decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

More Stupid Lawsuits - Wallace v GPL
Friday, June 17 2005 @ 10:18 PM EDT

So now SCO is outsourcing its nuisance lawsuits? I know what you're thinking, but no, this is about Daniel Wallace who has now filed another lawsuit, this one against IBM, Red Hat and Novell. What a coincidence. Just like SCO.

It seems the big bad GPL is making it hard for this retired person to make a living in the future.

And he's pro se, natch. And I'm *sure* no one who is an attorney is behind the scenes egging him on or anything. With Microsoft hiding behind SCO, this whole puppet show is getting so complex. So, here are all the filings that matter, if the lawsuit even matters, all PDFs. Sometimes they download fine and sometimes they don't. I don't know why. If someone can fix that, it'd be wonderful. If not, here's the courthouse, for those with Pacer accounts. I notice on the docket sheet the magistrate judge offers to handle the thing:

Here's Wallace's most recent amended complaint [PDF] against the Free Software Foundation, which had the gall to come up with a license a lot of people like to use for their software, which they wrote and which they own and on which they hold the copyrights and therefore the right to use a license they like.

And here's the docket sheet for the litigation against IBM, Red Hat and Novell, which is too stupid to write about in detail, frankly. I'm only writing about it all, after ignoring it all, because I now suspect this is not just a coincidence and that the new strategy is to use pro se "lone gunmen", so to speak, to annoy and intimidate SCO's opponents. I now believe it because only SCO's friends are talking about the new lawsuits. This one was filed in May, and silence. I waited to see who would write about it, and sure enough I've seen only SCO supporters trying to spread the word. Discovery on this flurry of litigation should be enjoyable and revealing. Puppet strings tend to show in daylight.

Here's what has happened so far:

U.S. District Court
Southern District of Indiana (Indianapolis)

Assigned to: Judge Sarah Evans Barker
Referred to: Magistrate Judge V. Sue Shields
Cause: 28:1337 Sherman-Clayton Act
Date Filed: 05/09/2005
Jury Demand: None
Nature of Suit: 410 Anti-Trust
Jurisdiction: Federal Question



[address, phone, fax, email]
RED HAT INC. represented by Curtis W. McCauley
[address, phone, fax, email]

Philip A. Whistler
[address, phone, fax, email]
NOVELL, INC. represented by Curtis W. McCauley
(See above for address)

Philip A. Whistler
(See above for address)

Date Filed -- # -- Docket Text

05/09/2005 - 1 - COMPLAINT against Defendants, INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT INC., NOVELL, INC. , filed by Plaintiff, DANIEL WALLACE. (Attachments: # 1 Affidavit)(PG, ) (Entered: 05/09/2005)

05/09/2005- 2 - MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction (PG, ) (Entered: 05/09/2005)

05/09/2005- 3 - Summons Issued as to Defendant, INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT INC., NOVELL, INC. (PG, ) (Entered: 05/09/2005)

05/09/2005 - 4 - RECEIPT #108 1448 in the amount of $ 250.00 for filing fee. (PG, ) (Entered: 05/09/2005)

05/24/2005 - 5 - RETURN of Service by CMRRR by DANIEL WALLACE. INTERNATIONAL BUSINESS MACHINES CORPORATION served on 5/12/2005; RED HAT INC. served on 5/12/2005; NOVELL, INC. served on 5/15/2005. (MAC, ) (Entered: 05/24/2005)

05/25/2005 - 6 - NOTICE of Appearance by Philip A. Whistler on behalf of RED HAT INC. (Whistler, Philip) (Entered: 05/25/2005)

05/25/2005 - 7 - NOTICE of Appearance by Curtis W. McCauley on behalf of RED HAT INC. (McCauley, Curtis) (Entered: 05/25/2005)

05/25/2005 - 8 - NOTICE of Parties' First Extension of Time by RED HAT INC. (Whistler, Philip) (Entered: 05/25/2005)

05/27/2005- 9 - NOTICE of Appearance by Kendall H. Millard on behalf of INTERNATIONAL BUSINESS MACHINES CORPORATION (Millard, Kendall) (Entered: 05/27/2005)

05/27/2005 - 10- NOTICE of Parties' First Extension of Time by INTERNATIONAL BUSINESS MACHINES CORPORATION (Millard, Kendall) (Entered: 05/27/2005)

06/06/2005 - 11 - NOTICE of Appearance by Philip A. Whistler on behalf of NOVELL, INC. (Whistler, Philip) (Entered: 06/06/2005)

06/06/2005 - 12 - NOTICE of Appearance by Curtis W. McCauley on behalf of NOVELL, INC. (McCauley, Curtis) (Entered: 06/06/2005)

06/06/2005 - 13 - NOTICE of Parties' First Extension of Time by NOVELL, INC. (McCauley, Curtis) (Entered: 06/06/2005)

Case #: 1:05-cv-00678-SEB-VSS


More Stupid Lawsuits - Wallace v GPL | 372 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Wallace is Toast...
Authored by: Anonymous on Friday, June 17 2005 @ 10:31 PM EDT
Many years ago I was involved in a minor legal action. Response to a single
motion (yes one as in (1)) cost $30,000.

Can't wait to see what Wallace has to respond to...

This is a game for rich boys and girls.

