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InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated 2Xs
Friday, July 13 2007 @ 08:29 PM EDT

Well, this got my attention. InformationWeek has just stated in a strange anti-GPL, anti-Linux, anti-Open Source article called "Open Source Is Dead, Long Live Open Patents?" (he imagines the IBM patent move this week was to replace the GPL, if I've followed his train of thought) that IBM owns Unix:
Remember, too, that IBM still controls one of the world's Big Four operating systems – there's Microsoft Windows, Apple OS X, Linux, and, that's right, Unix. (SCO has licenses -- and misused them wildly in its lawsuits against Linux – but the courts have agreed that the intellectual property belongs to IBM.)

It's a happy thought, IBM owning Unix, but impossible of fulfillment. Of course, he may indeed prove himself to be a true prophet in predicting SCO's loss in a back-to-the-future kind of way, but I think there is zero chance that IBM will be declared the owner of Unix. That might be Novell's happy lot, but not IBM's. IBM is a licensee, not a copyright holder or even a copyright claimant. It's Novell and SCO that are in the dispute about who owns the copyrights to Unix. As for the IBM litigation, no one knows any more what it's about, because SCO keeps moving the pea under the walnut shells.

No, dear InformationWeek, the trial hasn't happened yet. You could easily have checked that right here on Groklaw, if you didn't want to call IBM or SCO. Just shoot me an email any old time, or look it up in our Timeline pages. That's what they are there for. We'll help you get it right, even if you aren't a fan of FOSS. It's a serious offer. Here's the latest, by the way, IBM asking [PDF] for a 30-day extension of time on some remaining deadlines. They say they don't even care if the court wishes to set them after the Novell trial. Update 2: InformationWeek has now corrected the article, and its author left an honorable explanation as a comment to this article.

The article tries to prove that the GPL is dying and indeed that "Open Source is Dead" (he imagines GPLv2 and v3 can't coexist well together) and the IBM patent pledge regarding 150 standards is its alternative to the GPL and many other things that are also not so, as far as I'm concerned -- but they're more in the nature of opinions, so I'll leave them alone. But facts should be right. When you hate something, of course it's harder to get your facts right, but where are the fact checkers to help journalists when they rant right off the rails?

I can just see the jury. "You mean the trial didn't happen yet? I heard IBM won. I want to go home."

So, let me clarify that there hasn't yet been a trial in SCO v. IBM and there won't be one until after SCO v. Novell has its trial and that doesn't begin until September 17. And here's the schedule [PDF] on that. That trial should last several weeks, and then after that you could have a trial begin in SCO v. IBM, if there's anything left of SCO.

I know. SCO is hard. That's what Groklaw is for, though, to make it simpler, but it's still complicated, so try to pay attention. Joke joke.

But seriously, there is a lot of material we've gathered here to give journalists a fighting chance at getting facts right. Feel free to make use of it.

What are the odds that the SCO v. IBM trial came and went and Groklaw missed it? Judging from this article, I think I can say, with no false modesty, that you would be better off getting your facts from Groklaw.

P.S. Open Source isn't dead either. GPLv2 and v3 can coexist. There are now 164 projects that have gone GPLv3. And IBM's patent release will greatly benefit FOSS. After all, can you think of any entity that has been threatening folks over patents? But who's counting? Just stop on by and we'll give you a helping hand.

Update: Paul McDougal at InformationWeek continues the trend into misinformation, with an article nastily titled, "Linux Creator Calls GPLv3 Authors Hypocrites As Open Source Debate Turns Nasty":

He accused the Free Software Foundation leadership, which includes eccentric, MIT-trained computing whiz Richard Stallman, of injecting their personal morality into the laws governing open source software with the release of GPLv3. "Only religious fanatics and totalitarian states equate 'morality' with 'legality,' " Torvalds wrote.

"There's tons of examples of that from human history. The ruler is not just a king, he's a God, so disagreeing with him is immoral, but it's also illegal, and you can get your head cut off," Torvalds continued, in a posting dated June 20.

Torvalds added that software developers that adopt GPLv3 "in the name of freedom, while you're at the same time trying to argue that I don't have the 'freedom' to make my own choice" are "hypocritical."

Does that match the headline? The FSF has never told Linus he can't choose. Never. Nor have they called him names, but in this case it's the author creating something that wasn't even said. Look for yourself, from the Linux kernel archive, where you will find Linus saying this:

I don't think it's hypocritical to prefer the GPLv3. That's a fine choice, it's just not *mine*.

So, Linus said it's a fine choice. InformationWeek didn't write about that. Why? What is going on at InformationWeek? Let me guess. Nah. You are sophisticated enough to figure it out. But I think it's clear there is afoot an attempt to create the impression of some schism in the FOSS world. There isn't. No more than usual, anyway, and I'd say much less. FOSS folks talk out in public about things that corporations talk about behind closed doors. It's always been that way, and I'm sure it always will be.

