Gray Flannel Dwarf


Congressional and Senatorial letter

I’ve written lots of letters in my day, but this one takes the cake so far. Coming out to five pages printed, including attachments, it’s a bit long, but considering the missive sent by SCO to Capitol Hill numbers about nine, I don’t think this is too awful bad. I really couldn’t condense it much more.

22 January 2004

The Honorable Senator George Allen
204 Russell Senate Office Building
Washington, DC 20510

The Honorable Senator John Warner
225 Russell Senate Office Building
Washington, DC 20510

The Honorable Representative Frank Wolf
241 Cannon Building
Washington, DC 20515

Dear Sirs,

In recent weeks you may have received, or may soon receive, a letter from a Mr. Darl McBride, President and CEO of “The SCO Group”, a software company based out of Lindon, Utah. This letter, dated 8 January 2004 and sent to many at Capitol Hill, attempts to draw attention to the so-called dangers of “open-source software” and, more specifically, the licensing entity known as the General Public License (henceforth, the “GPL”).

Should you not have received a copy of this letter, it can be found on the website of the Open Source and Industry Alliance (“OSAIA”), via the following URL:
Before going any further, however, I ask that you first consider this quote from Frederic Bastiat’s 1845 piece, “A Petition”, which was a biting jab at the then-notoriously protectionist French State:

“We are suffering from the ruinous competition of a rival who apparently works under conditions so far superior to our own for the production of light that he is flooding the domestic market with it at an incredibly low price; for the moment he appears, our sales cease, all the consumers turn to him, and a branch of French industry whose ramifications are innumerable is all at once reduced to complete stagnation. This rival, which is none other than the sun, is waging war on us so mercilessly we suspect he is being stirred up against us by perfidious Albion…”

I feel you will soon find the above quote relevant to the issue at hand.

In the letters that Mr. McBride has been sending, he attempts to discredit and slander the phenomenon known as “open-source software” via a multi-pronged, misleading attack. I thus ask that you consider the following notions, prior to initiating any basis of support for Mr. McBride’s claims.

The first line of attack that Mr. McBride uses is a blatantly offensive harangue, implying that the open-source computer operating system known as LINUX contains unauthorised software code, misappropriated from SCO’s own UNIX intellectual property. Such claims are a direct affront to the thousands of developers who, of their own time and talents, contributed to the LINUX operating system.

Now, as it currently stands, while virtually the entire industry disagrees with such a claim, and while it is may be up to the courts to decide, in SCO vs. IBM as to whether or not such a transgression occurred � or if SCO even owns the UNIX intellectual property in question, in the first place � several facts remain:

  • Upon making these claims, SCO never initially revealed what supposed “copied code” exists.
  • Despite continued requests from IBM and those in the open source community to reveal these violations, such requests were never fulfilled.
  • Initially, following SCO’s claims that “millions of lines of code” had been misappropriated from their intellectual property, this number has gradually been reduced to “thousands”, yet the evidence has still never been revealed.
  • Said evidence was once again requested in IBM’s December 2003 Motion to Compel, which was granted by the Utah court. Despite this, SCO has still failed to reveal any so-called violations.

As it stands, the open-source community has never been informed, with any specificity, as to what violations have actually taken place! Again, it is certainly up to the court system to determine fact from fiction, right from wrong in this case. However, it is also important to understand the background of these issues, because it is upon this framework that SCO continues its insidious claims.

Mr. McBride posits that much of the open-source software currently existing “borrows” from existing proprietary software already on the market. However, logic points much to the contrary. Open-sourced software is just that: it is publically viewable, open to examination. Proprietary software, on the other hand, has been likened to “driving a car with the hood welded shut”. There is no way to easily or truly know what code, legitimate or illegitimate, has been incorporated in proprietary software.

If Mr McBride’s claims were true, we would surely have seen far more claims like his, from apparently damaged corporations. Unfortunately, for Mr. McBride, or SCO, we have not.

The second line of attack used by Mr. McBride, is an opinion on the GPL, a license often used within the open-source community. Specifically, McBride states that the GPL “violates US statutes” and is somehow a scourge upon United States Copyright laws. Much to the contrary, the GPL, and indeed, most within the open source community, respect existing Copyright laws, both within the United States and as listed within the Berne Convention. A copy of the GPL can be found on the Free Software Foundation (“FSF”) website, via the following URL:
As one can plainly see, stated in the Preamble to the GPL:

We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software.