[ Reply to This | # ]

Corrections (If any)
Authored by: RandomX on Friday, June 17 2005 @ 10:34 PM EDT
Go here...

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: RFD on Friday, June 17 2005 @ 10:36 PM EDT
Notice that Wallace made the same mistake as Canopy (SCO) did and claims IBM is
a Deleware Corporation--it is actually a New York corporation.

Eschew obfuscation assiduously.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: tuxi on Friday, June 17 2005 @ 10:37 PM EDT
How long will this take to finish? What a waste of the judicial systems' time.


[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Friday, June 17 2005 @ 10:42 PM EDT
While I like the theory that someone like SCO is behind Wallace's suits, the
problem is that his complaint's are too incoherent. If someone was really using
him as a front, they'd arm him with something less susceptible to a 12(b)(6)

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Friday, June 17 2005 @ 10:46 PM EDT
Speaking of stupid lawsuits? No comment about, PJ? I'm
shocked. :) Or are you just waiting until the suit is actually filed.

Man, merkey is insane.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Nick Bridge on Friday, June 17 2005 @ 10:53 PM EDT
I don't see how you can prevent someone from allowing third parties to
copy/distribute/etc your copyrighted code, under your conditions - if the third
parties choose to accept the conditions.

If the third parties cannot or prefer not to accept the conditions, they are
free (at liberty?) not to accept the license.

This is Microsoft saying "we want all that wonderful code you've all worked
on for years, but we don't like your terms, so please make it public domain - or
at least allow us to use a different license and different terms."

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Friday, June 17 2005 @ 10:54 PM EDT
I'm a computer programmer and I can't make a living any more either.

Does this mean I can sue all these big companies for outsourcing and

Right, I didn't think so either. :-)


[ Reply to This | # ]

Oh, brother! This is mini-SCO!
Authored by: Anonymous on Friday, June 17 2005 @ 11:00 PM EDT
Think of "Mini Me" in Austin Powers. This lawsuit is "Mini

I read the complaint. Basically boils down to: "You dang open source
folks, giving away your code and making it available for everyone to see! Ruins
my proprietary business model 'cause I can't compete. Time to sue the major
proponents of this paradigm shift that killed my golden goose."

So, tell me, where's the law that says I can't freely let people see and use the
code that I wrote? Don't blame open source, blame the Internet because it's the
Internet that has broken down the communication barriers that allow people to
give away their OWN code en masse.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Friday, June 17 2005 @ 11:02 PM EDT
I wish to stop people from using public buses, streetcars, as they together make
it hard for me to make a living, as an owner-cab driver !. I ask, would they
shut down the whole public bus system nationwide for little me ?., sure !.

[ Reply to This | # ]

So, Daniel...
Authored by: Anonymous on Friday, June 17 2005 @ 11:10 PM EDT
Judge: So, Daniel, show me the great project you are unable to market because of
this conspiracy.
Oddly I do not see it named in the lawsuit.
Or the steps taken to market it that the "conspiracy" prevents.

Does a case really progress beyond this?

Are you a bagel or a mous?

[ Reply to This | # ]

For obnoxious people like this...
Authored by: kberrien on Friday, June 17 2005 @ 11:12 PM EDT
is what Douglas Adams wrote this wonderful diddy..

"Will be first against the wall when the revolution comes."

Jez, can lawyers get slapped with contempt if they laugh in court? Or, if the
lawsuit is this rediculous its ok?

[ Reply to This | # ]

Wallace a puppet? Don't think so
Authored by: Anonymous on Friday, June 17 2005 @ 11:17 PM EDT
I don't think Wallace has an attorney helping him.... personally I found both
his complaints nearly incoherent, and I suspect they may contain a number of
technical errors.

I don't think Wallace is being pushed into this by SCO, or backed by them... I
think (a) Kevin McBride [Darl's brother who is an attorney], for example, could
have done a better job of this, and (b) if you look hard enough round a large
enough country, you can find people who will subscribe to almost any view, and
even try to take action to promote/support their view.

On the merits: I've made some comments before (in one of the AutoZone stories I
think) quite a few stories back, after I read Wallace's complaint and summary
judgement motion in Wallace v FSF. The comment got accidentally deleted, and
then somebody helpfully recovered it from their browser cache and posted another
copy. Can anybody find it? (I'd like to see if I have anything to add).

BTW I've noticed Wallace alleges even less facts (i.e. effectively none except
the existance of a conspiracy) in his new complaint than in Wallace v FSF.


[ Reply to This | # ]

To paraphrase Freud...
Authored by: Anonymous on Friday, June 17 2005 @ 11:19 PM EDT
Sometimes an idiot is just an idiot.

[ Reply to This | # ]

Let's all start hundreds of small nuisance lawsuits againt SCO
Authored by: kawabago on Friday, June 17 2005 @ 11:40 PM EDT
So they'll have to spend all their time and mony answering hundreds of bogus law
suits just like this one. No, that would be wrong. That is what SCO would do.

The only thing that really matters is you.

[ Reply to This | # ]

Deluded opportunists ?
Authored by: Latesigner on Saturday, June 18 2005 @ 12:19 AM EDT
How useful can people like Wallace and Merkey be?
Encouraging nut cases means you've got plans for dealing with the fall out
should they turn on you or just flame out, like MOG did, but SCO seems never to
have heard of exit strategy.
Maybe that's the answer.