I'd disagree about morality and laws not being related, though. That is actually the whole point of laws. The Nuremberg court even found that we are as humans accountable to a natural law, a higher law than any mere statute, very much tied to morals. Even the DMCA, one of my least favorite laws, is an attempt to make people obey certain restrictions that the law's writers thought were moral. In fact, in my thinking, it's when you separate law from morality that you start to get into trouble. Here's a paper [PDF] that talks about whether one can separate law and morality:

1. Introduction – The Nazi Dilemma

It is 1944 in Nazi Germany. A woman, wishing to be rid of her husband denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defence of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but sent to the front. In 1949 the wife was prosecuted in a West German court for an offence of illegally depriving a person of his freedom. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. This is the practical context against which the debate about the separation of law and morals – something which dominated the abstract philosophies of Aquinas, Hobbes, Bentham and others – must be considered.

2. Natural Law

The German court of appeal decided in this case that the Nazi statute was ‘contrary to the sound conscience and sense of justice of all decent human beings’. This is the approach of the natural lawyer – something is law only to the extent that it promotes justice. Wicked law is not really law at all. Many of us might applaud the court’s objective – the punishment of a woman for an outrageously immoral act – but this was secured only by declaring a statute established since 1934 not to have the force of law.

And most of us would argue that this is the correct result. There can be immoral laws. But that isn't what they are normally for. It's all very well to say that each individual should decide morality for himself. But the point of laws is to decide for the group, because we don't live on islands, and what we do affects others. So they make rules about which side of the road to drive on instead of leaving it up to me and Linus to decide for ourselves each morning and other laws about who has to pay if my car hits his because I was putting on lipstick while I was driving. What a society cares about can change over time, but the laws will tend to change to match. And as for laws about stealing, they are an attempt to legislate morals, because people everywhere tend to agree that they don't want their stuff stolen from them, so they make a law, but the law really stems from the moral decision as to what is OK to do and what isn't. Societies can differ on what they think is right, of course, and the same society can change its own mind, but my point is that you can't really divorce law from morality. It's what law is for, really.

Now, there certainly can be times, think Les Miserables, when other laws or even mercy come into the picture. And sometimes there are what the article called wicked laws. Nothing involving humans is simple, and most of the time, you have to balance moral judgments so they mesh, and figure out how to do your best in your particular fact pattern. That is precisely what judges do all the time, try to fit the laws onto a fact pattern. Here's an example from the same article:

In a famous American case, called Elmer’s Case the question before the Supreme Court was whether the statute on inheritance meant that someone who killed the testator could still inherit the estate. In fact, the Inheritance Statute was silent on the subject. Rather improbably, the two main judges in the case were called Judge Earl and Judge Grey. Both judges relied on the Inheritance Statute, but whereas Judge Gray held that the murderer could inherit (since the statute did not say otherwise), Judge Earl said that we should assume that Congress did not intent the statute to have any absurd results, and hence it should be held to say that murderers did not inherit.

There is, in short, a measure of common sense that enters the picture, that argues that bad actions shouldn't be rewarded. That is after all the purpose of law, to aim for justice. But even if you agree that in a certain desperate situation a man might steal a loaf of bread to live, or feed his children, that doesn't make stealing OK across the board, merely understandable. It might mean that the person should be shown mercy due to the circumstances and allowed a way to make it right, for example. But no society is going to say that it's all right to steal. How they define stealing can vary, but none say it doesn't matter or that it is morally all right. And it's not morally all right.

Law is for deciding moral issues, in short. It always has been. That is simply factually true, and it's been even more true at other times in history. Think Mosaic Law.

Even a simple contract to sell a house involves ethical matters. If you sign the contract, for example, you can't later refuse to pay. Why? Society says it would be wrong. And you can go to court and right that wrong, if it happens to you.

So the argument that a license should not express a concept of what is right would be a novel concept legally. And of course, GPLv2 also expresses the author's concept of what is right and wrong to do with software. Linus likes it not because it isn't also a moral statement -- he even said it's what he likes about it, that it's about treating others as you wish to be treated. That is morals. GPLv2 is not divorced from morals. He just likes GPLv2's better than GPLv3's in certain particulars, and that's fine, but both express a concept of what is right and wrong. Even Microsoft's EULAs express Microsoft's concepts of right and wrong. It's why they write them, to let you know what you can and can't do with their stuff. GPL is no different. It just draws the line in a different place.

