Forgot your password?
typodupeerror
Caldera GNU is Not Unix Government The Courts Your Rights Online News

SCO Calls GPL Unenforceable, Void 1186

Posted by timothy
from the more-and-more-surreal dept.
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.
This discussion has been archived. No new comments can be posted.

SCO Calls GPL Unenforceable, Void

Comments Filter:
  • by grasshoppa (657393) * <{skennedy} {at} {tpno-co.org}> on Monday October 27, 2003 @09:42PM (#7324518) Homepage
    The only problem with all things I see here is DarlandCo. will probably never see the inside of a prison cell, which is unfortunate.
    • by EmbeddedJanitor (597831) on Monday October 27, 2003 @09:58PM (#7324673)
      Pump and dump is correct. Any attempts to apply any logic to this are just a waste of time.

      At what stage does the pumping cross any legal boundaries? I guess while they're getting professional legal opinions they're still in the clean legally.

      • by Awptimus Prime (695459) on Monday October 27, 2003 @10:16PM (#7324818)
        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 [google.com]. It's a dark time for the little guy. :(

        • by the_mad_poster (640772) <shattoc@adelphia.com> on Monday October 27, 2003 @10:36PM (#7324965) Homepage Journal

          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.

        • 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.

          I think there's a better chance that most of the Judges own IBM than SCO. Blue chip, baby.
        • by gladbach (527602) on Monday October 27, 2003 @11:14PM (#7325234)
          ... 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.
        • by b_pretender (105284) on Monday October 27, 2003 @11:55PM (#7325526)
          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.

        • by pjrc (134994) <paul@pjrc.com> on Tuesday October 28, 2003 @01:17AM (#7325990) Homepage Journal
          Im really sick of seeing these "might get a crazy judge" posts, especially when they're mod'd to +5.

          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:

          "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," Kimball wrote. "For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes."

          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!

    • Hey, look [sco.com], they're hiring an "Executive Assistant/Investor Relations."

      Looks like an all-purpose employee.

      Job Responsibilities:
      • Administrative needs of CFO and other executives
      • Quarterly budget reports
      • Travel Arrangements
      • Organizing meetings and phone conferences
      • Supply inventory
      • General office responsibilities
      • Records minutes of various meetings
      • Partner Program database coordination
      • Answer investor questions regarding Stock performance
      • Packaging of financial corporate communications with the invest
      • by 1010011010 (53039) on Monday October 27, 2003 @10:25PM (#7324872) Homepage
        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?

      • by Anonymous Coward on Tuesday October 28, 2003 @12:07AM (#7325607)
        Job Responsibilities:

        * Administrative needs of CFO and other executives

        Buys Crack.

        * Quarterly budget reports

        Balances crack budget.

        * Travel Arrangements

        What contries do not have extradition treaties with the US.

        * Organizing meetings and phone conferences

        Supervisor of SCO koolaid distribution.

        * Supply inventory

        Do not run out of crack.

        * General office responsibilities

        There is no code but SCO's, and Darl is our prophet.

        * Records minutes of various meetings

        Must be willing to break federal wiretap laws

        * Partner Program database coordination

        Who can we steal from today?

        * Answer investor questions regarding Stock performance

        Answers questions like: why are SCO execs selling all there stock?

        * Packaging of financial corporate communications with the investment community

        Bill, It's SCO, Send more money.

        * Helps prepare written investor communications and plan investor/analyst small-group private and large-group meetings

        Look at the monkey.

        * Handles telephone inquiries from analysts and investors

        Yes, We invented Linux.

        * Oversees scheduling and coverage of front desk

        Must qualify as expert with no less than 3 separate small arms, riot control experience preferred.

  • by r_glen (679664) on Monday October 27, 2003 @09:42PM (#7324520)
    It just wouldn't feel like the start of the week without some new mind-numbingly idiot drivel from the SCO.
  • I guess (Score:3, Funny)

    by i.r.id10t (595143) on Monday October 27, 2003 @09:42PM (#7324525)
    I guess IBM didn't want to show them their IP without a crippling NDA, so this is their next best attempt.
  • Obligatory (Score:5, Funny)

    by CSharpMinor (610476) on Monday October 27, 2003 @09:44PM (#7324536)
    7th Affirmative Defense: The GPL is selectively enforced.