The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: tredman on Saturday, June 18 2005 @ 12:22 AM EDT
As I was reading the comments for this article, I couldn't help but chuckle to
myself as I noticed that I hadn't seen an Off-Topic thread started yet.

Daniel Wallace's lawsuit may not be Off Topic, but it certain IS a little off.

Way back when the SCOX litigation started, I spent much time reflecting on the
events and trying to figure out the big question: Why. To paraphrase Donald
Sutherland in JFK, "The who and the what are just window dressing for the
real question: why?".

In fact, trying to figure out all this mess is probably going to be harder than
Jim Garrison investigating the Kennedy assasination. It honestly would not
suprise me if we never really find out the whole story.

"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

What - no OT thread?
Authored by: tbogart on Saturday, June 18 2005 @ 12:30 AM EDT
And how are we to reward the nice folks who put the 'clickable link'
instructions on the page if there is no OT thread to reference it?


[ Reply to This | # ]

Particulars of the complaint...
Authored by: rusty0101 on Saturday, June 18 2005 @ 01:34 AM EDT
In case you havn't read the complaint, in specific Wallace is complaining about
Terms and Conditions 2.(b) of the GPL, which per his affidavite reads:

You must cause any work that you distribute or publish, that in whole or in part
contains or is derived from the Program or any part thereof, to be licenced as a
whole at no charge to all third parties under the terms of this Licence.

Based upon that, it would appear that Mr. Wallace specifically wishes to take
parts of software that is licenced under the GPL and resell it with his own

This would suggest to me that Mr. Wallace is not a software developer at all, as
there is nothing preventing him from selling the software that is distributed as
part of BSD with his own set of restrictions. Granted he would get quite a few
negative responses if he were to try to claim it was Linux that he was selling,
but that is a completely seprate matter from his being unable to re-sell
software being distributed by IBM, Red Hat and Novel. The fact that the licence
for Linux prevents him from re-selling Linux as he wishes does not prevent him
from making a living selling other software as he sees fit. The fact that
Windows comes with a licence that says, in part, that I can not duplicate it and
give it away for free, or even sell it without a seprate agreement with
Microsoft, is not sufficient reason to file suit against Microsoft.


[ Reply to This | # ]

Daniel Wallace commented on the 16 Feb 2004:
Authored by: John_Doe#1 on Saturday, June 18 2005 @ 01:44 AM EDT

When we examine the SCO v. Novell suit concerning slander of title, we see the scoundrels in Utah, and scoundrels they are, involved in more silly litigation... except the implications of this litigation are far from frivolous. The furor over SCO's disputed ownership of UNIX and UnixWare copyrights may return to haunt Novell.

The asset purchase agreement between Novell and SCO states:

"Schedule 1.1(a) Assets (Page 1 of 4) 1. All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process),..., including source code,..."

Novell claims: "Contrary to SCO's assertions, Amendment No. 2 does not purport to concern "all copyrights pertaining to the UNIX and UnixWare technologies." Instead, it concerns only the unidentified rights that make up copyrights required for Santa Cruz to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. Not only are those rights not identified, but SCO's "rights with respect to the acquisition of UNIX and UnixWare technologies" are identified. In the face of such vague and ambiguous language, the governing authority is clear: the purported assignment must be construed in favor of the copyright holder and against a transfer of any copyrights."


Let's look at Novell's own words: "... Instead, it concerns only the unidentified rights that make up copyrights required for Santa Cruz to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

Some terms: acquisition --- The act of becoming the owner of certain property;... --- Black's Law Dictionary Fifth Edition.

"9.3 Interpretation. When a reference is made in this Agreement to Schedules or Exhibits, such reference shall be to a Schedule or Exhibit to this Agreement unless otherwise indicated. The words "include", "includes" and "including" when used herein shall be deemed in each case to be followed by the words "without limitation."..."

Novell's now words become: "... Instead, it concerns only the unidentified rights that make up copyrights required for Santa Cruz to exercise its rights with respect to becoming the owner of "All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process),..., including *without limitation* source code,...".

We have now identified "which" source code: ... all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process)...".

We now know the "restrictions" placed on that source code which we have identified: "... including without limitation source code,...".

In case Novell cannot now identify these mysterious "unidentified rights", I am willing to bet that a federal judge can.

The asset purchase agreement is a statement of transfer of ownership to all versions of UNIX and Unixware source code copyrights.

It is not the "slander of title" action that is most troublesome. Novell filed for registration with the United States Copyright Office concerning copyrights on the UNIX and UnixWare source code after knowingly accepting ten million dollars from SCO's predecessors for the purchase of all rights and ownership of UNIX and UnixWare, including "without limitation" the source code.

This act was done in an attempt to interfere with and derail an otherwise frivolous copyright lawsuit. This act has also ventured into the scope of federal civil and criminal fraud statutes.

There is *no* SCO legal ownership interest in Linux source code, so why is Novell handing SCO Novell's own head on a platter?

Thank God I am a physicist and not a lawyer.

[ Reply to This | # ]

When did the FSF Move?
Authored by: ankylosaurus on Saturday, June 18 2005 @ 02:58 AM EDT
Because Wallace's second amended complaint has their old address, whereas the
newly downloaded GPL in the affidavit has the new address.

