SCO Calls GPL Unenforceable, Void 1186
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.
SCOX ticker says it all (Score:4, Informative)
s'more for ya (Score:2, Informative)
Comment removed (Score:5, Informative)
Re:EFF (Score:3, Informative)
The doctrines of estoppel and laches are more powerful with trademarks, but they still exist to a limited extent with copyrights and patents.
Good Article at Infoworld (Score:2, Informative)
Some good quotes:
A lawyer representing the Free Software Foundation (FSF) disputed SCO's claims that the FSF is the only organization with the necessary legal standing to launch a GPL-based lawsuit. Since IBM holds the copyright to much of the Linux kernel software that is distributed under the GPL license, it has every right to enforce the GPL, he argued.
"The proper enforcer of a copyright is the copyright holder," said Eben Moglen, general counsel for the FSF. "IBM says, 'You're using a copyrighted work of ours in a fashion which is prohibited by the Copyright Act, and you're doing so without our permission. You owe us damages and you must stop.'"
Simplified Pleadings... (Score:5, Informative)
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....
Re:Can you say, "Pump and Dump"? (Score:4, Informative)
Souter - Bush I
Thomas - Bush I
Breyer - Clinton
Scalia - Reagan
Stevens - Ford
Rehnquist - Nixon
O'Connor - Reagan
Kennedy - Ford
7 our of 9 nominated by Republicans. You, sir, are a fool.
This is very common (Score:4, Informative)
/* DISCLAIMER:
This is not legal advice. You are not a client. I'm not even an attorney. If you want legal advice, contact an attorney admitted to the bar in your jurisdiction. What I am saying here is probably 100% wrong and if you do anything based on it, you are a blitering idiot who deserves whatever bad shit is very likely to befall you.
DISCLAIMER */
This isn't a big deal at all. In responding to a complaint, defendants will raise all manner of "affirmative defenses" so they cannot be later deemed to have waived them. For instance, a defense that "the complaint fails to state a claim under which relief may be granted" under Federal Rule of Civil Procedure 12(b)(6) [cornell.edu] is nearly universal, even though actually winning on that defense is rare. "Relief under FRCP 12(b)(6) is extraordinary and rarely granted," so says the case law. In fact, just about all of those FRCP 12(b) defenses are raised so as to avoid waiver.
Will SCO prevail on it? Probably not. But they've now preserved the defense for later (and for the interminable appeals that will ensue lest cooler heads prevail soon in this debacle.)
affirmative defenses and selective enforcement (Score:5, Informative)
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.
Re:Simplified Pleadings... (Score:5, Informative)
First of all, congrats on being in law school! It's definitely a fun ride. Anyway, to your point that the first affirmative defense is frivolous -- failure to state a claim is in practically *every* civil case answer, regardless of type of case (for federal cases, although it's not precisely a Rule 8 AD, many attorneys believe 12(b)(6) should be included in every answer). 12(b)(6) is really a bedrock kind of defense, one that you'll hear over and over and over again in opinions you'll read for many different classes. I don't think (or at least don't remember if) Rule 11 has ever been applied to the raising of that defense!
Re:What? (Score:5, Informative)
Copyright law only says that you, as a creator of your work, have exclusive control on whom else you wish to allow to distribute that work. By default, nobody other than yourself is allowed to distribute a work that is copyrighted by you. You must grant permission first.
The GPL is not a license for usage, it is a copyright license that outlines the terms necessary to obtain permission to redistribute from the copyright holders.
That is why it's effectively impossible to declare the GPL void.
John Terpstra (Score:1, Informative)
Re:Can you say, "Pump and Dump"? (Score:5, Informative)
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.
So, at the risk of being redunant, here's the text of a message I posted a couple times, several MONTHS ago. This is not new information. Yet still, even now, most people have no idea about judge Kimball who is hearing the case. So here goes (again)....
On every SCO story, invariably someone posts a paranoid concern that perhaps a clueless judge will be assigned to the case, and rule in favor of SCO. These are often moderated to +5, which is quite silly since Judge Dale A. Kimball [utahbar.org] has already be assigned to the case, and we can see that he's got a reputation for being fair and capable of understanding cases involving technology.
Groklaw has very extensive research on Kimball's history [weblogs.com], which is nicely summarized and easy to read. Every case has links to much more detail. The overall appearance is that Kimball will probably do the right thing.
Probably most important is the Jacobsen vs Hughes copyright case [deseretnews.com]. Apart from considering much of the material uncopyrightable historical facts, Judge Kimball was quite unimpressed by the plaintif's failure to act in a timely manner to mitigate damages. Quoting from that article:
Obviously this bodes quite well for IBM and all Linux users. SCO of course will claim they stopped distribution of linux, but this ruling at least shows that Judge Kimball isn't likely to be be charmed with the deplorable way SCO has conducted itself. Kimball's willingness to consider the writing a separate work, even though a part of it was loosely based on Jacobsen's also casts quite a shadow over SCO's chances (assuming the unlikely worst case scenario that SCO has an ace up its sleeve, rather than the bogus examples we've seen so far). It's certainly a good sign that Kimball is unlikely to buy SCO expansive theories about what constitutes a derivitive work.
