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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Monday, October 27 2003 @ 07:39 PM EST

Here's SCO's Reply to IBM's Amended Answer with Counterclaims [PDF].

The most significant thing they say is that the GPL isn't enforceable or applicable, and in paragraph 16 that Linux is an unauthorized "version" of UNIX:

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.
I'm guessing you have a few words to say on that.

In their Sixth Affirmative Defense, they say:

The General Public License ("GPL") is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred.
The Seventh Affirmative Defense adds:
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.
The Eighth adds:
The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred.
They forgot to add that the GPL causes cancer. It's also responsible for the fires in California. And it's fattening.

If you care about the rest and are still listening, the other main things they say are that they deny "that Novell sold only part of its UNIX assets" and they deny "that IBM has any remaining rights under the referenced agreements". They also say that Sequent acquired certain UNIX rights pursuant to its own license agreements with AT&T "all of which IBM failed to attach to its counterclaim" and they admit only that IBM "acquired the stock of Sequent". This probably means IBM will say Sequent after they were bought comes under their license and SCO will say no, they stay under the old ones.

SCO "denies the enforceability or applicability of the GPL" and says SCO "may have" distributed the kernel and admits it distributed under the GPL.

Paragraph 42 is interesting. They say:

SCO was unaware of IBM's Linux-related investment prior to its formal announcements thereof, and further alleges that IBM secretly and improperly failed to disclose to SCO such Linux-related investments and its intentions with respect to Linux before and during Project Monterey.
So, our assignment, should we choose to accept it, is to find evidence on this point.

Look at paragraph 55. They admit they sent the 1500 letters to "the world's largest corporations" but deny the letters "threatened litigation".

In paragraphs 60 and 61, it acknowledges the existence of the Novell letters, "but denies any legal or factual basis for the said" letters.

It admits revoking IBM's right to "further use, license or distribute AIX". In paragraph 75, it admits it "licenses and distributes" UnixWare, "OpenServer", "SCO Manager," and "Reliant HA", but "denies infringement".

In paragraph 79, they say that despite having terminated IBM's right to use, license and distribute AIX, IBM is still bound by the AT&T Agreements and Amendment X's confidentiality requirements, which "specifically continue beyond termination".

Paragraph 120 is fascinating. They seem to be saying that not only did IBM violate SCO's "contract and intellectual property rights" (um...yesterday it was only contracts, wasn't it, according to SCO's Memorandum of Law?), but that IBM's contributions to Linux were under the GPL, a license they say is not applicable or enforceable.

In paragraph 122, they say IBM has no legal authority to place copyright notices on "certain of its AIX and Dynix contributions to UNIX" so they plan on fighting the legitimacy of IBM's copyright.

They go on to say that "IBM's purported copyright registrations are invalid and/or IBM has violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are barred." The Fifteenth Affirmative Defense explains:

On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM's inequitable conduct, acts or omissions before the United States Patent and Trademark Office.

We all know how sloppy IBM's legal department has historically been, so this claim is likely to be left standing at the end of the day. Mwahahahaha. Not. And their *copyright* will be unenforceable because of their conduct at the *Patent and Trademark Office*? That's a new one on me.

Then they say IBM may not be the owner of the four patents and that they are in fact invalid, "for failure to comply with one of more requirements" of the US Code, including Sections 101, 102, 103 and/or 112 of Title 35. Of course, They failed to comply. The Big Blue guys don't forget to dot their i's or cross their t's. There's too many of them, for one thing. This is really ridiculous. It drones on some more about the patents not being valid.

Then it says IBM lacks standing to bring certain claims because they failed to "join one or more parties needed for just adjudication of their counterclaims, including, but not limited to the Free Software Foundation and contributors to the Linux 2.4 and 2.5 kernels."

They want you in there, guys. May their wish come true. (Copyright infringement dollar signs flash though my mind.) Then they ask for "dismissal with prejudice" or a judgment in their favor, with attorneys' fees and costs.

Right. Hold your breath, SCO. Please.

Well, folks, I guess it's true. They must really be trying to inspire IBM to buy them out. I don't see any legal hope for SCO.

As for the GPL, it's total war.


  


SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable | 383 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
ain't just a river in Egypt
Authored by: Anonymous on Monday, October 27 2003 @ 07:57 PM EST

"Denies the allegations of paragraph 16 and alleges that Linux is, in actuality, an unauthorized version of UNIX"

deny "that Novell sold only part of its UNIX assets"

deny "that IBM has any remaining rights under the referenced agreements"

"denies the enforceability or applicability of the GPL"

I almost feel sorry for them, being so detached from reality.

and says SCO "may have" distributed the kernel and admits it distributed under the GPL.

HOLY MOLEY! Did they really admit this? In a court document?

They're doomed. I mean, they were doomed before, but I'm talking nuclear winter here...

[ Reply to This | # ]

Children
Authored by: Alizarin on Monday, October 27 2003 @ 07:58 PM EST
I guess we're at that childish part of the argument where the person who's
losing really bad calls the other a doodie-head and puts his hands over his ears
and shouts "LA LA LA I CAN'T HEAR YOU LA LA LA"

[ Reply to This | # ]

  • Children - Authored by: Anonymous on Tuesday, October 28 2003 @ 12:07 AM EST
  • Children - Authored by: Anonymous on Tuesday, October 28 2003 @ 08:33 AM EST
SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:00 PM EST
"Unauthorised"??

I think Red Hat may be very interested in this allegation in respect of their
own case. Yet more evidence, were it needed, that SCO's delusions encompass
rather more than just a contract battle with Big Blue.

[ Reply to This | # ]

Holy Mackerel Batman!
Authored by: reuben on Monday, October 27 2003 @ 08:04 PM EST
From the "Eighth Affirmative Defense" on page 16:

The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred.

I'm guessing that the litany of "affirmative defenses" is a legal way of throwing out near-infinite quantities of utter BS in the hopes that a small fraction may somehow stick, but this is pretty dern ballsy. If what came before was not enough, I think that SCO has now advanced to using nuclear weapons against its own credibility with the rest of the Linux world.

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:06 PM EST
unbelievable gall
lies ,lies and more lies
wonder if their attorneys will be disbarred?
i sure hope so
i am totally speechless
br3n

[ Reply to This | # ]

How to create a live Web link in Groklaw
Authored by: Anonymous on Monday, October 27 2003 @ 08:10 PM EST
<a href="http://the URL">title of the link -- can repeat the
URL if you like.</a>

At the bottom of the message window, it says "Post Mode". Click on
the down arrow so that "HTML Formatted" is selected, instead of
"Plain Text:

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:11 PM EST
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.

Can these be taken seriously? (SCO puts them pretty far down their list.) If they are taken seriously won't this case take years ...

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:11 PM EST
I can't believe they have the audacity to say that the GPL violates the
Constitution. What is next? GPL is un-American, it violates the Patriot
Act, it is a minion of al Qaeda, it is used by North Korea and Iran to build
nuclear weapons, it caused the fires in Southern Cal., it is responsible for
the downturn in the economy, it was the cause of 2000 presidential
debacle, it interferes with satellite communications like solar flares, it
leads to high infant mortality, it causes cancer, it is fattening and
increases your cholesterol, and it makes people ugly.

I see it coming to a court document soon!

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: nabet on Monday, October 27 2003 @ 08:12 PM EST
I just knew this would be SCO's response. All of the clues in SCO's previous public and legal statements were leading up to the undeniable fact that SCO wants to claim all versions of Unix as their own.

The gall of SCO is breathtaking. They want the judge to believe that they own everything that makes up what we know as a Unix operating system: not just the source code to one version of Unix, but the very specifications that define what a Unix operating system is.

