Interview with Pamela Jones, editor of Groklaw
Michael J. Jordan, Staff
July 31, 2003
Linux Online is pleased to present our visitors with an interview with Pamela Jones who is responsible for a weblog, Groklaw, which deals with the SCO case. Her site is an excellent resource for those looking for a well-maintained and comprehensive guide to what's going on day-to-day surrounding the SCO controversy.
Linux Online: First, I'd like to congratulate you on your excellent weblog dedicated to the SCO mess. "Mess" is probably the best word to use. I mean, I would say SCO "case", but it's pretty clear, at least from our side of it, that they haven't really got one. What motivated you to get started with your weblog. Were you a Linux advocate first?
Pamela Jones: Thank you. I was an advocate only in the sense that I tend to give Windows people I really like Knoppix CDs. I did try to find a way to contribute in the past, but I am not a programmer and I could never find my niche or a place I felt comfortable to be in.
I started my blog just before the SCO case was filed. Originally, my purpose was just trying to learn how to blog, because an attorney and I were discussing the possibility of me doing some telecommuting work for him, including work on his blog. I had no knowledge of blogging, so I quickly got Radio, because he used it , and I put up one article to practice, which I never thought anyone in the world would ever see (ironically, about the Grokster decision and how I admired David Boies' Napster legal documents). I was just writing to the air.
My thought then was to try to explain legal news stories as they came along. I was forever reading /. [Slashdot] comments about legal news and most of the comments would be way off, and I realized that there is a hunger for someone to explain what it all means, what the process is, how things play out, to people who aren't in the legal field. I didn't have a slashdot account, and any time I tried to comment, it mostly ended up moderated a zero, meaning nobody read it, including probably the moderators, so I gave up on that. : ) I also wanted to play with graphic/text interaction, just for some creative fun.
When SCO filed its lawsuit, at first I didn't take it too seriously. An early post was titled, "SCO Falls Downstairs, Hitting Its Head on Every Stair". But it made me so angry that they would even try something like this. I started to write about it more seriously. And then events kept happening so fast, I stuck to this one story.
I reasoned like this originally: I am not a lawyer. I am not a programmer. I have no influence. I have few friends in high places. I am not a political person. I belong to no organizations. What can * I* do?
By that question, I don't mean I gave up. I mean I seriously thought about what could I do. I wanted to do something. I love GNU/Linux software. It taught me how much fun computers can be. I love seeing into the process. I love the ideals behind free software, specifically, caring about other people and not just yourself, and cooperation, and being able to look at the code and even change it and share it freely. I've written about how it makes me feel in an article called, "It's Free As in Freedom, Stupid". Yes, I was mad that night. I'd probably call it something else now. But I had in my mind the "It's the Economy, Stupid" signs, and I was playing on that. I don't usually call people stupid.
I started out on computers with Windows, first 95 and then a 98SE box, and at the time, I was the only person in the small law firm where I then worked who was willing to learn enough about computers to set the office up and keep the boxes more or less running. We had no sys admin, no tech dept. Just me. So I had to learn, hands on, in real time. They were always getting viruses and other malware, and eventually I learned why and how and what to do (not that they cooperated much), and one day I realized, "I really love this stuff." When I discovered dual booting or a Knoppix CD meant you could see what went wrong on the Windows side, it changed my life. Eventually, I couldn't enjoy Windows any more, partly because I saw finally there really was no way to secure a Windows 98 box no matter what you do, and partly because upgrading beyond Windows 2000 meant licenses to choke on, a lot because of privacy concerns, and also because I started resenting typing in numbers to prove I had paid for the software and feeling like I was being treated like I was criminally-inclined. The difference in how I felt using the two OSs was striking.
One day, I realized that this difference was "It". Proprietary software and all the laws that back it up are designed to enforce restrictions on users. And that's just what it felt like. For personal pleasure, I always turned to GNU/Linux, which felt like breathing clean air. No restrictions. (I use Mandrake, out of loyalty, because they made it possible for me to step into the pool, and I especially love Knoppix. My next project is to do a permanent install of Knoppix, when I get sometime. It's Exhibit A demonstrating the wonderful things that can happen when you don't tie code up in proprietary chains.) I do sometimes in a work environment use Windows, but I don't volunteer to use it in other contexts.
So when the attack from SCO began, I definitely wanted to help. I honor the work of all the people who wrote this software. And it just felt natural to want to do something to help them for giving me so much pleasure, but how? I thought about David and Goliath. Everyone in the army of Israel was afraid of Goliath, and they refused to go out to fight, but one young boy said he was willing to go, and that with God's help, he knew he could win. They gave him a suit of armor and a sword, but he couldn't even walk in the armor, and he knew nothing about swords. What he knew how to use was stones, a slingshot. He'd been a shepherd and he'd killed bears and lions before with the slingshot, so why not Goliath?
