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.