Never mind that the specifications are a public standard, and the trademark of Unix cannot be used unless your operating system has been certified to follow those standards. Never mind that the BSD Unixes were judged not to infringe on the copyrights of AT&T Unix. Never mind that Linux was written from scratch. Never mind that the code IBM donated to Linux doesn't even derive from the System V code base. SCO is going to claim all the Unixes anyway, simply because they "behave like the original Unix".

It is now official: Darl McBride and his cronies are completely out of their minds. Their motivation to perpetrate this madness is clear: they have found their version of Unix (which only coincidentally is based on the original AT&T Unix) cannot compete with Linux, and they couldn't even make money off selling Linux itself, so now they are going to do their utmost to destroy Linux through FUD and (if possible) through the courts.

I'm willing to bet, however, that they don't have as much confidence in winning through the courts than they do with FUD. So they're just going through the motions of a court case in order to make their FUD seem more convincing to those not educated in the facts about Unix history. Their outrageous claims and silly court filings demonstrate they haven't got any legimate arguments to offer, but they're going to drag out the court case as long as they can, in the belief that all the corresponding FUD they put out will stick.

What the Linux community needs is not just a decisive win by IBM, but a ruling from the judge that reveals SCO's FUD for what it is. SCO must not be allowed to profit from what they've been doing over the past 6 months. Both Linux and the GPL must be validated and vindicated in the eyes of the law, so that nobody, not even Microsoft, will dare to try and pull of such a stunt again.

[ Reply to This | # ]

Affirmative Defenses
Authored by: gumout on Monday, October 27 2003 @ 08:21 PM EST
The Affirmative Defenses are just general boilerplate law:

"The purpose in asserting an affirmative defense is to "give
the opposing party notice of the defense and a chance to
develop evidence and offer arguments to controvert the
defense." Wolf v. Reliance Standard Life Ins. Co., 71 F.3d
Cir. 1995); See also 5 Charles A. Wright & Arthur R. Miller,
Federal Practice& Procedure §1274 (1990) ("An affirmative
defense may be pleaded in general terms and will be held to
be sufficient, and therefore invulnerable to a motion
to strike, as long as it gives plaintiff fair notice of the
nature of the defense.")". --- Tobin v. University of Maine
Sys., 59 F.Supp.2d 87

---
Software will never be free until the last CEO has been
strangled with the entrails of the last lawyer.

[ Reply to This | # ]

GPL Unconsitutional
Authored by: cmcnabb on Monday, October 27 2003 @ 08:24 PM EST

EIGHTH AFFIRMATIVE DEFENSE The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM’s claims based thereon, or related thereto, are barred.

I sprayed beer all over my keyboard and monitor when I read this. Can I sue SCO for damages?

Seriously, how can the GPL violate the US Consitution, which states (Article I, Section 8, Clause 8):

[The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

I interpret this to mean that the authors/inventors are granted a monopoly on their writings and discoveries for a limited amount of time. Nowhere does it say that they don't have the right to give (or sell) their copyright. In fact, if that were the case, then AT&T could never have legally sold the copyright for Unix to Novell, and would never have been able to license it to IBM, Sequent, Sun, or even original SCO.

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:25 PM EST
IBM's claims are barred or preempted in whole or in part by the laws of the United States

Will this be followed by... your honor, here is a library with all the US laws, you should point out which one is good for us. Oh, we're supposed to do that work? No, it is as much work for you as it is for us, your honor! You do it or else we'll ask for the case to be moved to another court.

At least it seems a novel way to try... google zero hits

May their prayer for dismissal be denied

[ Reply to This | # ]

SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:25 PM EST
SCO better hope that the GPL is valid, because if it's not:

1. All GPL software reverts to normal copyright protection and Caldera is guilty
of distributing Linux for almost a decade with no license, therefore infringing
on countless developers' copyrights.

2. All of SCO's Linux and UnixWare products are effectively dead since they can
no longer distribute GCC or any GPL software. This pretty much ends any dim hope
they might have had of resurrecting UnixWare with their newfound $50 million.

3. Any number of other software licenses that are or are not similar to the GPL
may also be rendered illegal and therefore potentially making some of the SysV
source code or some of SCO's other products illegal to distribute.

[ Reply to This | # ]

OMG !
Authored by: Anonymous on Monday, October 27 2003 @ 08:26 PM EST

That is sooo funny ! Have you looked at the affirmative defenses ? Can you see the memes piercing the ether ?

The GPL is unconstitutional (anti-American), violates export-control laws (supports terrorism), copyright (not more than one copy, dammit, copyright trumps the GPL !), and antitrust (????).

And SCO sues IBM, but IBM has no standing to make claims, and if they did the "IBM's claims are preemted by the laws of the United States" (oh say can you see...). SCO after all has acted properly and legally at all "relevant" times. And poor SCO, IBM didnt provide them with a proper notice of infringement. Someone stop me before i bust !

i though this was a parody written by a Groklaw poster. Is this actually a legal document ?

Actually, defense 26 is revealing (is SCO actually saying that IBM needs to join a class action suit ?). With all the "GPL" is unenforceable FUD, someone has at least clued them in that whatever happens to the GPL, standard copyright rules prevail.

[ Reply to This | # ]

  • OMG ! - Authored by: nabet on Monday, October 27 2003 @ 08:34 PM EST
    • OMG ! - Authored by: Anonymous on Monday, October 27 2003 @ 10:14 PM EST
  • OMG ! - Authored by: Anonymous on Monday, October 27 2003 @ 10:21 PM EST
    • OMG ! - Authored by: inc_x on Tuesday, October 28 2003 @ 07:14 AM EST
  • OMG ! - Authored by: Anonymous on Tuesday, October 28 2003 @ 04:00 AM EST
SCO Replies to IBM's Counterclaims: Says GPL Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:27 PM EST
Well I'll be first to chip in that of course Linux is an unauthorised version
of UNIX in the sense that The Open Group who own UNIX(TM) have not certified it
as any UNIX level - See http://www.opengroup.org/openbrand/register/

Of course that's not what SCO want the Judge to think it means, in the same way
it spins anything in more than one way.

[ Reply to This | # ]

OK, Have it your way!
Authored by: overshoot on Monday, October 27 2003 @ 08:29 PM EST
Fair enough -- according to SCO's very pleadings, the GPL has no legal force.

I believe that the statutory damages for willful commercial infringement of copyright are about $150,000 per work infringed? Now would be a good time for the FSF to file a copyright infringement action against SCO while there are a few bucks left of that $50 million.

[ Reply to This | # ]

By exactly what theory is GPL Unenforceable?
Authored by: NZheretic on Monday, October 27 2003 @ 08:49 PM EST
This line of argument was played out in the usenet groups over a decade ago.

http://groups. google.com/groups?selm=558@ncis.tis.llnl.gov

Subject: Re:
Copyleft may be invalid in some states
Message-ID: 
Date: 19 Oct 89 20:57:20
GMT
References:  
Organization: Postmodern Consulting, Pleasanton CA USA
Lines:
65

In article andrew@frip.wv.tek.com (Andrew Klossner) writes:
[] "A program placed under GNU Copyleft is licensed without compensation. Hence there is an excellent chance that someone in these states could successfully render Copyleft invalid in court."

Utterly wrong. The copyleft is not a license, it is the terms of a "publication" in the parlance of copyright law.

"What follow are my opinions; I'm not a lawyer."

I'm not either, but I've taken the trouble to research this law.