Here's what I think about all the unpleasant articles. A lot of folks are very disturbed by the change in the weather. No one thought Microsoft could be held in check for five minutes, let alone period. And yet it happened. So if you were Microsoft, how would you be feeling about the GPL right now? I think we can expect a lot of articles now all about how horrible the GPL is and how businesses can't stand it and how the community is falling apart because of it, blah blah. Like the song says, though, you don't need a weatherman to know which way the wind blows.

The GPL, both versions, give you more rights than copyright law, because they want to. But they draw an identical line as far as patents are concerned: they don't want the code encumbered by patent licenses. The intent is the same, but the GPLv2 wasn't clever enough to block Microsoft, and it found a loophole, which loophole GPLv3 closed. I would argue that it's not right to try to find a loophole, actually. I think one should respect other people's intended results in a license. But the morality, if you will, is identical in both versions regarding patents. Both licenses say that it is wrong to encumber GPL code with patent licenses and GPLv3 adds patent deals such as we saw in the news recently. That is the authors' choice. They don't have to let you use their code at all, you know, and if they don't want Microsoft grabbing the code and using it for its own purposes in some patent strategy, the license can say that. It is precisely what a license is for. And everyone can decide if that is something they care about enough to move to GPLv3 or if they think other issues matter more. I think Microsoft has provided a living example of why GPLv3 matters. But to each his own. Licenses are not statutes, after all. If you don't like a license, don't choose it. Nothing hard about that.

**************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address]
[phone]
[fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]
[phone]
[fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
MOTION FOR EXTENSION OF
DEADLINES IN MAY 29, 2007 ORDER



Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

(1)

Defendant and Counterclaim-Plaintiff International Business Machines Corporation ("IBM"), through counsel, hereby moves the Court for an extension of the pre-trial deadlines set forth in the Court's May 29, 2007 Order as follows:

IBM seeks an approximately 30-day extension of each of the deadlines set forth in the Court's May 29, 2007 Order, and submits herewith a proposed form of order confirming those revised deadlines as follows:

Rule 26(a)(3) Disclosures shall be due on August 13, 2007;

Motions in Limine regarding expert testimony shall be due on August 27, 2007;

Objections and counter-designations to Rule 26(a)(3) Disclosures shall be due on September 4, 2007;

All remaining Motions in Limine shall be due on September 10, 2007;

The deadline for exchanging jury instructions shall be September 24, 2007;

The Final Pretrial Order shall be due 45 days before trial;

The Special Attorney Conference and Settlement Conference shall be held 60 days before trial; and

The Court will send to the parties a Trial Order setting further deadlines for the case approximately six weeks prior to trial.

SCO has raised a concern that moving these deadlines by 30 days would put these deadlines in conflict with the pretrial and trial dates in SCO v. Novell, currently set for trial beginning September 17, 2007. IBM has no objection to moving these dates to a time commencing reasonably promptly after the conclusion of the currently-scheduled trial in SCO v. Novell, but has been unable to confirm such dates with counsel for SCO. IBM will therefore stipulate, if necessary, to a further extension of the foregoing deadlines.

2 (2)

DATED this 13th day of July, 2007.

SNELL & WILMER L.L.P.

_/s/ Todd M. Shaughnessy_______________
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address]
[phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation

3 (3)

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of July, 2007, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

(4)


  


InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated 2Xs | 369 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please....
Authored by: Jude on Friday, July 13 2007 @ 08:35 PM EDT
... so PJ can find them.

[ Reply to This | # ]

OT here, please
Authored by: Jude on Friday, July 13 2007 @ 08:37 PM EDT
And please make your links clickable. Don't forget to post in HTML if you want
to include links.

[ Reply to This | # ]

Newspick comments here, please
Authored by: overshoot on Friday, July 13 2007 @ 08:39 PM EDT
That really <b>was</b> a very good idea!

[ Reply to This | # ]

InformationWeek Declares SCO v. IBM Over and IBM Won. Huh?
Authored by: Jude on Friday, July 13 2007 @ 08:41 PM EDT
If SCOX tanks next week, will SCO sue InformationWeek?

[ Reply to This | # ]

One of his statements is true.... but do not be deceived by the others!
Authored by: tiger99 on Friday, July 13 2007 @ 09:00 PM EDT
"...in the short term, the GPLv3 has turned Microsoft's deal with Novell into a hairball Redmond is trying to cough up..."

I suppose the strategy is to throw in one obviously true statement, in the hope that people will notice that, and so believe the lies too.

But the thought of Gates and Ballmer trying to cough up giant hairballs nearly caused a keyboard accident....

[ Reply to This | # ]

....is of the essence
Authored by: webster on Friday, July 13 2007 @ 09:05 PM EDT
..
Not!.... This is fun. It seems that IBM and SCO can't agree on an
"extension', that legal euphemism for more delay.

