions
the transferring of ownership of copyright to anybody. However, ANY TIME you
distribute Linux, which is the intellectual property of hundreds of authors,
you are BOUND, by Copyright Law, to the terms of the licenses granted to you
by those hundreds of individual copyright holders (the authors of Linux). So
if you were distributing Linux after you believed that there was tainted
code present in it, you were still bound by the license agreements with
those Linux authors.
 
Think about it Mr McBride. You are asking others to respect Intellectual
Property. Are you respecting the Intellectual Property of the authors of
Linux?
 
"4. Transfer of copyright ownership without express written authority of all
proper parties is null and void."
 
I agree again. Copyright is the property of the author, be it an individual,
IBM, HP, or whoever. I don't know how you can reconcile this statement,
which is clearly true, with your assertion that "one million lines of UNIX
System V protected code have been contributed to Linux"!
 
"5. 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."
 
I have not seen your agreement with IBM so I can't comment.
 
Regards,
Dafydd Walters
Open Source Developer.