    8th Affirmative Defense: The GPL is Unconstitutional and invalid.

    9th Affirmative Defense: ???

    10th Affirmative Defense: Profit!
    • by yerricde (125198) on Monday October 27, 2003 @10:08PM (#7324763) Homepage Journal

      If the GPL is invalid, then while SCO was redistributing Linux (and still continued to do so after bringing suit [duke.edu]), 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.

      • If the GPL is invalid, then while SCO was redistributing Linux, the company was infringing copyright, because nothing other than the GPL gives SCO the privilege to do that.

        Two points:
        1. Any other consequences of the GPL being invalid are IBM's to argue; SCO certainly isn't going to include "this means we're guilty of massive copyright infringement" in a brief.
        2. SCO is, in my non-lawyerly opinion, arguing that the STRONG copyleft sections of the GPL are unconstitutional, and that the GPL is therefore simply
      • by mcc (14761) <amcclure@purdue.edu> on Monday October 27, 2003 @10:42PM (#7325010) Homepage
        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 [sco.com] 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
        http://www.sco.com/products/linux/ [sco.com], which said only:

        Forbidden
        You don't have permission to access /products/linux/ on this server.


        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 [sco.com] 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.
        • Great finds. There's sure some weird leftovers on SCO's site. I like the awards page [sco.com], which includes unconstitutional praise like:
          1. Caldera OpenLinux eServer 2.3 wins CNET's Editor's Choice Award
          2. OpenLinux eDesktop 2.4 wins CNET Editors' Choice award from the editors of CNET.com
          3. OpenLinux eServer 2.3 wins Network World Blue Ribbon award.
          4. so sad...
  • by mackman (19286) on Monday October 27, 2003 @09:44PM (#7324538)
    Over a 4% drop after hours looks like the investors are starting to lose faith in their questionable legal strategy. I wonder if SCO will just drop the suit once all the exec have finished dumping their stock.
    • by AEton (654737) on Monday October 27, 2003 @10:06PM (#7324741)

      "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.

    • No. SCO has no choice. They have accepted the investment money, and MS investments as well. Their corse is laid. They can not waver.
      • by kfg (145172) on Monday October 27, 2003 @10:27PM (#7324886)
        Yes. I'm afraid that the new internal code name for their legal course is "Cherry Blossom."

        Launch has been made, nothing to do now but ride it out.

        As a corollary this probably explains why Ralph Yarro is being refered to as "Betty" around the SCO offices and has little or nothing to do with his private life.

        KFG
  • by Azghoul (25786) on Monday October 27, 2003 @09:45PM (#7324539) Homepage
    LOL!

    Wow, now, I understand the legal "carpet bombing" theory, but COME ON NOW.

    Then again, I'd like to "violate" certain folks at SCO, I'm sure they'd love a little man-meat...
  • WTF? (Score:3, Funny)

    by altp (108775) on Monday October 27, 2003 @09:46PM (#7324549) Homepage
    Only want SCO is gonna win is if they start sharnig some of that crack.
  • Comments (Score:4, Funny)

    by r_glen (679664) on Monday October 27, 2003 @09:46PM (#7324551)
    "Comments are pouring in ... not all of them complimentary to SCO or its legal strategy"

    This /. article will help at least
  • by HeX86 (536126) on Monday October 27, 2003 @09:46PM (#7324558)
    At least he proves that people can run around beeing flaming idiots, thus upholding the bill of rights.
  • I agree! (Score:5, Funny)

    by Guppy06 (410832) on Monday October 27, 2003 @09:47PM (#7324564)
    "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. :)
  • EFF (Score:5, Insightful)

    by erikharrison (633719) on Monday October 27, 2003 @09:48PM (#7324576)
    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)
    • Re:EFF (Score:3, Redundant)

      by dbarclay10 (70443)
      As another poster has said, "selective enforcement" is irrelevant as far as copyright is concerned. You're free to license your copyright to somebody and then let them do whatever the hell they want - regardless of the terms of the license, you don't lose copyright.

