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SCO Madness Reigns Supreme 607

Posted by timothy
from the world's-funniest-joke dept.
Sri Lumpa writes "It will come as little surprise for those of you that followed the SCO stories and read their latest filing that an IP attorney, Douglas Steele, Esq., thinks that 'SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain.' Meanwhile, more lawyers give their opinions, with Eben Moglen saying 'It's just rubbish,' while another says of SCO's defense: 'From the outside, it appears so bizarre and so ridiculous that I fear their argument is being misstated,' while Blake Stowell of SCO believes Congress has drawn a boundary between proprietary and open source and still insists that IBM should indemnify its Linux users while refusing to indemnify SCO's Samba users against a potential MS lawsuit. More links to related news stories continue to appear in the comment section of the first link, thanks to the Groklaw readers." Read on for another handful of updates in SCO vs. The World.

Roblimo knows good, honest Constitutional argumentation when he sees it, and over on NewsForge amplifies SCO's claims that the GPL is unconstitutional.

Dopey Panda writes "Looks like SCO has become just a bit worried about their liabilities for distributing the Linux kernel. Starting November 1 you will have to be a registered SCO customer to be able to access their FTP site. So that leaves just a couple days for you to download your own genuine SCO-approved GPL code!"

And perhaps today's most interesting SCO submission: 1HandClapping writes "In alwayson-network.com, Mark F. Radcliffe (HIAL) writes about a little-reported aspect of the SCO vs IBM case: 'Novell, as part of its sale of the UNIX licenses to SCO, retained the right to require SCO to "amend, supplement, modify or waive any right" under the license agreements (and if SCO did not comply, Novell could exercise those rights itself on SCO's behalf). At IBM's request, Novell employed this right and demanded that SCO waive IBM's purported violations. When SCO did not do so, Novell exercised its right to waive the violations on SCO's behalf. Basically, this defense destroys the core of the SCO case: IBM's violation of its UNIX license with SCO.'"

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SCO Madness Reigns Supreme

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  • Noorda's revenge? (Score:5, Interesting)

    by Anonymous Coward on Wednesday October 29, 2003 @04:25PM (#7340809)
    One crazy thought that keeps popping into my mind is that the entire SCO mess might be Ray Noorda's final revenge on Microsoft.

    Consider that Noorda has been around the tech industry a LONG time, that he has been involved in a lot of companys, he presumably knows who the A-team and B-team players are, and that he appears to dislike Microsoft a little bit.

    So - he takes one of the organizations under his control. He fills it with C-team players. He fills (or prompts someone to fill) the C-team with truthful but misleading information about SCO's purported "intellectual property". He advises them to go after the biggest target first.

    Then he sits back and watches while SCO leads a hopeless charge against IBM. This has the dual effect of (a) laying down case law _supporting_ the GPL that Microsoft will have a very hard time overturning (b) smoking out various linkages and anti-competitive behaviour on Microsoft's part.

    Crazy, but I have a hard time seeing why else SCO is being so incompetent.

    • by Anonymous Coward
      a rube goldburg...

      pure genius :^)
    • by dmaxwell (43234)
      is not necessarily my friend. Noorda dislikes MS to point of calling Ballmer "Emballmer" and Bill "Pearly" Gates. He was fond of saying something like "Emballmer gets you ready for the grave and Pearly drops you in it."

      I have no doubt he would like to score a win of some kind against MS. But it wouldn't surprise me if Free Software offends him as badly as it does MS. A victory for the GPL isn't necessarily a victory for him. He isn't going to go out of his way for a little schadenfreude.

      The other poss
    • Re:Noorda's revenge? (Score:3, Interesting)

      by stephenry (648792)
      There was a line in the Hitchhikers guide to the galaxy which stated that if someone ever found out the true meaning to life, the universe and everything; God would simply destroy it and replace it with something even more unexplainable. Just because it can't be explained doesn't be that it can't be. Let's hope that whatever is lurking in the future for Linux has a case as plausible as SCO's.
    • by Anonymous Coward on Wednesday October 29, 2003 @04:50PM (#7341087)
      "Never attribute to malice that which can be sufficiently explained by stupidity."
      • Re:Hanlon's Razor (Score:5, Insightful)

        by rhizome (115711) on Wednesday October 29, 2003 @05:10PM (#7341266) Homepage Journal
        Sure, we all love Hanlon, but his razor is not all-encompassing. I don't believe that explaining SCO's actions as "stupidity" is *sufficient* at all. This isn't a personal attitude, it's just that with all the complications, details and seemingly malpracticed legal maneuvers that there is just too much going on for stupid people to be responsible, and furthermore that there are smart people doing stupid things. Don't think for a minute that they don't have a plan, and that SCO execs aren't just flying off the handle randomly because their legal staff thinks that whatever they want to do is just fine. While we may not be able to accurately speculate what that plan is, it doesn't mean that there isn't one that we'll find out about later.

      • by billstewart (78916) on Wednesday October 29, 2003 @05:39PM (#7341594) Journal
        Look, just because Stupidity is clearly in effect here doesn't mean there isn't also Malice....

        SCO and Microsoft aren't the first people to dislike the GNU Public Virus. It's a licensing approach that's very aggressively designed to promote certain ideas about how Free Software should work, and there are alternative viewpoints even among people who *do* like free software. However, SCO does appear to be the first group that's sufficiently well-funded, aggressive, and boneheaded to attack it with a large crash-and-burn lawsuit.

        They do have a partial case - the Unix source license terms were always unclear and dodgy in terms of exactly how closely derived something from Unix source had to be covered, and it's possible that IBM or Sequent or SGI slipped close enough to the edge to sue, but the BSD lawsuits pretty much established that reverse-engineered work-almost-alikes are ok, at least with sufficiently careful clean-room techniques, and IBM has more experienced software-issue lawyers than anybody except possibly Microsoft or remotely possibly the US Government (who also suffer from combinations of malice and incompetence.) However, SCO's distribution of Linux 2.4.x weakens their position substantially.

