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Open Letter to the Open Source Community
September 9, 2003
From Darl McBride, CEO and President, The SCO Group
The most controversial issue in the information technology
industry today is the ongoing battle over software copyrights and intellectual
property. This battle is being fought largely between vendors who create
and sell proprietary software, and the Open Source community. My company,
the SCO Group, became a focus of this controversy when we filed a lawsuit
against IBM alleging that SCO’s proprietary UNIX® code has been
illegally copied into the free Linux operating system. In doing this,
we angered some in the Open Source community by pointing out obvious
intellectual property problems that exist in the current Linux software
development model.
Debate is Healthy and Beneficial
This debate about Open Source software is healthy and beneficial. It offers
long-term benefits to the industry by addressing a new business model in
advance of wide-scale adoption by customers. But in the last week of August,
two developments occurred that adversely affect the long-term credibility
of the Open Source community, with the general public and with customers.
DOS Attacks Cannot Be Tolerated
The first development followed another series of Denial of Service (DoS)
attacks on SCO, which took place two weeks ago. These were the second and
third such attacks in four months and have prevented Web users from accessing
our web site and doing business with SCO. There is no question about the
affiliation of the attacker – Open Source leader Eric Raymond was
quoted as saying that he was contacted by the perpetrator and that “he’s
one of us.” To Mr. Raymond’s partial credit, he asked the attacker
to stop. However, he has yet to disclose the identity of the perpetrator
so that justice can be done.
No one can tolerate DoS attacks and other kinds of attacks in this Information
Age economy that relies so heavily on the Internet. Mr. Raymond and the
entire Open Source community need to aggressively help the industry police
these types of crimes. If they fail to do so it casts a shadow over the
entire Open Source movement and raises questions about whether Open Source
is ready to take a central role in business computing. We cannot have a
situation in which companies fear they may be next to suffer computer attacks
if they take a business or legal position that angers the Open Source community.
Until these illegal attacks are brought under control, enterprise customers
and mainstream society will become increasingly alienated from anyone associated
with this type of behavior.
Open Source Leaders Defend Copyright Violations
The second development was an admission by Open Source leader Bruce Perens
that UNIX System V code (owned by SCO) is, in fact, in Linux, and it shouldn’t
be there. Mr. Perens stated that there is “an error in the Linux
developer’s process” which allowed UNIX System V code that “didn’t
belong in Linux” to end up in the Linux kernel (source: ComputerWire,
August 26, 2003). Mr. Perens continued with a string of arguments to justify
the “error in the Linux developer’s process.” However,
nothing can change the fact that a Linux developer on the payroll of Silicon
Graphics stripped copyright attributions from copyrighted System V code
that was licensed to Silicon Graphics under strict conditions of use, and
then contributed that source code into Linux as though it was clean code
owned and controlled by SGI. This is a clear violation of SGI’s contract
and copyright obligations to SCO. We are currently working to try and resolve
these issues with SGI.
This improper contribution of UNIX code by SGI into Linux is one small
example that reveals fundamental structural flaws in the Linux development
process. In fact, this issue goes to the very heart of whether Open Source
can be trusted as a development model for enterprise computing software.
The intellectual property roots of Linux are obviously flawed at a systemic
level under the current model. To date, we claim that more than one million
lines of UNIX System V protected code have been contributed to Linux through
this model. The flaws inherent in the Linux process must be openly addressed
and fixed.
At a minimum, IP sources should be checked to assure that copyright contributors
have the authority to transfer copyrights in the code contributed to Open
Source. This is just basic due diligence that governs every other part
of corporate dealings. Rather than defend the “don’t ask, don’t
tell” Linux intellectual property policy that caused the SCO v. IBM
case, the Open Source community should focus on customers’ needs.
The Open Source community should assure that Open Source software has a
solid intellectual property foundation that can give confidence to end
users. I respectfully suggest to Open Source developers that this is a
far better use of your collective resources and abilities than to defend
and justify flawed intellectual property policies that are out of sync
with the needs of enterprise computing customers.