      Now, if you fail to enforce *trademarks*, you can lose them.
    • Re:EFF (Score:5, Informative)

      by squiggleslash (241428) on Monday October 27, 2003 @10:00PM (#7324696) Homepage Journal
      The EFF certainly aren't the licensor. In fact, I don't personally know of any software where the copyright is owned by the EFF, the Electronic Frontier Foundation.

      Now the FSF on the other hand, the Free Software Foundation... that's a different kettle of fish. They own the copyrights on a large suite of applications. As you say, they only enforce the GPL for the software they own the copyrights to, though in the past I believe they've helped with things like Linux (the kernel).

      EFF, FSF. I guess it's almost as bad as that RIAA/MPAA thing that Slashdotters keep getting confused about...

    • Re:EFF (Score:5, Funny)

      by Anonymous Coward on Monday October 27, 2003 @10:10PM (#7324783)
      "vis a vis the GPL"

      Considering the GPL is credited to GNU/Stallman, wouldn't that line therefore be transformed into:

      "emacss a emacss the GPL?"
  • by pstreck (558593) on Monday October 27, 2003 @09:49PM (#7324585)
    Denies the allegations of paragraph 16 and alleges that Linux is, in actuality, an unauthorized version of UNIX that is structured, assembled and designed to be technologically indistinguishable from UNIX, and practically is distinguishable only in that Linux is a 'free' version of UNIX designed to destroy proprietary operating system software.
    How can Linux, which is merely a kernel, be called a version of UNIX? In theory it is possible to build a completely non-unix like operating system that runs on the linux kernel. Shouldn't they claim that GNU is the unauthorized UNIX derivitive?
  • by gaj (1933) on Monday October 27, 2003 @09:50PM (#7324587) Homepage Journal
    Ladies and gentlemen of the supposed jury, I have one final thing I want you to consider: this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense!

    Why would a Wookiee -- an eight foot tall Wookiee -- want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!

    But more importantly, you have to ask yourself: what does that have to do with this case?

    Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!

    Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense.

    And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.

    If Chewbacca lives on Endor, you must acquit! The defense rests.

  • unenforcable = void? (Score:4, Interesting)

    by eagl (86459) on Monday October 27, 2003 @09:51PM (#7324598) Journal
    You mean I can break any license I want if it's unenforcable? I can just say "they can't catch me" and that's a valid legal reason to declare a license void?

    Schweet! I have an unlimited number of win9x copies now, because all those licences are VOID BABY! Music copyright? Unenforcable, therefore VOID BABY!

    SCO allegations unenforcable? I have an unspecified copies of unspecified versions of unspecified distributions of Linux... SCO can't enforce anything on me, so their claims are VOID BABY, YEA!

    "Your Honor, I'd like to cite precident, SCO vs. everyone, in which it was ruled that any unenforcable license is void. Since I'm only being tried for stealing a tenth of the stuff I stole, but you can't prove I stole the other stuff, the licenses covering all of it is void. I move for dismissal of all charges plus I claim ownership of every physical object my stolen stuff touched, because their ownership rights is unenforcable and therefore void."
  • by Black Sabbath (118110) on Monday October 27, 2003 @09:51PM (#7324599) Homepage
    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.
    • by Chordonblue (585047) on Monday October 27, 2003 @10:39PM (#7324996) Journal
      Pray they don't find the GPL unenforceable. Yes, SCO could get sued by quite a few of these project owners, however you're missing the point:

      SCO DOESN'T CARE

      There's no principle in it for them here. McBride talks about getting 'square' or 'clean', but he's laughing at all of us. That's not the intent at all.

      They aren't in this to prove anything other than trying to find out how much wealth the execs can aquire before it all comes crashing down. SCO WILL go down - let's hope they don't take the GPL with them.

  • by SupeRobot Ninja (719240) on Monday October 27, 2003 @09:51PM (#7324600)
    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.
  • by painehope (580569) on Monday October 27, 2003 @09:52PM (#7324603)
    SCO's research team announces break-through partnership with CIA, distributing their newly-announced SuperCrack(tm).
    "Our field testing has proven very effective," says Ralph Synles, head of SCO R&D, "Subjects spend almost every waking moment in a projected fantasyland, and the way their hearts are racing, I would say they are high as fucking hell."
    "Pink fuzzy secret code wonderful property tastes like intellectual NDA violations. Call my stock broker!" SCO's CEO, Daryl McBride, was quoted as saying, before giggling and waving around several blank sheets of printer paper.
  • What? (Score:5, Interesting)

    by TheSpoom (715771) * <slashdot@ u b e r m00.net> on Monday October 27, 2003 @09:52PM (#7324609) Homepage Journal
    IANAL.