IBM asks for 30 more days for everything. This will create conflicts with the
demands of the Novell trial for SCO. SCO says it wants more time too, natch.
IBM says sure, let's specify. SCO won't agree to a specific time or maybe SCO
won't return IBM calls right now. So IBM files this motion asking for just
thirty days saying they will stipulate to whatever timing SCO wants.

You get the feeling that more time gives IBM more substance, evidence and
authority. It also delays their having to look at what SCO throws them, i.e.
overlength and repetitive.

Maybe InformationWeek grasps the essence: It's over for now; Novell will steal
the thunder; a restart is unlikely. Both sides want a delay because why do this
work if it will be unnecessary.

---
webster


© 2007 Monopoly Corporation. ALL rights reserved. Yours included.

[ Reply to This | # ]

InformationWeek Declares SCO v. IBM Over and IBM Won. Huh?
Authored by: DarkPhoenix on Friday, July 13 2007 @ 09:25 PM EDT
Here's the kicker: his evidence for the "huge split between Linux and the
FSF" is that article we noted last week, where the author took Linus'
comments WAAAAAY out of context and tried to imply that something was brewing.
Anyone with a brain knows nothing is brewing; both the author of this piece and
the author of the "Linus calls FSF Hypocrites" article must think the
GPL works like one of Microsoft's dreaded EULA's, where all GPL work magically
transfers to GPL3.

---
"No one's going to give you a map; you've got to walk your own path." - Hot Ice
Hilda, Outlaw Star.

[ Reply to This | # ]

InformationWeek Declares SCO v. IBM Over and IBM Won. Huh?
Authored by: kozmcrae on Friday, July 13 2007 @ 09:46 PM EDT
(he imagines the IBM patent move this week was to replace the GPL, if I've
followed his trainWRECK of thought)

That's how I read it.

Richard

---
Coming soon: Signature 2.0

[ Reply to This | # ]

it could be true if you interpret it the right way...
Authored by: Anonymous on Friday, July 13 2007 @ 10:13 PM EDT
but the courts have agreed that the intellectual property belongs to IBM
The court of public opinion has agreed that IBM owns the intellectual property that they have contributed to Linux.

[ Reply to This | # ]

Big Four Operating Systems?
Authored by: bstone on Friday, July 13 2007 @ 10:33 PM EDT
IBM may not own UNIX, but it seems to me that our analyst might have forgotten
about a little operating system called z/OS that IBM does own.

[ Reply to This | # ]

InformationWeek Declares SCO v. IBM Over and IBM Won. Huh?
Authored by: Anonymous on Friday, July 13 2007 @ 10:53 PM EDT
From the article:
What is clear to me, though, is that by insisting on making the GPLv3 a weapon of war, Richard Stallman and his Free Software Foundation have thoroughly alienated Linus Torvalds and his Linux crew, and a GPLv2/GPLv3 split seems likely. I don't see how the open source movement continues if it can't present a united front.

This bugs me. This makes me think that the author is of the opinion that everyone who produces and or contributes to open source software should agree on everything, only use one license, and gather every evening to sit at the table and talk about their day. Since when has the "open source movement" presented a united front? I suppose there are certain commonalities that exist in the people and projects that make up the "open source movement" but, there is more than one open source license, OS (kernel), desktop environment, and etc. This diversity has lead to choice and innovation. Having more than one license hasn't destoyed the movement yet and I doubt that it ever will. Geez, some people really need a clue or to do some research.

[ Reply to This | # ]

It could happen...
Authored by: Anonymous on Friday, July 13 2007 @ 11:06 PM EDT
SCO could owe so much in counterclaims that IBM would get it's distribution
rights as part of the bankrupcy settlement.

[ Reply to This | # ]

InformationWeek Declares SCO v. IBM Over and IBM Won. Huh?
Authored by: Anonymous on Friday, July 13 2007 @ 11:30 PM EDT
Perhaps they should change the name of the magazine to "Information
weak".

[ Reply to This | # ]

DisInformationWeek
Authored by: kawabago on Friday, July 13 2007 @ 11:37 PM EDT
Will we eventually get to see Novell and IBM squabble over the remains of SCO?
Who gets to tar and feather Darl McBride for example?

[ Reply to This | # ]

i also see
Authored by: sumzero on Saturday, July 14 2007 @ 12:27 AM EDT
a tendency to equate open source with free software and then complain about how
the free software aspects of the gpl are against the spirit of open source
[usually using a bsd-based interpretation].

sum.zero

---
48. The best book on programming for the layman is "alice in wonderland"; but
that's because it's the best book on anything for the layman.

alan j perlis

[ Reply to This | # ]

  • Interesting - Authored by: Weeble on Saturday, July 14 2007 @ 03:32 PM EDT
    • Interesting - Authored by: Anonymous on Sunday, July 15 2007 @ 03:22 PM EDT
Moral laws: the consequences of our behavior on others.
Authored by: vb on Saturday, July 14 2007 @ 12:39 AM EDT
Morality, to me, is a broad term that tries to define good/bad and right/wrong.
I see legality, natural law and moral laws, as being a subset of morality where
our behavior impacts others.