I also disagree with the assertion inside the quote above, but do not concur with Mr. Klossner's remarks. My analysis is as follows:

1. The Copyleft/GPL is unequivocally a license. The concept of a license for copyrighted material is very well developed in copyright case law, and there is nothing about the Copyleft/GPL that would render it anything other than a license. There are many examples of public licenses for copyrighted material; most of them simply add terms such as requiring identification of the source of the material; forbidding changes except for personal use (i.e., reserving from the license the right to make derivate works); granting the right to copy for noncommercial use only, etc. There is nothing in copyright case law to suggest that these (public) licenses are invalid.

2. Under copyright case law, there is no requirement that a license of copyright be supported by consideration (compensation). This is because it is not a contract but a grant of property rights. Contracts require consideration, but grants do not. This is an elementary and well-settled principle of property law.

3. In the United States, the Copyright Act of 1976 pre-empts all state law that previously dealt with intellectual property rights in the matter subject to the Act (as defined in Sections 102 of the Act). This was the explicit intent of Congress and has been repeatedly upheld by the courts. Therefore, any pre-existing state law that purported to modify the nature or terms of a license of copyright would be pre-empted, and any subsequent state law that did likewise would be inoperative. In either case, I doubt if the state law would operate in any case to render the Copyleft/GPL unenforceable, because it is a grant and not a contract.

I don't understand what Mr. Klossner means by "The copyleft is not a license, it is the terms of a 'publication' in the parlance of copyright law"; in copyright law, a work is either published or not published, and if the work is not published, much of the Act does not apply. However, there is no doubt that the GNU programs are published within the meaning of the Act (section 101), so I don't know what the concept of "terms" is supposed to refer to here.

I have been a frequent critic of FSF and the political and philosophical underpinnings of Project GNU, and more recently of Richard Stallman's attempts to use publicly-funded networks for partisan political advocacy, but I find nothing in the GNU Public License that would render it unenforceable under copyright law or federal or state common law.

--
Michael C. Berch
Member of the California Bar
mcb@tis.llnl.gov / uunet!tis.llnl.gov!mcb

[ Reply to This | # ]

Parsing error
Authored by: Anonymous on Monday, October 27 2003 @ 08:51 PM EST
It took me a bit but I found a copy of the IBM Amended Counterclaim without
which most of this filing cannot be parsed.

http://lwn.net/Articles/43592/

Some interesting things in here besides the ludicrous stuff PJ mentioned
already, for instance:

TSG:
Denies the allegations of ¶11.

Going to the IBM document to see what this is:

11. Thereafter, IBM obtained additional rights with respect to UNIX software.
Pursuant to an agreement known as Amendment X, entered into by IBM, Novell and
Original SCO on October 17, 1996, for example, IBM acquired the
"irrevocable, fully paid-up, perpetual right to exercise
all of its rights" under the AT&T Agreements. A copy of this amendment
is attached hereto as Exhibit G.

Going on to 12:

TSG: 12. Admits that in 1985 IBM acquired certain UNIX rights pursuant to
license with AT&T, and admits that IBM and AT&T entered agreements as
referenced in ¶12, but denies that IBM’s UNIX-related rights are characterized
as “broad,” denies that IBM has any remaining rights under the referenced
agreements and denies the remaining allegations of ¶12 not specifically admitted
herein.

IBMs 12 doesn't fit this at all, after looking it over, I'm convinced this was
actually meant to refer to 11, not 12. That would mean their 11 was a denial of
IBMs 10, which makes more sense also. Is there a protocol here I'm missing, or
did they actually misnumber the replies systematically here? What are the
ramifications?

I'm still working through the documents side by side, not being a lawyer or
paralegal, just a psycho-linguist who finds legalese fascinating, I'm not
really sure on just how significant this apparent mistake is, but the more I
reread this section the more obvious it is that, unless there's a protocol I'm
ignorant of that explains it, it is indeed a mistake. Looking back to try and
see where they went offcourse, it does seem that the 10s match up, the 11 in
TSGs filing is simply a one sentence denial so it could refer to most anything,
but TSGs 12 clearly refers to IBMs 11, not to IBMs 12, and nothing after that
seems to match (not that I've compared to the end, just the next half dozen
paragraphs which clearly no longer track the paragraphs in the other document
I'm looking at. Is this an incorrect copy of IBMs filing I'm looking at? If so
is there a correct one somewhere you can point me to?

[ Reply to This | # ]

Sweet!
Authored by: overshoot on Monday, October 27 2003 @ 08:52 PM EST
P30-32 combined with their denial of the validity of the GPL is sworn admission of willful copyright infringement. Slam-dunk, summary judgment, Game over, Dude!

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 08:53 PM EST
And it's hi ho hey, I am a bold marauder And it's hi ho hey, I am the white destroyer For I will show you silver and gold, and I will bring you treasure I will wave a widowing flag, and I will be your lover And I will show you grotto and cave and sacrificial alter And I will show you blood on the stone and I will be your mentor And night will be our darling and fear will be our name John Kay Bold Marauder, by John Kay Darl's dream....

[ Reply to This | # ]

Unix is not Unix?
Authored by: stevem on Monday, October 27 2003 @ 08:53 PM EST
I was struck by the absurditiy of the very first denial.

from IBM originally we have:
http://www.sco.com/ibmlawsuit/ibmamendedcounterclaims.pdf page 3, para # 8.
"Unix is a name used to characterize a family of operating systems that
share common characteristics and meet certan well-publicized "UNIX"
standards."

TSG are saying that this is NOT true? Umm well what is "UNIX"
then????


Last I looked (about 10 secs ago) UNIX is defined conclusively here:
http://www.unix.org/what_is_unix.html
And if the owners of the UNIX trademark can't get it right then who can?


As a previous poster put, Surely this is some sort of belated April Fools joke
and not a serious legal document.


Incedible!


- stevem

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Scott_Lazar on Monday, October 27 2003 @ 08:56 PM EST
Anyone feeling muscular and willing to take the replies and match them up one by
one with IBM's amended answers? Sure would make for some easy (and
fascinating) reading.

Scott

---
LINUX - Visibly superior!

[ Reply to This | # ]

Invalid copyrights because of inequitable conduct before PTO?
Authored by: Anonymous on Monday, October 27 2003 @ 08:58 PM EST
On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM’s inequitable conduct, acts or omissions before the United States Patent and Trademark Office.

Since copyrights are filed with the Library of Congress, not the Patent and Trademark Office, this affirmative defense is invalid.

[ Reply to This | # ]

Burn your bridges but stand on them while you do so
Authored by: Hygrocybe on Monday, October 27 2003 @ 08:59 PM EST
I find SCO's actions repugnant and stupid. However it makes a sort of sense
when you assume that even SCO must know it is finished commercially. I suppose
that if you know that you are eventually going to be down in a screaming heap,
then take as much of the opposition with you as you can, or alternatively, cause
them as much distress as possible. A pyrrhic victory if you like - and I
don't. This is straight insanity on the part of SCO because I don't think any
of us doubt that the GPL will be upheld at law.

---
LamingtonNP

[ Reply to This | # ]

Widely fluctuating quality of documents.
Authored by: Anonymous on Monday, October 27 2003 @ 09:10 PM EST
I'm sure I'm not the only one who noticed the latest answer to Red Hat
appeared a lot more serious than this joke of a document.
Maybe SCO should get the Delaware dude to write the rest of their legal
documents as well.

That won't make them right, but at least it may help them pretend there is some
credibility somewhere to be found in their case, at least for a little while.

