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

Can you say, "Pump and Dump"?

[grasshoppa]

The only problem with all things I see here is DarlandCo. will probably never see the inside of a prison cell, which is unfortunate.

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

[Awptimus Prime]

Not really debating or disagreeing with anyone here but:

Pump and dump is correct. Any attempts to apply any logic to this are just a waste of time.

This is exactly why SCO is taking it's issues up in the US courts. With the ignorance and insanity that dominates our legal system, they actually have a shot. A long shot, yes; but a shot, none the less.

You have to remember, a lot of the people who sit in high political offices are former judges. 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. They probably don't care about Linux one bit, nor grasp the importance of the GPL. It's more likely someone in this mindset would think "Well, if this free stuff would go away, then people would have to buy software from the guys I've invested in.. More money! Woohoo!"...

If there was any sanity or fairness left in our courts and political systems, the DMCA would have never gone into law. Nor would we have gone to war in Iraq. It's a dark time for the little guy. :(

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

[1010011010]

Interesting nugget from the "executive and board bios" page:

Ralph J. Yarro III, chairman, has served as a member of the Company's Board of Directors since August 1998. Mr. Yarro has served as the President and Chief Executive Officer of The Canopy Group, Inc. since April 1995. Prior to joining The Canopy Group, Inc., he served as a graphic artist for the Noorda Family Trust. Mr. Yarro holds a BA from Brigham Young University.

Ooo... Graphic designer. BA degree. What the fuck was Ray Noorda thinking?

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

[the_mad_poster]

It's a dark time for the little guy. :(

Care to explain when it hasn't been? Perhaps when people were being drafted and shipped to Vietnam, as - I quote - "meat"? Perhaps when streets burned and protestors rioted to give the black community equal rights as humans and citizens?

Or, was it not a dark time during slavery? Or while non-WASPs and women were being persecuted at the birth of this country? Or, let's step out of the U.S. During slavery in the U.K.? In Africa? During the times when serfs were squashed under the thumbs of opressive theocracies?

Perhaps, maybe, it wasn't a dark time before the veneer of "civilization" took hold? When the strong ruled by might alone - brutish fist and club?

It has ALWAYS been a dark time for the little guy. You miss something important though...

If the little guy can get organized, it can actually fight back now. All the little guys and gals are networked. We can MAKE our wills heard if we simply put the effort into it. How many people here know how to Google bomb? We could overrun Google with our own decentralized propaganda in a month. That's a small example of what could be accomplished if the little guys and gals all worked together to a common end. We can make people listen to the little guy for the first time in history without widespread violence and upheaval.

It's still a dark time for the little guy... but it's certainly never been brighter.

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

[b_pretender]

You have to remember, a lot of the people who sit in high political offices are former judges. 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. They probably don't care about Linux one bit, nor grasp the importance of the GPL. It's more likely someone in this mindset would think "Well, if this free stuff would go away, then people would have to buy software from the guys I've invested in.. More money! Woohoo!"...

If there was any sanity or fairness left in our courts and political systems, the DMCA would have never gone into law. Nor would we have gone to war in Iraq [google.com]. It's a dark time for the little guy. :(

You're pretty far off of the point. With the exception of the Microsoft handslapping, the judicial system has been pretty fair and removed from Govt politics. The US Govt was set up that way, and of all of the branches of Government, the judicial branch to this day remains mostly neutral and unbiased.

You make it seem like it's a bad thing that some judge doesn't care about Linux or grasp the importance of the GPL. Well, Awptimus, that is the important point. We don't want the judge to care about Linux or bias his decision based upon the importance of the copyright license. We only want him to remain fair and unbiased and to determine how the different aspects of the case fit into the US Copyright Law. The copyright system is currently pretty screwed up, but it's not the job of some individual judge to take matters into his own hands when it comes to the all-important GPL. It's better for the USA if he only does his job to fit the SCO case into existing law. Leave it to law makers to make laws.

Finally, in your last comment, you seem to link the courts to drafting DMCA and to the war in Iraq... both of which the judicial system had NOTHING to do with. I think a course or a book on the US Government would be good for you since you either aren't from the USA or you failed 9th grade Govt.

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

[Flower]

Ummm, riight. A court is going to deliberately flaunt the Berne Convention and the Constitution and tell thousands of American and foreign developers that their work which should be owned by them for life+50 is now PD. Or that code contracted for by RH, SuSE and the like no longer belongs to them.

Yeah, I can see that happening. Not.

I can suspend disbelief (briefly since I have a vivid imagination) and envision a world where the GPL is invalidated but that's way too far out.

EFF

[erikharrison]

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)

Strung up by their own rope

[BlackSabbath]

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.

This is a good thing.

[Jaywalk]

It sounds like the GPL is going to get an airing in court. IBM and most of the other big firms with a stake in Linux probably want that because the GPL is the cornerstone on which Linux was built. If the GPL can't handle a legal challenge, it's better to find that out sooner rather than later. This makes it pretty much guaranteed that IBM won't buy out SCO; they'd rather see the legal test through to the end and make sure their reliance on Linux being owned openly (leaving them free to sell hardware and services) stands up in court.

If the GPL stands up in court, it's SCO's case that is going to be crippled.

Re:SCOX ticker says it all

[AEton]

"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.

Re:I can't take much more of this

[TedCheshireAcad]

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

Have to have GPL killed.. they've abused it.

[gsfprez]

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.

Re:I can't take much more of this

[mcc]

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.

IBM != "the little guy"

[gladbach]

... 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.

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

[Minna Kirai]

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.

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

[GOD_ALMIGHTY]

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.

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,

"Our country is peopled by those who left Europe to escape regulation of one kind or another. But now both America and the world are growing up. And freedom in a grown-up world is different from freedom in a pioneer world. As a nation grows and matures, the traffic inevitably gets denser, and you need more traffic lights. Those who urge the removal of trade traffic lights speak in behalf of anarchy."