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Lawrence Lessig on the Latest "Clueless" SCO Letter

"if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO."

Stanford Law Professor Lawrence Lessig has just blogged a follow-up to Eben Moglen's comments dismissing SCO latest 'Open Letter on Copyrights'.

Here is what Lessig writes:

From the start of this pathetic lawsuit, Eben Moglen of the Free Software Foundation has argued that there was nothing behind the SCO claims. His arguments are persuasive. But if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO.

McBride's argument is grounded in the Constitution. (Well, close to the constitution. He quotes the text of the constitution to be:

Congress shall have Power [t]o promote the Progress of Science and useful Arts, open-source advocates argue against copyright and patent laws, and whatever measures they take to by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Actually, the framers didn't say anything about "open source advocates.")

As he rightly is argues, the Constitution requires that Congress only grant copyrights where those copyrights "promote the Progress of Science." Thus, if Congress granted copyrights in a context where they didn't "promote progress" one might well ask whether such a law was constitutional (e.g., a law that extended the terms of existing copyrights, but let's leave that aside for the moment).

But the key move in the McBride-FUD is his claim that proponents of free software and open source software are somehow against copyright.

He claims that "GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union"; that "Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights"; that "the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support "free" - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?"; that "SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension"; and that "We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."

Let's take each of these claims in turn:

"GPL is exactly opposite in its effect from the 'copyright' laws adopted by the US Congress and the European Union"

Despite RMS's aversion to the term, the GPL trades on a property right that the laws of the US and EU grant "authors" for their creative work. A property right means that the owner of the right has the right to do with his property whatever he wishes, consistent with the laws of the land. If he chooses to give his property away, that does not make it any less a property right. If he chooses to sell it for $1,000,000, that doesn't make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesn't make it any less a property right.

The laws of the US and the EU don't purport to restrict the conditions under which the owner of a copyright in software might license his software (except in ways that are not relevant to this debate). Under those laws, the owner of this property right has the right to sell his property, or license his property, or lock his property in a drawer. Again, it is his property, and he gets to do with it as he wishes.

The GPL thus precisely advances the "effect" of Congress's and the EU's copyright laws: it gives the owner of a property right the right to do with his property what he wants.

"Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights See - http://www.redhat.com/legal/patent_policy.html

Well, go see just what Red Hat says in the policy statement it makes. What Red Hat (and any one sensible in this debate) argues is that software patents are bad policy and should be abolished. But no where does Red Hat argue that copyrights should be abolished.

"the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support 'free' - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others?"

That's exactly right. The issue is clear: Do you support the property rights that Congress gives the creators of software -- the right to decide to (1) sell your software, (2) license your software, or (3) give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right.

Again, the owners of Free Software, like owners of Microsoft software, choose option (2). They choose to license their property. They don't sell it, or simply give it away. The terms under which they license it are, of course, different -- they require openness; Microsoft requires money (mostly). But still, both get to "require" something because both are relying upon the property right that Congress has given them.

"SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension"

This is the most interesting (and silly) claim made in the whole of McBride's piece. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material. If JD Salinger writes a novel that he doesn't want to be published, copyright law gives him the right to put the novel in a drawer, and never sell it at all. Indeed, the law would punish anyone who stole the book and published it without his permission -- even if the "motive" of the thief was "profit."

This again follows from the nature of a property right -- it is the right of the owner to decide what to do with his resources. Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more "profit," he decides instead to use the money to save millions of lives in Africa?

It is therefore perfectly permissible for the owner of a copyright to do nothing with it. And it would be perfectly permissible for the owner of a copyright to give it away -- to dedicate it to the public domain. (And if you'd like to do that, Creative Commons will help). But again, GPL'd software is not dedicated to the public domain.

McBride, however, goes even further than claiming that there's some constitutional problem with giving IP away (deciding not to take advantage of the "profit motive.") The implication of his argument is that somehow the framers of the constitution were mandating that the only laws that Congress could pass would be laws that protected copyright owners who purported to sell their creative work. That unless the owner follows "the profit motive," the right is, in some sense, illegitimate.