<hat type="tinfoil">
I swear if SCO was a sacrificial lemming and co-conspirator with IBM for the
ultimate goal of validating the GPL in a big noisy slam dunk case, they probably
wouldn't do things very differently.
SCO has gone to great length to acquire its comicbook vilain quality. At their
current level of subtlelty, they rank right next to the "WaterWorld"
bad guys, who blew cigarette smoke to the camera while working inside an oil
tanker. ooOooh, Evil! Quick, let's jump on the waterjets and burn in flame in a
freak accident!

Ok, I'm done.

</hat>

[ Reply to This | # ]

Noteworthy entries - especially 8, 32, 44, 60/61
Authored by: Anonymous on Monday, October 27 2003 @ 09:17 PM EST
I think they have to assert these defenses (GPL stuff), as the facts that Linux
is licensed under the GPL, SCO distributed and distributes Linux, are unlikely
to be in serious dispute. So if they didn't assert these defenses, they have no
defense.

Interesting sections (I'll paraphrase words and add my own comments, go to
original IBM and SCO documents to see what is actually alleged/denied)

8. SCO denies UNIX is a family of operating systems that share common
characteristics and meet well-publicized standards.

10. Similar to 8 and more, IBM says Novell sold only some rights to Old SCO (I
am thinking of Open Group and Novell retaining some rights). SCO denies this.

14. SCO says IBM failed to attach Sequent issues to the counterclaim. Ah-um -
Sequent is extensively mentioned in the counterclaim. In any case, it's up to
IBM what they counterclaim for.

19. Denies (because of lack of info) that IBM holds valid copyrights in Linux

23. Denies applicability or enforceability of GPL to Linux

25. Essentially a repeat of 23

28. IBM says SCO is bound by GPL because SCO distributing Linux. SCO denies

30, 31, 32, 33, 36, 39, 40, 41, 47, 48. They seem to be denying their past. All
of which is well documented

32. For 32 they seem to be denying continuing to make Linux available for
download from their web site

44. They deny **any** IBM contribution was proper and legal! Compare item 120
below - INCONSISTENT - ATTENTION PJ

60, 61. Denies the Novell letters have any factual or legal basis.

69, 70. The Slide show again

72, 73, 74. GPL not enforceable again, according to SCO

108. GPL not enforceable again, according to SCO

114. Denies SCO made promise to follow GPL (IBM's promissory estoppel claim)

120. GPL not enforceable again, according to SCO. Note: They say *some* IBM
contributions improper - see 44


[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 09:17 PM EST
Considering how many large, powerful companies as well as the US government are
now relying on Linux, GNU and other GPL software (witness the US Army story on
The Register today), I have to think that even if SCO were to somehow prevail in
their attempt to make the GPL illegal, there would be very quick and furious
lobbying of Congress to amend the law to restore it to being legal again.

I can just picture Microsoft executives grinning when they hear of SCO's
claims, but they won't be grinning for long when the GPL comes out unscathed
and even strengthened.

[ Reply to This | # ]

Quick browse of key points
Authored by: Anonymous on Monday, October 27 2003 @ 09:19 PM EST
IANAL quick browse of key points

I think they have to assert these defenses (GPL stuff), as the facts that Linux
is licensed under the GPL, SCO distributed and distributes Linux, are unlikely
to be in serious dispute. So if they didn't assert these defenses, they have no
defense.

Interesting sections (I'll paraphrase words and add my own comments, go to
original IBM and SCO documents to see what is actually alleged/denied)

8. SCO denies UNIX is a family of operating systems that share common
characteristics and meet well-publicized standards.

10. Similar to 8 and more, IBM says Novell sold only some rights to Old SCO (I
am thinking of Open Group and Novell retaining some rights). SCO denies this.

14. SCO says IBM failed to attach Sequent issues to the counterclaim. Ah-um -
Sequent is extensively mentioned in the counterclaim. In any case, it's up to
IBM what they counterclaim for.

19. Denies (because of lack of info) that IBM holds valid copyrights in Linux

23. Denies applicability or enforceability of GPL to Linux

25. Essentially a repeat of 23

28. IBM says SCO is bound by GPL because SCO distributing Linux. SCO denies

30, 31, 32, 33, 36, 39, 40, 41, 47, 48. They seem to be denying their past. All
of which is well documented

32. For 32 they seem to be denying continuing to make Linux available for
download from their web site

44. They deny **any** IBM contribution was proper and legal! Compare item 120
below - INCONSISTENT - ATTENTION PJ

60, 61. Denies the Novell letters have any factual or legal basis.

69, 70. The Slide show again

72, 73, 74. GPL not enforceable again, according to SCO

108. GPL not enforceable again, according to SCO

114. Denies SCO made promise to follow GPL (IBM's promissory estoppel claim)

120. GPL not enforceable again, according to SCO. Note: They say *some* IBM
contributions improper - see 44


[ Reply to This | # ]

Best Quote
Authored by: Anonymous on Monday, October 27 2003 @ 09:26 PM EST
They forgot to add that the GPL causes cancer. It's also responsible for the fires in California. And it's fattening. AAAAAhahahahahaha. Funny as hell. Don't write the book, do stand up instead. :-D

---
In matters of style, swim with the current, in matters of principle, stand like a rock.
--Thomas Jefferson

[ Reply to This | # ]

  • Best Quote - Authored by: Anonymous on Tuesday, October 28 2003 @ 12:19 AM EST
SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: eamacnaghten on Monday, October 27 2003 @ 09:31 PM EST
Seventh Affirmative Address

The GPL is selectively enforced by the Free software Foundation such that the enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity


What has the FSF got to do with this? From what I remember from the counterclaim was that SCO was infringing on IBM's copyright and thus was no longer entitled to distribute it.

The fact that it was the GPL and that the FSF also licenses software on the same basis is irrelevant.

Someone please correct me if this is wrong....

[ Reply to This | # ]

Does anyone know who
Authored by: overshoot on Monday, October 27 2003 @ 09:32 PM EST
Judge Kimball's law clerk(s) is(are)?

I rather suspect that there will be some fine high times in the back rooms when s/he/they get his/her/their hands on this.

Do Federal clerks get any kind of health coverage for BAGLTAO?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: MattZN on Monday, October 27 2003 @ 09:33 PM EST
Item 45 is rather interesting... they admit that "IBM has received a significant amount of revenue and profit related to Linux". That would seem to contradict SCO's public assertion that the GPL destroys business.

In item 53 SCO accuses IBM of "incorporating and inducing others to incorporate source code in the Linux kernel in violation of SCO's contractual and intellectual property rights". They seem to be implying that simply encouraging programmers to contribute to Linux is illegal and they also seem to be implying that every single person who ever contributed to Linux past, present, and future, has done so illegally in violation of SCO's rights.

SCO doesn't mention BSD at all, which is interesting considering that they appear to be claiming ownership over anything and everything related to UNIX. In fact, I seem to recollect that apart from a few public statements at the very beginning of this mess SCO has stayed as far away from BSD and the USL lawsuit as it's possible to be considering the relevance that lawsuit has to most of their IP claims on UNIX.

I think the real kicker is going to be 60 and 61. If the judge finds in favor of IBM on the side letter, SCO's entire case unravels (not that it it couldn't unravel in other ways, let me count... 1.... 2.... 3... CRUNCH. CHOMP. CRACKLE. BANG. CLUNK).

RedHat should find a lot of stuff in this reply to support its own lawsuit. SCO mentions Linux all over the place and accuse the codebase itself of being in violation of everything under the sun which is in direct contrast to the line they are taking in the RedHat case.