Which, in turn, intrigues me - the GPL was 'updated' to use the new address,
without changing the date. I assume that has no side effects, but IANAL, etc.

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

RH and FSF have same lawyers
Authored by: jmc on Saturday, June 18 2005 @ 03:43 AM EDT
I notice that RH have the same lawyers from the same firm as FSF whether that
means anything I don't know maybe RH will get a discount?

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Nick_UK on Saturday, June 18 2005 @ 06:06 AM EDT
I could see some sort of point in this if IBM, Novell et
al acquired a closed project THEN released it under a GPL
type licence - it could be argued that it was done to
undermine/devalue the 'oppositions' product.

But GNU/Linux software has ALWAYS been GPL. IBM, Novell
et al are all just carrying on with the way it works, and
didn't impose the GPL on anything.



[ Reply to This | # ]

Sort of OT - How about an award ceremony?
Authored by: Naich on Saturday, June 18 2005 @ 06:07 AM EDT
How about this - every year we issue awards to the most ridiculous bits of FUD
about OSS? They could be called the "Elmers".

Just a random thought I had, while staring out of the window, trying to think of
a neat way of coding a function.

I'll nominate this lawsuit.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Bas Burger on Saturday, June 18 2005 @ 08:16 AM EDT
I just yet have read some stuff about him trough the past times.

Some people get addicted to harddrugs or alcohol, there are even people that get
addicted to virtual drugs like gambling.

It appears to me that this person is just addicted to lawsuits, I haven't seen a
lot of people like that provoking others into litigation.

Like I said, he must be either addicted or just plain stupid, don't you think?

I know this can cost me a lawsuit as well if I see how low his treshold is to


[ Reply to This | # ]

Let slip the clowns of war!
Authored by: dyfet on Saturday, June 18 2005 @ 08:28 AM EDT
First, I have seen people say that this could somehow be a good "test case" for the GPL. I fail to see how, or why such cases are still "needed". I think the very idea is based on the false premise that there is something somehow thought to be wrong with it. If that were the case, it would never have survived any of the existing court cases that have already occured, and nobody would be so quick to respond and settle by its terms when found breaking them as they are now.

No, it is a false and unessisary belief that feeds into the very "fud" that there is somehow something "wrong" when there is not, for always the "fud" will say as it does after each existing case, well somehow it wasnt the "right" case to test the latest "right" flaw that does not exist. Do not debate this question by their very terms, for that is loosing half the argument already.

As to Wallace, I still favor the loose nut theory, though the idea of people from SCO finding this guy and choosing to encourage or indirectly support him after the fact would not surprise me the least. I do also find it indeed a VERY strange coincidence he should just happen to choose at this moment to specifically add Redhat, Novell, and IBM, for example, rather than say OSI or OSDL. Will he just happen to "add" Autozone and Daimler Chrysler next as well, I wonder??! :). So yes, I do see PJ's point in this regard.

[ Reply to This | # ]

Pity not Fury
Authored by: Anonymous on Saturday, June 18 2005 @ 09:29 AM EDT
Wallace deserve probably more pity than fury or irony.
He is probably a singled-minded guy that had his own
vision of the world and felt betrayed at one point. He
needs counselling and a lot of peace / sleep.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: MalFal on Saturday, June 18 2005 @ 09:29 AM EDT
As the owner of a book store, I am filing a lawsuit against every public library
in the U.S. for price fixing. Also, my brother runs a small cable tv company so
I will also sue all the major over the air broadcasters on his behalf. My
sister owns a restaurant, so start shutting down those suop-kitchens right now..
I mean, it's not about your needs and ability to afford.. you must be forced to
pay whatever price we say! Radio? I have stock in XM and Sirius, so you might
as well start disassembling those towers, boys!


[ Reply to This | # ]

Consequences of unlimited discovery
Authored by: Anonymous on Saturday, June 18 2005 @ 09:35 AM EDT

It seems to me this is a direct consequence of Kimball
and Wells allowing nearly unlimited discovery. Four other
lawsuits have been spawned after IBM, only one of which
has been resolved. Now Wallace and Merkey think they can
either do the same thing, or get their cases stayed
indefinitely, too. If they get indefefinite stays, guess
how many more suits will be filed, and how many more
indefinite stays will be granted.

Darl's philosophy is that publicity is the only thing
that counts. Instead of four or five lawsuits pendng,
he can say 10 or 20? And the PHB's will say, "Gee, I
don't know, all those lawsuits . . . "

[ Reply to This | # ]

Copycat Lawsuit
Authored by: Anonymous on Saturday, June 18 2005 @ 10:35 AM EDT
Daniel Wallace is too dumb to say anything original.
All he is doing is parroting Lawrence Rosen, former
F.S.F. General Counsel:

"There is also a problem that may prevent enforcement of the GPL's at no
charge provision. It may be an illegal restraint of trade in some countries.
Ordinarily, companies are allowed to set their own prices, and it is improper
for a GPL licensor to restrain that in any way." L. Rosen, Open Source
Licensing 132 (2004)

That's an exact quote from his book. Is this plagiarism?

[ Reply to This | # ]

Authored by: ralatalo on Saturday, June 18 2005 @ 10:47 AM EDT



v. Civil Complaint No.