        Me? I've probably still got my Usenix "Mentally Contaminated" pin from a few years ago, though Unix source has evolved a bit from the System V Release 2.0p days when I last looked at licensed kernel source, or from the early 90s when I was using licensed user-space code, and it's amazing how much bit-rot can set in...

        • by Monkelectric (546685) <slashdot&monkelectric,com> on Wednesday October 29, 2003 @06:47PM (#7342190)
          GNU Public Virus. It's a licensing approach that's very aggressively designed to promote certain ideas about how Free Software should work,

          You've got a good post here, but Id like to pick at this statement. Nobody is forcing ANYONE to use GPL Software, or GPL code in their projects. If you don't like the license you are free to write the code yourself. End of story. People who whine about the GPL piss me off, they want *free code* and no responsibility. The GPL is Candy and the GPL says "You can have any of our candy, but you have to give our candy and your candy to anyone that asks." If you dont like that, don't take their candy and you are no worse off. none at all.

          • Re:GNU Public Virus (Score:3, Interesting)

            by billstewart (78916)
            Of course you're not forced to use GPL software. But "if you don't like the license, you're free to write the code yourself" isn't the end of the story - there are alternative free software licenses, ranging from BSD-style "Leave our name on it and agree that we disclaim all responsibility if Bad Things happen" to the Artistic License to postcardware to public domain or whatever. I like the LGPL better than the GPL for most applications, and I still remember way back when it was the "Library GPL" rather t
    • by retro128 (318602)
      Well if you are in to conspiracy theories, it could also be said that maybe Microsoft is pulling the strings and funneling money into SCO to try to undermine the Linux movement. That makes more sense then Noorda starting this whole mess.

      Why, if he wanted to get back at Microsoft, would he do something that directs most of the damage to IBM and Linux? Microsoft is loving every minute of this Linux FUD. Even if he advised that SCO go after IBM, if Darl McBride was the least bit sane he would have known he
      • by sphealey (2855) * on Wednesday October 29, 2003 @05:02PM (#7341198)
        Well if you are in to conspiracy theories, it could also be said that maybe Microsoft is pulling the strings and funneling money into SCO to try to undermine the Linux movement. That makes more sense then Noorda starting this whole mess.
        After losing the first anti-trust trial (not the one most recently concluded), Bill Gates vowed never to be out-maneuvered in Washington again. And he appears to have purchased the best and the brightest in political, lobbying, and legal advice. If he wants to go after the GPL he will do so in a much more controlled and precise manner. In fact I think Microsoft is lobbying right now to have the GPL outlawed, but you aren't hearing about it in Infoworld. No, this doesn't smell like the new, politically aware Microsoft. Not that they aren't enjoying the pre-game anyway.

        Why, if he wanted to get back at Microsoft, would he do something that directs most of the damage to IBM and Linux? Microsoft is loving every minute of this Linux FUD. Even if he advised that SCO go after IBM, if Darl McBride was the least bit sane he would have known he could never win.
        In the short term, Linux is being "harmed" in some eyes. But if the outcome is solid case law that backs the GPL and once-and-forall resolves the SysV ownership issue, then the long term benefits to Linux will be immense. And IBM really isn't being hurt by this. Their lawyers get paid whether they work today or not, and IBM can make money selling Linux, AIX, Unixware, Multics, Windows, whatever. They are pushing Linux right now because it is hot and it keeps Microsoft under control, but they don't have any intrinsic stake in anything nowadays except the S/370 systems.

        sPh

        • by miniver (1839) on Wednesday October 29, 2003 @06:28PM (#7342016) Homepage
          IBM can make money selling Linux, AIX, Unixware, Multics, Windows, whatever.

          While most of your post is accurate and informative, I have to dispute one point: nobody could make money selling Multics, or they'd still be selling it today. GE tried and failed, Honeywell tried and failed, and no one else was stupid enough to buy it after that. (I am a former Multician.) Multics was very good at a bunch of things, but it was never designed to be ported to different hardware, and it just cost too damn much to run and maintain.

      • Re:Noorda's revenge? (Score:5, Interesting)

        by VivianC (206472) <`internet_update' `at' `yahoo.com'> on Wednesday October 29, 2003 @06:20PM (#7341948) Homepage Journal
        They are doing nothing but trying to drag this out for as long as possible. Now ask yourself, who is going to gain from all this extended FUD?

        With Longhorn still two years away, it might be best to drag this out as long as they can. You wouldn't want people changing over to Linux while you try to figure out your new OS, right?
  • by Empiric (675968) * on Wednesday October 29, 2003 @04:25PM (#7340814) Homepage
    By now, hasn't SCO contradicted themselves so many times on so many issues they're estoppeled [legal-definitions.com] from any course of action whatsoever?

    Maybe just a non-lawyer's wishful thinking...
    • by devphaeton (695736) on Wednesday October 29, 2003 @04:50PM (#7341080)
      By now, hasn't SCO contradicted themselves so many times on so many issues they're estoppeled from any course of action whatsoever?

      In a way, i kinda hope not. I would really like to see this go to court. Not only for the satisfaction of seeing SCO get smashed by an elephant, but also to see how the GPL will shake out in the courts. It's only a matter of time before the GPL gets called into court, and down the road there may be other opportunities, but it would really be advantageous to those supporting the GPL (of whom are habitually broke) to have this happen now, with the muscle (and finances) of IBM in our court.

      At any other time, the "attrition strategy" of prolonging the court process until the other side is bankrupted might get turned against us.

      We all know that even if the GPL is completely rock solid, it can still lose in court depending upon its presentation. And if it *does* lose in court, that could potentially start a firestorm of FUD and abandonment, if not a poor perception of Open Source products (even BSD-license ones.. consider how a PHB thinks). Next thing you know, we'll all be replacing linux/bsd servers with Windows Server 2003 or SUNW at our workplace.

      I would hate to see the party crashed just as it was getting started, you know?
    • by baileytal (692920)
      My understanding of estoppel is that it only operates when party A has 1) made a statement that it knows to be untruthful or incorrect and 2)party B actually relies upon that statement 3) after which party A seeks to rely on the actual state of affairs 4) to party B's actual detriment or loss. Estoppel would stop party A from being able to give legal effect to the actual state of affairs.

