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• Regarding SCO's Motion to Dismiss or Stay, Judge Kimball said, "You're not likely to get that."
• SCO asks for more time to compare UNIX and Linux: Judge Kimball replies "One might assume that a comparison of UNIX to Linux might have been done before filing a lawsuit."
• SCO asks for more discovery. Judge Kimball asks "Unix is yours and Linux everybody can get hold of it, right? What is it you think you need?".

That's pretty clear. Judge Kimball is clearly telling SCO's attorneys that they need to present unambiguous evidence of copying, and soon. He's hinting to SCO that unless they come up with something good, he's going to grant IBM's summary judgement motions. He's giving them one last chance to do so.

This is a U.S. District Court judge. He has many other cases, most of them criminal. Here's his court schedule for the week. Sentencing hearings, plea bargains, and a few civil cases. He's not there to listen to SCO's lawyers stall forever. Federal civil procedure doesn't allow that.

The internetnews article says "Originally scheduled for Tuesday, the hearing was pushed back to Oct. 19", but that was just the discovery hearing before the Magistrate Judge.

The important hearing, on IBM's motion for summary judgment on its tenth counterclaim, is still on for tomorrow, which you can verify at the court's website, both Judge Kimball's schedule and the case history (item 268).

If IBM's motion is granted, Judge Kimball will issue a declaratory judgment that IBM's copying of Linux does not infringe any SCO copyright. That would imply that anyone else copying any of the Linux versions IBM uses is not infringing any SCO copyrights, either.

The SCO-IBM disputes over contracts would remain, but the rest of the world needn't concern itself about those.

You can find the briefing papers on the motion here

The internetnews article says "Originally scheduled for Tuesday, the hearing was pushed back to Oct. 19", but that was just the discovery hearing before the Magistrate Judge.

The important hearing, on IBM's motion for summary judgment on its tenth counterclaim, is still on for tomorrow, which you can verify at the court's website, both Judge Kimball's schedule and the case history (item 268).

If IBM's motion is granted, Judge Kimball will issue a declaratory judgment that IBM's copying of Linux does not infringe any SCO copyright. That would imply that anyone else copying any of the Linux versions IBM uses is not infringing any SCO copyrights, either.

The SCO-IBM disputes over contracts would remain, but the rest of the world needn't concern itself about those.

You can find the briefing papers on the motion here

• http://www.cnn.com/2001/LAW/02/12/napster.decision .05/
• http://www.ce9.uscourts.gov/web/newopinions.nsf/0/ c4f204f69c2538f6882569f100616b06?OpenDocument
• http://news.com.com/2100-1023-243698.html?legacy=c net

Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?
Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150, 000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

From the State of the Circuit speech:

• "Among some of the issues decided or, in one notable instance not decided, by the Supreme Court from the Ninth Circuit were: whether "under God" should remain in the Pledge of Allegiance as recited in California schools; whether the EPA needs to perform an environmental impact assessment before allowing Mexican trucks to operate in the U.S. under NAFTA; whether murderers sentenced to death by a judge, in violation of the Constitution's jury trial guarantee, can nonetheless be executed without re-sentencing; whether reasonable suspicion is needed for immigration agents to disassemble a car crossing the U.S.-Mexico border in order to search its gas tank for drugs. These are not easy issues."

1) It's not our job to enfoce copyright violations. That's why we pay taxes. Should we stop making cars alltogether? After all they might be used in bank robberies.

2) Here's the court decision, no guessing about it. In fact, unlike P2P software like Kazaa, we're not even facilitating the distribution of copyrighted material.

3) We're hoping people will help us out when the inevitable frivoulous lawsuits intended to scare us into submission appear.

4) Shame? I re-read my post and I'm not following you.

5) Who are these "people" you speak of? Racing enthusiasts? This, unlike commercial efforts isn't designed to make the most amount of money possible. Do I hate capitalism? Nope, I think it's the best system we available. Is capitalism perfect? Nope, hence the SEC, Enron, monopolies. Is proprietary software the best way to make software? I guess we'll find out but it sounds like you're fairly confident we'll succeed.

And finally 6)
I appreciate your attempt at a veiled threat in the form of legal action, scary stuff, especially with by Anonymous Coward on Wednesday September 01 at the top of your post.