[<[ INSERT NAME & ADDRESS of Walace and SCO and others who are
maliciously and frivolously attacking the GPL and the provisions contained
within it which are protecting the rights as specified below in the complaint



This Court has [<[ finish appropriate jurisdiction statement ]>]


Plaintiff [<] INSERT NAME HERE ]>] has standing for commencement of this
action [<[ finish appropriately ]>]


Plaintiff [<[ INSERT NAME HERE ]>] is a legal resident of [<[ INSERT




Venus for this action is established pursuant to [<[ COMPLETE VENUE


The defendants [<[ LIST DEFENDANTS ]>] have conspired to both slander and
libel the plaintiff by means of malicious and frivolous attacks against a
license that the plaintiff relies upon and uses. The attacks against this
license, the GPL, directly translate to attacks against the plaintiff as the
plaintiff's publicly relies upon works released under this license and any
falsehoods spread against the license limits the acceptance of the license and
therefore the acceptance of the works and therefore the acceptance of the

The defendants [<[ LIST DEFENDANTS ]>] have conspired to limit both the
plaintiff's ability to advance plaintiff's standing in the Technology Community
and secure fame and fortune. This is due to plaintiff's attempts to limit the
use of the GPL license which allows and guaranties both access to the source
code of large complex projects which allow plaintiff to learn and increase
plaintiffs skills and also allow plaintiff to contribute and guaranties that
plaintiffs contributions will remain accessible to others and thusly increase
plaintiff's fame and serve as a record of plaintiff's experience which serve to
assist receiving gainfully employment.

The defendants [<[ LIST DEFENDANTS]>] have conspired to fix prices and
avoid lawful competition and therefore create an unlawful monopoly. The U.S.
is based upon capitalism the essence of which is competition to allow better
products to come to market. The essence of the GPL is the give every recipient
of the opportunity and ability to enhance and compete with other recipients of
GPL licensed products. By defendants attacks against the GPL they have both
admitted that they can not complete with GPL products and they seek to remove
the superior competition. These attacks if successful would force plaintiff to
purchase inferior products from an unlawful monopoly and subscribe to their
price fixing schemes of forced upgrades and dependent upon them for enhancements
and fixes.


The plaintiff respectfully requests the Court grant a permanent injunction
prohibiting the defendant from filing any new legal actions with regards to the
GPL or other licenses. Additionally the plaintiff respectfully requests that
the Court grant both a temporary and permanent gag order prohibiting the
defendant from further disparaging the GPL or other licenses.


The plaintiff respectively requests that the Courts sentence the defendants to
be drawn and Quartered in a public festival paid for by the financial backers of
the defendants and that they very best champaign be provided.



[ Reply to This | # ]

More Stupid Lawsuits
Authored by: heretic on Saturday, June 18 2005 @ 10:51 AM EDT

Every man has the right to have his or her case heard by the court, as far as I know. We may think the case is completely out of order, and badly put together, but that does not change his or her right to have it heard. We would definatly take it seriously if there was a big company, with a strong legal team like MS, behind the case.

In my opinion we should treat this case seriously, as if it had been filed by a serious litigant. I know that this gives far too much credit to Wallace and his case, but the legal system should not be biased and should treat his case seriously. As an aside; if he had raised this case in the UK, the court would have "helped" him as much as they could by making sure his case documents got a proper format while not showing any legal bias. A litigant-in-person is very well "protected" here.

Basically let the law, and legal system shut him down. That is what it there for. To do that it needs legally submissable information that shows his case is unsubstantiatet, completely unfounded etc. So I think we should document the deficiencies in his case, collect stuff and posts from the net (easy for us, but not so easy for the legal companies, due to our far larger number of eyeballs), identify what type of software business he claims he cannot or is unable to run due to the GPL, find similar operational businesses that do work, etc.


[ Reply to This | # ]

Authored by: MadScientist on Saturday, June 18 2005 @ 11:06 AM EDT
This law suit is something I think RMS forsaw a long time ago. So instead of
ranting on about 'wing nuts' etc lets put our collective heads together and try
to know this case into an outside loop.


The GPL has a clause explcitly disclaiming any price fixing intent. This on the
face of it would seem to be protection against any such case. However the GPL
does implicitly intend to reduce the cost of software by limiting it to the cost
of reproduction.

And this is what is happening. Microsoft are reducing their prices when faced by
Linux competion.

Below cost selling is illegal in most countries. This does not apply to special
offers, sales and the like. There are rules governing such promotional offers.

The GPL does not condone below cost selling. It make no reference what so ever
to the cost of initial creation of the code - only to its reproduction. A
creator effectively has a limited time window in which to sell before
reproduction reduces the costs.

This is the norm in most industries. I come out with drug X. The competion will
be hot on my heels with drug Y.

Software in contrast because of its network phenomenon - which is extremely
poorly understood by economists - is different. Once you have a dominant market
share in the absence of common protocols you achieve a vendor lock in with
concomitent monopoly rents.

With the GPL this effect is voided. You cant achieve a monopoly with the network
effect simply because anyone else can do so as well.

To summaries at this point: the GPL does not encourage below cost selling. Nor
does it allow for monopoly lock in.

These last two points are important as the local autorney gerneral might be
interested if either of these points were true.