      The textbook example I remember involved trespass, which is a pretty cut-and-dried legal doctrine. In that example, p

      • Like... SCO's original "Download our GPL'ed product, and you're free to use it as you see fit" followed by "Pay us $699 per install or face legal action?", for example...?
      • by cmason32 (636063) on Wednesday October 29, 2003 @05:19PM (#7341378)
        You're thinking of equitable estoppel. There is also collateral and judicial estoppel. Collateral estoppel means that once a court has come to a decision, that decision affects other similarly related facts. Judicial estoppel prevents a party from asserting one thing in one instance and then the opposite in another instance.
      • by Zeinfeld (263942) on Wednesday October 29, 2003 @08:32PM (#7342991) Homepage
        It's important to note that estoppel is an equitable doctrine, meaning it's a subset of legal arguments traditionally pled where someone's clear legal rights will lead to an egregious injustice.

        Right, the biggest problem with SCO's case is that they refuse to mitigate their damages by telling the Linux community what the parts of the code alleged to infringe are.

        It is very clear that the minute SCO reveals that information that the code will be yanked and replaced by non infringing code, most likely within hours, days at the outside.

        This limits the damages that SCO can claim, since it is very clear that the infringement is not only not willful, it is involuntary. The only reason why the infringement is continuing is because SCO refuses to release that information.

        The analogy would be to the distributor of a compilation 'best of hits' CD consisting of a selection from the distributor's archives, being challenged by a record label claiming that it is actually the legitimate owner of the rights to one of the songs on the compilation but refusing to specify which song is in dispute. The distributor of the compilation is then given the choice between not distributing the CD at all and risking a possibly bogus infringement claim. If the distributor is told the song that is in dispute they can easily swap it for a different one, it is the refusal to be specific that is the only reason that the plaintif's claim has standing.

        This is not estoppel, but estoppel could also apply. SCO has allowed Linux to be distributed for many years and is in fact a distributor itself. Failure to enforce claims can result in them being lost. In fact this is the same claim that SCO is making against the GPL.

        I don't think that the SCO objection holds because it is the behavior of IBM that is at issue, not the FSF. In this case IBM does not appear to have a history of failure to enforce its limited reciprocal rights under the GPL for the simple reason that SCO is the first company to attempt to sue...

    • by DeadTOm (671865)
      I wasn't really sure where to put this but this seemed like a likely enough spot. SCO has been for years, and is still now, developing and destributing software under the GPL have they not? So wouldn't that mean that they AGREED to the terms of the GPL? So now that it's not working in their favor, they are saying that it's unconstitutional? So did it just suddenly occur to them that the GPL is unconstitutional or did they think so when they initially agreed to it's terms? You'd think that they would have lo
    • SCO seems to be trying to split the possible interpretations of GPL validity into three positions
      • GPL is unenforceable and anything GPLed is public domain
      • GPL is potentially enforceable but SCO's license to IBM prevents IBM from contributing anything useful to it
      • GPL is unenforceable and everything with a GPL attached is still owned by the original authors and each and every one of them retains the right to collect statutory copyright damages against anybody who copies their software without their direct an
  • by whig (6869) * on Wednesday October 29, 2003 @04:25PM (#7340815) Homepage Journal
    I posted this to LWN earlier....

    It's important to understand that this really is a war, and SCO has a point, albeit not one that sane people should accept.

    The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software. Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

    SCO's argument will likely be that this contravenes Congress's will, by creating a commons under rules other than those established by law.

    SCO will say that GPLed code cannot be restricted by export controls, thus violates national security laws.

    According to SCO, GPL purports to grant *too much freedom* and therefore, according to this argument, the lesser freedom of the public domain is and should be the appropriate terms by which previously GPLed code should be distributable.

    By this reasoning, then, SCO will claim it has every right to use GPL code in its proprietary distributions, but on the other hand, can contend that its own code (or code which IBM created under a license which grants SCO ownership of their code) was never intended (by SCO) to be released under GPL nor public domain.

    Now, to fully understand these arguments, you must put yourself in the mindset of a madman. Which, undoubtedly, Darl McBride is. Microsoft and others have surely encouraged his delusional state, and given him the resources he needs to pursue his dreams of world domination, with the understanding that even if SCO has no chance of succeeding in the final analysis, the legal case can and will create FUD to slow the adoption of Linux and buy time for proprietary firms.

    If this is a war, SCO is a foot soldier. SCO will die, of course, but that's what foot soldiers are expected to do.
    • Very good point - but the missing thing from all of this IMO is an exit strategy. what is the end game for SCO? they know they can't win, unless the level of madness is so deep McBride is truly delusional. So what is the secret hidden goal they are going to piss away millions in legal fees in vain for? And the worst thing - I keep trying to short SCOX and there are no shares to borrow!
      • The exit strategy isn't for the company, it's for the execs who plan to make a ton of money with this pump and dump scheme. They could care less what happens to the company long term.
        • The exit strategy isn't for the company, it's for the execs who plan to make a ton of money with this pump and dump scheme. They could care less what happens to the company long term.

          Yes, but shareholder lawsuits can go after the executives' personal fortunes. The SCOids have to know this, yet while their lawyers use careful, lawyerly, deniable language the SCO execs continue to say things that "could be used against you in a court of law". That is hard to understand.

          sPh

      • by whig (6869) * on Wednesday October 29, 2003 @04:36PM (#7340917) Homepage Journal
        McBride is *truly* delusional, IMHO.

        As for the attorneys, under the amended agreement with SCO, they get 20% of certain licensing fees and investments, I believe. Which means they probably pocketed $1.6M from Microsoft's most recent licensing payment, and perhaps $10M from the RBC/BayStar investment.

        Quite a motivation to continue pursuing a losing case. Even if Boies & Co. were to be disbarred, this is the kind of money that can make them say, "So what."
    • Well, we haven't seen SCO's detailed arguments on these points yet. At a minimum a couple of problems seem to pop up.