All right, I said to myself, what can I do well? The answer was, I can research and I can write.Those are the two things attorneys and companies hire me to do for them. I decided, I will just do what I do best, and I'll throw it out there, like a message in a bottle. I didn't think too many people would ever read it, except I thought maybe IBM might find my research and it'd help them. Or someone out there would read it and realize he or she had meaningful evidence and would contact IBM or FSF. I know material I have put up can help them, if they didn't already know about it. Because of my training, I recognize what matters as far as this case is concerned. Companies like IBM typically hire folks to comb the Internet for them and find anything that mentions the company, so I assumed they'd notice me. That's all I was expecting. By saying all, I don't mean to diminish it as a contribution. I just wasn't expecting thousands of readers everyday. I was more thinking of the many-eyeballs power in this new context.
Linux Online: You must be seeing a big jump in your website statistics. This is like the Linux story of the century and you've pretty much got your finger on the pulse of it, so to speak.
Pamela Jones: Yesterday, I had more hits than anyone else with a Radio blog. And I made the all-time top 100 Radio blogs list, and I only started in May. I haven't checked today. I try not to check, unless someone brings something to my attention. It makes me nervous.
No one is more surprised than I am. In fact, the first time I got slashdotted, I kind of lost my voice for a bit, because I started worrying a lot about responsibility and liability and who am I anyway, those kinds of things. But people are kind enough to validate my work. I am linked to now by lawyers and by programmers on their blogs, around the world, and they commend my efforts, and that is a stress reliever and very gratifying. I get a lot of nice email too. Readers are now leaving info in comments that are sometimes really useful. Yesterday, a couple of guys did some really good research on Sun's current distribution of the 2.4 kernel. I love that. So now, I'm having fun. Fun with a serious intent.
LO: I know you have in big bold letters on your main page that you are *not* a lawyer - that you are a paralegal and that means that you do research for lawyers. But if I might, I would like to ask you your legal opinion at least on the recent SCO actions - that is SCO has told Linux users that they can pay a license fee to be exempt from legal action by them in the future. To put this in perspective, SCO has shown 80 lines of code to a couple of non-programmers, basically, and now they're trying to extract - probably extort is a better word, fees from people over this and the case hasn't even seen court yet. Isn't this unprecedented, from a legal standpoint?
PJ: The only legal advice I ever give is: ask your lawyer. I never give legal opinions. That's reserved for lawyers only, and I respect that line. That's why on the blog I just put the research out there, with links, and quotations from others. I don't have to be anything more than what I am to contribute. If I need a legal opinion, I write to an attorney and ask him or her to comment. Sometimes I just ask them privately to confirm or not what I am thinking of writing, to verify I'm on target.
The exception is for GPL material. I do express my personal opinions on that more freely. I know the FSF isn't going to sue me for explaining how I think it works. The worst that will happen is I'll get a corrective email from rms. : ) That's a joke. He hasn't done that. But it'd be fine. I'm always glad to have anyone correct me.
My goal is a site that can be relied on as being accurate, so when mistakes come up, I always correct them in public, whether because of a comment that points out an error or an email or if I correct myself because of more information or just seeing a goof. In fact, if any attorneys out there wish to write anything about the SCO case or comment on any aspect of it, my blog is available. It's an open invitation. Or just email me and tell me you don't want to be quoted but such and so is like this or that, etc.
In direct response to your question, I certainly can say that attorneys have expressed that we are in new legal waters here, and all the attorneys I have seen express themselves on this subject, except for SCO's attorneys, have said there is no need for any such license. There isn't any question that the GPL clearly forbids any restrictions on top of GPL'd code.
If anyone distributed with a license on top of GPL code, restricting any of the freedoms the GPL grants, that is a violation, and you can't do that. Period. Not without violating the GPL. SCO has been waxing poetic about their sacred "IP" rights. But their license plan violates the copyrights and/or the license rights of GPL coders if the license buyers, or SCO, do any distribution. They can't have it both ways morally or legally. Either we all respect each other's rights or they can't whine about the most-holiness of their "IP".
LO: One of the things that I don't understand about the case is how David Boies actually took it. This is the guy who represented the US govt. in the Microsoft anti-trust case and who represented Al Gore in the Supreme Court in 2000. He's a high-profile lawyer and I suppose he didn't jump into it without knowing what was at stake. Why do you think he took the case?