Now moving on to consider Wallace's standing. He claims to be a compuor
programmer. To date he has aduced no evidence of his sucess (or lack of) in
seling his software. To bring such a suit he has to show that his economic
interests are being harmed directly by the use of the GPL. He will have to show
that (1) he has sold software commercially (2) that this forms a reasonable part
of his income (3) and that his business has been harmed by the defendents use of
the GPL.

Now the GPL has been in force since 1988 so it has been part of the software
environment for 17 years. Wallace will have to show that he was programming
sucessfully before the GPL came into operation and explain why he has only
broght the suit now. This argument alone I can see getting the FSF out of

To claim that Novell, RedHat and IBM by using the GPL to distribute code Wallace
will have to show that he was earlier in direct competion with these companies.
Maybe he was - I just dont recall it. Does any one here know of an operating
system built by and distributed by Daniel Wallace? Or maybe it was networking
code? Or outfitting entire companies?

If he was selling "Hello world" programmes I dont hin the court will
grant him standing to sue.

Moving on RMS in his wisdom deliberately tried to decouple the economic and
creative side of copyright in the GPL. Mot copyright cases are about the
economic value of distribution. Not about the creative aspect. By seperating the
economic value the incentive to argue the case in court is minimised.

To explain this furtehr. I write a great song. Comapany X tries to redistribute
this without my permission. We end up in court. Im not really suing over the re
distribution: in fact Im probably very happy that so many people like y work. Im
suing over the economic return that the company are making on my work without my
permission. Its not about use - its about money.

Now with the GPL the chances of sucesfully maintaining monopoly rents on a
creative work is minimized so there is very little to sue over.


To discuss a further aspect of the GPL - copyright.

It has been occasionally suggested that code is not protected by copyright. Yet
"ordinary" text is. Code is not somethign a mchine can write very
well and good code really does require a creative spark. So I dont think any
court will have a problem ruling on that.

If we accept that code is copyrighted then the US copyright laws give complete
control over the use of the cpyrighted material to the creator with a number of
exceptions: parody, fair use etc. All of these exceptions limit the restrictions
on use of the copyrighted material. None of them cover the position created
deliberately by the GPL - the freedom of use.

The US Constitution Section 8 Clause 8: "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"

states that the authors have exclusive rights to their works. One of these
rights is the right to allow or even encourage others to copy thier work. So
much for the GPL being unconstitutional.

Asking a cout to limit the use of copyrighted and GPLed material runs very close
to a violation of the First Ammendement

"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances."

concerning 'the abridging of speech or of the press.'

I dont see that happening either.


Im summary then

The GPL is in complete agreement with the US Constitution and the laws of the
US. Asking a court to rule otherwise would run straight into the US

Wallace has a better chance on economic grounds of challenging RedHat et al in
court but furst has to show how they have damaged his livelhood or his business
by using the GPL. To date I havent seen any evidence that it has.

[ Reply to This | # ]

I earn money because of Open Source Software and GPL
Authored by: Anonymous on Saturday, June 18 2005 @ 11:35 AM EDT
"This scheme denies the plaintiff Daniel Wallace an opportunity to earn future revenue in the field of computer programing."

This argument is incorrect because it is base on false assumption that introduction of GPL makes impossible for Daniel Wallace to earn money with programing. To the contrary the very existence of GPL creates a competitive element in unbalanced software market. Open source software are creating an open filed for many software engineers and promote innovation and progress in software development and in general for technological development. Open source is a natural antidote to balance abnormalities created by monopolistic centralized controlling mechanism imposed by one large software company, which effectively hamper innovation and destroying many software businesses here in US and around the world.

Open source software because of its openness assures interoperability and creates a equal opportunities for a software engineers or a small software company to compete.

Any general purpose open source product can be customized to fit requirements of your client and creates an unprecedented opportunity to earn money doing so. If everything is controlled by one large software company then there is no opportunity to do anything, because the created system benefic only the controlled entity and other software makers just have to follow the leader and do not have the opportunity or chance to innovate and succeed in piercing the barrier to enter.

I am a software developer, I Love Linux because I can take my custom proprietary software and deploy it to my client computer along with the whole operating system ( a specially modified Linux)


[ Reply to This | # ]

DLW sighted on license-discuss
Authored by: Anonymous on Saturday, June 18 2005 @ 11:53 AM EDT
Someone named Daniel Wallace has been occasionally posting to OSI's license
discuss list with anti-GPL theories, which get quickly refuted each time.

Do a google search for
"license-discuss" Daniel Wallace

- Forrest Cavalier

[ Reply to This | # ]

Authored by: Anonymous on Saturday, June 18 2005 @ 12:24 PM EDT
Wallace's affidavit is over at TuxRocks. His last claim is:

"7.) I presently have no business or employment relationship with any
corporation or other individual engaged in the manufacture, sale or service of
computer software or hardware products."

If we can find a link to SCO or someone we can get him for perjury.

[ Reply to This | # ]

Standing to sue?
Authored by: Anonymous on Saturday, June 18 2005 @ 01:02 PM EDT
Let's suppose that there is a conspiracy in restraint of trade to hold down the
price of auto mechanics. It's a real conspiracy, not tinfoil-hat stuff. Can I
sue because this is depriving me the chance to earn a living as an auto
mechanic? Because, see, I'm not an auto mechanic, I'm a software engineer. So
the damages to me are purely theoretical.

