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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.
The only problem with all things I see here is DarlandCo. will probably never see the inside of a prison cell, which is unfortunate.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
It doesn't matter how the EFF handles GPL violations since they are not the licensor. If they were, then unequal application of the GPL would only invalidate (if it did invalidate) the licence of the GPL software owned by the EFF.
If Linus is unequal in his pursuit of his intellectual property rights vis a vis the GPL that only renders Linus property rights at issue, not the GPL. The GPL is a licence (like the Microsoft Shared Source Licence, or even EULA) and not an institution. Since the GPL is one of the more innovative licences we often lose sight of that fact.
(IANAL, of course)
If the GPL is unenforceable, then unless SCO got written permission to distribute the code by all the myriad other kernel contributors (and in fact the developers of every other bit of GPL'ed software that they are distributing in their own distr - still available via FTP) then they themselves are in breach of all those people's copyright over code they wrote.
Please, I beg ANY developers of GPL'ed code that is in SCOs distro on their FTP site. Please sue these bastards for breach of copyright. I am willing to pony up $100 to anybody about to do this.
This madness has just got to end.
If the GPL stands up in court, it's SCO's case that is going to be crippled.
===== Murphy's Law is recursive. =====
In some jurisdictions, bringing a frivolous lawsuit is the crime of barratry. Even in states without tough anti-barratry laws, "pump and dump" is still securities fraud.
Will I retire or break 10K?
"Over a 4% drop"? That seems practically insignificant.
The thing that really bugs me is what goes on with financial news all the time - they'll interpret market movements as the obvious effect of X news event without demonstrating any link. "Microsoft issued two new security patches today, and so happy investors raised stock values 4%." It's exceptionally naive to assume that only the events you care about affect what happens to stock prices.
Correlation does not imply causality. It could just as easily be that the SCO-execs-and-cohorts are pulling stock prices to refill their pump-and-dump tanks - it's really all speculation.
We recently had heard in the office over one of the Yellow Machine that's made by Anthology Solutions.
Let's see if I have this right.
Linux is free software, that everyone participates in making, and then gets to use for free.
SCO distributed Linux itself, until very recently. It was also selling its own "competing" product at the same time.
Now SCO is claiming that some of their "valuable" property was incorporated into Linux - without their knowledge. They're demanding everyone who uses Linux pay them for it (at a price they've just determined) - or face lawsuits.
They're refusing to reveal what was "stolen." (More accurately, they will only show evidence to those who sign an unacceptably onerous non-disclosure agreement.) Not the actions of a company with a good case, but let us assume, since it is certainly possible, that some work of SCO's appears identical to some work inside Linux.
It is first of all not exactly obvious who copied whom. In the most similar case of years past, exactly such confusion resulted in a major legal reversal for one of Unix's past copyright holders. But let us even assume that someone secretly put some stolen SCO work inside Linux, since that is certainly also possible.
One of two things is true, then:
1) If you are a Linux user (who unwittingly received a bit of SCO's property), you have to pay whatever SCO asks, even if you didn't know (and had no way of knowing) you were using "stolen code"!
This means that SCO is in massive trouble, since they violated the licenses of all the Linux contributors _themselves_, by distributing Linux with their proprietary code incorporated into it. This is forbidden by the GPL (Linux's license), which (basically) forces participants to contribute their work for free or not at all. (That's the whole point of the affair, really.) And as we just established, ignorance is not an excuse. The fact that SCO might not have known they were breaking this rule wouldn't save them.
Result? Several thousand Linux contributors (a group which includes some very large, wealthy businesses) sue SCO for violating _their_ licenses, which specifically forbade this in the first place. SCO goes bankrupt.
-- OR --
2) If you are a Linux user (who unwittingly received a bit of SCO's property), it's _not_ your problem, because you didn't _know_ there was a problem, and once you found out, you replaced the "stolen code" - by downloading a patch, most likely. Right after SCO gets around to telling people what was stolen, that is. (Which they will do eventually?)
If ignorance is SCO's excuse, it's everyone's excuse. It means THERE IS NO DANGER TO ANY LINUX USER from SCO, because nobody was knowingly involved in these affairs, except potentially IBM (who stands accused of having actually done the deed). If there was any improper copying, it's IBM's problem - which is as it should be (although apparently even that part of SCO's story is questionable).
Result? SCO's threats to sue Linux users are actually a nasty and libelous publicity stunt, and a number of affected business (IBM, Redhat, Dell, Suse, etc) sue them as a result. SCO goes bankrupt.