      SCO's argument will likely be that this contravenes Congress's will, by creating a commons under rules other than those established by law.

      Problem #1: how is this unconstitutional? The United States is not the Soviet Union; in the US anything which is not prohibited is permitted (more or less). And the 9th Amendment would certainly come into play here also.

      SCO will say that GPLed code

      • Problem #1: how is this unconstitutional? The United States is not the Soviet Union; in the US anything which is not prohibited is permitted (more or less). And the 9th Amendment would certainly come into play here also.

        It isn't unconstitutional by any stretch of *my* imagination, but that's just because I'm not delusional enough to buy into SCO's theory.
      • inth Amendment? (Score:5, Insightful)

        by jmorris42 (1458) * <jmorris@[ ]u.org ['bea' in gap]> on Wednesday October 29, 2003 @06:14PM (#7341899)
        Only one problem, the 9th and 10th Amendments have been effectively removed from the US Constituition. When was the last time a major case turned on one of them? For if the Courts were t rediscover them they would be forced to strike down most of the Federal Government.

        Example: I have the babble box on in the background right now, happen to be on CNNFN and was half listening to a discussion about a new proposed EPA rule requiring apartments to install water meters on each unit in the name of water conservation. The discussion covered a lot of issues, whether it would actually save water, how hard it would be to retrofit existing structures, blah blah. At no point was the most important question asked. What section of the US Constituition granted the Federal Government the power to regulate water supply to dwellings? Since there is no such section, the clear language of those same Amendments mean it HAS no such authority. Most of the EPA, FDA, HUD, etc. etc. are illegal according to the Constituition but violate their edicts and you will go directly to jail, not pass go and never find a lawyer willing to take your 200/hr to use the 9th or 10th Amendment in your defense.

        The Constituition uses shockingly clear and direct language, but it still gets ignored.

        Amendment 9:

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        Amendment 10:

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
        • Re:inth Amendment? (Score:3, Interesting)

          by falsified (638041)
          Commerce clause. Article I, Section 8.

          ...To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

          It goes on:

          To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

          That's where.
          Constitution of the USA [cornell.edu]

          • Re:inth Amendment? (Score:4, Interesting)

            by bnenning (58349) on Wednesday October 29, 2003 @07:47PM (#7342585)
            Commerce clause.


            Ok, and how does the water supply to an apartment fall under "interstate commerce"? Sure, you can come up with contrived logic like "the pipes may have been manufactured outside the state". Once you do that, there is *nothing* that is off limits to government, because every single activity anybody performs anywhere can have some remote tangential connection to some act of interstate commerce. I have a hard time believing this is what the founding fathers intended.

    • by mark-t (151149) <`markt' `at' `lynx.bc.ca'> on Wednesday October 29, 2003 @04:35PM (#7340914) Journal
      The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software
      Wrong... it is *designed* to generate _THE_ best software that is humanly possible, whether for financial gain or not.
      • by whig (6869) * on Wednesday October 29, 2003 @04:39PM (#7340960) Homepage Journal
        Quote from the GNU Manifesto:

        "GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems."

        The same principles apply to non-OS GPL software, although the original concept was just to create a replacement for Unix.
      • by Anonymous Coward
        RTFL: [fsf.org]: the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users.
      • by judd (3212) on Wednesday October 29, 2003 @04:49PM (#7341071) Homepage
        No.

        The GPL is designed to ensure that there is free software. That is all.

        Any quality benefits are purely coincidental. (The Open Source crowd disagree, but that's a different kettle of fish, and a whole other bunch of licenses).
    • by stephenry (648792) on Wednesday October 29, 2003 @04:36PM (#7340927)
      The one thing I've never truely understood about the Export Control argument is that, firstly, Linux is not American, and can therefore not be controlled by it's government, secondly, export controls only apply to that which is not already freely available to the public. Unless, US law suddenly applies to everyone else in the world, I don't see this being successfull.

      Shame really. I can just see it now. McBride's just spent his new $50 million hollowing out an old mountain (for SCO's new headquarters), bought him self a brand new white cat and leather chair and got his employees kit-ed out in matching grey overalls.
      • The one thing I've never truely understood about the Export Control argument is that, firstly, Linux is not American, and can therefore not be controlled by it's government,

        That argument has been advanced since the dawn of the Internet, but it turns out not to be the case. A lot of Linux developers do live in the US, RedHat is headquartered in the US, and at the moment Linus lives in the US as well. Whether or not "Linux" could be controlled by the USG, a lot of people who work on Linux could suffer ad

    • The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software. Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

      That's a bit of a paradox, isn't it? If one defines freedom by lack of restrictions, GPLed code is less free than public domain code by virtue of the GPL's specific copying conditions. Thus the only thing seperati

    • I am confused (Score:3, Insightful)

      by Irishman (9604)
      The argument that SCO has outlined states that the GPL contravenes the copyright law by making software very free. I won't try and figure out how something can be too free in a nation that purports to be the most free nation on Earth.

      As I understand it, if I create a copyrightable work, I can impose any restrictions on the use of that work. If you want to use that work, you must comply. If I choose to release a work under the GPL, that is my choice. I am complying with the law in that I have imposed re
    • Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

      That's just plainly not true. You cannot take something entirely free and make it freer by restricting its use. The point of the GPL is that it restricts certain individual freedoms, while protecting common freedom. But make no mistake: public domain software is freer.

      It's an issue of sematics, yes. But an important distinction.

      • That's just plainly not true. You cannot take something entirely free and make it freer by restricting its use. The point of the GPL is that it restricts certain individual freedoms, while protecting common freedom. But make no mistake: public domain software is freer.

        This is the endless debate between Free Software and Open Source advocates. GPL is freer in the sense that it protects the *code* from being captured by proprietary distributors. BSD and PD is freer in that it protects the *redistributor* to
        • This is the endless debate between Free Software and Open Source advocates. GPL is freer in the sense that it protects the *code* from being captured by proprietary distributors. BSD and PD is freer in that it protects the *redistributor* to do what he likes with the code.