In this hypothetical situation, do I even have standing to sue? And in the
current situation, does Wallace have standing to sue?


[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Saturday, June 18 2005 @ 01:35 PM EDT
I guess some rich indian landowner or grocer
could sue Mother Teresa nuns because feeding
the hungry they ruin their business


[ Reply to This | # ]

Easy vs. Hard
Authored by: Anonymous on Saturday, June 18 2005 @ 01:40 PM EDT
There are easy cases and hard cases for judges. This is an easy one.

[ Reply to This | # ]

Isn't this the case we want?
Authored by: Anonymous on Saturday, June 18 2005 @ 01:55 PM EDT
This case sounds like just the test in court of the GPL we could only pray for.
Maybe the GPL is so well written that this is the best that GPL opponents can

[ Reply to This | # ]

Questions about pro se
Authored by: Anonymous on Saturday, June 18 2005 @ 02:24 PM EDT
"And he's pro se, natch. And I'm *sure* no one who is an attorney is behind
the scenes egging him on or anything."

Is there a problem with a lawyer helping a pro se litigant without telling the
court that he is working on the case? Is the lawyer violating the law or legal
ethics? Is the pro se litigant violating the law by not disclosing that a
lawyer is working with him?

If a corporation is paying a lawyer to secretly help a pro se litigant is that
corporation violating the law?

Steve Stites

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: AMc on Saturday, June 18 2005 @ 02:42 PM EDT
I don't believe that Wallace has a leg to stand on. However I think that he
provides an opportunity. Wallace is a low risk case for the FSF. His case
isn't about the millions of dollars he could have lost; it's about the legality
of the GPL - it's intent and spirit. It is possibly the best situation to
establish a reasoned, case and statutory law supported ruling that validates the
GPL's concept and intent.

For more than two years the collective community has watched and been dismayed
by how easily the courts could be maneuvered by SCO Group. You've watched
RedHat, Daimler-Chrysler, and Autozone all have their cases heavily manipulated
WITHOUT reaching the trial stage. You've suffered the vulgarities of SCO Groups
courtroom antics, and their use of filings as a propaganda tool. Before that
was the Microsoft antitrust case, and you've seen how well that worked out.

After the past two years....can the OSS and FSF community afford to not pay
attention to Daniel Wallace's suits at risk of a decision from the bench that
could harm or cripple the GPL?

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Saturday, June 18 2005 @ 05:07 PM EDT
The complainant seems to think that there's a finite number of programs that need to be written, and when all of them are written and GPL'd, there will be no more work for programmers like him.

Actually, there are an infinite number of programs to be written. Seeing those under the GPL stimulates the imagination to think of more.

And that's likely to make IBM's customers always demand more and more programs. If the guy thinks he's any good, he could always apply for a job.

[ Reply to This | # ]

A little thought
Authored by: Tufty on Saturday, June 18 2005 @ 05:26 PM EDT
I note a certain casual tone creeping into GL here. It may be wise to exercise a
little caution. These laws suits happen for one reason - they succeed. Not
always, not often but they do. Recall hot coffee or ask yourself why you see
warning lables on the lines of 'these peanuts contain nuts'. We need to apply
the usual rigorous analysis as we usually do on this and another person's
attempts. I note a few others are suggesting a little more depth as well.

I am not sure that PJs theory that if the quality of law work improves then
there is a backer holds up unless there is a sudden shift and that could be
argued as a supporter joining the cause. No, I would expect improvements as time
progresses as more homework is done in preparation. It would be hard to sift out
external influence from normal preparation.

Reading FUDISBAD's link to a previous case of another person along wqith the
comments flying around from them I note a similarity appearing. Also the points
about a European connection on the scanning plus notes on use of English. Why is
it that a thought of BIFF springs to mind. I may well be totally wrong but I do
see some similarities though I, personally, fell that BIFF is not one person as
there are changes of style.

Let us take care and not get trolled, run up the creek, fuded or wookied. While
we're at it not make a rod for our own backs either.

There has to be a rabbit down this rabbit hole somewhere!
Now I want it's hide.

[ Reply to This | # ]

GPL comment
Authored by: Anonymous on Saturday, June 18 2005 @ 05:42 PM EDT
His lawsuit looks like a sure loser. Even if he could prove that he has or will
lose work because of the GPL (doubtful at best) he would still lose. Basically
if a copyright is a way to fix prices, for creating something you get the
limited right to control its distribution allowing monopoly rents to accrue to
you (assuming what you create is unique).

The GPL itself is speach, as anyone can clearly see. And so disseminating it
cannot be the cause of action. Similarly people are free to adopt whichever
license they want for thier own copyrighted works (see above). So his only real
leg to stand in is the argument that a set of buisnesses/groups are using the
gpl to fix prices unfairly. This in fact could be true if, for example, a set
of buisnesses got together and decided to all use the gpl for the express
purpose of driving the competition out of buisness. This seems a rather large
stretch of the imagination, but even if he won under such a theory the gpl would
be fine (though a few buisnesses would be in trouble). And if anyone believes
that RMS is promoting the GPL to allow pricefixing, well it's as likely that the
pope is against war because wishes to facilitate genocidal regimes.