    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.

    • Re:What? (Score:5, Informative)

      by mark-t (151149) <`markt' `at' `lynx.bc.ca'> on Tuesday October 28, 2003 @12:44AM (#7325828) Journal
      Copyright law says that I, as creator of my work, can control how it is used and by whom.
      Wrong.

      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.

  • by Brandybuck (704397) on Monday October 27, 2003 @09:53PM (#7324620) Homepage Journal
    I'm not the world's biggest GPL fan. But reading it rightside up, upside down, and backwards held to a mirror, it's seems to me to be a valid license in every way. There may be some very minor issues regarding definitions, but there's nothing there that SCO can use to wiggle out of their current predicament.

    The US courts have upheld the much more lenient BSD license, and many much more restrictive EULAs, so the GPL seems quite court-safe where it is in the middle.
  • by taustin (171655) on Monday October 27, 2003 @09:53PM (#7324629) Homepage Journal
    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."
    • Doesn't matter.
      If the FSF decides to selectively enforce the GPL and in some way that manages to release their copyright (stay with me).

      How exactly does this action relate to IBM?

      Even if the FSF was selectively enforcing trademarks, how does that relate to IBMs rights?
    • > > 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.

      Also, why is it the FSF's job to enforce the GPL, selectively or otherwise?

      Unless the FSF happens to be the copyright owner on a par

  • by Moofie (22272) <lee@noSPaM.ringofsaturn.com> on Monday October 27, 2003 @09:54PM (#7324637) Homepage
    They forgot to mention that the GPL makes the Baby Jesus cry.
  • If anyone cares... (Score:3, Interesting)

    by oGMo (379) on Monday October 27, 2003 @09:54PM (#7324644)

    I dunno if anyone saw this or cares, but I used my (lack of) GIMP skills to make some borg/SCO icons at the request of KilobyteKnight [slashdot.org]... it just got posted late so I don't know if anyone saw it.

    As I said previously, these just differ by filter; I couldn't decide which I liked. Feel free to use them however.

  • by Jaywalk (94910) on Monday October 27, 2003 @09:57PM (#7324669) Homepage
    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.

    • by Ungrounded Lightning (62228) on Tuesday October 28, 2003 @01:28AM (#7326036) Journal
      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.

      And how nice that SCO is being an obvious pack of assholes about the whole thing. This puts the defenders of the GPL in a much better situation than if they had been reasonable.

      You'll recall how, when the Forces of Law'nOrder try to set a precedent confirming the enforcability of some new law (especially if it's constitutionality is questionable), they'll go after the worst scumbag they can find first. (Like going after child pornographers when trying out the latest restriction on the free press.) Once they get the precedent set, they can then use it to club anybody else who publishes something they don't like.

      SCO, by taking on the entire world and insulting the intelligence of the judges who will be handling the case with a stack of obviously bogus claims, has voluntarily put itself in a position with respect to the GPL of the child pornographer picked by a prosecutor to try out a new censorship law. VERY convenient for the GPL side.

      This reminds me of a saying from the heyday of usenet news political discussion/debate groups. Often there would be a regular poster on one side who would trot out every tired, repeatedly disproved, position of that side of the argument. He could never be convinced to change his position. But he'd make a DANDY foil for presenting the counter-arguments, for the edification of thousands of neo-lurkers who hadn't yet heard them. Then, a few weeks later, once a new crop of newbies had gathered and/or another news item made the subject front-page once more, he'd rehash them AGAIN. How convenient!

      After a few iterations some of the posters would get bored or annoyed with him and start asking how he could be discouraged (or kicked off, if the group was moderated). Then the old hands would point out how CONVENIENT it was to have someone from the "other side" to periodically hoist the strawmen and give the rest of us an opportunity for a bonfire.