          GPLed code is proprietary. The copyright holders own it and distribute it with redistribution conditions (but not usage restrictions). It is less "free" than public domain code because one cannot do whatever they like with it, like d

          • metaphor time (Score:3, Insightful)

            by pyrrho (167252)
            I think this is like saying that if I live in the woods I'm freer then if I live in a house with a fenced yard. I can go in any direction I want... I am not 'forced' to go to the door or unlock my gate. I'm free!!!

            But then, life is complicated, and the result of having no house and no fence is that, for example, I have no place to put my stuff. I'm not really very free to have stuff, and if I do have a VCR in the woods it's easily stolen. You can think that you are more free. There is a semantic argum
    • by odin53 (207172) on Wednesday October 29, 2003 @06:08PM (#7341849)
      Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

      This is a very odd thing to assert, and I suspect that the same people who believe this believe that the GPL isn't a contract. No matter what, GPL'd software has restrictions -- the restrictions listed in the GPL. Public domain software has no restrictions whatsoever. Public domain software HAS to be more free.

      You seem to think that because someone can take a copy of public domain software and make THE COPY restricted, the software is less free. But that applies only to the copy. For example, take the original work _The Wind in the Willows_, by Kenneth Grahame. The copyright on the original book has expired, and the book is now in the public domain. You decide to make the 95th Anniversary Special Edition of TWITW, based on the original work, and sell it. Because it's in the public domain, you may do this, and you may claim a copyright -- NOT on the Grahame's original TWITW, but on your particular derivative version of it. The original book -- and, more importantly, the text -- though, is and always will be public domain. Your buddy can sell "the Real 95th Anniversary Edition" using the original book; your mother can sell "the Unauthorized Complete 95th Anniversary Edition" using the original book; Darl McBride can sell "the Poorman's Library 95th Anniversary Edition" using the original book -- and each can claim a copyright on each of their versions, but none, not even Darl, can claim a copyright on the original book, ever. How is this not as free as GPL, which forces you to do something in exchange for being able to redistribute the subject code?

      Another way to look at it is this. When a copyright on a work expires, the work becomes more free, right? I don't think anyone would argue against that. So when the copyright expires on a GPL'd work, what happens to that work? Does it become less free? If I take, then, a copy of a public domain work, and redistribute it but with the GPL, is my redistributed copy more free than the public domain work I copied?
      • Would you say anarchy promotes more freedom than any form of government? I wouldn't. Stallman would say that the only freedom taken away by the GPL is the "freedom" to restrict others, kind of like the law against slavery. Does that law create more freedom, or less?

        BSD-style freedom resulted in a bunch of incompatible proprietary variants, and the winner was... nobody, they all went down together.

        • Would you say anarchy promotes more freedom than any form of government?

          As a part time anarcho-capitalist, I would. That you would think otherwise leads me to believe that you have misdefined the word. Perhaps you were thinking of "equality", "security", or "convenience" instead. These are all qualities that the GPL possesses in one form or another. It also possesses the quality of "freedom", but owned, copyrighted and licensed software will never be as free (in the FSF sense) that unowned, uncopyrighted
      • This is a very odd thing to assert, and I suspect that the same people who believe this believe that the GPL isn't a contract. No matter what, GPL'd software has restrictions -- the restrictions listed in the GPL. Public domain software has no restrictions whatsoever. Public domain software HAS to be more free.

        You confuse literal freedom with political and social freedom. Political and social freedom exist in a context, not in an isolated situation. Your reductionism does not do justice to the societ

    • by critter_hunter (568942) <critter_hunter.hotmail@com> on Wednesday October 29, 2003 @06:28PM (#7342022)
      The madness of King Darl

      While King Darl is pretty good, a more interesting name would be "The Princess McBride" ;)

    • I'm replying to SCO's argument, not you personally:

      SCO will say that GPLed code cannot be restricted by export controls, thus violates national security laws.

      To quote the GPL:

      8. If the distribution and/or use of the Program is restricted in
      certain countries either by patents or by copyrighted interfaces, the
      original copyright holder who places the Program under this License
      may add an explicit geographical distribution limitation excluding
      those countries, so that distribution is permitted only in or amo

    • The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software

      And given the artificially inflated prices charged by various software vendors, MS in particular, those prices could stand a little reduction.

      If the software companies want to sell product, all they haveto do is write better software than a bunch of amateurs and hobbyists. I mean how hard can that be?

      And if they can't manage that then arguably their software wasn't worth

  • With all the draconian BS developers and tech industry have to deal with in their professional lives, I am genuinely surprised SCO hasn't pushed some overtaxed coder who is a Linux guy on the side way over the edge. I'd be nervous if I were that Darl McBride guy. Seriously, what a jack ass.
  • Oh, I see. (Score:4, Funny)

    by utlemming (654269) on Wednesday October 29, 2003 @04:28PM (#7340839) Homepage
    The tactic is to get everything thrown in the public domain. I guess we figured out the new strategy---

    1. File law suits

    2. Get the licensing declared illegal

    3. Profits

    The only thing is getting everything released under the GPL in the last three years turned over to public domain would trampel the very concept of a copyright. It is a nice idea for SCO, but in reality they have to be smoking crack to think that this one will work. I honestly can not see it happening.

  • Ladies and gentlemen of the supposed jury, I have one final thing I want you to consider: (pulling down a diagram) 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. La

  • In defence to IBM's counterclaims [lwn.net] to it's lawsuit, SCO have made public a 21 page document [sco.com], including 156 'answers'.
    In the document the lawyers admit some facts submitted by Big Blue when it counterclaimed, but the important things are what it doesn't admit, of course.
    It alleges that Linux is an "unathorized version of UNIX that is structured, assembled and designed to be technologically indistinguishable" from it.
    I wonder how much the SCO lawyers are being paid.
    • This is an interesting point, but I think on the grounds that, as a for instance, Target's ready-to-drink Weight Loss Shake is otherwise indistinguishable on the surface (or in the glass) from Slim-Fast(TM)'s RTD diet shake, they are probably two different things when broken down.