At times, the law strays and makes a behavior illegal that has very little
consequences on others (gambling, prostitution, drugs, sodomy, etc.). I see
that as due to the influence of the prevailing religion. Every country has some
religious influence in their laws. Some countries are quite dramatic in that
regard.

[ Reply to This | # ]

Linus's post on LKML
Authored by: Anonymous on Saturday, July 14 2007 @ 12:57 AM EDT
http://lkml.org/lkml/2007/6/20/223

[ Reply to This | # ]

Article not really anti-GPL, anti-Linux
Authored by: Anonymous on Saturday, July 14 2007 @ 01:22 AM EDT

The writer didn't bother to check all his facts, but hey, that's modern journalism. Sensation sells newspapers (and hence brings in advertising $$). It would be nice to get some facts right (and in all fairness, the article does have some slight basis in reality, which is as much as you can expect of most journalists nowadays). But the bottom line is the bottom line.

"Linus says GPLv3 is a fine license" would be accurate reporting, but who's going to read the article under such a headline? Or post follow-ups?

It's definitely unfair to compare this guy with O'Blahblah and Enderle. He's sloppy, but not, I think, malicious or in Microsoft's pocket. And I think his main mistake, which is the belief that Linux is an operating system when it's just one component of GNU/Linux, is so widespread that it's excusable.

[ Reply to This | # ]

While I agree with the German Court's intent ...
Authored by: tanstaafl on Saturday, July 14 2007 @ 01:38 AM EDT
... I think the Court has to be careful not to usurp the function of the
Legislature. It is all well and good to want Justice, but the Court is supposed
to decide matters of Law, not make proclamations. While the law may have been
evil, it should be the place of the Legislature to overturn it; otherwise, when
does the Court stop overturning laws? There has to be more reason than 'it is
evil.' Decisions should be based on precedent, not just a desire for Justice.
Think about it: If U see an evil happening, of course U want to right the
wrong, but do U not also want to make sure that U are not being played by one
side or the other? We will always have bad guys with us, and they will always
try to game the system. One of the main functions of the Court is to remove the
knee-jerk emotion (which is easily played by the bad guys) in an effort to see
that Justice is served. It is a difficult, delicate balance.

That said, I agree that it looks like somebody is trying to stir the pot and
turn FOSS folks against one another. And of course, one of the best ways to do
that is to try to stir up emotions by throwing rocks and claiming somebody else
threw them. Sigh ... same stuff, different day ...

[ Reply to This | # ]

For the record, what Linus said
Authored by: Anonymous on Saturday, July 14 2007 @ 02:15 AM EDT
"[A]nybody who thinks others don't have the "right to choice",
and then tries to talk about "freedoms" is a damn hypocritical
moron."
- Linus

[ Reply to This | # ]

This is great!!!
Authored by: Anonymous on Saturday, July 14 2007 @ 06:27 AM EDT
I think someone is making a huge mistake here. As we all know LT and RS are not
exactly close friends. However I can imagine nothing more likely to make them
into close friends than this kind of attack.

[ Reply to This | # ]

Isn't that InformationW e A k ? n/t
Authored by: SirHumphrey on Saturday, July 14 2007 @ 07:06 AM EDT

[ Reply to This | # ]

GPLv3 is nothing but a legal form
Authored by: Anonymous on Saturday, July 14 2007 @ 09:33 AM EDT
With respect to the distinction between GPLv2 and GPLv3:

the difficulty for some of us regarding gplv3 is that we don't agree with it.

At the stationery store down the street, there are fill-in-the-blank legal forms
for apartment leases and small contracts for renovation. You can buy them for
$2. But nobody would buy them if they included terms that changed the
relationship between contracting parties in a new, dramatic way. The author of
that fill-in-the-blanks form might be championing tenants' rights, for example,
but without considering the needs of landlords the new version of the contract
would languish.

Apart from the GNU toolset, that has been the primary function of the GPL.

When the FSF changed the terms of the GPL in v3, they had an aggressive vision.
They held their own process and "invited" participation within that
process.

They failed to convince some constituencies of the merits of their argument.
They went ahead and re-licensed their apps under that new license, which is
entirely their right.

However, they did not have the right to change the social and legal contract
between other developers and their users, and are finding out the hard way in
terms of adoption. Apart from GNU and Samba, what else will switch?

