Right now, I think the best argument would be to say that he accepted the terms of the MIT license, which states in part:
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE
SOFTWARE.
and that his claim is that, contrary to the terms of the license, the authors are obliged to rectify losses he incurred due to his own negligence. And that granting him the relief he seeks would invalidate the MIT license and expose all authors of open-source software to liability for the unforeseeable consequences of negligence by users. In bitcoin's case, it would mean that anybody who lost their keys or forgot their password could sue the developers.
I am very unhappy to say that there may be a problem with this argument. I had believed that Wright would not claim to be the original author of bitcoin in this case. I thought it would just weaken his case and make it easier to disprove his claims. I thought that he would just claim to be a victim of crime entitled to restitution. But it appears that Ontier LLP is asserting that Wright is the original author.
In this article:
https://www.msn.com/en-us/news/technology/c2-a335-billion-bitcoin-stolen-recoverable-hope-for-thousands-of-others/ar-BB1dYUEtit says:
>Paul Ferguson, partner at ONTIER LLP, comments:
>
> "Our client always intended Bitcoin to operate within existing laws, notwithstanding the original ethos of independence he envisaged for the digital currency.
>
> We assert there are identifiable legal obligations attributable to those who develop and control Bitcoin. As a victim of theft of some serious magnitude, Tulip Trading is seeking recovery of its access to and control of its digital assets from those in a position to remedy its loss."
>
> The fact that someone has stolen Tulip Trading's digitally-held private Bitcoin keys does not prevent developers from deploying code to enable the rightful owner to regain control of its bitcoin.
This strongly suggests that Ontier will claim that Wright is the author of the software he was using to manage his keys and interact with the bitcoin blockchain. This means that, according to their claims, Wright did not accept the terms of the MIT license when he used the software. He didn't need a license because he was the author. That would mean that he never agreed that "in no event shall the authors or copyright holders be liable ...". Only people who acquired the right to use the software by accepting the license have agreed to that. If he has a right to use the software without accepting the license, then he is not bound by the terms of the license.
We need to distinguish between two instances of the bitcoin software. One is the software written and published by Bitcoin Core. If he has used that software, he is bound by the terms of the license, because there's no other way for him to acquire the right to use it.
But the other software is software that he claims to have written himself. He can use that software without accepting the terms of the MIT license, even if he distributed it under that license. As the author, he has the right to use the software he wrote, and he doesn't need to accept the terms of the license under which it's distributed to other users.
Importantly, he doesn't need to prove that he is Satoshi Nakamoto to get the court to accept this. He only needs the court to accept that he wrote the software he used. He might have written it himself, and yet not be Satoshi Nakamoto. Proving that he is not Satoshi Nakamoto, or that he had no involvement in the original development of bitcoin, won't be sufficient to bind him to the terms of the license. He could have written that software at any time prior to his alleged loss of his keys.
It's likely that he will be able to show the code of the software he claims to have used, and that software will have been written by him and by nChain and by Tulip. So his lawyers will be able to argue that the MIT license doesn't protect Bitcoin Core from his claims that they are obliged to comply with his demands by "deploying code to enable the rightful owner to regain control of its bitcoin", because he never accepted that license.
So his claim will have to be that the authors of Bitcoin Core, which is software that he never used, owe him a duty because of their power to help him recoup his losses, and that it's because he never used that software and never agreed to the terms of the license that that duty still exists.
But I think that it's very very likely that, at some time in the past, Wright, or an employee of one of his companies, downloaded and ran either the Bitcoin Core software, or some related software. For example, Bitcoin Cash forked away from Bitcoin Core in 2017, and Bitcoin SV forked in 2018. During the time when Bitcoin Cash existed and Bitcoin SV didn't, the Bitcoin Cash code was not written by Wright or by any of his companies, and there was no way for him to be able to use it without accepting the MIT license.
It also seems very unlikely to me that Wright wrote his own implementation of segwit. And yet he was allegedly using software that allowed him to use bitcoin successfully in 2020. Segwit was a soft-fork, so this is theoretically possible. He could have been running antique software that didn't notice that segwit was now everywhere and obligatory.
I think Craig Wright needs to be asked to swear under penalty of perjury that neither he nor any or his employees have ever used, modified or distributed bitcoin software that they did not write themselves, even for testing purposes. He needs to explain how his company, nChain, mined a record-setting 23Mb block on the Bitcoin Cash blockchain in September of 2018, without using any software written by the Bitcoin Cash developers, built on code written by Bitcoin Core.
If he used Bitcoin Core software even once, for curiosity or testing or any other reason, then he accepted the MIT license, and he accepted the terms, which prevent him from holding the developers liable for anything.
A single witness who testifies that Bitcoin Core software, or Bitcoin Cash software based on it, was used, modified or distributed by Wright or Tulip, may be sufficient to convince the court that the license was accepted, and that the developers can't be held liable. Bitcoin SV appears on its face to be a version of Bitcoin Core modified and distributed by people associated with Wright. This could not have been done without accepting the terms of the license. If that happened at his instruction, then he is bound by the terms of the license.
