Airs – Ian Lance Taylor

SCO

I was thinking recently about my visit to SCO back in 2003. Since then SCO has been through bankruptcy and their various court cases have collapsed several times, although they are still struggling on. Their argument was always very weak. I could see that at the time, although I was also scared that the court might come to the wrong decision anyhow. Fortunately that has not happened to date.

What I think most about was Blake Stowell’s question to me as I was leaving. Blake Stowell was at the time SCO’s Director of Public Relations. He asked what I would do if I owned some proprietary code that somebody else had copied, implying that SCO’s behaviour was not merely legally justified but was even morally justified. It was a long time ago, but the impression that I recall was that he sincerely thought that SCO was doing something which reasonable people would consider to be OK, and wanted to see whether I agreed. My answer at the time was not very good.

It’s a question which I now think brings us to the heart of copyright laws. If I write something myself, what rights do I have to prevent other people from making derivative works? If I buy the rights to something that somebody else wrote, do I have the same rights with regard to derivative works? Does it matter how those derivative works are being used? I’m raising these rhetorical questions not as a matter of law—the law is what it is—but as a matter of what we, as a society, ideally want to permit. SCO was acting as the copyright equivalent of a patent troll: they acquired the rights to something which they did not create, and attempted to gain revenue from other people using the same ideas. Should we permit that?

In considering issues like this, it’s very important to not mix up copyright with real property. It’s natural to start thinking that something that I write is like something that I own. If I own a car, it’s not OK for somebody to drive it without my permission. The issues with code are far less clear. Copyright is a balance between the rights of the authors and the rights of everybody else. Copyright does not last forever, unlike my ownership of the car. There are various exceptions to copyright, such as fair use. Even if we take SCO’s very best case, they were talking about a tiny percentage of code being copied from an earlier version of Unix into the Linux kernel. Did that give them the right to charge people for using the Linux kernel? If the code was removed from the Linux kernel, as did in fact happen later, would they still have the right to charge based on an expansive notion of derived work?

Intuitively I think that while the original author has considerable rights to control code that she or he writes, those rights tend to decrease with time and distance. It’s not obvious to me that control over an author’s work is something that can be sold or inherited. It also makes a difference whether the work is used in its entirety or whether a portion of the work is excerpted. It also makes a difference whether the work is used by itself or in combination with work by other authors.

Unfortunately these issues are all fuzzy. For law to be useful, the issues have to be spelled out, which is hard, and tends to give too much weight to the author at the expense of the rest of society. And the rules appropriate for books and music may not be appropriate for code.

A sane copyright law has to make it clear that legal assertions like the ones that SCO made claiming to own Linux are unsupportable. The remedy for minor code copying is to remove the copied code; it is not to grant ownership rights to the larger package into which the code was copied.

SCO’s actions were not justified. The fact that they appear to be failing is a triumph of justice.

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Ian Lance Taylor

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8 responses to “SCO”

  1. ncm Avatar
    ncm

    That SCO’s cases weren’t thrown out of court immediately, as in Germany, is a travesty. The years the case spent in court, with the principles still not in jail, and their counsel not censured and fined, makes it almost unfathomably worse. That they appear to be failing now, after all these years, only suggests that there wasn’t much more money to be made by dragging it further.

    Back when, Caldera and Old SCO could have shifted their business model to do something meaningful, and still be a going concern, but they were taken over by conmen who sucked it dry and entirely got away with it. Boies is at least as guilty as Yarro or McBride.

  2. fche Avatar
    fche

    “For law to be useful, the issues have to be spelled out, which is hard, and tends to give too much weight to the author at the expense of the rest of society.”

    While talking about the interests of the society as a whole, it’s worth emphasizing that turning intellectual property into a marketable entity is itself good for the rest of society, for it enables creators to make a living from this activity.

  3. Ian Lance Taylor Avatar
    Ian Lance Taylor

    ncm: Yes.

    fche: Yes, in the U.S. this of course goes back to the Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The question is how to define “limited Times” and “exclusive Right.” Over the centuries, both terms have been increasingly tilted toward authors. I believe that authors can make a living without having exclusive rights last for 70 years after their death.

