Sco What? Rhetoric, Law, and the Future of F/Oss Production

Abstract

Using litigation between The SCO Group and IBM as an example, this essay relates the rhetoric that drives open-source software as a social movement to legal issues open-source production faces. The essay argues that social movement rhetoric creates noise that makes legal issues more difficult to understand and resolve. The tension between social movement noise and legal signal may become more acute and more important as F/OSS projects continue to make inroads in commercial space, where IP litigation is a way of life. The community's reaction to the SCO/IBM litigation suggests it needs to adapt community expectations and production procedures to this environment.

The essay concludes with thoughts on issues the F/OSS community may wish to consider in connection with drafting version 3 of the General Public License. These issues include: What is the GPL?; whose GPL is it?; and how many GPL's are there? Each question has a seemingly obvious answer which, on consideration, presents interesting legal issues.