[ Reply to This | # ]

No conspiracy needed
Authored by: Anonymous on Saturday, June 18 2005 @ 09:46 PM EDT
"Do not ascribe to conspiracy that which can be explained by

Daniel Wallace is a well-known Internet crank. He's been posting rants very
similar to this lawsuit for years on mailing lists, Internet sites, letters to
the editor, and I think he may even have gotten someone to accept a full opinion
column from him (maybe not; my memory is foggy). These all contained the same
general material as the lawsuit: the GPL is anticompetitive, an antibusiness
conspiracy, it's illegal under restraint-of-trade, yada yada. The few things I
bothered to read in detail all had an ominous tone of "someone is going to
get sued bigtime and you'll all have to stop using Linux and you'll cry and wish
you'd paid attention to old Dr. Wallace back when you had the chance!"

If he did have to be "egged on" to actually file a lawsuit...I doubt
it took more than one egg.

[ Reply to This | # ]

Guess who's back at sys-con?
Authored by: crythias on Saturday, June 18 2005 @ 11:57 PM EDT
A more specific letter and talk of the grievances, placed as if from one person, only signed by DW. 95.htm Yes, this is on topic.

[ Reply to This | # ]

Microsoft TCO studies
Authored by: Anonymous on Sunday, June 19 2005 @ 07:42 AM EDT
I'd love to see Microsoft's studies about how expensive Linux is be submitted as

Naming Red Hat is funny - that stuff costs $$$$$$$$.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Sunday, June 19 2005 @ 03:05 PM EDT
I see a couple problems with his case that I didn't see mentioned in the
comments so far...

1) The very existance of RedHat, SuSE, Microsoft, Adobe, etc. shows that a) you
CAN run a software business, even in the face of GPL competition, and b) your
business can even be based on the GPL!

2) It has been shown in several studies that the vast majority of software
development is in not-for-sale software. These people are PAID to write software
(software that will most likely never compete ANYTHING). Programming jobs aren't
going away because of the GPL- lots of companies (I'd say almost all, actually)
need code to do specific tasks, for which off-the-shelf and/or GPL software does
not exist (yet).

3) The GPL may be 'exploding' in popularity around the world, but if that's the
case than proprietary software is a hydrogen bomb. What's Microsoft's market
share? How many graphic designers use Photoshop? Most-well-known database
server? Most popular browser, media player? Games (name an OSS game that's of
the quality of, say, Halo or The Sims)?

So... software companies live in spite of the GPL, or even with the GPL. Most
development does not compete with other software, GPL or not. And proprietary
software is still incredibly widespread. Why is it exactly that the GPL prevents
this guy from making a living as a programmer, then?

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: KAKMAN on Monday, June 20 2005 @ 07:11 AM EDT
I'm a layman and even I can see this is a really stupid lawsuit. I hope it is
not dismissed. I hope it is proved this fellow is either too stupid to know how
to make a living and is looking to win the lottery somehow by sueing parties
involved(how, I can't see unless somebody is offering him a bounty to be their
"Scopes"), end of sentence, or that he is working for other parties
that would like to see the GPL undermined in any way possible.
The sad thing about this whole business is you know certain parties will use
this current lawsuit, no matter what the outcome, as FUD towards all GPL
software. Who will yap first? Enderle? Didio? Allchin? Ballmer?

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Monday, June 20 2005 @ 02:01 PM EDT
Excuse me . . . but, I dig ditches (by hand) . . . and I want to sue Ford,
Caterpillar, Case, Komatsu, John Deer, and DitchWitch for manufacturing machines
that dig ditches faster and cheaper than I can . . . and putting me out of

[ Reply to This | # ]

What's the goal here?
Authored by: pooky on Monday, June 20 2005 @ 02:40 PM EDT
His demand for relief asks for an injunction against IBM, RedHat, Novell, and
the FSF from using or otherwise implementing the GNU GPL. No monetary damages
are listed.

Perhaps the goal is to get the GPL declared invalid and unenfroceable? That
would make SCO very happy.

In my opinion, this is on pretty shaky ground at best. It seems logically
similar to any enterprise where something better and cheaper comes along, which
inevitably irradicates the old ways. If his arguement is that he can't sell
software he writes because someone will write a free version, I don't think this
will hold up in court. You simply can't stop people from creating content and
dictating the terms under which that content may be used or distributed. US law
guarantees the author of original content this type of control, and if the
author wishes to not charge money for it's use, well...

Is the RIAA going to sue someone who writes a song and gives it away for free
because it someone damages the songwriters who charge for their music?


Many Bothans died to bring us this information.

[ Reply to This | # ]

More Stupid Lawsuits
Authored by: Anonymous on Tuesday, June 21 2005 @ 09:57 AM EDT
Actually, I intend to cite Wallace case in my potential upcoming suit against
everyone who gives away water for free.
At some point in the future, I might, at least at this point, I think I will
sell bottled water. Those scum bags who give away water for free may be
hurting my potential, future, proposed business. Institutions (schools,
colleges, etc) and businesses (that's where the money is), often have free, (can
you imagine) water fountains...just throwing the stuff away !!!

I'm comtemplating adding G-D to the suit, (rain, snow, etc) but, hey, that
slippery, pesky fellow is hard to track down...Not even a P.O.Box or cell phone
number !!

I wellcome all amicus briefs (no boxers or tighty-whiteys please).

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )