The other day I was asked what the odds were that SCO would win against IBM. On the basis of how the two parties were behaving, I offered a range of between 55 and 65 percent. I’ve spent a lot of my life watching litigation, and I believe that you can better tell the outcome by trying to determine what the parties believe and how believable they are than if you just try to dig through their rhetoric.
The pleadings generally amount to incredibly detailed “they did this, they did that” kinds of arguments, and it becomes difficult to call a winner until you actually see what shows up in court and how the judge and jury react.
SCO and its legal team continue to bet the farm that they will win, and IBM appears to be trying to limit its risk. Also, IBM doesn’t have complete control of its own side, especially with a massive amount of well-wishers who might actually be making it more difficult for IBM to win. For example, who do you think really benefits from a denial-of-service attack on SCO?
One of the strongest indications I have that SCO might win is that several of the financial analyst groups who work with me, after reviewing the SCO submissions, have concluded that SCO might actually have the advantage. These firms are relatively unbiased and, generally, if they do have bias, it would typically favor a company like IBM with which they have substantial interest as opposed to a company like SCO with which they don’t.
Rhetoric Lacks Reality
I clearly have become fascinated with the rhetoric coming out of the open-source community. It appears to me that a lot of people believe the U.S. legal system is based on what people outside of that system believe — or that simply because something should be the case is enough to ensure that it will be. Unfortunately, life and litigation generally don’t work that way.
Have you ever watched a divorce either between marriage partners or between business partners? From the outside, it can look like the participants were suddenly possessed by evil spirits or aliens. This is because during the early phases of a relationship, when people are working together, they tend to ignore the other person’s shortcomings and talk about how wonderful they are.
Once the relationship fails, however, the other person is often presented as if they were Satan spawn with no redeemable qualities at all. So it has seemed with SCO. The company started off as friendly underdog Caldera going after Microsoft. Now the company is nasty little SCO going after Linux. As far as I can tell, it really is the same company.
When the litigation first started, I personally had little interest in Linux and open source, even though I had covered it on and off for well over a decade. While it was clear the movement had engaged others, it hadn’t yet engaged me. However, a few months ago, this changed because I started to get disturbing e-mail from people I had previously respected. When I tried to point out that SCO might actually be in the right, suddenly the attacks shifted to me in a very personal way in an apparent attempt to shut me up.
At the time, I wasn’t siding with SCO, I was just pointing out that the company’s position might have merit, and that I knew some of the folks and they weren’t as evil as people seemed to think. I’m an analyst; this was analysis.
Software Theft Benefit
SCO was simply saying that IBM had taken SCO’s intellectual property and was giving it away to the open-source community. Given my experience with cases like this, it wasn’t unusual that a big company was doing something like this. I’d seen it before.
What seemed to be different was that the open-source community seemed collectively to say, “Theft is okay as long as we benefit.” SCO was suddenly painted as evil, referred to in terms that implied it was incompetent, greedy and came from questionable parentage. The company’s Web site was attacked and its executives threatened. And a lot of people who should have known better seemed to think this was okay and that SCO was getting what it deserved for being on the wrong side.
Ever watch people who have been caught stealing something defend themselves? They say things like, “I found it,” “Someone else gave it to me,” “It wasn’t yours to begin with” and, “I have as much right to it as you do.” In the open-source rhetoric that followed the SCO lawsuit announcement, I saw a tremendous amount of similarity to this behavior.
So, what if the SCO folks are not evil incarnate and their stuff was stolen? Wouldn’t that make them the victim, and is it really okay to attack the victim if your side benefits? Where do you draw the line between good and evil?
One belief I found to be particularly interesting was that you could get out from under this problem by simply rewriting the sections of a software product that were in violation. Some people evidently think that if you were caught with a line-by-line copy of someone else’s software product, all you would have to do is rewrite the offending lines and you could continue to sell the result.
Rewriting the Rules
To extend the example to the book-publishing world, some open-source proponents have argued that if you started with Harry Potter and the Sorcerer’s Stone, you could end up with Parry Hotter and the Wizard’s Rock and be just fine. But this sort of line-by-line replacement won’t work because the ideas that surround the product are also protected.
Were you to read the original AT&T license, which I did, you would find that it anticipated things like this and, if it is enforceable, protects against it. Let’s pretend for a moment that we live in a country where you have the right to protect what is yours, regardless of whether you built it or, like SCO, bought it.
Let’s also pretend that, when there is a doubt about ownership, you have the right to prove that ownership and that no group of vigilantes or large companies has the right to force you to give up what you can prove is yours, or take away your right to try. Let’s pretend that people in general in this mystical land of the free have the right to have opinions different from yours without fear of personal physical or verbal attack.
I actually think I live in a place like this, so it would be nice if more open-source software folk joined me here.
Rob Enderle, a TechNewsWorld columnist, is the Principal Analyst for the Enderle Group, a company founded on the concept of providing a unique perspective on personal technology products and trends.