Open Source Software Model at a Critical Stage
I believe that the Open Source software model is at a critical stage of
development. The Open Source community has its roots in counter-cultural
ideals—the notion of “Hackers” against Big Business—but
because of recent advances in Linux, the community now has the opportunity
to develop software for mainstream American corporations and other global
companies. If the Open Source community wants its products to be accepted
by enterprise companies, the community itself must follow the rules and
procedures that govern mainstream society. This is what global corporations
will require. And it is these customers who will determine the ultimate
fate of Open Source—not SCO, not IBM, and not Open Source leaders.
Some enterprise customers have accepted Open Source because IBM has put
its name behind it. However, IBM and other Linux vendors are reportedly
unwilling to provide intellectual property warranties to their customers.
This means that Linux end users must take a hard look at the intellectual
property underpinnings of Open Source products and at the GPL (GNU General
Public License) licensing model itself.
Intellectual Property Rights Explained
If the Open Source community wants to develop products for enterprise
corporations, it must respect and follow the rule of law. These rules include
contracts, copyrights and other intellectual property laws. For several
months SCO has been involved in a contentious legal case that we filed
against IBM. What are the underlying intellectual property principles that
have put SCO in a strong position in this hotly debated legal case? I’d
summarize them in this way:
1. “Fair use” applies to educational, public service and related
applications and does not justify commercial misappropriation. Books and
Internet sites intended and authorized for the purpose of teaching and
other non-commercial use cannot be copied for commercial use. We believe
that some of the SCO software code that has ended up in the Linux operating
system got there through this route. This violates our intellectual property
rights.
2. Copyright attributions protect ownership and attribution rights—they
cannot simply be changed or stripped away. This is how copyright owners
maintain control of their legal rights and prevent unauthorized transfer
of ownership. Our proprietary software code has been copied into Linux
by people who simply stripped off SCO’s copyright notice or contributed
derivative works in violation of our intellectual property rights. This
is improper.
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.
4. Transfer of copyright ownership without express written authority of
all proper parties is null and void.
5. Use of derivative rights in copyrighted material is defined by the
scope of a license grant. An authorized derivative work may not be used
beyond the scope of a license grant. License grants regarding derivative
works vary from license to license—some are broad and some are narrow.
In other words, the license itself defines the scope of permissive use,
and licensees agree to be bound by that definition. 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.
The copyright rules that underlie SCO’s case are not disputable.
They provide a solid foundation for any software development model, including
Open Source. Rather than ignore or challenge copyright laws, Open Source
developers will advance their cause by respecting the rules of law that
built our society into what it is today. This is the primary path towards
giving enterprise companies the assurance they need to accept Open Source
products at the core of their business infrastructure. Customers need to
know that Open Source is legal and stable.
Open Source Community Needs Sustainable Business Model
Finally, it is clear that the Open Source community needs a business model
that is sustainable if it is to grow beyond a part-time avocation into
an enterprise-trusted development model. Free Open Source software primarily
benefits large vendors, which sell hardware and expensive services that
support Linux, but not Linux itself. By providing Open Source software
without a warranty, these large vendors avoid significant costs while increasing
their services revenue. Today, that’s the only viable Open Source
business model. Other Linux companies have already failed and many more
are struggling to survive. Few are consistently profitable. It’s
time for everyone else in the industry, individuals and small corporations,
to understand this and to implement our own business models—something
that keeps us alive and profitable. In the long term, the financial stability
of software vendors and the legality of their software products are more
important to enterprise customers than free software. Rather than fight
for the right for free software, it’s far more valuable to design
a new business model that enhances the stability and trustworthiness of
the Open Source community in the eyes of enterprise customers.
A sustainable business model for software development can be built only
on an intellectual property foundation. I invite the Open Source community
to explore these possibilities for your own benefit within an Open Source
model. Further, the SCO Group is open to ideas of working with the Open
Source community to monetize software technology and its underlying intellectual
property for all contributors, not just SCO.
In the meantime, I will continue to protect SCO’s intellectual property
and contractual rights. The process moving forward will not be easy. It
is easier for some in the Open Source community to fire off a “rant” than
to sit across a negotiation table. But if the Open Source community is
to become a software developer for global corporations, respect for intellectual
property is not optional—it is mandatory. Working together, there
are ways we can make sure this happens.
Best regards to all,
Darl McBride
CEO
The SCO Group
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