Well, first, and again, there are plenty of companies that are developing and releasing GPL'd software because of the profit motive. IBM/HP/etc. have adopted this model for developing software because they believe it will make them more money than any other. They don't adopt it exclusively; they don't adopt it for all kinds of software; but they adopt it where it serves their profit motive, and so, even under McBride's test, there should be no problem with GPL'd software for them.

But more fundamentally, where is there any legal authority anywhere for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created? Answer: No where. There is no such authority, anywhere. It is, like most of the SCO suit, simply made up.

• "We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."

We should all believe that the "progress of science" is best advanced when "Authors" have the right to do with their property whatever it is they want to do -- consistent with the law, and so long as the property right is properly balanced. And we should all believe that the "progress of science" is best advanced when that right is "vigorously protect[ed]".

But the owners of GPL'd software are doing no more than exercising this right, just as Microsoft would exercise its right. They are profiting from the right to choose the terms under which they release their software, and the terms they have chosen also have a great benefit to other software innovation. They exercise their property right; they and we benefit.

But if we are to protect that property right "vigorously," then we should take steps to protect property owners from baseless lawsuits against their right to use their property as they wish. So when it comes to the matter of sanctions against the lawyers in this case, the judge might well want to consider how important it is that the property right of copyright owners be "vigorously" defended.


Finally, notice what McBride doesn't say. He does not say that the GPL is unconstitutional. To say that, he would have to say that Congress doesn't have the power to create a copyright that gives authors the right to license their software in the way the GPL does. To say that, he'd have to believe that Congress's decision about how best to grant copyrights was subject to strong judicial review. To say that, he'd have to believe Eldred was wrongly decided. But instead, he seems to like Eldred just fine.

Instead, the most he can be understood to have said here is that the property right of copyright should be defended. I know of no one in the FSF, or Free Software movement generally, who doesn't believe that. Copyrights, properly defined, like any property right, properly defined, should be defended; and the right of authors to make their work available under a license such as the GPL is just one more example of how property rights ought properly to be defended.

The SCO case has been dragging through the courts for months now. McBride threatens another 18 months before he gets to trial. But if this is all they've got, then again, Eben had it right at the start. This is nothing more than a failed company using a failed legal system to make money rather than producing great software. Don't tell me this is what the Framers had in mind when they drafted the Progress Clause of our Constitution.

Updated: thanks to Richard Morin and John Riedl for corrections; and added the following: Many have written to correct my statement that McBride "doesn't say" that the GPL is unconstitutional. I didn't mean that. I meant he doesn't make the argument. The claim that the GPL was unconstitutional was what got me to respond in the first place. But the letter merely asserts that absurd claim; it doesn't (and couldn't) defend it. Sorry for the mistake and thanks for the corrections.

 [Lawrence Lessig is Professor of Law at Stanford Law School and Founder of the Stanford Center for Internet and Society. His books include The Future of Ideas and Code and Other Laws of Cyberspace. He is also Chair of the Creative Commons project.]

This work is licensed under a Creative Commons License.

More Stories By Jeremy Geelan

Jeremy Geelan is Chairman & CEO of the 21st Century Internet Group, Inc. and an Executive Academy Member of the International Academy of Digital Arts & Sciences. Formerly he was President & COO at Cloud Expo, Inc. and Conference Chair of the worldwide Cloud Expo series. He appears regularly at conferences and trade shows, speaking to technology audiences across six continents. You can follow him on twitter: @jg21.

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Most Recent Comments
Ahron Darnell 03/01/05 11:41:10 PM EST

simple SCO was being paid by MS

Shan 12/06/03 11:30:58 AM EST

One wonders how McBride views the move Microsoft made when it offered its IE browser for 'free', scuttling some of Netscape's plans for expansion? Then the team that wrote the browser code on which IE is based entered into an license agreement - correct me if I'm wrong - wherein Microsoft agreed to pay a royalty, which would have been way out of character for Microsoft. As things turned out, the team received virtually NIL due to the fact that there was nothing in the agreement about giving the software away. Lots of people were SB&T in that little bit of business derringdo.

Wesley Parish 12/06/03 05:33:42 AM EST

Mind if I point Lessing et alii, to a web site detailing an interesting incident in a beautiful country?