      In short, I think it was decided a while back that "look and feel" alone (which, AFAICT, is the argument presented here) is not grounds for dispute.

  • by gsfprez (27403) on Wednesday October 29, 2003 @04:30PM (#7340861)
    i used to say...

    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.

    now, it looks like i need to amend it slightly...

    SCO has every reason in the world to see all GPL software made public domain. 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, as well as to prevent being sued into oblivion by a horde of GPL contibutors.

    it sucks being right.

    I'm telling you - we need to see SCO's "closed source" product code - for there, you will see that they have been going what they have accuesed everyone else of doing.

    There is NO other reason for wanting all GPL code made "public domain".
    • > I'm telling you - we need to see SCO's "closed source" product code - for
      > there, you will see that they have been going what they have accuesed
      > everyone else of doing.

      What do you suggest? A BSA type raid on their headquarters for a GPL licence compliance audit, perhaps using ESR's shredder SW on their source code?
  • Here's a thought... (Score:4, Interesting)

    by GearheadX (414240) on Wednesday October 29, 2003 @04:30PM (#7340863)
    Why is SCO trying to get GPL code into the public domain? Could they perhaps be trying to cover their tails in case someone were to uncover GPL code in software THEY have been releasing closed source?
  • I'm going away for a month starting at the end of November. I think when I get back, I'll find this has been resolved.

    SCO is just reaching too far now. How much longer can it go on? The pyramid of FUD has to collapse soon.

    Of course, that's just my opinion. After all, this whole case was pretty obvious from day one, and it's still moving forward... reality seems to mean nothing to SCO.

  • by debaere (94918) on Wednesday October 29, 2003 @04:32PM (#7340891)
    Does anyone else get the feeling that SCO is trying to get the Linux Kernel into the public domain so Microsoft can use it as a base for Longhorn? Robert X Cringley [pbs.org] had an article about this a few months back.
    • They don't have to. There is a perfectly good kernel that Microsoft can grab, lock, stock and barrel, and assimilate into Longhorn. It's called the BSD kernel. FreeBSD, NetBSD, OpenBSD...it's all fair game because of the BSD license. Microsoft has assimilated BSD code in the past...run Strings on ftp.exe and see the "Regents of the University of California" copyright notice for yourself.

      Fearless prediction: we will see WinBSD in our lifetimes. Only it will be referred to as just another iteration of NT.
  • by mikeophile (647318) on Wednesday October 29, 2003 @04:32PM (#7340893)
    Getting the GPL declared public domain might provide just enough precedent to get all intellectual property declared public domain.

    Free the meme! Viva la revolution!

    Or not.

    • My concern there would be that then there'd be no way to enforce the GPL's derivative works provisions, and we'd see a bunch of companies throwing a wrapper around GPL code and selling it, and the general public would say "Wow, look how great Linciscsys' products are! Nice that these responsible companies are finally putting those hacker anarchists in their place..."

      *cough* Current Cisco ad *cough*

      Besides, after all the work put into it, the original authors deserve at least recognition.
  • New theory (Score:4, Funny)

    by lurker412 (706164) on Wednesday October 29, 2003 @04:35PM (#7340916)
    SCO is obviously out to destroy the open source community, but their method is more subtle than previously thought. They just make an outrageous claim and then watch all the open source developers spend their time flaming on ./ rather than doing real work. Pretty sneaky...
  • ...then what makes anyone think that people will click on the "n bytes in body" link?

    For reasons I don't understand, this "silver bullet" defense has not been widely reported in the press.

    Sorry, Mark, but it didn't quite make front-page on /. either.

  • by Distan (122159) on Wednesday October 29, 2003 @04:38PM (#7340944)
    If it is all going to boil down to the GPL being tried in a court of law, there is one big thing that we should all be thankful for. That is the fact that IBM is on the side of the GPL. IBM has some of the best and sharpest attorneys in the corporate world, and short of having Disney come aboard as well, I can't think of any corporation I'd prefer to have as my proxy warrior.
  • by 3seas (184403) on Wednesday October 29, 2003 @04:39PM (#7340964) Journal
    If the GPL is invalid, what other licensings would also be in question?

    How about any licensings that violates or circumvents a persons constitutional rights (US)?

    Might such a thing also extend to employment contracts?
    • Huh? (Score:3, Informative)

      by siskbc (598067)
      How about any licensings that violates or circumvents a persons constitutional rights (US)?

      Any contract whose terms are not legal is null. So I think that's already the case.

      Note that there is a difference between someone waiving their rights and inalienable rights being violated. In any contract there is give and take - for example, in exchange for payment I give up some specific rights (like working for my employer's competition on the side, for instance). However, I couldn't sign a contract making m

  • Once again I ask: What liabilities are SCO's board members opening themselves up for with these ludicrous litigations and how can I get in on this class-action?

  • by studerby (160802) on Wednesday October 29, 2003 @04:41PM (#7340988)
    SCO's nefarious plan is to get IBM's lawyer's to laugh themselves to death, and thereby win by default.

    Sheer genius!

  • by 47PHA60 (444748) on Wednesday October 29, 2003 @04:42PM (#7340997) Journal
    "Looks like SCO has become just a bit worried about their liabilities for distributing the Linux kernel. Starting November 1 you will have to be a registered SCO customer to be able to access their FTP site."

    Doesn't matter; it is OK under the GPL to make code available only to those people who received binaries from you. You must, however, grant the same rights to those recipients so that they can further modify or distribute what they got from you.

    In other words, if the GPL is enforceable, this move by SCO does not mitigate their responsibility to honor the terms of the license which they accepted by distributing the software.