PJ: Me too. I have a high regard for David Boies' skills. I was disappointed when I heard he took this case. But my opinion as to why is this: first, he isn't a geek, so I don't think he quite sees the whole picture, the implications of what he is doing. Last I looked, he didn't even use email, not even in Windows, let alone something like Evolution or sendmail. You had to email his secretary, and she would print out messages for him. That may have changed, after Gore starting sending him messages on his Blackberry. Maybe he learned to like it.
It's obvious nobody on that side started with a clear understanding of the GPL. McBride at the beginning said, "Linux will still exist; it just won't be free any more", or words to that effect. He seemed to think that would be reassuring. I wonder sometimes if Boies now has any regrets. I hope he does. Whether he does or not, the GPL is SCO's tar baby. The more it hits and kicks at it,the more stuck it gets, just like Brer Rabbit.
I think they started out just wanting license fees from the big players, or a buyout, and they likely thought it'd end like other such lawsuits do, with money changing hands. You'd be surprised how many such lawsuits there are every day. Microsoft just settled a patent suit against it by agreeing to pay millions to some smaller company. Yahoo settled another one against it. That's just today. Boies has been quoted as saying that he wanted to ensure the software world doesn't tip unfairly:"You don't want proprietary software to kill Linux or vice versa. I want to make sure the playing field doesn't get tipped." I don't share his goals, but I take that to mean that without the lawsuit, UNIX would die, in his opinion. One other possibility is that he saw it as exciting, to try to redefine what derivative code is. Lawyers have been known to be attracted to cases where they think they can make new law.
When it began, Boies said that it was only the reaction from Linux people that was making the story such a big deal. So that tells me he had no idea what they were doing was a life-or-death issue to GNU/Linux. If you attack the free in free software, they may be thinking free as in beer, but the community hears free as in speech. Of course, the community is going to react to that. His not knowing that tells me there's a lot about the community he doesn't know. If SCO were to succeed, in a worst case scenario, which isn't what I anticipate, I expect most programmers would just walk away en masse and refuse to do any more work on Linux the kernel, if they saw a player like SCO benefit from their good-hearted volunteer labor in such an ugly way. Of course, as Stallman has pointed out, there are alternatives, but the Linux kernel, if they succeeded in co-opting it, would die on the vine. That's another way to kill their license's value, by the way. They'd have a license on a dead kernel, as far as advancement goes. Not that UNIX has been known for innovation for a long time, so maybe they wouldn't know enough to care. SCO doesn't seem to think things through to their end point. Anyway, this worst case scenario seems impossible of fulfillment, because of the GPL.
LO: Another one of the by-products of all of this is that SCO's stock which was at about 80 cents at the beginning of the year, is now at 13 dollars, as I write this. Some members of SCO's management have sold off significant blocks of shares and SCO has bought a web services company, Vultus. There are some out there who are hinting that this is kind of a high profile "pump and dump" scheme. What is your opinion on this?
PJ: One thing I think some have missed is that SCO decided not long ago to pay its directors and key execs in stock instead of cash, either exclusively in cash or in addition to cash. I did put that info on the blog. So at least some of the activity is probably just folks cashing in to get paid so they can pay the mortgage.
But the whole Canopy story is interesting to me and I am certainly following it as closely as I can. I keep posting raw data I find but I so far have not felt personally that I can form an opinion, let alone express one. This isn't my area of expertise. Sometimes I miss scoops, because I am trying to verify absolutely everything before it goes up, but I don't care. My goal is accuracy. I wish to be fair, too, even to SCO, because those are my values.
LO: Caldera, which bought SCO out in 2000, has always been somewhat controversial - introducing per-seat licensing with a Linux distribution, for example, but we're really not talking about the old "Caldera" anymore are we? I mean Ransom Love got the boot as CEO and Darl McBride moved in and he is basically, to paraphrase Paul Newman in a great legal movie "The Verdict" - he is essentially a "bag boy for the guys in the Canopy group". Who is really moving the strings here is the Canopy Group, sort of in the shadows, right?
PJ: Again, I can't really say who is pulling the strings. I don't worry about it much, though, because I have no doubt whatsoever that IBM is on the watch on this point. All I need to do is continue looking and digging up raw data. Others will recognize what is helpful and what isn't. I don't view that part as my job.
LO: Do you think Microsoft is behind some of this, as some pundits like Cringely [ http://www.pbs.org/cringely/pulpit/pulpit20030529.html ] How about Sun? Or are they more the type like the kid who holds the jackets of the two who are fighting and then waits to see who wins?