And, of course, one wonders what rights SCO believes it has to all the code it is using under the GPL which is just chock full of copyright notices from dozens if not hundreds of developers. If SCO believes that the GPL is invalid, then how can they justify using any GPL'd code at all? That would been them in violation of hundreds of other people's IP. SCO seems to want the court to declare that all supposedly derivative works of UNIX written not only by IBM but thousands of other people over the last several decades is somehow magically owned by them.

Here's hoping the Judge reads this document and then decides to proceed, forthwith, to Oral arguments.

-Matt Dillon

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 09:35 PM EST
The Seventh Affirmative Defense adds:

"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."

Even if the FSF does selectively enforce the GPL, can you say "irrelevant". FSF is not a party to this suit (though they should seriously consider starting one of their own). Is selective enforcement even a possible problem? This isn't a trademark case.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 09:36 PM EST
My god! It's like battling Dr. Evil.

[ Reply to This | # ]

Only one more step for SCO!
Authored by: Anonymous on Monday, October 27 2003 @ 09:38 PM EST
Look at it this way. The logical next step for SCO is to say that the GPL was
written by Hitler. And that ends the discussion. So, we are only one step away
from resolution of this matter!

[ Reply to This | # ]

The Price of Time
Authored by: Anonymous on Monday, October 27 2003 @ 09:40 PM EST
SCO is just buying time for their financial backers. But I dont know if the
judge is going to laugh soo hard and wet himself or is he/she going to take it
seriously (techno babble can be confusing).

Just like SCO is trying to buy time. Perhaps to be bought or waiting for another
donation from Microsoft. By creating all the FUD, they are trying to prevent
the linux user base from growing.

SCO must be off their rocker....

[ Reply to This | # ]

WTF?!!
Authored by: Grim Reaper on Monday, October 27 2003 @ 09:41 PM EST
Man, I can't believe SCO actually filed that garbage! :-)

It seems their only defense is to declare all of IBM's rights null and void,
while maintaining that their rights are not contestable.

Are they every screeeeeeewed.

The judge is going to bust a lung from laughing so hard.

---
For the love of money is a root of all kinds of evil (1 Timothy 6:10); R.I.P. -
SCO Group, 2005/08/29

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Steve Martin on Monday, October 27 2003 @ 09:43 PM EST
Anybody notice that Boies didn't sign this? It's signed by Heise and Zack.

Wonder what Boies is doing these days?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 09:45 PM EST
"Linux is a 'free' version of UNIX designed to destroy proprietary
operating system software."

Yeah, I remember that famous usenet announcement where Linus said he was working
on a new os. He included a rant about how he wanted to destroy proprietary
operating system software. Oh, wait, that was RMS.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: freedom_oss on Monday, October 27 2003 @ 10:02 PM EST

I think it is high time to sue SCO for class action suit for demeaning the
integrity of the GPL.

As a user and developer of GNU/Linux, I would like to ask somebody especially
the FSF and OSI to spearhead the campaign.

I am calling the attention of Eben Moglen in this regard!!!

[ Reply to This | # ]

Are SCO telling their lawyers the whole story?
Authored by: Anonymous on Monday, October 27 2003 @ 10:03 PM EST
I am starting to wonder if SCO is telling their lawyers the whole story.

Two specific issues come to mind:

Item 8 and the response. SCO denies UNIX being a family of operating systems
with blah blah... I think when they eventually see the UNIX trademark
registration (I'm surprised IBM haven't yet attached it as an exhibit to one
of their filings), SCO's lawyers may get heart burn.

SCO also denies make Linux available to download from their web site after they
stopped distributing. This is so well documented, it's amazing that they can
even claim it. We even have quotes from Blake Stowell justifying why they can do
that. Yet SCO denies it. I am thinking maybe (1) SCO's lawyers told SCO to
stop distributing Linux, (2) SCO stops selling new copies, (3) SCO realize they
need support revenue so web site is left open for download, (4) SCO's lawyers
don't know about the web site, or if they even ask, McBride etc. says
"sure we stopped distributing"

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:09 PM EST
I'm really curious about something here. In 1985 there were a series of bombings in Salt Lake City, Utah, which killed two and injured . Invesitgators eventually learned that the LDS church, under threat of blackmail, was purchasing authentic and forged documents which cast serious doubts on the very foundations of Mormonism. After confessing to the murders and forgeries, the bomber was permitted to plea bargin the murder indictment down to manslaughter, thereby saving the church from a rather embarassing trial. In the non-fictional account "The Mormon Murders, the authors paint a picture of the LDS church in which business success is equivalent to piety.

Now let's look at SCO. Darl McBride has done a wonderful job of making a ton of money out of thin air, and undoubtedly there are most likely some 'pious' church members who are doing well by it. My question is this: Let's assume for a moment that Utah actually is a parallel universe, and that through political influence, the court rules in favor of SCO. My serious question is: What happens next? Where would it go for appeal? Objectively speaking, do SCO's arguments hold even a small amount of water?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:10 PM EST
SCO has been distributing software under the GPL since 1994. Somebody should ask
them at what point in time they decided the GPL is invalid, and on what basis.
Oh, and also ask them how they then changed their distributing of software

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:17 PM EST
I have a question. Since the case against IBM isn't sealed (yet), can Redhat
use (proposed) defences against SCO? Are the court documents (motions etc.)
considered public? If so, could RH add copyright infringment to thier claims?
TSG claim that the GPL is unconstitutional, therefore cannot accept it. If they
don't accept it, they cannot distribute GPL'd software without written
permisson from the copyright holders. TSG is distributing samba, openssl, and
mozilla with unixware 7.1.3. Can redhat claim copyright infringment (if they
have contributed code) against TSG then? The only way TSG can legally
distribute the above mentioned software is if they accept the GPL which is thier
written permission to do so. Am I wrong? Can some one please either confirm or
correct my thought process for me.

Thanks
Alan Dike (too lazy to create an account)
alan.dike@us.army.mil

PS. Keep up the excellant work PJ.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:18 PM EST
Maybe one of you can answer this for me.

After reading through this and everything else SCO has put out there I find myself wondering 'What the heck are they thinking?'

I mean, why would they say so many ridiculous and wholly inaccurate things?

Either they have a relationship, of sorts, with the Judge or the Judge is completely unknowledgeable about computers or software, right?

I mean, I just don't get it.

How would one go about finding out whether either of those things is the case? Where do you look to find that kind of information?

Or does someone have an intelligent explanation as to why SCO might be acting this way? How about, at least, a well thought-out theory? I've read all of the hyperbole and, while it might be amusing, it still leaves me scratching my head wondering.

Seriously, I'm really trying to figure all of this out.

[ Reply to This | # ]

Sections 101, 102, 103 and/or 112 of Title 35
Authored by: rand on Monday, October 27 2003 @ 10:19 PM EST
Good lnk here.

Summary:

Sec. 100. Definitions.
Sec. 101. Inventions patentable.
Sec. 102. Conditions for patentability; novelty and loss of right to patent.
Sec. 103. Conditions for patentability; non-obvious subject matter.
Sec. 112. Specification. (They're saying IBM flubbed the application?)

I'm surpised they didn't include
Sec. 105. Inventions in outer space.
since that's where their case seems to be.

---
#include IANAL.h

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:24 PM EST
"The GPL violates the U.S Constitution, together with copyright, antitrust
and export control laws"

And it also violates the International Law of the Sea, Murphy's law, the first
and second laws of thermodynamics, and the principle of separation of church and
state.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: J.F. on Monday, October 27 2003 @ 10:26 PM EST
Whew!!! And everyone breaths a big sigh of relief.

TSG didn't have an ace up their sleeve after all. They were just crazy like we
figured all along.