    If the GPL is enforceable, SCO has lost their rights by attempting to add further restrictions (in the form of their "SCO IP License"). If the GPL is not enforceable, then the whole software industry is in for a shake-up, because a license is the only way that software copyright holders extend any rights to you beyond what copyright allows.
  • Well then. (Score:4, Insightful)

    by mcc (14761) <amcclure@purdue.edu> on Wednesday October 29, 2003 @04:43PM (#7341002) Homepage
    That solves everything neatly.
    1. November 1 comes.
    2. IBM buys one (1) SCO UNIX license.
    3. IBM downloads the full linux kernel from SCO's website.
    4. By giving IBM said kernel, SCO has just licensed Linux to IBM under the GPL. This can no longer be argued to be mistake, or something accidentally left around on the website. IBM is now not only someone who has grabbed a file off SCO's website-- which is all that you need for the GPL license to be extended-- they are now a paying customer.
    5. All the code IBM ever put into linux now falls into two categories.
      1. Code which IBM had the right to put into linux because they own it.
      2. Code which IBM has the right to put into linux because SCO has granted them an unfettered license to do so by distributing said code to IBM under the GPL in step 3.
    6. Thus, SCO's lawsuit against IBM-- in which they allege IBM put code into linux which by right of contract is the property of SCO-- is no longer valid, since whether said code is IBM's or SCO's property, IBM now has the right to distribute it under the GPL anyway. The suit can be thrown out.
    Yes, I realize the above is utterly rediculous. I'm pointing this out just to elaborate how rediculous SCO's position is. As if it weren't already obvious to all.
  • by billn (5184) on Wednesday October 29, 2003 @04:44PM (#7341019) Homepage Journal
    'SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain.'

    There were early rumours about Microsoft having a puppeteer-like hand up SCO's collective ass when this whole mess started.

    Everything released under the GPL over the last three years, ostensibly some pretty solid code and products, would suddenly be up for grabs without the viral GPL attachment, including the Linux Kernel.

    (Linux - GPL) + (Innovative Open Source GPL Products - GPL) + (Microsoft - Innovation) = ?

  • huh? (Score:3, Insightful)

    by gyratedotorg (545872) on Wednesday October 29, 2003 @04:50PM (#7341077) Homepage

    'SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain.'

    correct me if im wrong, but wouldnt this put sco's linux distro into the public domain, and thus, invalidate all of their stolen-ip claims? sco did release their distro under the gpl, correct?

    • Re:huh? (Score:4, Insightful)

      by Rasta Prefect (250915) on Wednesday October 29, 2003 @05:12PM (#7341295)
      correct me if im wrong, but wouldnt this put sco's linux distro into the public domain, and thus, invalidate all of their stolen-ip claims? sco did release their distro under the gpl, correct?

      Argh, who moded this Insighttful? No, it wouldn't. Assuming there intellectual property is in the Linux kernel, if they had knowningly released it as GPL, it would GPL'd and the whole damn thing would be moot anyway.

      SCO's claims are that IBM and SGI put System V code, along with other code they developed, but that according to SCO still belongs to SCO by the terms of the Unix license agreement, were put in the Linux Kernel and the SCO Relased it under the GPL _without know it was there_. And that therefore it was IBM and SGI who released SCO's proprietry IP under the GPL. So it wouldn't be any more legitimately Public Domain that it is GPL'd now. At least if you buy what SCO is saying.

  • by dacarr (562277) on Wednesday October 29, 2003 @04:54PM (#7341123) Homepage Journal
    SCO says GPL is unconstitutional. Many public school students feel that school dress codes violate the first amendment. Some people feel that corporate restrictions on the distribution of pornography violate *their* first amemdment rights. Invariably, these people are corrected and accordingly embarrassed when the authorities say "Um, no it's *not*."
  • SCO's book value will be either billions of dollars or zero dollars after this case is over, and now we've got law professors calling their case "bizarre and ridiculous" - isn't that the sort of thing SCOX shareholders might find interesting? Yet unless you go into the discussion forums there's not a peep about it on finance.yahoo.com, fool.com... marketwatch.com is the only site I can find that's actually linking to any of these stories.

    So I'm throwing out two questions:

    Is there anything we can do to make the financial folks more aware of this? Every time a deceitful SCO executive makes another $100,000 stock sale to ignorant traders, Adam Smith does another 360 in his grave.

    Is there some better news source I should be using for the stocks I buy? I may sound like I'm mocking the "ignorant traders", but how can I be sure I'm not inadvertently funding some con artist myself?
  • by adrianbaugh (696007) on Wednesday October 29, 2003 @04:58PM (#7341156) Homepage Journal
    America is not the world. (Reminded about my earlier gaffe about Canadians, perhaps I should say "the USA is not the world.)
    If the GPL is ruled unconstitutional in the USA then the rest of the world simply goes for a dual license. With apologies to all the sane people in the USA, I go for something along the lines of: "GPL applicable outside the USA. No licensing terms available within the USA." We move repositories of GPL stuff out of the USA and the rest of the world gets on with business as usual, apart from possibly a few years setback having to replace key developers. The USA, meanwhile, carries on smoking its crack pipe.
  • by narfbot (515956) on Wednesday October 29, 2003 @05:00PM (#7341177)
    If SCO succeeds in getting the GPL voided and all it's code put into public domain (last 3 years??), can I please be the first to sign onto a class action lawsuit, because it affects me. Surely this damages the work of thousands of people, probably in the trillions of dollars, and I would sure enjoy being part of a coalition to bankrupt and crush SCO. SCO execs will never be able to work in business again.
  • IBM reacted too, in the same Stephen Shankland article, and you can almost hear them chuckling:

    "'IBM strongly believes in its counterclaims and looks forward to trying its case in the court of law,' where IBM will address SCO's specific claims, such as the GPL issue, spokesman Mike Darcy said."

    No one looks forward to going to Court unless they are sure they are going to win HUGE. It is odd that IBM has turned into Tux's 10,000 pound pet pit bull.

    Makes me wish my company was in Utah. We need a new bu
  • by criquet (120814) on Wednesday October 29, 2003 @05:04PM (#7341214) Homepage Journal
    Copyright Preemption [richmond.edu]
  • by mark-t (151149) <`markt' `at' `lynx.bc.ca'> on Wednesday October 29, 2003 @05:06PM (#7341232) Journal
    Copyrighted code is STILL copyrighted...

