You're making unwarranted assumptions about my politics. I would have tried like hell to get out of the totalitarian societies too, just like people tried like hell to get out of the horrible feudal societies of Europe to come to the United States. Saying that libertarianism is a utopian fantasy hardly makes one pro-communist or pro-king.
In saying that the US was MORE libertarian than Europe, you're missing the point entirely. Europe was still a collection of class-ridden, largely aristocratic, frankly, largely monarchic societies. To say the United States was more libertarian is technically true, but not the whole story. The United States was less class-ridden, aristocratic, and monarchic than, say, Junker-ruled Saxony.
But your hypothetical of "we coulda got from there to here without government" is just ridiculous. Seriously, business has fought every single law which tried to help workers. You would probably still be slaving away in a coal mine for 16 hours a day, if you hadn't lost an arm working in a mill at 8 years old if it weren't for people who believed that there was a role for government.
For-profit ventures rarely take a long view, and they rarely do anything for the common good. No for profit venture does basic science. They just don't, and with good reason. And if they did do basic science, they wouldn't disseminate the results, again with good reason.
Last, how long do you think it would take before there would be NO education in your libertarian utopia except for those wealthy enough to pay for it? Exactly one generation, is my bet. It's in the best interests of any ruling class (whether economic or hereditary) to maintain a poorly educated subservient underclass, and why would they do any different?
What fascinates me about libertarians is that they start from the premise that all government power is evil because people are evil, and then assume that if there are no checks on the on the aggregation and control of economic power, that somehow, that world would no longer have any evil wielders of power in it. People are evil. You need balances against government, and against private power. It's proper for government to serve its citizens, and try to protect them. Just because you're feeling twisted up about paying your taxes doesn't mean that government is inherently evil, or that "no government" is inherently good.
No one else DID. Have you done much reading on the conditions of the working class in the 19th and early 20th century?
I'm always amazed at this libertarian fantasy that if government would just get out of the way, a thousand beautiful and perfect little roses of private enterprise and charity would blossom. It's a fantasy which could only arise among those who have no sense of history or of the benefits they reap on a daily basis from the involvement of government.
For those who may be tempted by this, it's part of a fringe anti-tax, anti-government movement. There are clear ties between the extremists of this movement and the various militia movements.
Also, a big transfer from oil companies directly to citizens in the form of the permanent fund dividend, and unless I'm gravely mistaken, a serious budget deficit in the making.
How is Frank Murkowski going to solve that, exactly?
So you're saying there's a wealth transfer from tourists to the local population! That's just wrong! Damn taxes, supporting the NH government on the backs of the out of staters!
Roads, the Internet, basic scientific research, education, unemployment, national defense, police, firefighters, food safety regulation, zoning enforcement, environmental safety regulations, occupational safety regulations, the 40 hour work week, parks, and the list goes on.
Anti-tax wingnuts amaze me, because they seem to think that nothing they use is touched by the government, when in reality, government is responsible for the vast majority of the things that make life for most people livable, and not some 19th century poorhouse sweatshop hell.
in the category of for-what-its-worth, i spent a couple years at a company doing some genuinely innovative things, and filing patents on the same.
just to give you a sense of "genuinely innovative", we would take the technology to experts in the field (people who had been working with that general class of technology for 10-20 years), to get a response of "you can't do that", followed by about an hour of explanation, at which point the response became "you can do that? wow! when can we have one?".
there are interesting and innovative patents granted every day for new and valuable inventions. sadly, there is also a lot of cruft like this. -----
I use a yahoo email address for newsletters, registration, etc. I got maybe 5 of the nonsense word spams a couple weeks ago, marked them as spam, and every one of them's gone into my bulk folder since then.
Of course, Yahoo's false positive rate on newsletters is atrocious, but it's easy enough to pick those out and then empty the bulk folder.
Just curious, anybody know what Yahoo's using for spam filtration? -----
True, but you've got to back the bullshit with the money, or it just looks like bullshit. Novell might be bullshitting (intuitively, probably not), but they're putting the money down. -----
You're still free to modify the software, but it would be patently unreasonable to ask someone else to cover your butt if you make changes or implement changes other than those that the indemnifier would provide.
You can still get under the hood and add the nitrous, but you can't sue Honda when you wipe out because you burned through the brakes trying to stop at the end of the street run. -----
I understand your frustration (really, I do), but...
1) This doesn't show that SCO's tactics are working except to the extent that Novell's uber-risk-averse corporate customers are a little twitchy. These folks, just for what it's worth, have institutionalized fear of risk in their legal departments far beyond any rational relationship to the real world. Novell is just taking advantage of the situation to (1) sell a little insurance and (2) stand behind their product in the only way that really counts -- money in theoretically large amounts.
2) I'm going to skip over the RIAA/MPAA stuff, for now, because it's better that I don't get started.
3) Education works. Absolutely. So does standing up behind the product. Showing is better than telling. As far as the press releases, SCO puts those out to services which distribute them (SCO pays the services, by the way) to reporters and other industry influences. Then the reporters parrot SCO. Bad practice? Yep. Can it be countered? Yep, with exactly the same tactic. Sad? Oh, yes. -----
Well, in corporate sales, as in poker, money talks and bullshit walks.
Novell can say over and over and over again in excruciating detail why they think that SCO is full of it, but unless and until they put their money on the line and actually stand up to take some risk with their customers, no-one will really believe them. -----
Basically, if one uses code which is infringing someone else's copyright or patent, the IP owner can come and ask that it be stopped. They typically won't bother individual users, because even if they got damages from one user, they can't get enough for the one use of the one copy to cover even one day of lawyer time. (Compare with the Napster/Kazaa case, where each song on a HDD is an infringement, and each infringement gets you damages, and you can see why it's worth them going after high-volume users.)
So, they would go after the publisher or distributor of the code (IBM in the instant case).
As far as not knowing, well, that's not really a defense to an infringement claim. It is a defense to a willful infringement claim, which usually has enhanced damages associated with it.
Hope that helps. I wouldn't worry too much about a cease and desist letter from SCO if I were you.
NOTE: This is not legal advice, and I have not done this specific kind of work in a while. Handle with care. Do not shake. Take with grain of salt. -----
"Unfair Business Practices" is a pretty vague and pretty broad term. California, for example, has an unfair business practices law, which let's see here, to clip from another article...
allows any individual or entity that is the victim of an "unfair business practice" or of "deceptive advertising" to sue for injunctive relief, damages, "restitution of unlawful gains," attorney's fees, and other penalties. It further makes it an unlawful practice to violate virtually any regulatory law respecting trade or industry, and beyond that, even to just ordinary bad business behavior.
But that's a purely state law, and it's generally thought of as a "junk" claim that you always throw in at the tail end of any complaint against a business. Also, that's almost always one of the "everything else is excluded" which is excluded in an indemnification term.
I would bet a big chunk of my liquid assets (that's right folks, my BEER) that the nature of the indemnification will be limited to claimed infringements of intellectual property by third parties holding rights to the original Unix (for lack of a better term), and relating specifically to intellectual property rights associated with the original Unix, and not much else.
Nobody, and I mean nobody, provides indemnification for claims of any kind by any party, no matter how they arise. That's a really damn fine way to go out of business, in which case ain't no indemnification nohow. -----
I wish I had some mod points to give you, but hopefully someone will take care of that.
I've seen the inside of a fair number of discussions on whether and to what extent to provide indemnification in contract, and the calculus is pretty damn simple.
1) How much are we making on this deal/this product?
2) How big would the exposure be (including legal fees, etc.) if we provided x kind of indemnity? (There are a LOT of different ways to structure indemnification provisions, and I don't know what Novell has in mind.)
3) What is the likelihood that we'll have to pay out?
If revenue is less than risk magnitude multiplied by exposure estimate, you don't indemnify unless you're willing to play craps with the future of your company. Period. Punto. End of story.
Now, Novell is saying it will indemnify people on a PROSPECTIVE BASIS if those people contribute to Novell's revenue stream. This is a pretty reasonable bargain. I don't think there's a CFO or institutional investor alive who would agree to let their company go BACK to the customer base and add risk to the company's profile when all of the pricing to those customers was calculated using a lower risk profile.
In other words, there's no such thing as a free lunch. ------
The thing is that the SCO cases are AFAIK, in Federal court. Federal court requires only "notice pleading". That means that the plaintiff (SCO) just needs to say in the complaint that they have is a claim of one of several sorts against the defendant which falls into federal jurisdiction. That's it. They don't have to be terribly specific, which makes it easy to FILE the lawsuit. That measn that they didn't HAVE to do a lot of homework before filing, especially if there are reasons behind the case other than just being or feeling wronged.
Now, I don't have a lot of insight into the structural incentives that SCO might have, but here are a couple of (pure) speculations:
1) Hey, it's just a lottery for a company which doesn't have anything else by way of business assets.
2) They might be trying to position themselves as an acquisition target for Microsoft. Microsoft wouldn't object to purchasing some of those lawsuits, and and they might want some of the IP. The lawsuits against IBM could very nicely be settled in the context of the other business relationships that MSFT and IBM have, and Microsoft could also keep the lawsuits against the Linux providers running.
3) I don't know the true movers behind their capital sources (not familiar with most of those institutional investors), but SCO could be acting as a catspaw for someone else.
This is PURE speculation. I am NOT accusing anyone named above of anything like this. SCO may very well have done all of their homework and have a strong case against all of the Linux defendants. It doesn't look like it from the outside, but that can be deceiving. ---------
I spent a few years drafting exactly these kinds of agreements, and having read the SCO/Novell Asset Purchase Agreement, including the dreaded Amendment Number 2, I have to confess, I don't know what SCO's lawyers were thinking.
When you buy technology, you buy 2 classes of assets: (1) the tangible (which includes stored electrons) real-world implementations of the stuff, like copies of the software, units of hardware, copies of manuals, and so on; and (2) the intellectual property rights, including copyright and patent, embodied in the tangible stuff.
The way I'm reading the contract (which could be wrong -- I took a pretty quick pass through it) Novell sold SCO the "stuff" without any of the rights associated with the stuff. In other words, because the stuff was software, Novell sold them pretty much nothing.
When I've done these deals in the past, the purchaser either gets the associated IP rights as part of the deal, or a REALLY broad license to them. From the looks of things, SCO didn't even have the right to make copies of the stuff it bought. That's completely incoherent from a transactional point of view.
That argues for 2 things: (1) SCO's lawyers really pooched it in this deal, which is certainly possible -- I've seen some really dumb language come out of high-end firms, and/or (2) SCO is right, and the agreement couldn't possibly mean what Novell thinks it means, because that makes no sense. SCO might not be able to get that enforced without a court action to do what's called "reformation" of the contract, where the court goes in and rewrites the contract to make it coherent. This is a really rare remedy, BTW, for obvious reasons.
Please, someone who's read this document more closely, feel free to correct me. -------
It's too bad that's been your experience. I've found the SF Bay area to be intolerant, though in my experience the entitlement/intolerance culture here cuts across political lines. Regardless of the person's actual beliefs, they'll be nasty about any differing beliefs. -----
Interesting. That's probably true for just-plain-immigrants, but if (for example) there's a cultural impetus beyond national origin, like religion, I wonder what happens.
Also, by a couple generations, the wealth is built, so (1) it's easy enough to maintain and grow it and (2) the culture of affluence and the concomitant expectations for children can take over. ------
Hmmm...IANAH, but I have to take exception to your first sentence.
The radical increase in harm to health for male homosexual activity would be a stasistical glitch resulting from the late 20th century appearance of HIV, and the lack of knowledge about the same, and the means of transmission. Safer sex practices should even out the spike eventually. Prior to that, I'm betting that heterosexual activity was statistically more hazardous, based on the health risks of childbearing for women, just as I suspect it is now in Subsaharan Africa.
Female homosexual activity is probably the safest of all of the possibilities.
Slashdot Mirror
You're making unwarranted assumptions about my politics. I would have tried like hell to get out of the totalitarian societies too, just like people tried like hell to get out of the horrible feudal societies of Europe to come to the United States. Saying that libertarianism is a utopian fantasy hardly makes one pro-communist or pro-king.
In saying that the US was MORE libertarian than Europe, you're missing the point entirely. Europe was still a collection of class-ridden, largely aristocratic, frankly, largely monarchic societies. To say the United States was more libertarian is technically true, but not the whole story. The United States was less class-ridden, aristocratic, and monarchic than, say, Junker-ruled Saxony.
But your hypothetical of "we coulda got from there to here without government" is just ridiculous. Seriously, business has fought every single law which tried to help workers. You would probably still be slaving away in a coal mine for 16 hours a day, if you hadn't lost an arm working in a mill at 8 years old if it weren't for people who believed that there was a role for government.
For-profit ventures rarely take a long view, and they rarely do anything for the common good. No for profit venture does basic science. They just don't, and with good reason. And if they did do basic science, they wouldn't disseminate the results, again with good reason.
Last, how long do you think it would take before there would be NO education in your libertarian utopia except for those wealthy enough to pay for it? Exactly one generation, is my bet. It's in the best interests of any ruling class (whether economic or hereditary) to maintain a poorly educated subservient underclass, and why would they do any different?
What fascinates me about libertarians is that they start from the premise that all government power is evil because people are evil, and then assume that if there are no checks on the on the aggregation and control of economic power, that somehow, that world would no longer have any evil wielders of power in it. People are evil. You need balances against government, and against private power. It's proper for government to serve its citizens, and try to protect them. Just because you're feeling twisted up about paying your taxes doesn't mean that government is inherently evil, or that "no government" is inherently good.
No one else DID. Have you done much reading on the conditions of the working class in the 19th and early 20th century?
I'm always amazed at this libertarian fantasy that if government would just get out of the way, a thousand beautiful and perfect little roses of private enterprise and charity would blossom. It's a fantasy which could only arise among those who have no sense of history or of the benefits they reap on a daily basis from the involvement of government.
For those who may be tempted by this, it's part of a fringe anti-tax, anti-government movement. There are clear ties between the extremists of this movement and the various militia movements.
Forget it. Short-sighted cyberlibertarianism is the dominant meme here.
--
Also, a big transfer from oil companies directly to citizens in the form of the permanent fund dividend, and unless I'm gravely mistaken, a serious budget deficit in the making.
How is Frank Murkowski going to solve that, exactly?
So you're saying there's a wealth transfer from tourists to the local population! That's just wrong! Damn taxes, supporting the NH government on the backs of the out of staters!
Roads, the Internet, basic scientific research, education, unemployment, national defense, police, firefighters, food safety regulation, zoning enforcement, environmental safety regulations, occupational safety regulations, the 40 hour work week, parks, and the list goes on.
Anti-tax wingnuts amaze me, because they seem to think that nothing they use is touched by the government, when in reality, government is responsible for the vast majority of the things that make life for most people livable, and not some 19th century poorhouse sweatshop hell.
The Practice Effect, David Brin.
i should clarify. the company was doing some pretty innovative things. i was not doing anything particularly special.
-----
in the category of for-what-its-worth, i spent a couple years at a company doing some genuinely innovative things, and filing patents on the same.
just to give you a sense of "genuinely innovative", we would take the technology to experts in the field (people who had been working with that general class of technology for 10-20 years), to get a response of "you can't do that", followed by about an hour of explanation, at which point the response became "you can do that? wow! when can we have one?".
there are interesting and innovative patents granted every day for new and valuable inventions. sadly, there is also a lot of cruft like this.
-----
I use a yahoo email address for newsletters, registration, etc. I got maybe 5 of the nonsense word spams a couple weeks ago, marked them as spam, and every one of them's gone into my bulk folder since then.
Of course, Yahoo's false positive rate on newsletters is atrocious, but it's easy enough to pick those out and then empty the bulk folder.
Just curious, anybody know what Yahoo's using for spam filtration?
-----
True, but you've got to back the bullshit with the money, or it just looks like bullshit. Novell might be bullshitting (intuitively, probably not), but they're putting the money down.
-----
How do you figure that?
You're still free to modify the software, but it would be patently unreasonable to ask someone else to cover your butt if you make changes or implement changes other than those that the indemnifier would provide.
You can still get under the hood and add the nitrous, but you can't sue Honda when you wipe out because you burned through the brakes trying to stop at the end of the street run.
-----
I understand your frustration (really, I do), but...
1) This doesn't show that SCO's tactics are working except to the extent that Novell's uber-risk-averse corporate customers are a little twitchy. These folks, just for what it's worth, have institutionalized fear of risk in their legal departments far beyond any rational relationship to the real world. Novell is just taking advantage of the situation to (1) sell a little insurance and (2) stand behind their product in the only way that really counts -- money in theoretically large amounts.
2) I'm going to skip over the RIAA/MPAA stuff, for now, because it's better that I don't get started.
3) Education works. Absolutely. So does standing up behind the product. Showing is better than telling. As far as the press releases, SCO puts those out to services which distribute them (SCO pays the services, by the way) to reporters and other industry influences. Then the reporters parrot SCO. Bad practice? Yep. Can it be countered? Yep, with exactly the same tactic. Sad? Oh, yes.
-----
Well, in corporate sales, as in poker, money talks and bullshit walks.
Novell can say over and over and over again in excruciating detail why they think that SCO is full of it, but unless and until they put their money on the line and actually stand up to take some risk with their customers, no-one will really believe them.
-----
I can shed a little light.
Basically, if one uses code which is infringing someone else's copyright or patent, the IP owner can come and ask that it be stopped. They typically won't bother individual users, because even if they got damages from one user, they can't get enough for the one use of the one copy to cover even one day of lawyer time. (Compare with the Napster/Kazaa case, where each song on a HDD is an infringement, and each infringement gets you damages, and you can see why it's worth them going after high-volume users.)
So, they would go after the publisher or distributor of the code (IBM in the instant case).
As far as not knowing, well, that's not really a defense to an infringement claim. It is a defense to a willful infringement claim, which usually has enhanced damages associated with it.
Hope that helps. I wouldn't worry too much about a cease and desist letter from SCO if I were you.
NOTE: This is not legal advice, and I have not done this specific kind of work in a while. Handle with care. Do not shake. Take with grain of salt.
-----
But that's a purely state law, and it's generally thought of as a "junk" claim that you always throw in at the tail end of any complaint against a business. Also, that's almost always one of the "everything else is excluded" which is excluded in an indemnification term.
Nah, I wouldn't sweat that one.
-----
I would bet a big chunk of my liquid assets (that's right folks, my BEER) that the nature of the indemnification will be limited to claimed infringements of intellectual property by third parties holding rights to the original Unix (for lack of a better term), and relating specifically to intellectual property rights associated with the original Unix, and not much else.
Nobody, and I mean nobody, provides indemnification for claims of any kind by any party, no matter how they arise. That's a really damn fine way to go out of business, in which case ain't no indemnification nohow.
-----
I wish I had some mod points to give you, but hopefully someone will take care of that.
I've seen the inside of a fair number of discussions on whether and to what extent to provide indemnification in contract, and the calculus is pretty damn simple.
1) How much are we making on this deal/this product?
2) How big would the exposure be (including legal fees, etc.) if we provided x kind of indemnity? (There are a LOT of different ways to structure indemnification provisions, and I don't know what Novell has in mind.)
3) What is the likelihood that we'll have to pay out?
If revenue is less than risk magnitude multiplied by exposure estimate, you don't indemnify unless you're willing to play craps with the future of your company. Period. Punto. End of story.
Now, Novell is saying it will indemnify people on a PROSPECTIVE BASIS if those people contribute to Novell's revenue stream. This is a pretty reasonable bargain. I don't think there's a CFO or institutional investor alive who would agree to let their company go BACK to the customer base and add risk to the company's profile when all of the pricing to those customers was calculated using a lower risk profile.
In other words, there's no such thing as a free lunch.
------
The thing is that the SCO cases are AFAIK, in Federal court. Federal court requires only "notice pleading". That means that the plaintiff (SCO) just needs to say in the complaint that they have is a claim of one of several sorts against the defendant which falls into federal jurisdiction. That's it. They don't have to be terribly specific, which makes it easy to FILE the lawsuit. That measn that they didn't HAVE to do a lot of homework before filing, especially if there are reasons behind the case other than just being or feeling wronged.
Now, I don't have a lot of insight into the structural incentives that SCO might have, but here are a couple of (pure) speculations:
1) Hey, it's just a lottery for a company which doesn't have anything else by way of business assets.
2) They might be trying to position themselves as an acquisition target for Microsoft. Microsoft wouldn't object to purchasing some of those lawsuits, and and they might want some of the IP. The lawsuits against IBM could very nicely be settled in the context of the other business relationships that MSFT and IBM have, and Microsoft could also keep the lawsuits against the Linux providers running.
3) I don't know the true movers behind their capital sources (not familiar with most of those institutional investors), but SCO could be acting as a catspaw for someone else.
This is PURE speculation. I am NOT accusing anyone named above of anything like this. SCO may very well have done all of their homework and have a strong case against all of the Linux defendants. It doesn't look like it from the outside, but that can be deceiving.
---------
I spent a few years drafting exactly these kinds of agreements, and having read the SCO/Novell Asset Purchase Agreement, including the dreaded Amendment Number 2, I have to confess, I don't know what SCO's lawyers were thinking.
When you buy technology, you buy 2 classes of assets: (1) the tangible (which includes stored electrons) real-world implementations of the stuff, like copies of the software, units of hardware, copies of manuals, and so on; and (2) the intellectual property rights, including copyright and patent, embodied in the tangible stuff.
The way I'm reading the contract (which could be wrong -- I took a pretty quick pass through it) Novell sold SCO the "stuff" without any of the rights associated with the stuff. In other words, because the stuff was software, Novell sold them pretty much nothing.
When I've done these deals in the past, the purchaser either gets the associated IP rights as part of the deal, or a REALLY broad license to them. From the looks of things, SCO didn't even have the right to make copies of the stuff it bought. That's completely incoherent from a transactional point of view.
That argues for 2 things: (1) SCO's lawyers really pooched it in this deal, which is certainly possible -- I've seen some really dumb language come out of high-end firms, and/or (2) SCO is right, and the agreement couldn't possibly mean what Novell thinks it means, because that makes no sense. SCO might not be able to get that enforced without a court action to do what's called "reformation" of the contract, where the court goes in and rewrites the contract to make it coherent. This is a really rare remedy, BTW, for obvious reasons.
Please, someone who's read this document more closely, feel free to correct me.
-------
stone guarantee they're working off of least-common denominator. that's cable company policy -- just think about all of the STBs they have deployed.
It's too bad that's been your experience. I've found the SF Bay area to be intolerant, though in my experience the entitlement/intolerance culture here cuts across political lines. Regardless of the person's actual beliefs, they'll be nasty about any differing beliefs.
-----
Interesting. That's probably true for just-plain-immigrants, but if (for example) there's a cultural impetus beyond national origin, like religion, I wonder what happens.
Also, by a couple generations, the wealth is built, so (1) it's easy enough to maintain and grow it and (2) the culture of affluence and the concomitant expectations for children can take over.
------
Hmmm...IANAH, but I have to take exception to your first sentence.
The radical increase in harm to health for male homosexual activity would be a stasistical glitch resulting from the late 20th century appearance of HIV, and the lack of knowledge about the same, and the means of transmission. Safer sex practices should even out the spike eventually. Prior to that, I'm betting that heterosexual activity was statistically more hazardous, based on the health risks of childbearing for women, just as I suspect it is now in Subsaharan Africa.
Female homosexual activity is probably the safest of all of the possibilities.