[ Reply to This | # ]

Stowell already undermining SCO's defense in the press - new quotes for database
Authored by: Anonymous on Monday, October 27 2003 @ 10:42 PM EST
Blake Stowell is ALREADY undermining SCO's defenses in the press

http://www. infoworld.com/article/03/10/27/HNscoenforce_1.html

For patents:

N.B. Bayer/Byer is some IP lawyer, talking about the case (I think one of the two is probably a typo - and it's the same person)
The court fillings also disputed IBM's claims that SCO had violated IBM's software patents. "If we're in violation of them, then just about every other vendor in the entire software industry is in violation of them," SCO's Stowell said in an interview. "What they're claiming is something that is a common practice within the software industry."

The fact that IBM's software patents may be wide-reaching, however, does not mean that they are unenforceable, Bayer said.

"Arguing that (a patent) covers too many people isn't an effective defense," he said.

In other words, Blake Stowell came very close to admitting infringement, but simply says it's okay because lots of people infringe.

My question - is there such a thing as a bad faith defense?


For copyrights/GPL
"The Free Software Foundation is the only entity that can enforce the GPL so, in effect, IBM is barred from trying to enforce the GPL with SCO," wrote Blake Stowell, a SCO spokesman, in an e-mail response to questions.

So again SCO comes very close to admitting infringement, but simply says (incorrectly in my view, and according to the article too), that IBM is not the correct part to enforce those claims.

If SCO honestly believe that, if the FSF should sue SCO, and according to this legal theory, SCO would then have to admit infringement.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:46 PM EST
Linux is a “free” version of UNIX designed to destroy proprietary operating system software. And after 10 years, it still doesn't work. Just last month, I installed it in a dual-boot system, and it failed to detect and destroy my copy of Windows XP. So why is SCO afraid of it?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 10:51 PM EST
[SCO] is without information sufficient to admit or deny the remaining allegations of ¶13, and therefore denies the same.

Let's try that again:

[SCO] is without information sufficient to admit or deny the remaining allegations of ¶13, and therefore denies the same.

They lack sufficient information to deny the allegations; therefore, they deny them.

PJ, is this standard legalese (along the lines of "innocent until proven guilty" ?) or is it just standard SCO logic?

[ Reply to This | # ]

Possible SCO strategy re: invalid GPL
Authored by: Anonymous on Monday, October 27 2003 @ 10:55 PM EST
Ob IANAL.

The SCrOte group is claiming the GPL is invalid and not legal, and
everyone correctly points to the fact that they themselves distribute
GPL'd packages like Samba with their own proprietary OS's. The natural
assumption everyone is making is that if the GPL is invalid, then SCO is
in violation of the copyrights of the creators of those packages and must
stop distributing them, and that they may be liable for damages. The
GPL even says nothing else but this GPL grants you the rights to the
software, so it's quite natural to think along these lines.

However, another slimy approach does occur to me - What if they DO get
the GPL declared invalid? They might next claim that all the GPL'd
packages out there are now de facto placed in the public domain,
because their authors published them and their source for the world to
see under an invalid license, and that therefore SCO is free to use the
software any way they please.

Of course, they would claim that their trade secret [ha ha] software that
IBM, SGI, and others contributed to Linux was done so against their will
and without their foreknowledge, therefore is not public domain and
everyone has to destroy their copies and source, or buy their Linux IP
license.

In the cracked, warped world of SCO, they just might think this could
work out for them...

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Glenn on Monday, October 27 2003 @ 11:02 PM EST
Some, okay, most of the stuff is totally ridiculous. Tkae their reply to IBM
#17 They admit that Linus Torvalds assembled the first Linux kernel "but
is without insufficient to admit or deny the remaioning allegations of #17 not
specifically admitted herein, and therefore denies the same."
The answer is substantially the same for No.s 19 through twenty, information
which is readily available to anyone who takes the time to do just a little
research.
It is all the more ironic in that Caldera's own distribution was a take off
of Red Hat.
They prevaricate, but I do not know if they are mentally competent to be held
liable for it.
Where have they been for the last twelve years??? If they do not have
sufficient information, they just haven't looked. I don't think that not doing
your homework is a good basis for a defense.


[ Reply to This | # ]

Champagne anyone?
Authored by: Anonymous on Monday, October 27 2003 @ 11:22 PM EST
While we're not at the end of this road, is there cause for a minor
celebration?

Everybody seems to have feared a hidden ace up SCO's sleeve

The consensus seems to be there isn't one in either this response, or SCO's
response to IBM's motion to compel.

[ Reply to This | # ]

Attempt to allow dismissal or delay in RedHat case?
Authored by: Anonymous on Monday, October 27 2003 @ 11:27 PM EST
Is their objective from this filing to be able to re-inforce their proposal that
the same issues will be settled in the IBM case as the RedHat case, thus
delaying (or even getting a dismissal in) the RedHat case?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 11:28 PM EST
I'm wondering how invalidating the GPL would affect international distribution.
Since a US court ruling doesn't apply elsewhere, would SuSE and Mandrake still
be able to legally distribute Linux under the GPL to US customers?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Monday, October 27 2003 @ 11:28 PM EST
Something doesn't sit well with this. This whole thing seems TOO stupid.
It's almost like a huge conspiracy.

[ Reply to This | # ]

OT: Make Linux into UNIX
Authored by: Anonymous on Monday, October 27 2003 @ 11:30 PM EST
What would it take (technically, money, etc) to make a Linux distribution that
complied with the Open Group's UNIX standard.

While I realize it would not be cheap, just how much? How many people? How much
time? What to start from?

If there was somebody to fund those work (assume for now, one can be found),
what would be the best way to start? Hire a bunch of guys/gals, or could the
work be subcontracted?

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: dan_stephans on Monday, October 27 2003 @ 11:39 PM EST
This scares the crap out of me. Why? Because it is SO BAD. Why would anyone
file this with a court of law? The short term FUD value aside, I really don't
understand how they believe Kimball is going to be this dense. So what does SCO
know that every sane, rational and logical individual doesn't?

That's the fly in the ointment for me, this is just too weird.

[ Reply to This | # ]

Contempt of Court
Authored by: Anonymous on Monday, October 27 2003 @ 11:49 PM EST
SCO behavior is now so ridiculous, incoherent and outrageous I'm wondering if
the court should not throw out the whole case and condemn SCO for
"Contempt of Court".
( Contempt of Court :....action that interferes with a judge's ability to
administer justice or that insults the dignity of the court ....)

[ Reply to This | # ]

SCO's been shoveling it so much...
Authored by: Anonymous on Tuesday, October 28 2003 @ 12:10 AM EST

... that you begin to wonder if they aren't trying to innundate the judge with so much BS that he'll agree to their motions (rather like those apocryphal stories wherein someone supposedly hauled a garbage bag of receipts into an IRS audit hoping that the auditor will throw up their hands and give them a pass).

Much as I'd hate to see it, and most developers would find it anathema, perhaps it's time to include a black sheep clause in the GPL that can be invoked against entities like SCO that have proven themselves incapable of restraining their baser instincts and playing nice with others. What sort of players would they be in the marketplace if, for example, they didn't have a Windows-compatible file and print sharing environment available to bundle free-of-charge with Unixware?

Since they view the GPL as invalid (does that mean that now it's okay for SCO to resume distributing Linux?), I wonder how they'd respond to a massive filing of lawsuits by thousands of Linux developers for misappropriating the developers' code? (I'd suggest filing suit in every state and a few foreign countries as well. It's be interesting to see how long US$50M can last when it's paying for 50+ legal teams.)

Are they going to blow off a lawsuit filed by the FSF?

ESR (and others?) hinted that something big was in the making a while back. Seems like it's time to unveil that.