The difficulty is that those of us who work in industry every day have their
credibility damaged every time the FSF claims to speak for everyone. We have to
walk a tightrope, explaining that we are the clean-shaven, tie-wearing cousins
of the free software movement, that we want reciprocity in source code, but do
not want to dictate engineering by forbidding DRM and/or enforce patent terms
within that document. While those goals may be laudable the mechanism of using
the GPL is ineffective.

The FSF has said that they don't care if their terms affect uptake or adoption,
that this is about "freedom" (in quotes because they use that word
differently than the dictionary). However, it does concern some of us. And
Linus. He was luckly, all he had to do was write a kernel for an operating
system in order to be treated with some measure of respect.

So please accord the rest of us the same deference and respect that you have
accorded Linus.

By the way, if you propose a server appliance to a customer, you either have to
strip gpl3 apps out or explain how they will not "taint" the rest of
the app. So GPLv2 and GPLv3 might co-exist on a machine, but not in a business
plan.

The author was correct in one sense. The FSF and its supporters have alienated
the open source community. There may or may not be forks, but there is
definitely a chill in the room. It's because we just came out of a meeting where
we had to explain that we were not anti-business, and that the FSF does not
speak for us.

Oh, and to innoculate against one particularly condescending tactic:
"failure to agree does not mean failure to understand." It is possible
for someone to understand what the gplv3 says and still disagree with it. So no,
it's not that I don't understand. I just don't agree.

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InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated 2Xs
Authored by: Anonymous on Saturday, July 14 2007 @ 12:09 PM EDT
The author of this InformationWeek article, his resume is located here:
http://dejean.com/david_dejean.html

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Law, Morality and the success of GPLv3
Authored by: Anonymous on Saturday, July 14 2007 @ 01:14 PM EDT

First, on the law versus morality thing, my interpretation of what linus was trying to say was that law can only ever be a subset of morality - while you can make a moral judgement about anything you like, the law also has to be fair, consistent and enforcable in practice. If you try and finesse the law to cover every nuance, special case and different opinion of morality, it will crack under the strain of unintended consequences and contradictions. Legislators also have to remember that the courts are only the last resort - and their laws will be "interpreted" by officials all the way down the food chain who will err on the side of caution and FUD. It may not have been the lawmakers' intention that their new edict on internet porn meant that employees should be banned from using the internet at work, but that may well be the effect for many.

This is the TiVO problem. There is a pretty strong arguement that TiVO are not being very good sports, and are following the letter of GPLv2 without following the spirit. TiVO say they have no choice because of the MAFIAA's insistance on DRM - We'd all like TiVO to take a moral stand agaisnt DRM, but this would be risky for them.

The question is - does that make it essential to TiVO-proof the GPL? There has been a lot of talk of the consequences of not doing so - a TiVOised, Trusted Computing Platform world where the only computers were on lease from The man. However, what about the risks of doing so? TiVo could just vote with their feet - there are plenty of proprietary embedded OS's they could use. They could accept GPLv3 and then be stomped by the content holders, possibly leading to some caselaw that would take Freevo and MythTV down with them. Or, the GPLv3 could be "interpreted" (whatever the FSFs intentions) to mean that you couldn't use free software in systems that needed any kind of safety or regulatory certification - so forget about using a wireless network card in a GPLv3 operating systems. Yes the FSF have tried to address some of these worries - but time will tell if their patches will appease the skeptical corporate lawyers who will ultimately decide. We could even see "GPL trolls" that obtain copyrights to GPL software and then go after "infringers" - however questionable their argument (SCO quite probably hold the copyrights to some GPL code contributed by Caldera - probably coming to an IP firesale near you sometime in October).

These are all arguable - but there is one thing that we have lost - any reasonable, literate person (not blinded by some ulterior motive) could read and understand the GPLv2. The GPLv3, however, is written in language that only an IP Lawyer could love - we have moved further into the world where the rules we are expected to follow come with the caveat you are not expected to understand this. I think this is worth shedding a quiet tear for. Even if the GPLv3 saves the world, that victory will have come at a price.

No one thought Microsoft could be held in check for five minutes, let alone period. And yet it happened.

Isn't this in the same vein as declaring SCO vs IBM over?

I've seen the arguments whereby MS is now inevitably bound by the GPLv3 as a consequence of its non-expiring vouchers and while IANAL and can't tell you if they are right or wrong, I can tell you that If I were a juror being browbeaten by Microsofts fancy lawyers - telling me that this was a bizarre attempt to hold poor innocent Microsoft restrospectively liable for a license that was written specifically to interfere with their business - you'd better hope that my 11 colleages and I were prepared to look to that higher natural law for guidance, because that seems positively lucid compared to the arguments in certain other cases we might all have heard about.

Of course, the case gets much stronger the millisecond that Novell actually hands over a copy of the latest Samba in return for the voucher - but even then how much "reasonable effort" does MS have to make to revoke the vouchers (and maybe offer some token compensation to the holders) before they are off the GPLv3 hook?

