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IBM's SCO counter suit breaks cover

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When I'm asked to describe the difference between the foreign country I live in (the US) and the country I was born and raised in (the UK), I usually first mention the parks.

Parks are public spaces, but they're signposted very differently in each country. Here in California, a park (if you can find one) is in pristine condition. It's beautifully manicured, and very alluring. There's a sign that welcomes you in - and typically the sign has an ethnic mural depicting happy faces of all ages. It says 'Come and enjoy our Park'.

In Britain, you'll get a sign leaning sideways with a fierce, proscriptive numbered list of things you Must Not Do in the park. No.4: No dogs; No.8: No ballgames; No.61: No dandling of babies over knees; No.142: no freebasing cocaine in the presence of minors. (That's one that progressive councils like to append).

Now here's the funny thing. While this ancient signpost will have been peppered with slingshots, creative use of chewing gum and a marker pen to transform the suggestive numbers (eights and zeros) into representations of human genitalia, the British Park will actually be full of people having fun. Perhaps the kind of drunken, vulgar fun that would appall park-keepers and list-makers on either side of the Atlantic, but fun nevertheless. A well-used park certainly isn't a clean park. But the point is, now matter how well-intentioned or precise are the legal ties that instruct us, we create our own social contracts.

Britain, like most European countries, has accrued hundreds of years' worth of arcane laws. The US has a beautiful Bill of Rights, a splendid constitution and a civilian army of its best and brightest to uphold these laws. And while it's a tough call to say who has most fun in each respective park, Europeans have learned that the law and its social instruments are best ignored.

There's a strong and growing secessionist movement in the United States, and when I last met the great Robert Anton Wilson (just before Christmas) I asked him which constitutional system he'd choose for 'Pacifica', which is Bob's name for the new breakaway Union of California, Oregon and Hawaii.

Well, he told me, "We've got one already. We could go back to the Constitution without any interpretation of what the Constitution says: free speech, and freedom of religion. Everything that has been destroyed in the last two hundred years that was intended by the original Constitution. We can start from that.

"But in about two hundred years someone would have to secede from the California Republic, because it takes about two hundred years for any system to get corrupted and monopolised."

Wittgenstein's Duck

Or we can ignore it, as we've done in Europe. Laws accrue, like an inevitable sediment, and the only rational response is to become more way about the law-makers and more flexible about how we interpret them. In Europe, we don't actually take anything literally, not least the law, and we kind of make it up as we go along. Which bearing in mind the stresses involved, is one hell of ride.

Britain maybe isn't the best example to pick, as the logician school of thinking is very much an Anglo-American creation. The continental metaphysicists have forged their own paths, but they need not concern us here.

However, there is a fundamental philosophical difference to how we approach 'the law': in Britain. If we don't like laws, we break them. Sometimes we break them en masse: but if you think about it, we're all very good at doing this. In the United States, if we don't like laws, we hire some lawyers to engage in an epic Talmudic battle of the intellects, with each side waving around such documents as "the Constituion" as if they were a sacred parchment, or Turin Shroud, until a victor is crowned. So rooted is this faith in the law, that constructive civil disobedience - such as having fun in the park - isn't yet embedded in the US culture.

Which brings us to the most important social contract that the logician US culture has ever allowed to be tolerated: the GPL, or General Public Licence. This is a quasi-legal document, but it's great strength is the social obligations it bestows on its participants.

The greatest strength of the GPL is that it's a social contract, one that makes the most powerful, who can buy the legal system, think twice before going to law. And that's pretty powerful.

But with IBM's counter suit against SCO explicitly defending its rights in terms of the GPL, it looks like The One Thing we Didn't Want To Happen will happen. We'll have a random judge poking holes in the GPL, on some perfectly defensible grounds that bear little relevance to the social obligations these imply. As if he's supposed to know the difference.

Sure, a wise judge may yet toss the SCO case right out of court, but a dam will already have been breached. The GPL is a far more powerful social contract than it can be a legal contract, and the rancorous Supreme Court pronouncement on the 2000 Presidential election ought to remind everyone that the US' legal system is at best a lottery, and at worst, deeply swayed by human vices. The 2000 election caused a deep psychic scar in the US that few here can yet confront. The 'King' - and the Supreme Court was constructed as the apex of this secular alternative - was supposed to deliver a verdict of great magnanimity. But he's dead now.

We're a news site, and this has been a long-winded way of saying sorry, but you can read the details of IBM's countersuit against SCO here, thanks to sterling work from LWN.

The GPL will be contested in court for the first time.

It's almost redundant to point out that resisting the setbacks that might result from a ruling involve civil disobedience on quite a wide scale - every sysadmin will fiind himself a potential criminal, and this is a horrifying concept for such a young nation as the United States. But maybe the US can catch a clue from the rest of us, and conclude that not only is the law an ass, but that selective civil disobedience is a walk in the park.

We do it every day. ®

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