September 25, 2020

The Scopes Trial, Revisited

This week, the Economist ran an odd piece comparing the SCO/IBM dispute to the Scopes “Monkey Trial.”

SCO, for anyone who has never heard of the company, is pronounced “skoh”, as in Scopes. Indeed “the SCO case” of 2003 sounds increasingly like the famous Scopes Monkey Trial of 1925, which pitted religious fundamentalists against progressives wanting to teach Darwin alongside the Bible in American classrooms. The SCO case plays the same role in a culture war now consuming the software industry. On one side are the equivalents of the fundamentalists—buttoned-down types clinging to proprietary and closed computer systems. Facing them are today’s evolutionists—the pony-tailed set championing collaboration and openness in the form of Linux, an operating system that anybody can download and customise for nothing. The 1925 trial had a monkey as its symbol; the 2003 case has the Linux trademark, a cute penguin.

It’s interesting that the open source crowd are cast as the evolutionists and the proprietary vendors as creationists. This would seem to imply that open source is the way of the future, and proprietary software is the way of the past. Surprising, coming from an outfit as traditionally pro-business as the Economist.

Apparently the Economist fell into the popular trap of reading too much into the SCO/IBM case. In the Scopes case, the facts were clear (Scopes had taught evolution) and the law was clear (it was illegal to teach evolution). Only the constitutional and public-policy issues were really on the table for discussion. The trial was a debate disguised as a legal proceeding.

In SCO/IBM, by contrast, the facts are very much in dispute. IBM stands accused of simple copyright infringement and breach of contract. The policy issues surrounding open source are not on the table; and it seems to me that enough is at stake for both parties that neither one will try to turn the trial into a public spectacle. Outside the courtroom we’ll hear lots of noise, but inside the courtroom I predict a straight-ahead trial on SCO’s allegations.

In any case, both sides are uniquely resistant to the obvious typecasting. The open-source side would typically be painted as anti-capitalist ponytail-and-Birkenstock hippie leftists – but that image just doesn’t fit IBM. And the proprietary-software side would typically be painted as plutocratic Goliaths bullying a poor, idealistic David – but the Goliath role just doesn’t fit SCO.

There are important economic and policy issues involving open source, but the SCO/IBM lawsuit is a singularly poor vehicle for exploring them.


  1. Don’t you think the SCO lawsuit has raised the awareness level of a key policy issue? Corporations are now keenly aware that IBM, Redhat, and other companies pushing Linux may not be liable for potential copyright/patent infringement, instead customers may be. The market will turn based on the common reaction to this threat.

  2. I have doubts how much liability for copyright infringement an end-user has. And end user isn’t distributing copies, he only makes copies to run the software on his own machines and that is a legal right in some countries. Could you explain me what would indemnify Microsoft customers against patent and copyright mistakes in Redmond? Read the EULA!
    I don’t know why SCO doesn’t go after Red Hat, SuSE or Mandrake. If those companies are distributing “illegal copies of SCO software” they are the primary targets for prosecution. The RIAA goes after P2P distributors, it doesn’t aim the downloaders. (Is possession of an unauthorised copy illegal in the US? It can be legal in the Netherlands)

  3. Timeline hasn’t been as aggressive against end users as Sco, but their patent claims against Microsoft SQL Data Transformation Services demonstrate that purchasers of proprietary code are not immune from IP disputes:

    Timeline does not take the position that Microsoft SQL Server relational databases built using the basic DTS functionality necessarily infringe the ‘511 patents. However, Timeline believes that third party code or products used in conjunction with DTS can easily expand DTS capabilities to cause an infringing combination.-Timeline Patent Memo (page 2)

    Related:CNet: Ruling threatens developers’ wallets
    Timeline: Microsoft vs. Timeline Final Judgment Affirms Timeline Patent Rights: SQL Server Users Could Face Staggering Damages

  4. Tim, Copyrights differ fundamently from patents with respect to liability of end-users. You can be liable for using a patented invention; it is legal to read (use) a copyrighted work.
    SCO has exactly one patent and that is not related to anything in the Linux kernel.

  5. I think you missed the point about the comparison with the Scopes trial. The Scopes trial was about whether humans and monkeys had common ancestors. The IBM/SCO trial has the question of common ancestry as well. This analogy was made explicit later in the article: “Roughly as apes and humans allegedly have common ancestors, several operating systems can trace their lineage to UNIX, including Linux.”

    While the facts were not in dispute in the Scopes case, Clarence Darrow’s celebrated arguments were really about a conflict in cultural values: science v. religion. In the same way, SCO v. IBM is a conflict between two world views — open source vs strong intellectual property. The article makes this explicit by quoting SCO’s McBride: “At a more general level (and surprisingly for a Linux distributor), he found the entire free-software trend ‘communistic’, he says: ‘We don’t get the whole free-lunch thing.'”

    Similarly, Microsoft has argued that open source licenses is a challenge to the fundamental values of intellectual property. The Economist goes out of its way to mention Microsoft’s role in the litigation: “This certainly suits the rest of the fundamentalist camp, above all Microsoft, whose proprietary Windows operating system is Linux’s most bitter rival. It has not gone unnoticed that Microsoft is one of the few companies that has actually paid SCO for a Linux licence, even though Microsoft has no use for one. Microsoft and SCO vehemently deny that they are in league, but most open-sourcers assume that the evil Redmond giant is bankrolling a mercenary.”

    So a full reading of the article shows many parallels between the Scopes and the SCO trial — beyond the initial phonemes!

  6. It seems pretty clear by now that SCO-Unix and Linux are related. Certainly, they share common ancestors in BSD and the old AT&T Unices. So the question is not whether they are related, but exactly how they are related.

    It even seems likely, based on the information that has been made public so far, that they have some code in common. If so, the argument will center on questions like these: (a) Does SCO actually own a copyright on that common code? (b) Was it IBM who put that common code into Linux? (c) Did whoever put that common code into Linux have permission, via some kind of license, to do so?

  7. J.B. Nicholson-Owens says:

    Thanks for addressing the “patent and copyright” issue, Mathfox. The GNU project has an informative entry in their philosophy section on just this issue as it applies to the term “intellectual property” which I see people throw around as if it really means something and helps others understand relevant issues.

    Also, please consider that this is not about an operating system called “Linux” as there is no such thing. Linux is and always was a kernel, a useful chunk of an OS, but a part of the whole nonetheless. This is why if you are referring to an entire OS, it is useful in this context to indicate which OS you’re using the kernel with. Most likely that OS is GNU, the OS Richard Stallman began working on in 1984 well before Linus Torvalds began working on Linux. “GNU/Linux” is the phrase the FSF asks us all to use to give the GNU project an equal share of the credit.

    Finally, contrary to what the article said, this is not about “open source”. The GNU General Public License is the license at the heart of this conflict and it was written by the Free Software Foundation well before the Open Source Initiative existed. I am grateful for the attention the Open Source movement has brought to the GNU GPL, but putting a license on a list of approved licenses cannot compare with writing a license or starting a community. The philosophy of the Open Source movement is different from that of the Free Software movement.

  8. The SCO controversy is about creating FUD about Open Source solutions and about inflating SCOX stock price.