I can't figure out how SCO's threats to "license Linux users" to the tune of hundreds or even thousands a CPU is anything other than the business world's equivalent of an April Fool's joke.
You can make specious legal threats about any product - open source or closed source. The fact that Linux is a target this time is only a sign of its continually increasing importance.
If you want my take on it, some people sitting in big offices (picture Microsoft and Sun logos on the walls) saw the recent spate of articles about high-profile defections from their own products to Linux, and pushed the "panic button." They encouraged and financed a proxy (SCO) in the advertisement of an elaborate legal fiction in hopes of slowing the hemorrhaging. It's clever, good old-fashioned American business strategy at its finest (no holds barred competition in anything but quality or price). I don't think it will save them, either. And I _think_ it's going to leave a smoking crater where the proxy used to be.
Want to Know How to Cheat the GPL? Read On!
This was bound to happen. The idea of a genuinely free ride flies in the face of thousands of years of economic theory. Free software is done "for the love of the game" (please no technicality trolls... I'm just trying to illustrate a point here).
The notion of a free product that is in many ways superior to its commercial counterpart scares alot of people. It's frightening to any business minded person that there is a large wealth of talented developers who are making an amazing product and not only distributing it free of charge, but giving away the source as well. To a business person, this is simply nonsense, but to those of us who beleive in creating something useful and of high quality "just for fun", it's not only a hobby, but a cause.
It was only a matter of time before this ideology was challenged. This is that challenge. Fortunate, they are standing on a pretty weak argument, and up against an 800lb gorilla.
~my $.02
i have said it before, and i will say it again...
SCO has every reason in the world to see the GPL killed. That reason is that they have (most likely) been using GPL'd code in their proprietary code. They want to see the GPL nulled and voided so that when "they win their case", they can, at a later date, keep right on using Linux code in their shitty products.
i'll keep saying it - this is the whole of the "why" behind their case, i'm telling you. They don't want to have to pay up to anyone - let alone thousands of individuals, for abusing their GPL code in their products...
because after this - everyone will go after them.
guns kill people like spoons make Rosie O'Donnell fat.
I would like to point you to our product page (http://www.xxxxxxxx.com); we provide xxxx xxxx systems to many large xxxx institutions around the world. Currently, we are based mainly on the Sun/Solaris platform, but are looking at moving to Intel due to customer demand.
After considering SCO's products, we have been forced to exclude them due to your court statements regarding the General Public License ("GPL"); specifically, that it is unenforceable. Considering that large parts of your latest products appear to be licensed under the GPL, we find it difficult to reconcile your legal position with the products you claim to supply. Instead, we have decided to go ahead with Red Hat's Advanced Server product.
Sincerely yours,
XXXX YYYY
ZZZZZ Co., Ltd.
On the contrary, thousands of years of economic theory actually supports GPL software. Free software is solidly transaction based: I let you use my software, I get to use the changes you make, and we both benefit. It's a transaction, and we both got what we wanted, and are better off.
Its economics, just like barter is economics. The GPL relies on respect for other people's property, and the conditions they put on what they produced, and what they are willing to offer it for.
The way I look at it is this.
The GPL mindset is designed, at the very core, with the sole end goal of making the best computer program possible. Everything else-- the financial success of companies like Redhat included-- is merely a means to that end, or coincidental.
The capitalist mindset is designed, at the very core, with the sole end goal of making a bunch of money. Everything else-- creating a good product included-- is merely a means to that end, or coincidental.
People can sit down and found an open source or a commercial software products with these not being their goals, but the open source project or the company will, in time, take on a life of their own. The project will fork, and leave the hands of the maintainer, if the maintainer does not do everything he can to promote it being the best program possible. The company meanwhile will eventually pass out of its original creator's hands, usually into the hands of a board of directors who care only about making the most money possible.
Because these different mindsets are so different, things the open source community does tend to seem completely mind-bogglingly nonsensical to the commercial community, and vice versa. Both sides would have an easier time understanding each other if it were understood on both sides that with a GPLed program, it is not the people, it is the source code, that is in control; and with a company it is not the people, it is the corporate culture, that is in control. Some groups of people do a better job of keeping a reign on their code/corporation than others, of course, but this is still what things seem to tend toward.