Don't get me wrong - I get the arguments, but none of them strike me as self evident, case closed, watertight proofs that can't be picked apart by lawyers.

Of course, this is all hypothetical because MS isn't going to be in a hurry to test their patents in court or even reveal exactly what they think is being infringed - but that's because of the gas pedal ruling, not GPLv3.

MS won't be defeated by a minor U-turn and some small-change losses, especially ones that they can spin into FUD about how even indirect contact with GPLv3 can expose you to liabilities.

The GPLv3 has been out for two whole weeks. It hasn't been tested in court, or obviously forced the capitulation of an infringer. It hasn't proved itself against recreational litigants claiming that it is unconstitutional, anti-competitive, harmful to children or has stolen their pants. Hopefully, over time, as adoption spreads, it will face these challenges and triumph. The FSF have a good track record - but you'd have to be brave to bet against the need for GPLv3.1 at dome time.

If it succeeds, then it might just tip the balance in the war against software patents - although the only thing that will win that war for good is a change in the law. It should also prevent any future instances of the MS/Novell patent FUD.

Until then, careful with the premature schadenfreude - and remember that any "surprising" precidents set by GPLv3 vs. Microsoft could have broader consequences for the GPLs image.

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InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated 2Xs
Authored by: Anonymous on Saturday, July 14 2007 @ 06:01 PM EDT
Hey PJ, at least he gives you a little credit for catching some of the more
obvious errors.

Makes me think of a new software release. Wait until at least one service pack
is out before accepting it.

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To PJ : Moral vs Ethics - or why Laws should never be based on Morals
Authored by: el cojo on Saturday, July 14 2007 @ 07:07 PM EDT
When I first read this article a very cold feeling seem to emanate from my stomach and travel up my spine, making me sit upright very fast.
Even if the scope of this problem, being essentially philosophical, is infinitely greater than the scope of groklaw (IMHO), I feel an imperative urge to comment on this.

First things first.
I disagree completely not only with your use of the word moral or morality, but also with
it's when you separate law from morality that you start to get into trouble

Even if moral comes originally from the latin for "custom", it has an intimate relationship to religion.
These "customs" include religion, naturally the one existing, deprecating new ones and trying to maintain the "correct one".
(If some of you don't concur, just imagine the difference between a high school/college course named "Moral" and one named "Ethics" :-) )

Incorporating moral in laws is (IMHO) a very bad idea.
a) You create a law that necessarily favors one part of the population (majority?) discriminating members of other religions or even atheists.
b) Interpretations (or changes) of values from religious leaders have nefarious consequences.
...

The best example for b) would be pope Urban II (if I remember correctly) reinterpreting the bible and stating that "Thou shall not murder" was actually meant to be "Thou shall not murder another christian", thus creating a "moral" background for the atrocities of the crusaders.

You yourself in the US are prone to a). As the so called "moral majority" tries to introduce laws that will further their own believes against those of others.
(b.t.w.: it is called "moral majority" and not "ethical majority")

I don't know exactly what you had in mind, but I think that when you incorporate values into laws, it should be "ethical" values you should reflect and not "moral" ones.
(Even if our ethics have been greatly, but by no means only, influenced by religion)

Second:
The concept of something called "natural" law is also very, very dangerous. Even if in the case of Nazi Germany it seems very natural and correct (to us). But if we think a bit more about it, we see that the implications are:

a) There is something or someone "higher" than humans, whose values have to be accepted and honored by us.
Who is to decide which "being" is meant, and which are the values it'll abide to?

b) What we feel is "natural" law, depends on our values at a given time. Other may have completely different feelings about what "natural" law is meant to be.

Because if there is something like "natural" law, the values are by its own definition "universal" values, and a law has an inherent value.
What happens if another set of people consider other values as being "universal", but you do not?
If our community consider something to be an "universal" value, do we have the right to impose these "natural" values on others?

(For example if the RIAA et al consider enriching themselves as an "universal" value? :-) Well, that one was meant as a joke! )

But consider Roman society and slavery. The existence of slaves was part of their "natural" law.

Do you consider the stoning of a woman for adultery (practiced Muslim law) to be barbaric and against "natural" law?
Well, me too (barbaric, i mean). But to those people this is their "natural" law, and its value is "universal".
(If we would try to impose our values, I see the next war coming near very fast)

On the other hand, me, and most other Europeans consider the death sentence and the execution of prisoners in the US a barbaric act against "natural" law.
So even in our western culture we don't agree on what "natural" law is.

Another example:
What happens if let's say a dog gets a fit and begins to bite and kill children on the street?

Well, you send the police, or someone other to kill the dog.
Up to this point, I think everybody would say, ok, "natural" law, the value "human life" is higher than "dog life".