[ Reply to This | # ]

SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 12:22 AM EST
It admits revoking IBM's right to "further use, license or distribute AIX". In paragraph 75, it admits it "licenses and distributes" UnixWare, "OpenServer", "SCO Manager," and "Reliant HA", but "denies infringement". So, what license would that be for OpenServer, I wonder? The unenforceable GPL?
I don't know about the others, but OpenServer is definitely not distributed under any type of open source license, including the GPL. There really is nothing open about OpenServer. OpenServer is based off of Xenix code originally from Microsoft. The latest version of OpenServer does however contain several additional pieces of GPL software (most notable being Samba), but they are not integral to the OS.

Perhaps you are confusing OpenServer with OpenLinux. The latter was released under the GPL.

[ Reply to This | # ]

SCO Unaware of IBM's Plans!
Authored by: Anonymous on Tuesday, October 28 2003 @ 12:28 AM EST

And this is news? I'd bet that a lot of companies might have been unaware that IBM was planning on jumping into Linux in a big way. Was IBM contractually obligated to provide SCO advanced notice of all their business plans? (``... IBM will keep SCO apprised of any business plans that might adversely affect SCO's bottom line. ...'') I can just see it now. SCO standing before a court and stating: ``Your Honor, SCO was unaware that IBM had doubts about its relationship with us. If we had only known, we could have changed. It's not fair that IBM found a way to make money on Open Source Software and not include us in on their plans.'' Good gawd, these bozos would have every business relationship that goes sour dragged through the courts.

[ Reply to This | # ]

Patience Grasshopper
Authored by: Anonymous on Tuesday, October 28 2003 @ 01:04 AM EST
I am wondering a couple of things:

Primarly, when do we get to the point that SCO actually has to back up a statement with some proof? Afterall, I can claim all I want that water isn't wet, the sky is occasionally blue, and the is evil. But there comes a point when I have to prove that water isn't wet, not just attempt to redefine what the word wet actually means.

After several months of postering, I would at least expect that the alligations to be clarified, defined and understood, and at least some specific evidence to be presented in those alligations.

All of the games and legal maneuvering I understand as part of the process, but is one paltry file, trade secret, or even one "method or process" too much to expect?

I am ready to get this bus moving, and so far we seem to have trouble agreeing on even where the bus is going, much less where to put the luggage.

Finally, Is there any insight on what the judge's views are, at least on some of the matters in the case? We have been following events of the past seven months attacking, speculating, evaluating and even finding humor in those events. But I have not seen so much as a ruling on SCO's motion for the extention to last friday. (Thank my lucky stars) IANAL, (or a judge for that matter) but I have no idea what to expect, but would at least like to see the accusations slow down and see some (any!) sort of evidence presented.

Since he is the man that has to decide who's right and who's wrong in this mess, hell at this point, maybe decide what is actually up and down, I would like to hear of something. Hopefully something that gives us laymen an indication if SCO is walking a fine line with him, if IBM is pushing it, or if it's just another day that the office.

Going with my earlier analogy, I am wondering if the bus driver is getting a coffee waiting for everyone to get settled, or if he is behind the wheel with the engine running waiting for the last butt to hit a seat. If I had an idea, I would personally feel better about the trip.

I know this is just the discovery phase, and we are not going to have the case actually argued at this point. I also doubt we will ever get all of the evidence in this case, but I am disappointed that it seems the case gets more vague as it progresses.

[ Reply to This | # ]

Even more lunatic idea
Authored by: Anonymous on Tuesday, October 28 2003 @ 01:07 AM EST
The GPL "derivative" is used in the same sense of standard copyright
law, i.e. must include some element of the original. Hence the original
author's right is retained. If you start from a GPL work, and remove all
elements of the original, it's not a derivative, and the GPL does not apply.

(Admittedly there are some fuzzy areas around library linking in the GPL, but
that's not likely to be an issue to the Linux kernel)

SCO's definition of "derivative" seems to be derivative even when
it does *not* include elements of the original, i.e. AT&T+IBM = AIX,
IBM+Linux = derivative. This is far more likely to be unconstitutional!

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I would like to see a response from the Open Group on this
Authored by: Anonymous on Tuesday, October 28 2003 @ 01:28 AM EST
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.

The OpenGroup exists (in part - a big part) to promote the creation of code that is "technologically indistinguishable" from their UNIX specification.

SCO is implying that what the opengroup is doing is illegal.

SCO is implying that only they can "license" a UNIX implementation

If the OpenGroup is suing Apple for some advertising puff over incorrect using of "UNIX" on their web site... then I'ld like to see some action on misuse of the trademark in something with the gravitas of a legal document.

On the one hand Apple is implying that UNIX is just some generic term... while SCO is implying that they own and control it.

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State Action Requirement--Eighth Defense is a Laugher
Authored by: Steve on Tuesday, October 28 2003 @ 02:08 AM EST

(Getting a bit serious here for a minute, after I stop laughing at SCO...)

The GPL cannot possibly be "unconstitutional", even if it's unenforceable. A private citizen (such as RMS) or private body (such as the Free Software Foundation or IBM) cannot violate the U.S. Constitution.

The U.S. Constitution binds only the federal and state governments. In most cases it doesn't mention citizens at all; when it does, it's only to say what a government can't do to a citizen. (This may not be true of some state constitutions, as well as written constitutions in other countries, but it is fundamental to the US Constitution.)

All US courts recognize the doctrine of "state action"--a US Constitutional violation can only occur if a government agency or employee is involved. The GPL was written by a private foundation (the FSF), was applied by private individuals and companies (the Linux contributors), and is being used in a counterclaim by a private company (IBM) against another private company (SCO). Any U.S. Constitutional claim on facts like these would be thrown out by the judge.

I can only assume that SCO's lawyers never took Constitutional Law, or were playing Minesweeper during class. Or maybe they're just not very bright.

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everyone misses the funny part
Authored by: Anonymous on Tuesday, October 28 2003 @ 04:13 AM EST
Well while SCO trying to have the gpl declared invalid is funny. Since
technically that means all opensource style licenses are invalid leaves one to
wonder the implications. Since all opensource style licenses are then invalid
lets look at one specific opensource style license of interest BSD. Wow BSD
thats used by lots of companies bet if they where paying closer attention they
might speak out against SCO. wait wait heres the funny part, MS uses BSD code,
hahaha MS can no longer sell their products with that and have to make ammends
for all the money theyve made with that code. And with that little piece of
knowledge MS has to support the gpl in this case or they are screwed bet MS
didnt see this comming(not as smart as they think they are basically). And now
that thats been said how many universities use opensource style licenses, so SCO
is going against all of them and all companies that have opensource licensed
code in their products(which is the majority of them) and even the government
uses opensourced code(like bsd) which means everyone is sued and owes lots of
money to the original progenitors of the code. Every company will end up
bankrupt and more than likely gone and the entire economy will fail in ways
unthought of. Yes this is actually true think about it ;). SCO's done more
than just bite of more than they can chew. Whilst this might seem
over-exagerrated its not. SCO really has no clue as to what they just stepped
into. And i find it amazing that not many people have ever picked up on this
nifty little fact. ALL the opensource licenses are inherently the same always
remember that people. If eveyone was made aware of this fact I think SCO would
get a rude awakening.

fdvd

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What SCO believe
Authored by: amcguinn on Tuesday, October 28 2003 @ 05:33 AM EST
SCO still believe that the GPL is an entity or party involved in the ownership of copyright, rather than a set of permissions and conditions made by a copyright owner to a licensee.