      SO convenient, that it would often be said that "If [whomever] didn't exist we'd have to invent him.", i.e. we'd have to plant a shill in the crowd to do the same function (but less believably, because someone who actually believes the opposite position won't get the rhetoric quite right.)

      Of course you'd never know if [whomever] actually WAS a shill - a particularly convincing one. (And that uncertainty also helped. It implied that if he WAS a shill, he'd only be raising arguments that were defective. So simply by raising one of "his side's" arguments he discredited it. B-)

      SCO has been so PERFECT in this role that the old saw applies.

      If the GPL can't handle a legal challenge, it's better to find that out sooner rather than later.

      SCo has been so perfect for our side that it's almost enough to make you wonder if SCO *IS* a shill.
  • by Suppafly (179830) <slashdot.suppafly@net> on Monday October 27, 2003 @09:58PM (#7324678)
    It's a shame that IBM can't buy out SCO without a bunch of assholes making a lot of money. IBM should do some crazy hostile takeover of SCO.
  • by nuggz (69912) on Monday October 27, 2003 @10:04PM (#7324728) Homepage
    Fine the GPL is invalid, SCO has knowinlgy committed copyright violations, wouldn't this intent result in higher penalties or damages.

    Everyone else thought they had a valid licence to distribute linux.
  • by Snoopy77 (229731) on Monday October 27, 2003 @10:06PM (#7324745) Homepage
    American weapons inspectors working throughout the Iraqi country side are claiming that the GPL is seriously hindering their efforts to find Saddam's cache of WMD. When asked how exactly it is hindering the effort an inspector replied, "It's just un-American and that's bad mmmkay."

    Futhermore, high ranking army officers are also said to be frustrated by the GPL. "It is quite simply conter-productive in our efforts to find Saddam and to bring law and order to Iraq", said an officer, speaking under anonymity.

    And finally, graffiti was seen on Redmond, WA train claiming, "GPL = French". Underneath was written, "it's '==' you insensitive clod".
  • by Featureless (599963) on Monday October 27, 2003 @10:07PM (#7324759) Journal
    Let's see if I have this right.

    Linux is free software, that everyone participates in making, and then gets to use for free.

    SCO distributed Linux itself, until very recently. It was also selling its own "competing" product at the same time.

    Now SCO is claiming that some of their "valuable" property was incorporated into Linux - without their knowledge. They're demanding everyone who uses Linux pay them for it (at a price they've just determined) - or face lawsuits.

    They're refusing to reveal what was "stolen." (More accurately, they will only show evidence to those who sign an unacceptably onerous non-disclosure agreement.) Not the actions of a company with a good case, but let us assume, since it is certainly possible, that some work of SCO's appears identical to some work inside Linux.

    It is first of all not exactly obvious who copied whom. In the most similar case of years past, exactly such confusion resulted in a major legal reversal for one of Unix's past copyright holders. But let us even assume that someone secretly put some stolen SCO work inside Linux, since that is certainly also possible.

    One of two things is true, then:

    1) If you are a Linux user (who unwittingly received a bit of SCO's property), you have to pay whatever SCO asks, even if you didn't know (and had no way of knowing) you were using "stolen code"!

    This means that SCO is in massive trouble, since they violated the licenses of all the Linux contributors _themselves_, by distributing Linux with their proprietary code incorporated into it. This is forbidden by the GPL (Linux's license), which (basically) forces participants to contribute their work for free or not at all. (That's the whole point of the affair, really.) And as we just established, ignorance is not an excuse. The fact that SCO might not have known they were breaking this rule wouldn't save them.

    Result? Several thousand Linux contributors (a group which includes some very large, wealthy businesses) sue SCO for violating _their_ licenses, which specifically forbade this in the first place. SCO goes bankrupt.

    -- OR --

    2) If you are a Linux user (who unwittingly received a bit of SCO's property), it's _not_ your problem, because you didn't _know_ there was a problem, and once you found out, you replaced the "stolen code" - by downloading a patch, most likely. Right after SCO gets around to telling people what was stolen, that is. (Which they will do eventually?)

