Wow. SCO is sunk. Their CEO, Darl McBride, just wrote another open letter explaining why they think the GPL is unconstitutional and invalid. It demonstrates such an amazing lack of understanding of the GPL, that if this truly represents their legal strategy, they are doomed. The overall strategy seems to be to paint the GPL’s author, the FSF, and its adherents, e.g., Red Hat, as anti-profit, anti-copyright, anti-capitalist scumbags and from that to then conclude that the GPL is all those things as well, and hence based on a bewildering leap-of-logic from Eldred v. Ashcroft, claim that the GPL is contrary to the purpose of Copyright, and hence unconstitutional. The key problems with his letter are:
- Most of the letter is an ad hominem attack against the FSF and Red Hat. The strategy seems to be, put Richard Stallman on the stand, let him say some outrageous stuff that many wouldn’t agree with, and then look reasonable in contrast. You’d then have to count on a jury to be dim-witted enough to fall for such a strategy, rather than parsing out the actual issues.
- The FSF is indeed anti-software patent, and also is indeed in favor of Copyright reform, but they cannot be characterized as completely anti-Copyright for the simple reason that the GPL is itself a Copyright License intended to work within existing Copyright Law. That McBride does not know (or chooses to ignore) this fact is one of his largest downfalls. It will be a simple counter to his argument to point this out.
- The GPL is not anti-profit. Indeed, it explicitly allows for people to charge whatever fees they can get for service to GPL-licensed software.
- We live in a country where people are free to do what they like with the products of their work. If Darl’s argument were sound, then it would be unconstitutional for a painter to paint beautiful artworks and then give them away. He would be ignoring Copyright’s purported profit-based motivation and by Darl’s reasoning therefore be engaged in unconstitutional activity. This is absurd. If someone writes a piece of software and wants to license it in a less-restrictive manner than Darl does, that’s their choice. They can even donate it to the public domain, something the GPL explicitly does not do.
- No one is forcing Darl to use the GPL if he doesn’t like it. The software industry is not threatened by the GPL, unless they are incapable of creating equally good products and providing equally desirable service. He can slap “All rights reserved.” on the software he writes himself all day long, and nothing the FSF does will stop him. Now, if it’s crap, then no one may care about SCO’s crappy software. But’s that a business problem everyone faces, and it has nothing to do with the GPL. You got to give the people what they want!
When all is said and done only one of two possibilities present themselves. Either SCO’s understanding of its own business, its own past actions, and of the basic legal facts surrounding their business is so amazingly lacking that they could only be characterized as total idiots, OR their pretense of such idiocy and their sham hand-waving legal arguments are in fact criminal attempts to artificially inflate their stock price or to damage the business of their competitors. Idiots or criminals. Those are their options.