Here is the Appeals Court Opinion (PDF).

Essentially it says that the French court's determination that Yahoo was in violation of French law was not, in itself, reviewable by any US court, but that jurisdiction may be obtained and the First Amendment claim heard once the plaintiffs ask a US District Court to enforce the judgement. The French plaintiffs have thus far declined to do so. Rather than wait around on the plaintiffs, Yahoo decided to ask the District Court to issue a Declaratory Judgement that enforcement of the French order by US officials was unconstitutional, which it did. The Appeals Court determined that the District Court had no jurisdiction to issue such a judgement at this time.

Linux with MWAVE support" is then SCO's property, because it shares code with SCO's "Linux with JFS support."

SCO has never claimed that. I think you've been trying out TSG's crackpipe.

Please cite the relevant legal documentation AND technical documentation to support your assertion.

This District Court order on a motion for a preliminary injunction in the MySQL case mentions the GPL. The validity of the GPL was not an issue raised by the parties. The court assumed the GPL was valid and enforcable and ruled based on other issues.

It won't be one month. According to the Utah Local Rules, SCO has 30 days to file its response. Then IBM has 10 days to file its reply to SCO's response. So it'll be 40 days before the court even has all the motions. Then it still has to set oral argument. Depending on the judge's docket, it could be weeks or months until the judge makes a ruling (or it could be just a few days).

Quote from CNN article:

Lamparello's site criticizes Falwell's stance against homosexuality and includes a disclaimer that reads, "This Web site is not affiliated with Jerry Falwell Ministries."

THEREFORE THIS WAS CLEARLY FREE SPEECH

Perhaps the Judge is ignorant old duffer - or may be he is of the same opinion as Falwell.

Please read lucasnursery.com decision of the U.S. 6th Circuit Court of Appeals - it ruled that this domain did not violate the law. The female owner used the name of Lucas Nursery for a Web site she created to complain about them.

Link

Or this quote from trendmakerhome.com court decision:

"Concluding that Maxwell's site, as a non-commercial gripe site, violates none of these statutes, we reverse and render judgment in favor of Maxwell."

Link

Please visit my complaint site to find out more of this subject.

N.B. It is not associated with corrupt UN World Intellectual Property Organization (WIPO.org)

Quote from CNN article:

Lamparello's site criticizes Falwell's stance against homosexuality and includes a disclaimer that reads, "This Web site is not affiliated with Jerry Falwell Ministries."

THEREFORE THIS WAS CLEARLY FREE SPEECH

Perhaps the Judge is ignorant old duffer - or may be he is of the same opinion as Falwell.

Please read lucasnursery.com decision of the U.S. 6th Circuit Court of Appeals - it ruled that this domain did not violate the law. The female owner used the name of Lucas Nursery for a Web site she created to complain about them.

Link

Or this quote from trendmakerhome.com court decision:

"Concluding that Maxwell's site, as a non-commercial gripe site, violates none of these statutes, we reverse and render judgment in favor of Maxwell."

Link

Please visit my complaint site to find out more of this subject.

N.B. It is not associated with corrupt UN World Intellectual Property Organization (WIPO.org)

The most frustrating thing about that stupid ninth-circuit-stereotype is that it's the most libertarian circuit in the country. Don't believe me? Read for yourself.

My analysis is very simple. I am not going to put in all of the legalize because you do not need it. If you want legalize, read the opinion. You should focus on the dissent that begins on page 17. Sometimes, the dissent is the correct interpretation of the law. I believe this is one of those times. What this case turns on is the correct analysis of what is a stored communication verses realtime ephemeral communication. And, what is interception. Congress has decided that real time communications such as a telephone call or a communication between point A and point B happening contemporaneously, should have better privacy protection than stored communications which can sit in a location for a long period of time. Unfortunately, the definition of electronic communications in the Federal statutes is very broad and does not help with this specific issue. Most Internet communications (including e-mail) are electronic communications. (Oops, I put in legalize, sorry but I have to here.) 18 U.S.C. 2510(12) defines "electronic communication" as any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include (A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device . . . ; or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds; Crap, I should have known! Now that I have calmed down and started reviewing the material closely, I understand the majority's opinion. Damn! Okay, both sides are right and both sides are wrong. The problem is that Congress did not understand the inner workings of email. As the dissent suggests, Congress intended to protect "voice mail" as a form of real time communication. However, email is stored along the same lines as voice mail. I do not mean technically, I mean in spirit. Hmmm.. Congress screwed up. I was wrong. I really hate that. For anyone interested as to why I was so shocked regarding the opinion and now why I understand that I was wrong, let me explain. I am bound by very strict rules regarding the investigation of emails. It has been reinforced over and over again that all email that has not been read by the recipient will be considered as an interception by our investigators therefore putting it in the same light as a real time communication. As a matter of fact the 9th circuit defined "intercept" as: entail[ing] actually acquiring the contents of a communication, whereas the word 'access' merely involves being in a position to acquire the contents of a communication. Now, I see the flaw in these arguments. Cringe.... I hope that Congress looks at these ambiguities and fixes them.

