This post was originally posted on Groklaw (http://www.groklaw.net), but was
censored. It was made in response to an article on Groklaw containing the
summation, by both sides, at the end of the court case between Novell And SCO
in May 2008. The case was over rights to the original UNIX developed by
AT and T. SCO claimed to have rights to it, transferred to them, by Novell.
And hence were perfectly entitled to sign licences with Sun Microsystems and
Microsoft in 2003, without informing Novell or transferring any charges they
made to Novell. These licences gave extensive rights to Sun and Microsoft
to incorporate technology from UNIX in their products, and in the former case
to sublicence their derivative version of UNIX, Solaris, with an Open Source
or Free Software licence. SCO claimed that this also gave them rights to chase
users of Linux, under their SCOsource program, and ask them to pay them for
the right to use Linux, since they believed it contained their "Intellectual
Property".
Novell claimed that SCO did not have those rights transferred to them, by
Novell. And that they were owed money from both the deal with Sun
Microsystems, and Microsoft in 2003, and any money which SCO managed to get
from its SCOsource program.
The judge in the case, Judge Kimball, had already ruled at this point that
Novell did hold the rights to the original UNIX: not SCO. And the deals which
SCO made with Sun Microsystems and Microsoft were primarily related to that
technology. And all that was left to decide in the case was how much of the
money in those deal was due to Novell, including the SCOsource program.
------------------------------------
Groklaw, at its worst, is just merely a portal of the Corporate Media,
funneling the narrow minded perspectives of callous journalist, in service
of their Corporate masters: those who pay for their existence through
advertising. It is no different in this respect than Slashdot, Linux Today,
The Register or any other of these similar portals. And this is reflected in
the contents of its articles, and conservative responses to the articles,
which differs little, if at all, from what is in the Corporate Media: making
Groklaw redundant.
At its best Groklaw is a product of a community sharing in a common interest
in aspects of the law (predominately the laws of the United States) related to
the Software Industry in general, and the Free Software and Open Source
software in particular. Such has been the case here with the transcripts of
the proceedings in the case between Novell and SCO. And in this respect so far
Pamela Jones and Groklaw is to be very much congratulated for an excellent
coverage of the case.
Alas the responses to the articles on Groklaw, covering the case, have
nonetheless not changed. And they exhibit the same old myopic, narrow minded
conservative perspective of Groklaw at its worst. A lot of them seem to be
making the same point again and again. Namely that SCO's arguments are simply
a repetition of the arguments before the Judge Kimball ruled in favour for
Novell, that the licenses which SCO gave Sun Microsystems and Microsoft in
2003 were related to rights over the original UNIX Operating System. And
Novell retained those rights. And that SCO's attempts to go over that ground
again were doomed to fail, since the Judge had already ruled in favour of
Novell.
In repeatedly doing this, they betray their crude understanding of the law,
which in turn is due in no small part to the Corporate Media. With all due
respect to Pamela Jones, and the high esteem in which she holds the law (at
least in the United States), the law is not about truth and justice. It is
not that philosophical. It is about what can be proved and what cannot be
proved in court. The difference is subtle, but one which you can hopefully
appreciate. Sure! the Corporate Media like to conflate its more philosophical
image with its pragmatic image: and so do the academics who teach the law, and
professionals in the law. But if you pay attention you will notice they only
do this when they are feeling proud for one reason or another. When they are
embarrassed, they defer to the real image: the pragmatic one.
The more astute of you will have noticed a paradox straight away. That is, on
the one hand, the law is a set of rules. And a rule is constant. But, on the
other hand, these rules (i.e. the law) are not based on any constant i.e. the
truth or the search for the truth. Instead they are based on precedents:
"Almost every case must now be determined by some precedent, be that precedent
good or bad, or whether it properly applies or not; and the practice is become
so general as to suggest a suspicion, that it proceeds from a deeper policy
than at first sight appears.
... this preaching up the doctrines of precedents, drawn from times and
circumstances antecedent to those events, has been the studied practice of the
English government. The generality of those precedents are founded on
principles and opinions, the reverse of what they ought; and the greater
distance of time they are drawn from, the more they are to be suspected. But
by associating those precedents with a superstitious reverence for ancient
things, as monks show relics and call them holy, the generality of mankind
are deceived into the design."
(Source: The Rights Of Man (c) 2008, ushistory.org. Thomas Paine.
http://www.ushistory.org/paine/rights/c2-04.htm)
England has never had a written constitution. So all the laws has proceeded
from precedents. This has ended up creating a labyrinthian set of laws. The
result of which has been so complex that, many coincidences of subsets of
these laws, has produced virtually distinct stratas, which bare little
resemblance to other parts of the law. One of these stratas being Contract Law
as in this case between SCO and Novell.
When the constitution of the United States was written it did theoretically
put a limit on precedents, by putting a limit on government, and hence the
laws that government could pass. And it did mitigate the labyrinthian effects
of precedents. But, in practice, the constitution did not limit all laws that
the government (including the courts) could adjudicate on. And whenever the
courts came across conflicts in the law, they deferred back to precedents,
including the precedents of the English Law, including its Contract Laws.
In Contract Law, both parties are entitled to make as strong a claim as
possible, without any penalty. And the judge more often than not tries to
strike a reasonable balance between the strength of the two claims. There is
no criminal proceedings from making too strong a claim. And the judge will
not penalise one party for making claims which they know they are not going
to get. Those of you who work in the Software industry will have come across
contracts with highly dubious clauses before. And the reason why companies
put this in, even though some of them may contradict the law of the land, is
for the above reason. To claim this is fraud is to conflate the philosophical
image of the law with its pragmatic one.
Novell's claims are probably a lot higher than they know they are going to
get. SCO's claims are also a lot lower than they know they are going to get.
But it is their strongest the claim. If this appears to be a repetition of the
arguments before the judge ruled against them, with respect to the ownership
of the rights to the original UNIX, well that is simply because those
arguments were their _STRONGEST_ claims. They do not need a "plan B" as one
poster put it in reply to SCO's summation to the court. Novell is in a much
harder position of assigning a value to their losses. And the figure they have
come up with, judging purely by what they say in their summation to the court,
seems to be pulled out of a hat. And the judge too is going to have a hard
time justifying it, without pulling another figure out of a hat.
Of course the absurdity of this situation makes the case for Free Software
Foundation and the GNU Public Licence (GPL). Namely, that the mysticism from
which the law proceeds in general, and that the notion of
"Intellectual Property" in particular, is absurd. The idea that the ownership
of abstract ideas, and intangible "Property", with rights to future earnings,
by people who in some cases have not been even born yet, becomes patently
absurd when you try put a value to this "Property". And although some have
rightfully highlighted the absurdity of SCO's case, few if any have
highlighted the absurdity of Novell's case, and the vindication of the case of
Free Software which follows from that.
As ever Pamela Jones, with love and respect.
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