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The Back Page
by Bryan Chaffin

SCO's Attorney Will Attempt To Have GPL License Declared Invalid
August 15th, 2003

The never ending madness continues: The Wall Street Journal reported yesterday that SCO would be attempting to have the GPL license that is the very basis of the Open Source software movement declared invalid. The Journal quotes Mark Heise, the lead attorney for SCO on the case. Mr. Heise works for Boies, Schiller, & Flexner LLP, and that's the same David Boies who successfully lead the federal government's antitrust case against Microsoft.

Though that case resulted in Microsoft being declared an abusive monopoly seeking to leverage its ill-gotten monopoly power to gain market share with other products, the private firm of the same attorney will now effectively be working to do Microsoft's bidding. Microsoft itself has been attacking the GPL for years, but has been unable to make any headway. Even after declaring the Open Source software movement, and its GPL foundation, un-American, and then later changing that tack to saying the GPL was a threat to Intellectual Property, Microsoft's ploys have been seen to be exactly what they are, cheap attacks on a technology that is in many ways superior to its own offerings.

Now we have another company actually leading a legal challenge on the GPL, sounding the very same themes that Microsoft has spouted for years. At the same time, Microsoft was quick to "license" Unix from SCO, reportedly for some US$10 million, immediately after SCO first sued IBM. It doesn't take Art Bell to find a conspiracy in that mess.

What's even more bizarre, however, is the angle that SCO's attorneys intend to take. According to the Journal, Mr. Heise intends to argue that the GPL actually violates US copyright law. From the Thursday edition of the Wall Street Journal:

Now SCO is preparing to wheel out the sofware-industry equivalent of a nuclear bomb: It will argue that the GPL itself is invalid, says SCO's lead attorney, Marke Heise of Boies, Schiller, & Flexner LLP. Mr. Heise says the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy. The GPL "is pre-empted by copyright law," he says.

I'm not an attorney, but that is roughly the stupidest thing I have ever heard. According to that argument, software makers are legally prohibited from allowing other people to copy their creations through a software license. So, someone can write something, but he can not allow it to be given away? Now that is perhaps one of the most un-American things I have ever heard, and if it is the case, it's one more reason for US copyright law to be changed, and now.

That, however, is what I am worried about. Big Business seems to own Washington. It was true during Clinton's term, when the DMCA was passed, and is probably more so the case now. I don't see US copyright law being changed for the better any time soon.

So what, you might ask? This will never fly! No judge or jury is going to agree with this asinine argument! Well, we can hope so, but the Wall Street Journal quotes sources on both sides of the argument who are divided on the issue. That means that there are at least some people who are paid to understand these things better than you or me who think SCO has a point. Worse yet, there is the small matter of the law firm on the case.

David Boies is perhaps one of the more intelligent men of our era. The boy has brains. He beat Microsoft -- though the current administration threw away that victory in a sweetheart settlement deal that left Microsoft free to do whatever it wants -- and that was no fluke. Do some research on him to find out some of the many more reasons I say that about him.

If he is involved in this case, even if it is a peripheral involvement, that would suggest that he thinks these arguments have merit. More importantly, it suggests that he thinks these arguments can win. The firm, according to an NPR report I heard Thursday evening, is working the case partially on contingent terms. That means they don't get paid unless they win, and that confirms they think they have at least some chance of winning.

I hope not. I hope when Mr. Boies saw these headlines, he smacked his head and started asking who in the heck hired this Heise guy. If the GPL were declared invalid in the US, it could seriously hurt the Linux and Open Source movement. Not only do I love the Open Source movement, I think that it is very important for Apple's future. In addition to hundreds or thousands of Open Source applications that have been, or can be, ported to Mac OS X, I believe very strongly that Apple will get a huge boost by having Linux grow its market share. As I have said before, I believe that Apple will gain credibility and mind share when it becomes an alternative to Windows, instead of the alternative.

Though the Journal reports that the Open Source community has an alternative license it is prepared to switch to if need be, one that seems fairly resistant to legal challenges, there will be massive repercussions for the Open Source movement, the computing industry as a whole, and even free speech, if the GPL is declared invalid.

Again, hopefully SCO's argument is absolutely idiotic as it seems to be, and this entire case will be for naught, but it has taken on a new menace for all of us.


began using Apple computers in 1983 in a high school BASIC programming class. He started using Macs in 1990 when the Kinko's guy taught him how to use Aldus PageMaker, finally buying a Power Computing Power 100 in 1995. Today, Bryan is the Editor of The Mac Observer, and has contributed to the print versions of MacAddict and MacFormat (UK).

You can send your comments directly to him, or you can also post your comments below.

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