PJ: IBM said yesterday that it's Microsoft. I have my suspicions about Sun, which I have expressed on the blog here [ http://radio.weblogs.com/0120124/2003/07/29.html ] and here [http://radio.weblogs.com/0120124/2003/07/10.html ]. How can we really know at this point? I'm sure of one thing: both are trying to capitalize on the lawsuit. That's smarmy enough for me. The SEC or the Justice Department or a court might want to know more someday, I suppose, depending on how things eventually play out, but I don't think you need to know more than we already do to see who is who in this picture.
The fight though is bigger than the players. It's a culture clash. It's proprietary software v. free and open source. I believe MS when they say Linux will have IP headaches in the future, and I believe they will be bringing on the headaches, directly or indirectly, because they said that, unless the backlash from this SCO fight is so massive that they decide it isn't going to work. Free and open source are willing to play nicely with others, but we see now that the proprietary side has issues. Some personality flaws too, don't you think? : ) So, what do you do about a bully? If he's bigger than you are, you certainly try to outsmart him. There's no lack of brains on our side, happily.
Sometimes at 2 AM I think about Miguel de Icaza writing that when he started to write Mono, somebody told him to take out life insurance.
LO: There are some tech pundits like John Dvorak [ http://www.pcmag.com/article2/0,4149,1115156,00.asp ] at PC Mag. and Charles Cooper [ http://news.com.com/2010-1071-1026988.html ] at CNET - playing the gloom and doom card - sort of 'what if SCO is right' - and saying that we're not taking this seriously enough. What do you think are the chances that SCO gets a sympathetic judge and IBM is in real trouble and therefore Linux users get the shaft?
PJ: One thing I have learned for sure from following this case so closely: Tech pundits aren't. I put up an article [ http://radio.weblogs.com/0120124/2003/05/30.html ] on how Microsoft does its FUD. One of the things they use is journalists. I can't speak to the individuals you mention specifically, for obvious reasons. I wasn't persuaded by their arguments. Or worried. The IBM case depends so much on what the contracts actually say, and apparently there are thousands of them, that I don't think anyone, except maybe IBM, knows at this point what will happen for sure.
We don't know yet exactly what it is that SCO registered a copyright for. We also don't know yet if the registered copyright is valid. Just registering a copyright doesn't prove it is valid. A court decides that. I did send an email to SCO's people asking them about the copyright, but they haven't answered me yet.
I also asked them about their contributing Unixware code to IBM's AIX 5L, the successor to Project Monterey, which I wrote about [ http://radio.weblogs.com/0120124/2003/07/20.html ] on Groklaw I asked what code they had contributed to IBM and how they could know for sure it wouldn't explain any identical code. They didn't answer that question yet either. When they do, I'll be better able to evaluate. But I don't think anyone knows for sure how this will turn out. We don't yet have all the facts.
There are two fronts to this battle. The IBM side, which is so far strictly a contract and tort war. Contracts trump IP laws, generally speaking. The second side is the copyright-license fight against users. It's two separate analyses.
I just don't know about the IBM side. I have confidence that they intend to deal with the SCO issue successfully, one way or another. SCO is like a mosquito in their bedroom. You just have to get it before you can go back to sleep. I notice they don't act scared [ http://www.infoworld.com/article/03/07/30/HNibmlinux_1.html ].
My personal opinion is that the GPL is vital and determinative on the second front and helpful on the first. But I'm not a lawyer. It's just my opinion, kind of like if we were sitting around after dinner and you asked me what I think. I have yet to see anything on SCO's side that would make me believe they are going to prevail, but there is a lot we have not seen. I know Boies would never, ever plant a flag in the ground unless he had something to go on. It may be a stretch, but it'd be something. The thing is, because he isn't a geek, he could be mistaken. I don't believe, either, that he'd knowingly assist anything like a pump and dump. If he were not involved, I'd be snorting. I guess that's probably why they hired him.
If anyone asked my opinion on GPL or BSD licensing, I'd say go with the GPL for anything that matters, if you can, and give over your copyright to the FSF. It streamlines their ability to fight legally and means you don't have to do it yourself. Besides, did you notice nobody is suing the FSF or even accusing them? McBride even praised Stallman for the care the FSF takes in policing code it accepts. This is all about the kernel only, not the GNU tools. Someone asked Linus the other day whether he regretted putting the kernel under the GPL instead of using the BSD license, and he strongly said no.