The dictators we support, in Saudi Arabia, Pakistan, China, Libya, and elsewhere, serve only select global corporate interests, while fueling the sources of terrorism, at the convenience of a corporate US government.

Libya has given up the quest for nuclear weapons, in return for a normalization of diplomatic status. I submit that Libya not having nukes is of more than "global corporate interest".

The US bombed the crap out of the Serbian military, not the people.

Amnesty International disagrees with your assessment.

That's one reason we don't have Serbian suicide bombers attacking us.

Another, more likely reason is that the Serbs aren't Muslim. Non-Muslim suicide bombers are pretty rare. They exist, but not in great numbers. Also, we don't have many suicide bombers attacking us at all. They're mostly attacking Israeli civilians, Iraqi civilians, and Iraqi police.

And let's have a citation backing your belief in (and promotion of) the lies about Iraqi support for Al Qaeda, which have been definitively debunked by, among others, the 9/11 Commission.

Here's your citation. If a US Federal Court decision isn't enough to convince you that it's not a lie, then I doubt any proof could.

As for being debunked by the 9/11 Commission, they haven't released their final report yet, but the staff statements so far have not debunked anything. Pre-report staff statements have said they have found no evidence of a collaborative relationship in regards to the 9/11 attacks; they made no effort to prove there was no financing of Al Qaeda activities, and current events suggest they are not done with this issue. I'd hold off on calling their lack of evidence an evidence of lack at least until they release their report, if I were you.

See original post #3, about lying to the public, and calling it official intelligence - to which which you declined to respond, since everyone already knows better than whatever veiled apology you'd contrive for BushCo's lies about intelligence they make up to justify their malevolent agenda.

I didn't respond to it because it was a baseless insult without any evidence to back it up. It wasn't worthy of addressing.

However, if you insist:

Intelligence is sometimes wrong. That doesn't mean it's made up. Much of the intelligence upon which we were acting when we invaded Iraq dates from before Bush ever took office, and was deemed compelling by, among others, John Kerry.

How about people accepting that torture is unacceptable, rather than crying "blame the troops" whenever they're not chanting "support President Bush and our troops"

How about recognizing the difference between interrogation and torture, instead of trivializing the plight of those who were actually tortured by Saddam's regime? Those who were raped? Murdered? How about not attempting to conflate the policies with which you disagree and the illegal actions of a few sick criminals, that are completely different than those policies?

How about recognizing that Donald Rumsfeld initiated investigations that have already resulted in convictions, with more to follow, of those involved in the abuse of Iraqi prisoners? How about recognizing that the General in charge was yanked from her post almost immediately, again thanks to Rumsfeld?

See, the difference you're missing here is that when American Soldiers do something unacceptable to Iraqi prisoners, they go to jail. Under the regime we displaced, which if you had your way would still be there, they'd be promoted.

So we're supposed to blindly go access the web site with the article http://www.nysd.uscourts.gov/courtweb/pdf/D08MNXC/ 04-04317.PDF without reading the privacy policy for the site? The courts don't seem to have a privacy policy.

So we're supposed to blindly go access the web site with the article http://www.nysd.uscourts.gov/courtweb/pdf/D08MNXC/ 04-04317.PDF without reading the privacy policy for the site? The courts don't seem to have a privacy policy.

so go nuts with whatever you can get your hands on. At least that's what the law was the last time I checked: you can't copyright a fact (or a made up fact for that matter), although some people are trying to change this.