Now, there's something slightly more complicated going on here. It is that in most cases, the corporate side of things comes from a culture in which capitalism as a philosophy reigns supreme. This philosophy says that the free market will always defeat everything, because it is ultimately efficient. The mutual selfishness of everyone, acting upon each other, will ensure that only the strongest companies survive, the market winds up with the most fitting goods possible, and the capitalist system overall ends with as much wealth within it as is possible. They then get confused when these open source "things" crop up that don't seem to follow the rules of capitalism at all. They get confused because their philosophy tells them that the way to succeed is to let capitalism optimise everything; but then they see "inefficient", unoptimized, seemingly altruistic open source succeeding, they can't understand why that is. The first thing they've missed is that the open source world is going for a completely different kind of "efficiency" than the capitalist world. Both worlds want efficiency; they just want efficiency at different things. The second thing they've missed is that Open Source does indeed work within a survival-of-the-fittest free market very much like the one capitalism describes. It's just that it isn't a market of money. It's a market of ideas.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
... Guys, don't forget that we are talking about IBM here... No one can honestly call them the "little guy"
IBM will surely have first class lawyers, and no matter what you think of the judicial system and judges/politicians only thinking about money and what not, who do you think they would side with? IBM or sco?
I'm betting on IBM.
"Computer games don't affect kids; I mean if Pac-Man affected us as kids, we'd all be running around in darkened rooms,
Seems to me that out of all of the possible challenges the GPL could face, SCO's legal tactics to date have ranged through many of those possibilities. Their defense posture has changed from one to the next at least 6 or 7 times, possibly more, by now. This is an excellent test for the FSF lawyers, the GPL, the use of Linux as a viable platform(legally, morally, and technically), and anyone who may one day be interested in using the GPL or other free software licenses. ;)
Also, thanks to whomever (M$?) for funding $CO's ability to make this all possible!
--SuperBug
Communism has been tried before,
Incorrect. Communism has never been attempted by any human civilization. You may have been confused by the Soviet Bolsheviks, who claimed to be "Communist", but they were liars. As were the Maoists who imitated them.
If Communism is ever tried, it might succeed in one of a few ways. Possibly, Marx will have been correct, and the natural evolution of a mature, capitalist society will be towards greater and greater corporate control, until a handful of merged companies + unions control the entire economy, and are indistinguishable from the government.
Or, there's the even more off-the-wall chance that a resurgence of Christianity will bring with it the recognition that their religion is doctrinally Communist (as laid out in Matthew 25:44, amoung many other places). Some people think Communism implies atheism, but they are independent social factors. A strong religion might be one way to overcome the natural greed that impedes Communism.
If the GPL is ruled invalid, why would companies only then steal the code? The code is still owned by the copyright holder. All the GPL does is pass on extra permissions to copy. Without the GPL to allow copying, no copying is valid except by the copyright holder.
Why the dickens would thieves wait to steal?
As for the chances of the GPL being ruled invalid, for what cause? It does not remove permissions, it only adds permissions. If it is ruled that it violates the copyright clause of the constitution because it expands on said clause, then every license does, including every EULA out there. You think Microsoft wants that?
Infuriate left and right
Why do people seem to think that Opensource and GPL are one in the same?
If the GPL is shot down in court people will just move to BSD type licenses.
The GPL mindset is designed, at the very core, with the sole end goal of making the best computer program possible.
Even if you've missed the constant dogma of promoting freedom, you need look no further than the first two sentenses of the GPL's preampble:
What makes this a troll is the tension between "Free Software" and the "Open Source". Richard Stallman, for the last few years, as argued that the term "open source" is a deliberate attempt to discard the importance of freedom (the clear purpose of GNU, the FSF and the GPL) and instead emphasize the superior performance and development of software. On the other hand, OSS advocates like Eric Raymond intended to "rebrand" free software to "sell" it to businesses, primarily by chaning the name to something less ambigious (in English) and by emphasizing characteristics that commercial interests care about (mostly superior software and development methodology).
Many a bitter flame war has errupted over this.
PJRC: Electronic Projects, 8051 Microcontroller Tools
However, wrt the GPL, we're talking about a contract.
I thought the GPL was a grant of rights, not a contract.
If you don't like communism, just say so, but no need to get derogotory about it.
/is/ selfish, and I am totally in favour of unfair systems, as long as I get the best out of them. But at least I can admit that to myself and others.
The intent of communism is that everyone is equal and should be treated fairly, the basic premise is that everyone deserves to be part of a sharing community where people aren't taken advantage of. Everyone that can provide, should. And everyone that needs, should be given. In such a society no-one shold be considered a freeloader, because everyone should pitch in as much as they can.