    A person publishing source code does not relenquish the author's legal rights over that source code any more than a book author, by having a book published, relenquishes copyright control over the content of *HIS* work.

    Without the GPL, no code that is currently GPL'd can ever be legally distributed by anyone (except those expressly permitted by the copyright holder), until such time that the copyright expires (which given the inane extensions given to copyright recently, could be an *AWFULLY* long time).

    As for getting permission from the copyright holder... well if a person had wanted to use the GPL in the first place, they'd just come up with their own licensing system which still maintains the copyright holder's ownership and control on the work, and has simple enough requirements for getting permission that absolutely *ZERO* paperwork is necessary (ie... a GPL-ish license).

  • by WhiteWolf666 (145211) <sherwin@@@amiran...us> on Wednesday October 29, 2003 @05:15PM (#7341332) Homepage Journal
    I know it is probably because they are so certain of their case, and because they don't really want to join the current shit slinging freak-show that is SCO, but. . .

    I almost get the impression that IBM is not making a sound for fear that too much pressure on SCO will simply cause them to fold.

    When you have a million to one advantage against your enemies, there really isn't any reason to jockey for position.

    It is hard enough to keep them in the game, and IBM legal knows as well as anyone else that splattering Boise & Co. in the court room will be some seriously positive publicity.
    • by Rimbo (139781) <rimbosity.sbcglobal@net> on Wednesday October 29, 2003 @05:59PM (#7341760) Homepage Journal
      Have you ever heard a representative of one company or another say, "I'm sorry, but we cannot comment on legal matters?"

      There is a very good reason why you should keep your trap shut when you're involved in a lawsuit: "Everything you say can and will be used against you in court." Now I KNOW you've heard that one.

      You do not discuss legal action until the case is over with. Time and time again, SCO's refusal to keep their lips zipped has fed IBM more fuel for their own counter-suits and defense. Everything they have said can and will be used against them by IBM.

      IBM is not making the same mistake.

      I also feel that their brevity and silence makes the cloud forming over SCO only seem darker, but that's just my own bias talking there. The reality is that what you don't say won't come back to haunt you later.
      • by Corgha (60478)
        SCO's refusal to keep their lips zipped has fed IBM more fuel for their own counter-suits and defense. [...] IBM is not making the same mistake.

        It's only a "mistake" if the goal of the people whose lips are in question is for SCO to win the lawsuit.

        If, on the other hand, the goal is to pump up stock prices to make some personal profit before the company's demise, it would make sense both to make all sorts of wild claims to boost investor confidence, and to put off the day of reckoning in court as long as
  • by ajs (35943) <ajs@noSPam.ajs.com> on Wednesday October 29, 2003 @05:17PM (#7341348) Homepage Journal
    Something to understand here is that SCO's lawyers are not behaving eratically or in an unusual way, given their position.

    That is, wen you enter a legal dispute, your first tactic is usually going to be to attack the very foundation of your opponent's position. It doesn't matter if your claims are reasonable (though they should be as reasonable as possible), you just want to take the shot.

    Then, idealy, you prepare several fallback positions of increasing weight. There's an emotional trick here and a logical reason for this. The emotional trick is that you set the bar by making the hyperbolic claim. When you claim that the GPL is unconstitutional, you're not attacking the GPL directly so much as you're attempting to start the conversation with a debate over the validity of the GPL so that your next points: the enforcability of the GPL will be recieved better.

    The logical reason to do this, however, is obvious to anyone who worries about network security. The first thing you do is always the easiest, no matter how likely it is to stop an attacker, to NOT do the easy things, you would be remiss. After you block all incoming IPX traffic, you still have to deal with the TCP threats, and while it's unlikely that you'll be getting IPX-based attacks from your T1 provider, you should still block it.

    That's what SCO has done here. They're not really taking the position that the GPL is obviously unconstitutional, so much as they are making that claim because it's where you start... then you can move on to the arguments that are more likely to work for you.

    Whenever I hear someone talk about how "insane" SCO is acting, I have to shake my head. It's not insane for a dying company to make grandious copyright claims against the rest of the industry. It is in fact, a very wise, if desperate, tactic. Get used to it, now that Linux is seen as an ecconmic reality, SCO's wild pot-shots will only be the first of many. The open source community's headache here will be the fact that most businesses don't handle all of those pot-shots in the public eye....
  • by Java Pimp (98454) <java_pimp@@@yahoo...com> on Wednesday October 29, 2003 @05:17PM (#7341355) Homepage
    1. IBM, we sue you for leaking a few lines of our code into Linux.
    2. IBM, we sue you because you leaked thousands of lines of our code into Linux.
    3. IBM, we sue you because we own Unix and you developed software for Linux.
    4. Linux was based on Unix and Unix has 2,000,000+ lines of code. Linux contains all our code!
    4. IBM, we sue you... not quite sure why now... We own Linux. Everyone give use $699 or else.
    5. All software written under the GPL in the last 3 years is free because the GPL is stupid and it just should be ours anyway.
    6. All software ever written is ours.
    7. ALL YOUR BASE ARE BELONG TO US!
  • by LostCluster (625375) on Wednesday October 29, 2003 @05:17PM (#7341358)
    In the unlikely event that all GPL released works become public domain per SCO's request... wouldn't that include SCO's own Linux release, therefore killing whatever ownership of any fragement code they might have had?
  • by anomaly (15035) <tom.cooper3@g m a i l .com> on Wednesday October 29, 2003 @05:43PM (#7341629)
    I contacted the SEC about SCO, and they called me back!

    I posted a comment [slashdot.org] with more information about this yesterday....
  • Makes sense (Score:3, Funny)

    by PenguinX (18932) on Wednesday October 29, 2003 @06:05PM (#7341813) Homepage
    Madmen always take the most simple and logical path to reason their madness. SCO wants money at the expense of everyone else, so naturally they must assert themselves as superior to everyone else.

    It seems to me that they will build an ingeniously incorrect case, bring it in front of a court of law, play the justice system like a card table in Vegas, and if they win ... well that would be bad.

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