I had a the pleasure of once working for a map company, for example, that at a time (before I worked there of course) traced a competitor's maps when drafting their products. An ensuing lawsuit, during which the judge actually acknowledged this practice, resulted in a verdict in favor of allowing such infringements.

The Pacer docket (available free, due to high public interest) has the documents as TIFF files. Good luck on opening them (my pre-2.0 Gimp failed on some unknown tag.)

This is not entirely unexpected though, IBM already mentioned in a filing that they intended to move for summary judgement.

Also out is Memorandum in opposition of SCO's delaying tactics.

"Originals" available here. Multi-Page TIFFs. You can install libtiff-tools to get tiff2pdf and tiff2ps.

Groklaw has a story on the SD Times FUD Award, as well as some comments from Red Hat's new counsel regarding FUD activities as responses to the disruptive technologies of Open Source, and that Red Hat will defend against it in the future.

Also, IBM has just filed a memorandum opposing SCO's motion to extend the court schedule. It sounds boring, I know, but what it basically says is that there is no reason to extend the court date, because any delays in the schedule have been caused by SCO's own malfeasance, and IBM intends to ask for summary judgement on everything anyway.

Here are some of the choicer quotes:

"As stated, the most egregious example of SCO's discovery misconduct is SCO's persistent refusal to identify with specificity the UNIX System V source code that forms the basis of its claims against IBM."

"IBM believes that discovery in this case should be conducted according to the schedule to which the parties agreed almost a year ago. In fact, as we will lay out in forthcoming submissions most (if not all) of the claims in the suit can be resolved on summary judgment without more discovery. SCO should not be allowed, through its own misconduct, to prolong this case merely to serve its own interests in cultivating the fear, uncertainty and doubt SCO has created regarding Linux and IBM's products."

"In the instant case, SCO has not shown "good cause" for extending fact discovery in the case for an additional nine months and putting off trial until September 2005. ... [E]ach of SCO's stated reasons for requestinfg the extension are attributable entirely to SCO's own stalling tactics during the course of discovery and reflect an utter lack of diligence."

A tiff of the full document can be found at Pacer's public SCO v. IBM page.

The PDF can be found at Frank Sorenson's sco.tuxrocks.com site.

Memorandum in opposition is now available. PDF here (my conversion).

In a revealing interview, a SCO VP recently stated that SCO's strategy in this case is not to "put everything on the table at the start, but instead to bring out arguments and evidence piece by piece".

"SCO should not be allowed, through its own misconduct, to prolong this case merely to serve its own interests in cultivating the fear, uncertainty and doubt SCO has created regarding Linux and IBM's products.

Goodies.

READ THIS multi-page tiff: IBM's reply

IBM roasts SCO for the lack of evidence and delay tactics. Practicaly asks the Judge for a contempt of court ruling.

If competitors don't know about these hidden or undocumented calls, their applications will not work as well as Microsoft's Microsoft had long denied that it deliberately designed hidden calls into its operating systems, but in the summer of 1992, Andrew Schulman, a programming expert living in Cambridge, Massachusetts, published a book Undocumented Windows, which confirmed that Microsoft had lied. Microsoft later acknowledged that Excel and Word used at least 16 APIs that had been hidden in Windows.

You can find the decision by the United States Court of Appeal for the Ninth Circuit at:
Kremen, et al. v. Online Classifieds Inc., et al. (pdf warning)

To get the html version, paste this url:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ 99 9D1D5B0D734B6088256D6D0078CB88/$file/0115899.pdf?o penelement

into the Adobe PDF Conversion Page.

You're thinking of copyrighted model building codes. The model codes are copyrighted once fixed in a tangible medium, but once a state enacts them into law, they enter the public domain. Southern Building Code v. Veeck , en banc rehearing.

The Judicial Branch which is composed of "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In pratice, the inferior Courts are District Courts, Courts of Appeals and other courts. Yes, federal justices serve life-time appointments or more accurately they "shall hold their Offices during good Behaviour" (they don't get into trouble which might be grounds for removal)

The Department of Justice is a department of the Executive Branch and therefore subject to the priorities of the President. Some of the more famous DOJ agencies include the FBI, Bureau of Alcohol Tobacco and Firearms, Drug Enforcement Agency. They basically prosecute cases by bringing those cases before courts. Prosecutors have tremendous latitude to prioritize which cases are more important. Under Bush/Ashcroft, Microsoft anti-trust was not seen as important as it was under Clinton/Reno.

