Openness, public domain and SCO

Anne Thomas Manes was writing about various shades of gray in the openness of
Java and C#, and wrote [ed: this link is broken, Anne's old blog is apparently no more. Her new blog doesn't seem to have the old posts, reminiscent of my own blog migration pain.]

Public domain means open. It is the opposite of proprietary. Open source isn't nearly as open as public domain -- as illustrated by the SCO lawsuit regarding Linux. The fact that there is a license -- even an open source license -- means that someone owns the intellectual property in Linux. SCO is claiming that it owns some of that intellectual property, and it is demanding that companies pay for the right to use it.

While I think she has here and elsewhere in her comment accurately reflected the difference between public domain and proprietary,  the way I've taken her comment on SCO isn't quite accurate.

I'm not a lawyer, don't work for SCO or IBM, and don't play any of these
roles on TV.

While public domain is the antithesis of ownership, I don't think it would in any way have shielded anyone from the SCO lawsuit. Taking the SCO complaint at face value, just for the sake of argument: had some company, "HAL" perhaps, released code it licensed from SCO into the public domain, that
would in no way have protected HAL from SCO's wrath.

Nor would those who picked up the supposed public domain code have been protected. If I put stolen property on my curbside with a 'free' sign, you who pick it up still have received stolen property. Likely you wouldn't be charged for this unwitting act, but I would. And if you wanted to keep the stolen property, you could then be charged some fee.


The point here is that SCO's claim has nothing to do with the property having shown up in open source - it is to do with the property having been used by HAL outside of contracted context. SCO's ownership is the same no matter whether the contested use is open source, closed source, private transaction, employee theft, whatever.

I'm still not a lawyer.

[Comments from my previous blog]

1. a reader left...

Tuesday, 16 September 2003 5:25 pm

A de jure standard would make a huge difference in the SCO lawsuit -- except that Linux isn't a de jure standard. A de jure standard is public domain by law. Once the intellectual property is defined as public domain by an international standards body, no one can claim ownership of the IP. That's why the ISO standardization is such an important factor in regards to C# and CLI. Linux may be open source, but it is not in the public domain. This is one of the risks associated with open source -- your open source provider supplies no guarantee of indemnification if someone comes along and sues you for violating their IP. Hence SCO can sue any Linux user. This isn't possible with C# and CLI.

Anne Thomas Manes [amanes@burtongroup.com]

2. glen martin left...

Tuesday, 16 September 2003 6:40 pm

A standards body can try to put a technology in the public domain, but if the body doesn't own the technology in question it isn't then public domain. While there may be a difference for the end-user, for HAL or the standards body there would be some difficulty.

I believe there may be a situation along these lines with respect to some of the MS contributions to standards bodies like ECMA and W3C. If only portions of the standards are donated, the public domain release by the standards body isn't all that effective in permitting free (that is, unconstrained) use.

3. a reader left...

Wednesday, 17 September 2003 7:16 am

But that's the major difference between an international standards body, such as ISO, and a vendor consortium, such as W3C. W3C has no right to put technology into the public domain. W3C doesn't own the IP in the W3C standards. The vendors and/or people that contribute to W3C maintain their IP rights. Hence the recent controversy about royalty free and reasonable and non-discriminatory (RAND) licensing practices.

But ISO is different. Any technology contributed to an ISO standard must be donated to the public domain, and once the technology has been standardized, ISO provides indemnification (protection against lawsuits).

But I agree with you regarding your caveat about what portion of the technology is in the public domain. That's why I've been careful to say that only C# and CLI are international standards -- but .NET is a proprietary framework built on the C#/CLI standard. And that's why I'm suggesting that we really need a non-proprietary framework built on C#/CLI that has no IP-encumbrances from Microsoft. Currently, Mono has cloned a number of Microsoft-owned .NET classes (ASP.NET, ADO.NET, SOAP, etc.). I'm suggesting that a new set of frameworks should be built on top of the Mono base that aren't based on Microsoft-proprietary IP.

Anne Thomas Manes [amanes@burtongroup.com]