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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!
7th Affirmative Defense: The GPL is selectively enforced.
8th Affirmative Defense: The GPL is Unconstitutional and invalid.
9th Affirmative Defense: ???
10th Affirmative Defense: Profit!
Whatever it is I'm complaining about, I'm sure the Republicans did it. This is
At least he proves that people can run around beeing flaming idiots, thus upholding the bill of rights.
"The GPL violates the U.S. Constitution, together with copyright (laws),"
:)
Yes! I, too, feel that current copyright laws violate the U. S. Constitution! I'm glad somebody has finally come on-board with this, even if it is SCO.
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)
Later,
Phil
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 stands up in court, it's SCO's case that is going to be crippled.
===== Murphy's Law is recursive. =====
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?
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.
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....
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.
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.
Captialism: Man exploits his fellow man.
Communism: The other way around.
It's not offtopic, dumbass. It's orthogonal.
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.
/. 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.
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
Saying Android is a family of phones is akin to saying Linux is a family of PCs.
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?