Your link is incorrect. The case is here.

"For the reasons discussed above, we REVERSE the district court's judgment against Peter Veeck, and REMAND with instructions to dismiss SBCCI's claims."

The numbers come from here. Studies from earlier years (1997-99) showed similar results.

I have seen a few people try to argue that in fact the reversal rate of the 9th circuit is just average because, once cases from the 9th get to the Supreme Court, they are reversed at about the same rate as those from other courts. But this sort of argument is obviously disingenuous. It just shows that the Supreme Court is applying the same standard across lower courts when deciding which cases to review. The number that matters is the number of cases reversed by the Supreme Court in comparison to the number of cases of cases heard by the 9th, and that is way above the average for other courts.

The full text of the opinion here if you're interested.

Actual 5th court decision

Best reporting ever!

The Nevada court where SCO Group has filed a lawsuit against US retailer AutoZone could itself theoretically be subject to legal proceedings because the court is using Linux to run its Web site.

(Is this considered a conflict of interest? I'll bet even SCO didn't see this one coming)

IANL, obviously.

If you read through the notes from the hearing, it's clear that SCO continues to refuse to, or is unable to, identify specific infringing code, and the judge doesn't like it. The judge said "The problem is, unless you identify those codes, then IBM is not in a position to have a response. We're at an impasse, and the case cannot continue with an impasse, that's why there was a court order". That's a clear indication from the judge. The judge isn't buying SCO's nebulous theory of general infringement.

Cravath is slowly boxing in SCO. Notice that the trade secret claim has been dropped. The copyright claim isn't in the case yet, and IBM can probably insist that it doesn't go in without SCO showing the original and the purported copy side by side.

Look for some rulings unfavorable to SCO shortly.

>SCO's comments in the media are not SCO's legal case. That's another
>matter entirely, and one that has been considerably more carefully
>orchestrated.

Interestingly, IBM referenced SCO's public statements in their filing today: http://pacer.utd.uscourts.gov/images/203cv00294000 00103.pdf

The document states that "SCO has identified no more than approximately 3,700 lines of code", then quotes Darl McBride comments at Harvard this week saying "[T]here is roughly a million lines of code". IBM concludes that if McBride's statement is true, "then SCO should have identified them in response to the Court's Order."

Bottom line, SCO's public statements are now in play. Their "more carefully orchestrated" media comments are now a major liability.

Now the bad news: Posting it on Groklaw seems to have been enough to /. the court's server, so you're going to have to wait a while to read it (and no, I didn't grab a mirror while I had it - my bad).

Of course, posting the link here is far worse than posting it on Groklaw, so maybe you should try to read it tomorrow...

Late update: I re-tried the link when I did the preview, and got it - so it's back, or perhaps intermittent. I'm going to try to grab it right after I post...

• Magistrate Notice of Hearing
  Motion hearing set for 10:00 2/6/04 for all pending motions: ... To be held before Judge Wells.

• Order granting [68-1] motion to compel discovery, granting [44-1] motion to compel Discovery.

  The SCO Group is hereby ORDERED:

  • 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories.
  • 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories.
  • 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents.
  • 4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.
  • 5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.
  • 6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order.

In that one line of boldface above, the judge captured the key issue. No amount of PR spin control will help SCO in court tomorrow.

And clearly you don't know the difference between a misdemeanor and a felony either. You are entitled to a jury trial in any case where you can spend jail time, and where I am a misdemeanor can get you up to 11 months, 29 days.

Speeding is not an offence that can get you jail time in most cases, but just because it can only get you a fine doesn't mean it's not a criminal charge. A parking ticket isn't a criminal charge, speeding is. And it's a frivolous charge, as it's generally acknoleged that it is only used as a revenue generating measure, not as a means of stopping any sort of offense. The government has legitimate means of raising revenue, it's called a tax.