Certainly, the GPL does support a software author’s right to copyright his or her code, and many software developers have knowingly released their software under these pretenses. However, what SCO appears to dislike is the fact that publically distributed GPL’ed software must, in layman’s terms:

1. Be distributed free of charge, excluding any applicable distribution, transferral and/or warranty fees.
2. Have all changes, if any, to the original source code made publically available for all to use.

At this point, it should be noted that, despite SCO’s apparent aversion to the GPL and other similar open-source licenses, they still distribute a great deal of open-source software (such as Samba) with their products, and use open-source software (such as Apache) daily, on their network. Indeed, it seems SCO’s aversion to open-source software is the fact that, by virtue of license, it is freely-distributable, a notion which strikes straight at the heart of SCO’s proprietary licensing and business revenue model.

Thus, as the third line of attack in the aforementioned letter, McBride states that, “The damage inflicted on SCO’s UNIX business is an example of what could happen to the entire software industry if the current Open Source model continues,” and it is here where the Bastiat quotation listed above holds its relevance. SCO’s basis for placing doubt in the open-source model stems from the fact that their software, technology and distribution models have been eclipsed by something that is truly free, in terms of both cost and liberty.

Further on, in his letter, McBride states that, “Through the years, Congress has repeated dealt with the tough issues of predatory pricing and “dumping”. I contend that the ultimate predatory price is”free”.” Again, this is more evidence that SCO is simply a company which has failed to adapt to the ever changing marketplace, and is looking for an ill-gained “escape clause”. McBride fails to see, however, that open-source software is written, for the most part, by and for hundreds of thousands of individuals in the United States, and the world over, as opposed to supposed “predatory” corporate victors to whom all the spoils would apparently go. SCO is also failing to see that plenty of other company have successfully adapted the open-source model, at least in part, to their own business plan. McBride claims that open-source software “destroys the economic reasons for innovation”, but it is nonetheless easy to see that open-source has obviously been innovative enough to strike fear in SCO! Lastly, McBride is making a grave mistake in thinking that the only possible end benefactors of software development should be the companies themselves, and need not ever be the end users. Such a notion is impermissible!

The fourth and final line of attack that McBride uses is a strange missive, implying that open-sourced code is somehow a national security threat. As a large plurality of the world’s open-source software is written outside the US in the first place, one might have a hard time understanding what bearing any proposed legislation outlawing open-source software might have on world security.

Furthermore, however, it is worth repeating that open-source software is akin to an open book. It is far easier to examine open-sourced software for supposedly coercive or illegal technology than in proprietary products. Lastly, the United States has at times, when deemed necessary, had laws that banned the export of technology, such as encryption, that may be deemed dangerous in the wrong hands. In these cases, however, the eventual conclusion was the same: such forms of legislation are woefully ineffective. Regardless, all US software developers are nonetheless bound to any export restrictions that exist now or in the future, and thus it is hard to understand how implementing anything resembling Mr. McBride’s statements to outlaw open-source software would solve anything.

Indeed, it is hard to understand how any of Mr. McBride’s diatribe can be construed as either logical or beneficial to the American people. Open-sourced software is an enabler of both people and businesses in the United States and around the world. I thus strongly and preemptively recommend pragmatic consideration on your part, of these issues, prior to ever supporting any sort of legislation that would restrict or otherwise restrain open-source software and its community of supporters.

I make myself available to you, should you have any question about open-source software. I am also attaching to this letter a list of websites that may be useful to you in your research of this topic. I can be reached anytime, at

Thank you very much for helping to keep software, and America, free.


Courtenay S. Welton, III

Websites of Interest, Regarding SCO and Open-Source Software

The Free Software Foundation, Inc.

Groklaw � A website detailing the SCO and IBM legal battle

The Linux Kernel Archives � The core “kernel” data that makes up LINUX

The Open Source and Industry Alliance (“OSAIA”)

The Open Source Initiative (“OSI”)

The SCO Group website:

cswiii @ 12:05 pm

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