OPINION
An Open Letter to Darl McBride

Dear Mr. McBride: I guess push is coming to shove, huh? You finally got a court to order release of the AT&T (NYSE: T) code, so things are coming together a bit on that end. It's an important legal step, and one I'm sure you'll be glad to get over with, despite the crowing going on among those who see it as a victory for IBM (NYSE: IBM).

Inheriting the whirlwind is all very well as someone else's metaphor, but it's rough for you right now, isn't it? Hang in there. You and I both know that right will ultimately prevail. Just bear in mind that no one has promised it'll be you going along for the ride when that happens.

Meanwhile, however, you're not helping yourself by throwing more pixie dust on the flames. That diatribe of yours on copyright and the GPL has got to go. I can understand the motivation, but it's just wrong and lots of people are going to call you on it. The issue here isn't whether the U.S. Constitution allows the GPL. The Constitution allows anything it doesn't outlaw, and it doesn't outlaw the GPL.

Focus on the Bottom Line

So let's focus on the bottom line, okay? The issue here is whether the GPL can be used to launder code, not whether it's constitutional in itself. In other words, can someone take contractually protected works, give them to a third party that releases them under the GPL, and then take back the new GPL code as if the original contract didn't exist?

The answer to that question is pretty clearly "no," but this doesn't have anything to do with the 1976 copyright act. And you certainly don't need to invoke the U.S. Constitution to prove it.

It doesn't have anything to do with Caldera either. That's just another red herring being dragged in with the effect of confusing the issue. Whether or not Caldera added its GPL stamp to some protected code is immaterial with respect to whether or not anyone else did it. The timing and genesis of each such release by Caldera might be of substantial interest during the penalty phase, but it's not important now because of the principle that Jane's actions don't excuse Joe's.

Forget the GPL

In other words, IBM can no more say "we're off the hook because you did it too" than you can get off on a highway speeding charge by pointing out to the judge that the guy behind you was speeding too.

You're probably too stressed to take advice, but here goes anyway: I'm guessing you've got a pretty good case, so don't let the pressure get to you, and don't let the lawyers fritter it away on externalities. The fundamental question is simple: Did one or more people working for IBM allow contractually protected code to get into Linux?

Yes or no -- that's your case. Everything else is legal trivia, so stay away from it.

Forget this GPL stuff. It's not important. I mean really, can you imagine a grown-up lawyer telling a real court that SuSE's release of code under the GPL makes everything all right if you can show that SuSE first got that code from an IBM staffer who should have known better?

Earn Some Friends

What you need to do right now is to earn yourself some friends. Show the general Linux community that your claims are justified, and a lot of fair-minded people will get on your side of the issue.

Focus on what counts for you, not for your lawyers. They care a lot about intention, but you shouldn't. Did IBM's American management know what was going on? Personally, I'd bet they didn't. But either way, so what? From the perspective of lawyers seeking settlements, intent is everything -- particularly if they're working on spec -- but from your perspective, whether they knew or not doesn't matter. There is no principle at stake there, just money.

Your issue is, did it happen? So forget the copyright nonsense and recognize that the court has given you a break you can act on. Right now, you can publish anything you want to, and neither IBM nor any other signatory to the underlying AT&T contracts can come back at you for breaching the secrecy conditions of the contract.

Publish the Code

So publish the code, provide the annotations, and if Microsoft (Nasdaq: MSFT), HP (NYSE: HPQ) or any other license-holder wants to complain, well, just point them at IBM. After all, that's who hired lawyers to get a court to order you to do it.

I imagine that Boies, Schiller & Flexner are against this, but remember that Mr. Boies' greatest notoriety comes from having been unable, with the resources of the U.S. Department of Justice behind him, to hold Microsoft to account for illegally exploiting its control of the PC desktop.

I don't know if you can fire them, but I'd be surprised if they can stop you from complying with a court order, so go do that. Make everything public, and let the chips fall where they may.