Rituale und Emotionen der Ngaing in Papua Neuguinea / Rituals and Emotions of the Ngaing in Papua New Guinea
Guido Sprenger, M.A.
Institut für Ethnologie, Universität Münster

What I found interesting about a book so referenced, Peter Lawrence's "Road Belong Cargo", having read it in 1999, is the fact that "cargo cults" grew out of the "Intellectual Property" laws of the Papua New Guineans.

They had rituals to get the nature spirits and ancestral spirits to get their gardens to grow. They changed them periodically, and they traded in them. These rituals belonged to the people who made them - anyone else using them without clearing it first with the original owners, was in big, big trouble.

The "Europeans" had goods and prosperity and power. Obviously they had stronger rituals. But they came and used the Papua New Guineans' land without making trade of those rituals. Ergo the cargo cults, which attempted to take back that power, that prosperity, those goods.

I spent a Christmas in Vanimo, shortly after the local people had tried to get their cargo by overturning an impressively big surveying marker. I'm finding a certain amount of deja vu reading this tripe that the SCO Group churns out.

As far as I can see, there is this company that hasn't understood how to make it good with F/LOSS and stay on the good side of the community. They have noticed that the software is very good, and that it is growing at an impressive rate. They not unnaturally want some of the action. So they decide they'll overturn a surveying marker because their Great Leader decides they will.

Chaos. Everybody else decides their great leader is a dork who deserves time behind bars. Meanwhile, they go on using the rites of another group without having cleared it with them ... and taking whatever they can, without giving anything back.

Plasmo. D. Iosis 12/05/03 04:22:00 PM EST

Suppose a group of people formed a commune, membership qualifications involved having two digits on each hand, so you gave up your fingers to belong to this exclusive society. You then adopt the binary number system as your numerical system for your math, and all day to activities.
You then adopt or convert all science related to 2 digits.
You abbrogate the boolean logic to yourself as being solely yours because it applies to members of your commune.
You then go and sue the whole computing industry as having stole your intellectual property and ask for royalty on everything that involves a binary function.
This is an absurd as the inventors of the wheel claiming royalty on everything that has a wheel in it or resembles a wheel.
Ah! Greed! Motivates people to reap where they did not sow.
Incidentally, It was my people that invented the wheel.
while we are there can we ask the Romans and the Greeks to pay us a royalty for every wheel used in creating and expanding their Empire.
Quo Vadis SCO

Dennis McClain-Furmanski 12/05/03 03:44:20 PM EST

The sheer audacity and utter irrationality of SCO's words and actions have forced me to take a professional attitude towards their behavior. I'm a psychologist.

If an individual were to behave in such an irrational manner, making outlandish claims without support, and then attempting to construct support from bits and pieces of information taken out of context, appending self-supporting information which does not appear elsewhere, as though it were part of the original, this person would be determined to have a problem relating to reality. In short, if a person acted like SCO, they'd earn themselves some sort of diagnosis. They would be evaluated as to whether they are a danger to themselves or others, and if so, steps taken to protect and care for them.

The law treats a corporation as a sort of artificial individual. Professionally, I would seriously consider treating this "individual" with medication. In my opinion, there is something seriously wrong here, well beyond any realm of doing business.

Bill Vandenberg 12/05/03 03:32:28 PM EST

I am delighted with Lindows (Linux) as it develops replacing most if not all MS has to offer.
I also suspect some other company then SCO is footing the bill for this useless interference with linux GPL in general. My thanks to Professor Lessig.

John B 12/05/03 03:29:28 PM EST

Lessig is a God! He is so intimate with the subject of IP. My fear every night is that people who have one sided interests in IP, or the lack of his understanding are making decisions that slowly degrade rights we were given to begin with (as authors, and consumers). I'm glad he is so open and accurate in explaining the law, and he is the most articulate writer on the subject. I only hope that the public will take interest in what he teaches before their destinies are dictated to them by industry. It is important to protect the profit motive but imagine the advancements that could be made if everything were freely available for you to consume or innovate in any manner chosen or made out of necessity. Now that's progress.
I know it's a weak point but also remember, when you buy some Beatles songs, not a penny goes to Paul, Ringo, John, or George, or families, it goes to Michael Jackson. A departure from protecting the interests of authors and inventors.