Capitalism could be viewed as the opposite, where everyone is out for themselves rather than for the benefit of the whole.
Of course, communism is always doomed to failure because humanity is inately selfish (a necessary evolutionary trait), and the chance of a benevolent leadership persisting indefinately is unlikely.
However the fact that the ideals of communism are benevolent should not be overlooked. And it is uninformed and rude to suggest that an ideological system that exists only as a fanciful mental construct in which everyone is truly equal should in some way be feared and/or insulted. Perhaps this is just a left-over fear from the Cold War? But let's stop thinking of comunism as being the opposite of democracy, and let's stop thinking that capitalism is identical to democracy.
As it happens, while I hold many socialist views, I must confess that the core of my being
You sound like a bigot. Replace "Old white men" with any of your favourite derogitory words and you would sound essentially the same. There are alot of non-"OWM" who would jump at the chance to screw over their fellow man.
The basic problem? Instead of taking responsability for their circumstances, the American underclass attempts to santify otherwise bad behaviour. When "OWM" is shouted from the desktop, nobody seems to be offended, but if they choose a different phrase, watch out! Unless you know a particular "OWM" before you judge him, you are prejudging him, and last time I checked perjudice and bigotry are synonyms.
There is a cardinal rule of society which has withstood the test of time:
If you think small you will always be small.
Fast machines, powerfull AI, impulsive invention,... All I lack is a good espresso machine!
That's called fascism. And yes, there have been academic papers categorizing fascism then comparing modern American politics. American Fascism is a real possiblility, just because they won't all dress up like Nazis and try to kill an entire ethnic group or two outright doesn't mean it's not fascism.
Fascism is a danger to all democratic states, as it requires a democratic state to breed fascism. Read this for some primer info:
Rush, Newspeak and Fascism: An exegesis
BTW, Communism is bunk. It will never work, black markets are part of a body of evidence that shows humans are pre-disposed to capitalism at some level. Also Marx was railing agains the oligarchic crony capitalism, not the free and fair markets that the large part of American capitalism enshrines. Marx would probably be an economist if he'd grown up in modern America. But, he'd still see the danger of the crony capitalism we've seen with the recent Wall Street fraud. He'd probably be rapidly anti-Fascist too.
Quit sitting around on the fringes between libertarians, neo-cons and commies. There have been a lot of moderate voices who have studied all of these different systems and agree that free markets with enough regulation to keep the markets fair for new entrants is the wisest course. Regulate where it makes sense, free markets where it benefits all citizens. As Roosevelts' VP Henry Wallace once said,
Arrogance is Confidence which lacks integrity. -- me
> If the gpl gets declared invalid ...
Then US copyright law will need to be evaluated from first principles. The GPL is very straightforward, and is merely an application of copyright interests, making specific grants of distribution rights which are reserved to authors under copyright law.
If there is anything to find "invalid" about the GPL, it's going to be very, very difficult for such a finding to be narrowly tailored so that it only affects the GPL and does not affect every other agreement that has ever been made under copyright law, and it's also going to be a challenge for a court to make a finding that ONLY respects the GPL, because that would not pass the basic test of fairness and gets into 14th Amendment territory.
No judge is going to order the GPL "invalid" without stating the reasons. Any reasons given are guaranteed to affect other licenses. Without reasons given, it would obviously be a case of prejudice against the "GPL".
There might be specific problems with the GPL, but the overall implication of the agreement is solid and doesn't do much besides exercise an author's right under copyright law. I have never heard an argument against the GPL that does not abridge authors' rights under copyright law, and I doubt that such an argument can be made.
-fb Everything not expressly forbidden is now mandatory.
If Linux users loudly boycott SCO clients, SCO will back down FAST.
No, they won't.
Linux users aren't enough of the population to pull off an effective boycott (except perhaps in some technology sectors where we make a disproportionate amount of purchasing decisions).
The companies you listed purchased something from a company which later got bought by a company which later turned evil. Punishing them for it would be ridiculous.
SCO isn't a technology company any more. They've never made a profit by selling products, and never will. They have enough venture capital now to finish their lawsuit regardless of what happens to their business. If by some freak chance they won these cases then their sales revenue would be a drop in the bucket that they could afford to lose. By the time they lose this case the executives will have all cashed out and won't care what happens to the company afterward.