  4. fche Avatar
    fche

    ‘The question is how to define “limited Times” and “exclusive Right.” ‘

    Exactly.

    “I believe that authors can make a living without having exclusive rights last for 70 years after their death.”

    That does sound a bit absurd as written, doesn’t it? 🙂 OTOH, giving the asset a longer lifespan may make the present value of that asset slightly higher, so there may well be a (small) advantage even to a living author in being able to sell his stuff at a higher price to a publisher that will outlast him.

  5. Simetrical Avatar
    Simetrical

    Authors should have an unqualified right to transfer their rights to others in exchange for whatever payment they can get. Insofar as they have rights to the works at all (thus, modulo fair use/length limits/et al.), they should be allowed to transfer those rights to others if they would like something else better.

    As a general rule, allowing people to transfer whatever rights and privileges they have is a good thing. It allows more efficient distribution of wealth. If you don’t let copyright holders transfer their copyright in full, you dilute the value of copyright for no apparent benefit to society.

    As a corollary, of course, you should have full rights to a work even if you bought them fourth-hand. Not because you have as much moral right to the work as the author, but because anything else would prevent authors from profiting fully from their works.

    Of course, copyright length these days is ridiculously long, but that’s an entirely separate issue. Also of course, SCO’s claims were largely frivolous, but that would be just as true (IMO) if they directly represented the original authors.

  6. Ian Lance Taylor Avatar
    Ian Lance Taylor

    These are the sorts of arguments which seem wholly plausible on the surface, and which then lead to increasing the rights of authors. In making these arguments you are implicitly decreasing the rights of the rest of society. They may be the right choice, but I’m not so sure.

    In particular, in thinking about these issues don’t just think about standalone works created by a single author—the author who spends ten years writing in an attic to produce a masterpiece. Think also about collaborative works, which is the normal case which arises in software—the author who spends one day working on an extension to an existing system.

  7. Simetrical Avatar
    Simetrical

    You aren’t actually reducing society’s rights, are you? From society’s point of view, it makes no difference who enforces the rights. It doesn’t matter to me who I have to pay royalties to, if I have to pay royalties.

    Perhaps buyers of copyrights would enforce them more strictly than authors themselves. But I don’t see why. Authors have nothing less to gain by enforcing their copyrights than buyers do. Besides, if we want copyright to be enforced less strictly, then we should reduce copyright somehow across the board, not just adjust things so that *maybe* it will for some reason end up being enforced less strictly on average.

    I don’t see how collaborative works are any different here. (That *is* how I think about copyright — I do open-source software development in my spare time, which is how I found this blog to begin with.) In the case of software, each individual’s contribution is typically worthless. If the employee couldn’t give the full copyright to the employer, no one could actually fully enforce the copyright. If this is a good thing, there are more direct and efficient ways to bring it about.

  8. Ian Lance Taylor Avatar
    Ian Lance Taylor

    If an author can transfer full copyright rights to an organization, then the right to control copying is independent of authorship. Severing the relationship between the author and the work is a big step toward making the lifetime of copyright independent of the lifetime of the author. When authors can aggregate rights into more powerful entities, everybody else tends to lose rights to the authored works. It doesn’t have to happen that way in theory, but it does in practice.

    I mentioned collaborative works to stress the case where we want the author to have fewer rights. You’re right that if we assume that authors have a lot of control over even a small contribution to a collaborative work, then it makes sense to permit that control to be consolidated in a single place. But perhaps the premise is incorrect: perhaps a small contribution to a large collaborative work should not grant any right to control copying.

    I want to say clearly that I’m not arguing that authors have no rights to their work. I’m arguing that the rights of control over copying have shifted to far toward authors over time. Control over copying is not like control over a physical object, and it should not be thought of the same way.

    In this regard it’s worth noting the idea of moral rights of authorship as distinct from economic rights, an idea in French and German law.

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