Thomas Frayne 12/05/03 03:29:27 PM EST

SCO's PR statements vs court statements:

At the court hearing today, the judge granted IBM's two motions to compel, gave SCO thirty days to comply 'with specificity' and suspended further discovery. Did not rule on the SCO motion until next hearing scheduled for Friday, Jan 23 and 10:00 am.

SCO did say that they will be filing a complaint within days on copyright violations.

For 6 months, SCO has been stalling in court. They have not specified a single line of code that they claim is their IP. Meanwhile, they constantly proclaim in their PR that they are eager to place their evidence in court.

Shivarajan Varadarajan 12/05/03 03:15:08 PM EST

Its very heartining to know, that some companies in the topare so scared of getting BEATEN-UP in the marlet that, they try & tend to play pure/open and NASTY politics with Money. The real culprit MS .... who is aiding and abetting all this should be FRYED by dederal authorities for unjustified MONOPOLY+FOUL PLAY.

We should shun using product of any company (LOL not many) if they rather then developing their products better, tend to dissolve and break such NOBLE community efforts thro' false and creepy means -: FUNDING LAW SUITS.

Nicholas Bodley 12/05/03 03:12:13 PM EST

I'm very glad someone like Lawrence Lessig has clarified the FUD so capably. SCO is a terminally-sick joke; shame; they were once respected. It would be quite amusing if they were found to be hiding something like a mini-WorldCom (loosely speaking). I won't speculate on McBride's degree of emotional maturity.

Chris Rogers 12/05/03 03:03:56 PM EST

The SCO letter also states:
" Congress adopted the DMCA in recognition of the risk to the American economy that digital technology could easily be pirated and that without protection, American companies would unfairly lose technology advantages to companies in other countries through piracy, as had happened in the 1970's."

This would seem to imply that they believe the DMCA was put into place to protect American businesses from "companies in other countries". This is a rediculous and arrogant comment to make, since US laws have absolutely no effect in other countries.

drhall 12/05/03 02:43:11 PM EST

How hard can this debate be? Either SCO has claim to "show how" or "know how" patent infringements, or they don't. Nothing exhibited either way so far. What a waste of money ... maybe SCO is using this as a publicity/marketing write-off? I have watched in amazement at the money being thrown toward this "argument" ball of twine.
My best guess is SCO was facing disaster is one form or another and opted to create this as a smokescreen for a major problem or failure of some kind.

don hall
bear creek research

michelmartin 12/05/03 02:09:47 PM EST

It's funny how SCO claims one thing, and at the same time they take advantange of Samba (SMB)or their site runs on Apache as you can see following this link:

Maxei 12/05/03 02:00:34 PM EST

Well said. I just want to attract attention to the fact that the Advancement of Science has been possible due to a simmilar movement to that of GPL: All knowledge is available to everyone. We see it when we go to school, where we learn all kinds of subjects. If science was totally private, we would not have the kind of society we live in, actually.

Matt Simpson 12/05/03 01:58:59 PM EST

Ok, so I come to this Linuxworld site to read an article about Linux, and all I see is advertisments for Windows software confronting me? What's the deal?

I don't care it is "Unix Services for Windows" it still is dumb Windows ad. Why are you doing ANYTHING to promote ANY Microsoft product?

BajaBob 12/05/03 01:50:01 PM EST

I have worked with Don Donner in Washington, D.C., past president of the Patent Lawyers Association, applying for and obtaining patents on my own inventions. I have seen first hand how the patent and copyright internals work.

One of the other aspects of this suit is the right to obtain damages from SCO for interferring with commerce. Many major cases of IP damage due to fraud, market interference, etc. have ended up before the Supreme Court.

When most of SCO's claims are found frivilous (does not require all), the courts can ascertain that unlike the UC Berkeley BSD case there was a blatant attempt to extort monies from the Linux Community at large and award damages to all Linux users, resellers, hardware manufacturers, and other damaged parties just as in the Microsoft software suit.

I have already sent in my form for damages against Microsoft and can't wait to send in my form against SCO. I hope they have verrrry deep pockets.

steven 12/05/03 01:48:16 PM EST

This article is right on target. It shows the problems with the SCO lawsuit and explains them in clear English. Lessig is right. Hopefully, for the sake of our freedoms, the courts will agree.

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