SCO suit c|net article

[Tim King]

I usually just lurk, but this article on the SCO suit got to me:

http://news.com.com/2100-1016_3-999371.html

Stephen Shankland tries to present the case as "cut[ting] to the heart of
the open-source movement's legal and philosophical underpinnings." To put
that in English, he believes open-source developers tend to rip off
proprietary technology, because there's no closed environment that
regulates what they do. In particular, he writes:

    Despite the technological and cultural successes of the
    cooperative movement, it still must convince companies that
    its methods are legally sound.

    "This shows one of the weaknesses of the open-source movement,"
    said Mark Radcliffe, a copyright attorney with Gray Cary.
    "You're all dependent on trust. Unfortunately, a number of
    people involved in the process do not have a great degree of
    respect for intellectual property..."

Now, anyone who's done any software engineering, especially on a contract
basis, knows that trust is always an issue, open-source or closed. But
open-source projects increase trust in the code the same way open security
standards increase trust in the security algorithms. Contrary to myth, the
open-source community has great respect for intellectual property. That's
why it makes so great an effort to use unpatented technologies and
appropriate open-source copyright licenses. And whenever the community
discovers a lapse, it preemptively corrects it. Because if it didn't,
everyone in the world would be able to tell whose technology was in there,
because everyone in the world has access to the source code.

This level of trust is possible with open-source; it's not with
closed-source. That's why open-source actually is better, more
trustworthy, and less likely to infringe intellectual property than
closed-source is.

    Open-source programming tends to be a transparent process, and
    despite the fact that there are millions of lines of
    open-source software, "so far there have been no significant
    problems with cleanliness of code," [Illuminata analyst
    Jonathan] Eunice said. "This is the first major case where
    there's been a claim of fraud or improper use of code getting
    into open-source."

That's a round-about way of saying, "It ain't so! Open-source by its
nature has _fewer_ intellectual property issues." Why did Shankland
relegate this all-important point to a single obtuse paragraph? Is he
taking sides? (That's a rhetorical question. It would not be the first
time someone in the newsertainment industry took sides.)

Finally, SCO Group Chief Executive Darl McBride:

    Regardless of whether the issue is hashed out in the courts,
    Linux companies will have to grapple with it, McBride said.
    "For Linux to move forward in a wide-scale fashion, I believe
    the intellectual property issues have got to be resolved," he
    said.

    "There is not an intellectual property policeman sitting in at
    the check-in counter saying this is OK, this is not OK. It is
    a free-for-all,"  McBride said. "At the end of the day,
    there's not a basis for making sure code is clean when it goes
    in there."

On the contrary, it's the closed-source environment that has no IP
policeman. In such an environment, it's up to each developer to question
whether IP issues might exist and to consult the legal department if he
thinks it's warranted. And in a closed project, if someone else's IP does
sneak in, no one ever finds out about it. Frequently, closed-source
developers even use that as a rationale for skirting IP issues.

Open-source development is much more controlled. It's self-regulating.  
Because as soon as you submit that code, it's on display for the whole
world to see. And so open-source developers are much more wary of glossing
over IP issues. And when oversights do occur, there are far more people
available to notice and bring IP issues to the developers' attention.
Given enough eyes, all IP issues are shallow.

This is what McBride is most afraid of. He knows that if he actually made
his concerns known, Linux developers would mobilize en masse to address
them and to eradicate any offenses. And then how could he sue?  When it
comes to respecting IP, SCO and Linux are on the same side. And you can't
sue your friend over something on which you agree.

It's obvious, McBride does _not_ want to protect SCO's intellectual
property. If he did, he'd just be honest with Linux developers, because
that's what they want, too. There are two alternatives: He wants money; he
wants to go to court. Let's pray that IBM decides to give him the latter.  
Because it would set an example for others of McBride's ilk, not to bully
Linux. We may look weak to someone like him. After all, Linux has no
centralized structure, no highly-paid legal department, no corporate
strategists staying up late nights planning the next industry coup. But
there's much more here than meets the eye.

Don't taunt the penguin.

-TimK
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