If this case has done nothing else, it surely has shown the power and the importance of the GPL. Richard Stallman took a lot of real abuse over the years. I don't see eye to eye with him on everything myself. Maybe you don't either. But it was his brain that came up with the GPL. I assume attorneys were involved, but Stallman saw the need for it to be created, and he made it happen. For that alone, the community owes him at least gratitude and respect and maybe ...well, as far as the SCO case goes, maybe everything.
LO: And what about the reverse - that is - SCO is really skating on thin ice and some company like Red Hat, though they don't have really deep pockets - they get fed up and they sue SCO for interfering with their business. What are the chances of something like that happening - that a significant number of companies that make money off of Linux start counter-suing?
PJ: I think SCO will be sued some more before this is all over. I see a number of ways it could be sued. If they keep going, at some point, they are likely to get a legal reaction from IBM or FSF or the individual contributors to the Linux kernel, who retain their individual copyrights, or companies whose businesses they are hurting. There are already legal actions against SCO in Germany, Poland and two that I know of in Australia. The community is mad enough to want to act. Personally, I'd like to hear from the German kernel coder who sent them a cease and desist letter. I'd like to see what is going on with that, if he's out there and wishes to contact me. I notice the German SCO site (http://www.sco.de) doesn't mention the lawsuit at all, unless my rusty high school German has let me down.
LO: What do you think SCO's next move is going to be? They are running out of people to sue, aren't they?
PJ: No, they aren't running out of people to sue. Remember they started saying they intended to imitate RIAA tactics. As for predictions, I haven't figured out their next move more than a day or two in advance, so far. What they are doing is, legally, a bit on the unusual side. Also, we don't seem to think at all alike : ) so they tend to surprise me. I usually get it figured out a day or two before it happens, but no more. If they intend to go forward with the copyright thing, they have to sue somebody for copyright infringement next.
Things aren't going the way they hoped, I'd guess. So, they are probably evaluating their options themselves. In the past, they've always foreshadowed whatever the next step was in the media, so I'm waiting for that, if there is anything beyond copyright infringement coming next. I believe they must be getting their PhD in the GPL right about now. : ) IBM's statement forces them to take it seriously. They probably didn't believe just little old me when I kept writing that it was their Waterloo.
I'm guessing their decisions will depend on what is in the contracts, what their copyright actually covers, if it's valid, how much they can afford to spend on this quest, and whether or not there is a bigger plan that this is just the opening gambit for.
If the purpose is to change how the law defines derivative code, so that they can go after simply everyone, including Microsoft and Apple, then they probably won't stop now. They have said, straight up, that it is their view that all operating systems are derivatives of UNIX. That's not the current legal definition. If you are interested, here is a page [ http://radio.weblogs.com/0120124/2003/06/29.html ] with a link to a paper by Dan Ravicher, who also does probono legal work for the FSF, in addition to his day job, on how the 10th Circuit defines derivative code currently.
They might have chosen Linux, I'm thinking, because the code is open and easy to use for proof. It's harder to sue a proprietary software company, because you can't just look at the code and see what is in it. They could have figured that if they beat Linux, the rest of the software world would just cave without having to sue anyone else. If they have such big dreams, they won't stop until they are stopped. There's too much money in such a dream.
If they are a puppet of some other company, as IBM seems to think, then decisions may not be altogether theirs to make. If the goal is just to slow Linux down for a while, then playing it out to the end, whatever the end may be, may be enough to help them or the puppet string-holder(s.) If the plan is to kill the demand for the Linux kernel and offer UNIX with Linux applications on top of the UNIX kernel instead, then who knows how long it will last. MS says 4 or 5 years. I take that to mean there is a plan. If that's the plan, though, I think it's more an illusion. I think the community can help by making it totally clear that this plan won't go over. That's the purpose of Groklaw, to contribute to that effort. It's an anti-FUD site. FUD only works when the audience it is directed to doesn't know the truth and is naive. So truth and more truth works against FUD. Even judges are influenced by what they read. They are human beings too. When I notice SCO FUD, I research and put out there whatever I can find to disprove it. That's my personal contribution, the stones in my slingshot.
I do believe it is conceivable, if we dig up enough facts and evidence, that we can abort SCO's takeoff, so to speak, and make it impossible for them to execute their plan successfully. Don't forget: one of the most damning pieces of evidence in the MS trial was something a geek noticed and pointed out. I see no reason why that can't happen here too.
LO: Thanks for taking your time to answer our questions - and thanks for maintaining that great SCO resource you have!
PJ: My pleasure. Thanks for the compliments, and feel free to contribute to the resources.
You can visit the Pamela's Groklaw weblog at http://radio.weblogs.com/0120124/ and as she mentioned here, she welcomes comments, suggestions and contributions.