SCO Calls GPL Unenforceable, Void

wes33 writes "Groklaw has a link to SCO's replies to IBM's amended complaints. Some choice bits: '6th Affirmative Defense - The GPL is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred. ... 7th Affirmative Defense - The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity. ... 8th Affirmative Defense - The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based theron, or related thereto, are barred.' Comments are pouring in ... not all of them complimentary to SCO or its legal strategy." Considering that the GPL and the GNU project rely on and affirm the protections of copyright, this seems like a strange argument to pursue.

Comments

Simplified Pleadings...

[cfulmer]

Geez... Been in law school for under 3 months and it's already coming in handy.

The deal behind the litany of affirmative defenses is that under the Federal Rules of Civil Procedure (Rules 8(c)-8(d), for those who care), if SCO doesn't assert these defenses in its response, then it can't assert them later. So, the standard trick for lawyers is to put in everything but the kitchen sink.

Also, under rule 8(e), they're allowed to state as many defenses as they can, 'regardless of consistency.'

Now, they're really only supposed to list the real defenses and they could get into trouble for listing frivolous ones (I think their first affirmative defense is frivolous, for example). But, sanctions for this sort of thing don't happen as often as they probably should. They do run the risk of PO'ing the judge, though....

affirmative defenses and selective enforcement

[odin53]

Two points:

1) You have to realize that this is SCO's *Answer* to IBM's counterclaims. This means that it has to (a) respond point by point to IBM's complaint/counterclaim, admitting, denying, or otherwise, well, answering each allegation, and (b) give a list of "affirmative defenses" to IBM's overall complaint. (a) is self-explanatory. (b) is a list of arguments and/or facts that mean that, if true, even if everything that IBM alleged in its complaint/counterclaim is true, SCO should still prevail.

Hopefully you can guess, then, that the defense attorneys will throw pretty much anything they can think of into the "affirmative defenses" list. In fact, a lot of them are practically boilerplate -- they're things that "everyone" puts in an Answer. For example, the 25th AD says "IBM lacks standing to assert that SCO infringed some or all of the patents at issue." Of course the defense is going to throw this in -- it's a basic constitutional issue. The point is that SCO has to (in general; there are a few defenses SCO can raise later) plead any and all affirmative defenses it can think of in its answer, lest it waive any (which, obviously, would be bad for SCO and practically malpractice for its attorneys). Just as IBM doesn't have to have complete proof of each and every allegation in its complaint/counterclaim, SCO doesn't need complete proof for each reply and each of its affirmative defenses in its answer.

The claim that the GPL is unenforceable is, frankly, an obvious affirmative defense that really needed to be made in the reply. I would think, though, that SCO would prefer not to have to prove that particular defense.

2) People seem to be caught up in the "selective enforcement" affirmative defense. They are right that enforcement is wholly up to the copyright-holder. However, wrt the GPL, we're talking about a contract. Waiver and estoppel are easy and obvious defenses to make in litigation over contracts; I can't really imagine a situation where you wouldn't throw them into your reply as a matter of course.

Re:What?

[mark-t]

Copyright law says that I, as creator of my work, can control how it is used and by whom.

Wrong.

Copyright law only says that you, as a creator of your work, have exclusive control on whom else you wish to allow to distribute that work. By default, nobody other than yourself is allowed to distribute a work that is copyrighted by you. You must grant permission first.

The GPL is not a license for usage, it is a copyright license that outlines the terms necessary to obtain permission to redistribute from the copyright holders.

That is why it's effectively impossible to declare the GPL void.

Re:Can you say, "Pump and Dump"?

[pjrc]

Im really sick of seeing these "might get a crazy judge" posts, especially when they're mod'd to +5.

They are old white men who care about appeasing each other's financial interests and don't mind if all the geeks in the world want to rip their throats out. Plus, you have to remember that there's a good chance any random judge will have SCO or one of it's alliances somewhere in their investment portfolio.

So, at the risk of being redunant, here's the text of a message I posted a couple times, several MONTHS ago. This is not new information. Yet still, even now, most people have no idea about judge Kimball who is hearing the case. So here goes (again)....

On every SCO story, invariably someone posts a paranoid concern that perhaps a clueless judge will be assigned to the case, and rule in favor of SCO. These are often moderated to +5, which is quite silly since Judge Dale A. Kimball has already be assigned to the case, and we can see that he's got a reputation for being fair and capable of understanding cases involving technology.

Groklaw has very extensive research on Kimball's history, which is nicely summarized and easy to read. Every case has links to much more detail. The overall appearance is that Kimball will probably do the right thing.

Probably most important is the Jacobsen vs Hughes copyright case. Apart from considering much of the material uncopyrightable historical facts, Judge Kimball was quite unimpressed by the plaintif's failure to act in a timely manner to mitigate damages. Quoting from that article:

"Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," Kimball wrote. "For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes."

Obviously this bodes quite well for IBM and all Linux users. SCO of course will claim they stopped distribution of linux, but this ruling at least shows that Judge Kimball isn't likely to be be charmed with the deplorable way SCO has conducted itself. Kimball's willingness to consider the writing a separate work, even though a part of it was loosely based on Jacobsen's also casts quite a shadow over SCO's chances (assuming the unlikely worst case scenario that SCO has an ace up its sleeve, rather than the bogus examples we've seen so far). It's certainly a good sign that Kimball is unlikely to buy SCO expansive theories about what constitutes a derivitive work.

While nothing is 100% certain going into the courtroom, it is a fact that the Judge Kimball has been selected to hear this case. His history shows he's competent, fair, and at least in Jacobsen vs Hughes, he doesn't tollerate the sort of shenanigans SCO has been pulling!

Re:Here's what you were saying...

[I8TheWorm]

Extremely insightful pointing out that communism has never been tried before (at least not on a scale large enough for anyone to notice). It's true, communism has been a red herring for the former Soviets, the Chinese, eastern block Europe, and any of the far eastern states that claim communism only to "hide" the fact that they're merely dictatorships.

I also agree that Marx was probably correct, in that capitalist society is doomed to merge larger and larger corporations with government, until they are one in the same. I honestly think we're seeing evidence of the early stages of that, considering the influence large corportations already have on policy/law making.

I don't agree, however, that communism would ever work on a large scale. I base this on human nature alone though. While everyone working toward the good of the state and sharing the fruits of their labor is a noble premise, it never takes long for society to divide itself. It's happened everywhere, and not by accident. People who think their work is more important want more for that work. People who don't think they're making a difference don't want to work as hard. It's also in human nature to eventually do as little as possible, as long as you're getting by or ahead. That's why we have such great inventions as the tractor/combine, telephone, even the tv remote. I will work to create something that will save me time and energy, so I can relax more, or sit around a bit, or get a little more sleep, or...

I realize that communism isn't completely about the sharing of work in the state. It's about sharing power as well. In that light, human nature also takes it's run. Those with more influence eventually start exercising it (we've seen this happen throughout history many times). What you have at that point is something resembling an ologopoly.

Communism might work if you can remove human nature, and most /. readers are probably a bit outside the norm when it comes to that human nature. Then again, most /.ers are a minority when compared to the masses that don't think a little extra effort can go a long way in society.