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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.
Later,
Phil
What on earth? IANAL, but isn't the whole basis of copyright law that the copyright holder can do whatever the hell he wants to with his material? It may be the case that the GPL is selectively enforced--possible if highly doubtful--but to call it unconstitutional is like saying that laws protecting churches from arson (like all buildings are protected from arson) are unconstitutional because they represent an establishment of religion.
This is how I understand it:
Copyright law says that I, as creator of my work, can control how it is used and by whom.
Licences give me the power to selectively allow freedoms to be given out.
The Microsoft EULA is an example of such a licence, in which paying the licence fee for a Microsoft product allows limited usage of the product as per the terms of the licence. That's what one pays for when they get the product, the right to use it under the terms of the accompanying licence.
The General Public Licence allows one as a Copyright owner to selectively give rights to users to use the product as long as they accept the licence. Said licence tells them that any derivative works must also be licenced under the GPL.
So what am I missing here? Is SCO saying that licences shouldn't exist? Are they saying that Copyright law is wrong? Have they just simply gone out of their minds? Because the licensing business model has existed in the software industry for ages.
The idea behind the GPL is nothing new, it's just intended to guarantee freedom rather than restrict it. It's another type of licence, and it's certainly as valid as something any other software vendor would choose to put on their products.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
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
I guess they don't know the difference between copyright and trademark. Selective enforcement has zero effect on enforcebility of copyright. Black letter law.
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.'
Export control laws? I see, now. Their defense is "We're to fucking retarded that we need a keeper. Please give us money."
If the GPL is invalid, then while SCO was redistributing Linux (and still continued to do so after bringing suit), the company was infringing copyright, because nothing other than the GPL gives SCO the privilege to do that. If SCO gets the GPL on Linux declared illegal, watch kernel contributors with deep pockets sue SCO for copyright infringement.
Will I retire or break 10K?
SCO had the gall to cite ESR's definition of 'FUD,' which at the time related the origin of the acronym as applied to IBM. When their papers were already filed with the court, ESR tacked on a little 'bonus,' which the court will read because SCO cited it:
http://catb.org/~esr/jargon/html/F/FUD.html
So after reading your post, I thought "Hm, I wonder if SCO is still distributing or selling Linux somewhere." So I went to SCO's front page just to poke at it out of mild, idle curiousity. There's a little box on the front page that says "Looking for a promotion, contest, or campaign? Enter keyword here." If you enter something that's an SCO product it forwards you there. If you enter anything else it forwards you to a search page. Okay, I thought, what the heck, let's see what happens when I type in "linux". I did so, and to my surprise was promptly forwarded to
/products/linux/ on this server.
http://www.sco.com/products/linux/, which said only:
Forbidden
You don't have permission to access
For no good reason, I find this funny.
P.S. Searching for "Caldera Linux", on the other hand, returned some search results, including this absolutely fascinating page, which describes a developer-only "technology preview" of.. "the upcoming linux 2.4 kernel". The page seems to still be under the impression you can still sign up for SCO's "OpenLinux Developer's Network". They have e-mail addresses and an 800 number that points to the voice mail of some poor fellow within SCO named "Chris Morris". Hm.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
Okay, it is just barely possible that a failure by the Free Software Foundation to enforce the GPL on works that the FSF holds the copyright to bars the FSF, as a matter of equity, form enforcing it on FSF-copyrighted works. "[M]atter of equity" is a rather broad argument, and a judge can drive a truck through it if he is so inclined, though it ups his chance of being reversed on appeal.
However, the actions of the FSF in no way impacts IBM's enforcment of its licensing terms for software to which it holds the copyright, whether or not they license it under the GPL. The FSF and IBM are different corporations, even if they, like SCO itself, have used the same license on some software.
Example: I could license software on which I hold the copyright to you under terms identical to a Microsoft license. I could then fail to enforce that license. That would in no way impact Microsoft's right to enforce its licenses on its software, ever. Similarly, how the FSF treats violations of FSF licenses to FSF code has no relevance to IBM's rights regarding violations of IBM licenses to IBM code.
Frankly, if I were the judge, I'd pin SCO's ears back for making the argument. Yes, shotgun claims area common practice, but this is especially ridiculous, and needs to be discouraged.
The Open Group may have to step in to defend the UNIX trademark as the pice at groklaw points out that they are claiming that Linux is an unauthorized workalike to UNIX(TM) however SCO has no standing to make that cliam since it is the open group who controls weather or not an OS is a UNIX(TM).
Now the open group has already stated that the UNIX trademark belongs to them and that they are neutral in matter of SCO v IBM. They have no flavor of Linux certified as a UNIX, so SCO can not arbitrarily assign the UNIX trademark. It sounds to me like the Open Group may have to step in and defend its trademark in court, as if SCO didn't already have to beat up an 800lb gorilla with a spoon.
Did Glenn Beck rape and kill a girl in 1990? gb1990.com
"The Patent Office, like it or not, derives its authority from Article 1. Section 8, Clause 8 as implemented by laws passed by Congress."
First off, the Patent & Trade Office has nothing to do with copyrights. You don't "apply" for copyrights, you automatically have them when you write something. You can register your copyright (which gives you slightly more legal edge in defending your copyright), but that's done with the Library of Congress, not PTO.
Secondly, the section you reference empowers Congress to give authors a monopoly over their works "for a limited period of time." In my opinion (which is what the words "I feel" mean), a copyright term longer than the lifespan of your average citizens is, for all realistic intents and purposes, unlimited. While a work written the day of my birth will (barring any further Bono-esque extensions) eventually become public domain, it will never happen within my lifetime so what's the point?