    If ignorance is SCO's excuse, it's everyone's excuse. It means THERE IS NO DANGER TO ANY LINUX USER from SCO, because nobody was knowingly involved in these affairs, except potentially IBM (who stands accused of having actually done the deed). If there was any improper copying, it's IBM's problem - which is as it should be (although apparently even that part of SCO's story is questionable).

    Result? SCO's threats to sue Linux users are actually a nasty and libelous publicity stunt, and a number of affected business (IBM, Redhat, Dell, Suse, etc) sue them as a result. SCO goes bankrupt.

    I can't figure out how SCO's threats to "license Linux users" to the tune of hundreds or even thousands a CPU is anything other than the business world's equivalent of an April Fool's joke.

    You can make specious legal threats about any product - open source or closed source. The fact that Linux is a target this time is only a sign of its continually increasing importance.

    If you want my take on it, some people sitting in big offices (picture Microsoft and Sun logos on the walls) saw the recent spate of articles about high-profile defections from their own products to Linux, and pushed the "panic button." They encouraged and financed a proxy (SCO) in the advertisement of an elaborate legal fiction in hopes of slowing the hemorrhaging. It's clever, good old-fashioned American business strategy at its finest (no holds barred competition in anything but quality or price). I don't think it will save them, either. And I _think_ it's going to leave a smoking crater where the proxy used to be.
  • by judmarc (649183) on Monday October 27, 2003 @10:31PM (#7324915)

    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 [catb.org]

  • by gsfprez (27403) on Monday October 27, 2003 @10:36PM (#7324961)
    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.
  • by cfulmer (3166) on Monday October 27, 2003 @10:39PM (#7324995) Homepage Journal
    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....

    • by odin53 (207172) on Monday October 27, 2003 @11:19PM (#7325268)
      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....

      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!
  • by BJH (11355) on Monday October 27, 2003 @10:47PM (#7325044)

    I would like to point you to our product page (http://www.xxxxxxxx.com); we provide xxxx xxxx systems to many large xxxx institutions around the world. Currently, we are based mainly on the Sun/Solaris platform, but are looking at moving to Intel due to customer demand.
    After considering SCO's products, we have been forced to exclude them due to your court statements regarding the General Public License ("GPL"); specifically, that it is unenforceable. Considering that large parts of your latest products appear to be licensed under the GPL, we find it difficult to reconcile your legal position with the products you claim to supply. Instead, we have decided to go ahead with Red Hat's Advanced Server product.

    Sincerely yours,
    XXXX YYYY
    ZZZZZ Co., Ltd.
  • This is very common (Score:4, Informative)

    by jhylkema (545853) on Monday October 27, 2003 @10:50PM (#7325070)

    /* 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.)

  • by odin53 (207172) on Monday October 27, 2003 @11:03PM (#7325162)
    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.
  • #7 is hillarious (Score:5, Interesting)

    by SEE (7681) on Monday October 27, 2003 @11:08PM (#7325189) Homepage
    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.
  • by SuperBug (200913) on Monday October 27, 2003 @11:18PM (#7325253) Homepage Journal
    Seems to me that out of all of the possible challenges the GPL could face, SCO's legal tactics to date have ranged through many of those possibilities. Their defense posture has changed from one to the next at least 6 or 7 times, possibly more, by now. This is an excellent test for the FSF lawyers, the GPL, the use of Linux as a viable platform(legally, morally, and technically), and anyone who may one day be interested in using the GPL or other free software licenses.
    Also, thanks to whomever (M$?) for funding $CO's ability to make this all possible! ;)
  • The Open Group (Score:4, Interesting)

    by aws4y (648874) on Monday October 27, 2003 @11:21PM (#7325277) Homepage Journal
    The Open Group [opengroup.org] 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 [opengroup.org] and that they are neutral in matter of SCO v IBM. They have no flavor of Linux certified as a UNIX [opengroup.org], 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.
  • by iabervon (1971) on Tuesday October 28, 2003 @12:16AM (#7325678) Homepage Journal
    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.
  • by WhiteWolf666 (145211) <sherwin@@@amiran...us> on Tuesday October 28, 2003 @02:02AM (#7326163) Homepage Journal
    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.

The opposite of a correct statement is a false statement. But the opposite of a profound truth may well be another profound truth. -- Niels Bohr

Working...