As I wrote on 20 October:

What SCO seem to have trouble with, in all their "GPL vs Copyright" blitherings, is that the GPL is a license given by the copyright owner of the licensed work. They seem to think of the GPL as a third party in the deal, who "receives ownership", rather than as a permission given by one of the parties. They seem to be claiming that giving someone permission to modify and distribute a work under the GPL is equivalent to giving up ownership of the copyright, because so few rights are reserved by the copyright holder. Hence all the "no proprietary interest" rubbish.
They have now proved that this is the way they are thinking by somehow dragging the FSF into a dispute to which the FSF are not a party. They possibly think that the GPL and the FSF are the same thing.

SCO have also been unable to separate in their minds the two GPL-related accusations that have been made against them: First, that they have copied and distributed the Linux Kernel contrary to the terms of the license that they have from the copyright owners of the Linux Kernel (including, among many others, IBM), and SECOND, that they have given a non-exclusive license to their customers to redistribute the Linux Kernel under certain conditions, and are now claiming that such redistribution is a breach of copyright.

I have phrased both the above without refering directly to the GPL -- in both cases "GPL" is just a shorthand title for the set of permissions and conditions involved.

Given the way they have run away from making actual copyright infringement complaints against IBM, the second accusation is of very little relevance to SCOvIBM. The first is made concretely in IBM's counterclaims, but SCO show little evidence of even understanding what they have been accused of. They spend more time arguing against the second accusation than the first, more relevant one.

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  • See also - Authored by: Anonymous on Tuesday, October 28 2003 @ 06:21 AM EST
Is there any chance for
Authored by: Anonymous on Tuesday, October 28 2003 @ 07:05 AM EST
Either a quick decision or at least the judge admonishing Boies and co to
produce work that has at least a nodding acquaintance with reality ? I am
perfectly well aware that a lawsuit can be brought for anything, but at what
point will a judge say "Wheres the beef ?"

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 09:22 AM EST
I don't think SCO or Canopy cares about what we think, or what the judge
thinks, or what the world thinks. This is simply a way to drive up the stock
price of a company that was losing $$s until they dreamed up the litigation
business model. Once the stock price is high enough, or the execs, BOD, etc.
can stand it no more, they'll cash out, let IBM and their attorneys pick the
bones, and go live in some offshore tax haven.
We will have a moral victory, because the GPL and the Bazaar will have been
validated, but they'll have what *they* wanted all along: lots of money, and
now enough leisure to enjoy it.
"That's just business"

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 09:36 AM EST
GPL may not cause cancer, but my experience suggests that it may stunt
the growth of ease-of-use and effective documentation.

tone

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SCO's Contract as valid as the GPL -- SCO Declares Total War on the GPL -- GPL Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 09:49 AM EST
If the GPL was unenforcable because the FSF selectivily enforced it, wouldn't
that imply even more strongly that SCO's contract with IBM was unenforcable
because AT&T and Novel selectively enforced it? Therefore, no one needs to
pay SCO any royalties because all of it's code has now been released into the
public domain.

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 10:12 AM EST
They have absolutely NO choice to go after the GPL. Although this is a very very
weak and pathetic attempt at it.

Didn't I read somewhere that they distributed the Kernel themselfs? That would
mean that THEY distributed their OWN supposedly infringing code under the GPL.
If that can be proven AND the GPL upheld, it means they basically gave up their
proprietary ownership of the code itself and their entire case is dead as soon
as any judge finds that out.

And according to the law, the "I didn't know at the time" defense
isn't applicable.

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Suggestion: Sue SCO for breach of copyright
Authored by: Anonymous on Tuesday, October 28 2003 @ 10:26 AM EST
SCO claims the GPL is invalid. Ok then, if someone whose code they are/have
distributed sues them for breach of copyright, what is their defence going to
be?

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 10:30 AM EST
When SCO makes such statements against the GPL, then they are not fit to
distribute under the GPL. It is time for the GPL to be activated to show them
how it works: no more SCO LINUX distributed. An injunction should be issued to
close down the FTP site. Individual copyright holders should sue SCO for
distributing their work to a company who has made it abundantly clear that they
have NO REGARD FOR THE GPL. Should they be allowed to stay in United Linux. NO.
I futher would suggest that they NOT be allowed to misuse the term UNIX in the
way that they have. They should be allowed to say that they own source and
rights to AT&T System V Unix/Unixware. This is not UNIX as such, but one
specific flavor there of.

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: Anonymous on Tuesday, October 28 2003 @ 11:09 AM EST
Authored by: archanoid on Tuesday, October 28 2003 @ 12:02 AM EST

Jeebus, I hope IBM ass-rapes those SCO M-F-ers! I've been out all night on a
Monday Night Football "boys-night-out" and just came home to read
this hogwash. I am sick of it. I have enjoyed the soap opera to date...but,
Christ, I'm ready for the Holy Hand-Grenade of Antioch.


Authored by: Anonymous on Tuesday, October 28 2003 @ 11:03 AM EST

And gee, all I suggested was to send Mr. Darl McBride a case of vaseline so
that
if he went to the "Big House" he would be prepared- to slick back
his hair, that is. And the ALMIGHTY CENSORS jumped my post and disappeared it
posthaste........

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: chrism on Tuesday, October 28 2003 @ 11:39 AM EST
Doh. I guess I'm just dense. I thought a contract -- or anything else -- is legally binding when a judge says it is. So far for GPL, no judge has said so. As for everyone who has settled with FSF, one can only speculate on their reasons. One might speculate they either feared the GPL would be upheld, or feard it would not. Either way, its speculation. We live in interesting times.
Your speculation that because no judge has said so, one never will is just that, pure speculation.

The point you are trying to minimize by using words like 'speculate', is that not all speculations are equal. There is such a thing as a damn good speculation, and a damn fool speculation, and people are, believe it or not, capable of telling the difference.

I speculate that the sun will rise tomorrow. That's pure speculation, isn't it? Oh, sure, the sun has risen before, but it has never risen tommorow (October 29, 2003) before, now has it, you silly speculator you ;-)

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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Authored by: chrism on Tuesday, October 28 2003 @ 11:45 AM EST
Doh. I guess I'm just dense. I thought a contract -- or anything else -- is legally binding when a judge says it is. So far for GPL, no judge has said so. As for everyone who has settled with FSF, one can only speculate on their reasons. One might speculate they either feared the GPL would be upheld, or feard it would not. Either way, its speculation. We live in interesting times.
Your speculation that because no judge has said so, one never will is just that, pure speculation.

The point you are trying to minimize by using words like 'speculate', is that not all speculations are equal. There is such a thing as a damn good speculation, and a damn fool speculation, and people are, believe it or not, capable of telling the difference.

I speculate that the sun will rise tomorrow. That's pure speculation, isn't it? Oh, sure, the sun has risen before, but it has never risen tommorow (October 29, 2003) before, now has it, you silly speculator you ;-)

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Precedent
Authored by: overshoot on Tuesday, October 28 2003 @ 03:44 PM EST
It's too late for IBM to move for a change of venue to southern Texas, but I think we need to find a way to cite Brad shaw v. Phillips as a precedent.

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Delay, delay, delay
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:48 PM EST
Each point, each paragraph of this document can be wrangled over in
court, one
paragraph
at
a
time,
or so I imagine SCO hopes. It seems to me that the whole point of
this document is to keep alive the lawsuit, now that it's clear that IBM is
not planning to buy them out straightaway.

This delay could well serve to keep the stock price, and the company,
afloat long enough for major stockholders and company officers to sell
out their stock at a nearly unnoticeable rate. This would let them quietly
slide out of the mess with a tidy profit on this disaster.

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