As for malicious prosecution, just do a google search. Since you asked for one case, here is an example from a US district court of a summary judgement that was granted for malicious prosecution and false arrest. (PDF format)

A prosecutor has a responsibility to look for the person who is actually guilty of a crime, and to not prosecute someone who is innocent. Anything else is malicious prosecution, and should result in a prosecutor being fired. Unfortunately, that is almost never the result.

I believe that Norway will likely grant the award, as I understand it is standard procedure to do so. If you have expertise in Norwegian law, please feel free to argue this.

And I repeat, your post was bullshit.

The process involves petitioning for a writ of mandamus (basically, suing a government office to get it to do its job). The court with jurisdiction would I believe be the Federal District Court for the District of Columbia.

I don't believe there is a way to file such a writ online, or indeed at all if YANAL.

The official court status listing doesn't show any change. The calendar for that judge is up for Thursday, but Friday's calendar isn't online yet. It looks like the court only posts the calendar a day ahead. So we'll know tomorrow, around the end of the day.

The official court status listing doesn't show any change. The calendar for that judge is up for Thursday, but Friday's calendar isn't online yet. It looks like the court only posts the calendar a day ahead. So we'll know tomorrow, around the end of the day.

That's close, but not cigar -- I'm sure you were lumping it together with PACER, but CM/ECF (Case Management/Electronic Case Files)is actually the online filing service. PACER just lets you view the docket and documents. The CM/ECF site is here. And the Distric of Utah is not on their list of courts set up for CM/ECF yet, so the grandparent is probably right -- the deadlin is COB, not midnight (or 11:59).

If you want more information, check out the PACER website

So that means the clerk can be home snug in bed when SCO files its response. I know from personal experience that the timestamp on the document is what matters, not office hours.

As for the RIAA's response, they will no doubt appeal. And they will no doubt push for new legislation that will pass muster with the courts. No doubt the new bill will have the words "security" and "pornography" in its title.

Here is the DC Appeals court opinion (in PDF): RIAA v. Verizon Internet.

a copy of the Court Opinion on PACER (in PDF)
RIAA v. Verizon Internet Services.

It's interesting that Verizon won more or less on a single point. ISPs who discover that people are storing pirated content on their (the ISP's) servers can avoid getting in trouble by "respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing." That part of the law hasn't changed.

However, Verizon successfully argued that the responsibility to "remove or disable access to the material" does not apply to ISPs that do not store the data, but instead act as mere conduits through which the pirated files travel. And that's exactly what's going on in the case of P2P file sharing - the illegal file is stored on the pirate's computer, not the ISP's servers.

Verizon argued that under the DMCA, in order for a subpoena to be valid, it has to contain information about infringing material "to be removed or access to which is to be disabled". Verizon argued that it can't remove the material or disable access to it. And since that requirement for issuing a subpoena cannot be met, the subpoena process does not apply to Verizon. The court agreed.

The RIAA unsucessfully argued that Verizon could remove access to the infringing material by simply cutting off access to the pirate, but the judge disagreed that that's what the DMCA was talking about when it uses the phrase "diable access".

From the ruling...
No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.

The ruling concludes with some sympathy by the judges for what the RIAA is trying to do, but a refusal to extend the DMCA to technology like P2P that didn't even exist when the DMCA was written. The court said that if the RIAA wants to subpoena ISPs for information about P2P file traders, it will need to get that additional authority from Congress. A good demonstration of judicial restraint, IMHO.

Here it is. The appeals court noted that the drafters of the DMCA didn't forseee P2P technology... otherwise, the outcome may have been different.

Here's the full text of the ruling.

Interestingly, this is the exact same appeals court that overturned the decision against Microsoft. It's good to know that there are cool, compassionate people in charge of the courts who don't listen to which way the prevailing "geek winds" are blowing on e issue or another but instead disspassionately apply the law. It appears that in their mind, the RIAA is as mistaken as Microsoft was innocent.

However, that's much different from what the GPL *does*, which is to use copyright law to attempt "To promote the Progress of Science and useful Arts" by making it easy to publish software that's free as in speech (with other positive side effects) and know that the software you're using is free so you can do even more things with it and not have to hire bunch of lawyers telling you that that it's safe to touch before adding value to it.

Re: BTW - Confusing WindRiver with WinDriver would be like confusing MacOS 9 with Mac OS9....