"Just couldn't take a clue from all the flames you got then, eh?"
I saw them (most of which I wouldn't have gotten if my post hadn't been moderated so high originally). My face turned red. I learned from the mistake and have moved on. Things like that happen when you're not a kharma whore trying to find an easy target to look smart next to.
SCO has admitted to violating the copyrights of dozens of companies and hundreds of individuals on content probably worth hundreds of millions of dollars. They are now by far the biggest pirates ever. I think it's time of all of these copyright holders to contact SCO's ISP, xo.net, and demand that SCO's site be pulled down. To do this, you send by fax or paper mail to xo.net an identification of the copyrighted work that you believe has been infringed (specifying the portions that you claim), an identification of the material that you believe to be violating it, contact information for you and for SCO, the statement "I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.", the statement, "I swear, under penalty of purjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.", and your signature. (Assuming that what google requires is what is mandated by law).
I'd enjoy the whole SCO fiasco if SCO spent the time before their case comes to trial shut off the internet for running a warez site.
Than I suspect Darl and Co will get jail-time.
Someone should have warned them about this.
GPL=void.
Samba=no longer able to be distributed.
SCO sells Samba as part of Unixware.
Willful infringement for the purpose of commercial/finanical gain.
Felony charges. Minimum 3 years in prison.
Generally, I believe that the amount of prison time is proportional to the distribution. In SCO's case, it is going to be pretty damn big.
And, you know, depending on why the GPL is declared invalid (not that I think it will be, infact, I'm pretty damn sure it won't) one of two things may occur:
a)GPL won't actually be found invalid, instead, SCO's crazy ass-ed interpretation of the GPL will force them into some kind of bind where they will be inviolation of it, and loose the right to distribute under it
b)It will be found invalid in some tiny and specific way, and only the current revision of the GPL. GPL v4 will come out quickly, fix whatever error existed, and the opensource world will have a hell of a time moving everyting over to it. Or even better, it will only be found inapplicable to the linux kernel for some crazy reason, in which GPL v3.x for linux will be released, fixing the problem.
If either of these occur, or the GPL is just plain busted, SCO execs will go to jail and owe huge fines.
Not that it is much consolation--->It would really suck if the GPL was crushed. But it would feel good that the people who did it were screwed in the end anyways.
WhiteWolf666 an exBush supporter. All you new-school,compassionate,save the children Republicans can rot in hell
I searched the SEC website and found no information about ongoing investigations. (Apparently it is their policy to not publicize investigations.) I filled out a web form on their site and was quite surprised to receive a phone call the next day from an SEC investigator.
I spoke with the gentleman for about 45 minutes. He's a stock geek, and I'm a computer geek - different worlds, to be sure.
I did my best to communicate what I believe are the essential issues in this matter - that SCO
Is filing lawsuits to manipulate potential investors' opinions about them and their products
Is lying about the core issues in the case
Is a sham - not really developing technology but using IP (their definition) to wrest dollars from "infringers," and
That the leadership within the company is pumping and potentially dumping stock
The investigator listened patiently to my explanation and asked good "process" questions - he heard what I had to say.
He indicated that he wanted to be sure that he understood my issues (IP and copyright issues are not day to day issues for them)
Unfortunately he indicated that he did not believe that he could express my concerns cogently, and that there was not enough volume of stock being sold by insiders to justify starting an investigation.
He did tell me that if we could demonstrate that SCO leaders knowingly lied about their products or other companies, he needed to know about that because that was substantive enough to justify an investigation.
Note that we don't have to find where they sold stock on the basis of the lies, only be able to demonstrate clear false statements.
I found it interesting that
a) They would contact me
b) They would listen to me
c) They want to protect the public from abusive leaders, and
d)They would show me how to help them initiate an investigation.
Find the lies and report them, and the SEC will get engaged. Remember that what seems completely obvious to a tech geek may not be clear to a stock geek. (and vice-versa) Do the legwork, find the proof and then in a clear, concise, non-inflammatory way using layman's terms communicate that to the SEC, and they will do their job. They can't do what they don't understand. Remember that they have to prove it in a court of law, not a court of open-source advocates.
Regards,
Anomaly
PS - God loves you and longs for relationship with you. If you want to know more about this, please email me.
But Herr Heisenberg, how does the electron know when I'm looking?
>If the GPL is invalid...
>then SCO is guilty of pirating the Linux kernel!!
Absolutely. It actually should be worse than that for SCO:
EVEN IF the GPL is NOT invalid, SCO has publicly rejected its terms.
So the validity of the GPL does not enter the discussion, period. SCO has no right to use the software unless it has negotiated some other license terms, period.
I'm surpised we aren't already hearing about TRO's being filed, C&D's being sent, and suits being filed on this. It's pretty simple: GPL software is licensed, not sold. Either you accept the terms of the license, or you do not. If you do not accept the terms of the license because you believe the license to be invalid or because its terms are not legal in your jurisdiction or because of other interests you may have, that's just too bad for you.
If your mortgage agreement has an illegal clause in it, you don't get your house for free.
If I don't agree with what's written on my parking ticket, it's not going to stop my car from being towed if I don't move it.
If I have legal problems that prevent me from agreeing with the GPL, I cannot use SAMBA on my network, period.
-fb Everything not expressly forbidden is now mandatory.