While nothing is 100% certain going into the courtroom, it is a fact that the Judge Kimball has been selected to hear this case. His history shows he's competent, fair, and at least in Jacobsen vs Hughes, he doesn't tollerate the sort of shenanigans SCO has been pulling!
Re:Here's what you were saying... (Score:1, Informative)
The theoretical advancement in a Communist society is that the dictator would step down once the country was essentially running itself (At least, being run by the workers themselves), leaving "no one" in charge.
This has never happened.
Re:Here's what you were saying... (Score:1, Informative)
Stalin and Mao were monsters in charge of socialist, not communist, systems. They, and their successors, were impedements to ever moving from a socialist system to a communist system, because they were more intent on grabbing power.
SCO's FTP site... (Score:2, Informative)
If this doesnt cound as redistributing Linux, I'm not sure what does...
Re:Here's what you were saying... (Score:5, Informative)
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
Re:Here's what you were saying... (Score:5, Informative)
Matthew 6:20
Giving is from the heart, not from the state. Remember also to "Render unto Caesar what is Caesar's, and unto God what is God's"; and "There is no authority on earth which God himself has not established.""But store up for yourselves treasures in heaven, where moth and rust do not destroy, and where thieves do not break in and steal. For where your treasure is, there your heart will be also."
Good background info on the $ in these politics (Score:3, Informative)
The Center for Responsive Politics runs this great site called Open Secrets, which tracks who's giving and who's getting the publically-trackable $ in D.C.. This is their overview of the Software/Internet industry.
Notice the part below about law that was passed by virtue of the the interests of big software companies. Does GPL sound very interesting next to trade relations with China? Or, right next to "passage of Y2K liability reform" imagine the addition of "passage of GPL liability reform".
http://www.opensecrets.org/industries/backgroun
"Background: Computers/Internet
The past decade saw the computer industry rise from the back benches of the American economy to become one of its major players - so important that it's now a driving force in the economy's overall health. The industry's breathtaking success has produced an equally stunning rise in political activity, particularly through campaign contributions. In 1990, the computer industry ranked 55th out of the roughly 80 industries the Center tracks, with about $1.3 million in contributions to federal candidates and parties. Just 10 years later in the 2000 elections, the industry cracked the top 10 list, with more than $30 million in contributions.
Not surprisingly, the high-tech companies that are responsible for the largest amounts of campaign contributions also have netted the biggest profits during the Internet boom: Microsoft, America Online, Cisco, Dell, and Oracle. Their generosity helped win several big victories in the 106th Congress. Among them were passage of permanent trade relations with China, an increase in the number of visas issued to foreign high-tech workers, passage of Y2K liability reform, an increase in federal funding for research, and enactment of a tax credit for research and development. The industry also met with success in what Congress did not do - namely, advance plans to tax Internet commerce.
The computer industry's strategy for the current Congress resembles that of a sports team with a large lead: play defense and preserve the status quo. The industry wants to prevent any attempts to reverse its recent successes, focusing in particular on preserving the moratorium on Internet taxes and limiting the federal government's role in Internet privacy issues.
Microsoft has an additional concern all its own: the federal government's attempts to declare it an illegal monopoly and break the company into pieces. President Clinton's Justice Department vigorously pursued its antitrust case against the software giant, and company executives are hoping to fare better under President Bush's administration.
Overall, the industry has been scrupulously bipartisan in its contributions, giving nearly equal amounts to Democrats and Republicans, and thus ensuring broad support on both sides of the political aisle in Congress.
Feel free to distribute or cite this material, but please credit the Center for Responsive Politics. "
Re:Here's what you were saying... (Score:1, Informative)
Problem two: The death penalty is still in effect, as "not one stroke of the pen" of the Law was abolished. The Law is not necessary for salvation, but for order on earth.
Problem three: The passage you mention speaks to how an individual should treat his enemies. This is so that the light of the living God can be seen by all. "No one lights a lamp and then places it under a basket." It does not mean that an entire nation should bow under whatever would-be brutal dictator comes along. Self defense is encouraged.
Luke 22:35 Then Jesus asked them, "When I sent you without purse, bag or sandals, did you lack anything?" "Nothing," they answered. He said to them, "But now if you have a purse, take it, and also a bag; and if you don't have a sword, sell your cloak and buy one. It is written: 'And he was numbered with the transgressors' ; and I tell you that this must be fulfilled in me. Yes, what is written about me is reaching its fulfillment."