Now let's go sci-fi:
A race of aliens lands on earth and they consider us to be a nice "semi-intelligent" race of pets, which also are very tasty when roasted.
Would they not consider it "natural" law to kill and exterminate humans that form a resistance movement? (like we did with the dog?)

Third:
What I think you got definitely wrong, dear PJ, is the following:

But no society is going to say that it's all right to steal. How they define stealing can vary, but none say it doesn't matter or that it is morally all right.

I think you missed a big point here. You should have said:

But no society is going to say that it's all right to steal from those they consider to be their equals. (or something similar)

No Roman considered it to be stealing, when taking the valuables of a tribe or nation they subjugated. They even put them on display in their triumphal marches in Rome.

But we don't need to go that far back in time or place.
Just remain in the US and go back 200 years. Was there any rule against the settlers stealing the land of the Indian tribes?
There was not. The settlers just put a claim on the lands and the government issued a title.
Why? Because the Indians were not considered "equal" to the settlers. They were just a bunch of "wild troublemakers", and sometimes even some sort of sub-humans with absolutely no rights.

Well, coming to an end, because I think I already wrote too much, I think we can agree on the following:
The laws are a set of rules that reflect the values of a certain community at a certain time.

Just a snapshot. Nothing more, but also nothing less. No inherent value.
And if in another 200 years Bill Gates is considered the worst criminal in human history for accumulating billions and billions of Dollars, while millions of people around the world were starving, who am I to criticize this?
It just means that property is not considered a high "value" anymore.

(I must confess that I am consistent myself. In my optimistic moments I am a fervent supporter of the "Universal Declaration of Human Rights", on the more depressive I wonder if anything has any "ethical" value at all.)

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Don't be so sure
Authored by: elderlycynic on Sunday, July 15 2007 @ 08:50 AM EDT
I am still expecting SCO to go belly-up and IBM and Novell (in
that order) to get dibs on the carcase, as partial payment for
costs.

We could well see IBM "owning Unix" (whatever that may mean),
but evidence is that they have enough sense to immediately
make it freely usable by all and sundry.

I don't think that's what the journalists meant, though :-)

[ Reply to This | # ]

  • Please Help Me! - Authored by: Anonymous on Monday, July 16 2007 @ 09:38 PM EDT
We need "Yet Another License" as a bridge
Authored by: hawk on Sunday, July 15 2007 @ 10:07 AM EDT

I think we reached a point where swaying GPL2-projects to go GPL3 is fruitless. The Linux Kernel specifically, but lots of other projects too where it is simply impractical to go GPL3. Personally, I am very reluctant to use GPL3 because I do not feel I understand it. Perhaps I will in time if PJ is right.

We need a bridge. One that can be implemented gradually without compromising a project. Also, it is unlikely that GPL3 will last as long as GPL2; To quote Brett Smith:

I don't think it's going to make it quite as long as GPLv2; probably somewhere between five and ten years instead.

I propose that a license is developed with the sole purpose of allowing developers to re- or sub-license the code when some circumstances are met. The code must then be multi-licensed, since the new license gives no rights whatsoever to a user (who is not also a developer).

For example it could have terms along the following lines:

  • The license allows relicensing of the source-code after several voting sessions.
  • Voting sessions can be initiated by a copyright-holder, or a group of copyright-holders, which has held to copyrights for at least 50% of the source-code for all public releases for at least 3 consecutive years preceding the vote.
  • The proportion is measured as physical SLOC, disregarding blank lines and lines generated automatically.
  • There must be 3 voting sessions in total, separated by at least 3 and at most 4 months. Votes must be held on the primary mailing-list used for developing the project.
  • Votes can be cast for 1 month from the beginning of each session, and the process must ensure that every copyright-holder can vote.
  • A session must be announced publicly at least 1 month prior to the first voting session. A reasonable effort must be expended to notify all copyright holders.
  • Any copyright holder, who holds the copyright to more than 50 SLOC (measured at time of contribution), can object to the relicensing of their code. An objection prevents relicensing of that code.
  • Voting sessions can be initiated at most every 3 years.
  • If the project shares copyrighted code with another project, then an objection for a vote in one projects counts as an objection to relicense the shared code.
  • The initiators of a vote must expend a reasonable effort to determine whether a copyrighted part had a vote within the last 3 years.

    OK, this is not thought out carefully, IANAL and so forth, so I am unable to create such a license myself. However, I hope the idea is clear enough: 1) provide a bridge that would allow slow convertion of existing projects to new licenses, 2) prevent hijack of the code, 3) prevent pestering developers with votes, and 4) let developers feel they still have meaningful control of their code.

    Other mechanisms might be better. For example, require a file in each project to hold all copyright-holders, disallow anyone from deleting or modifying an entry except when explicitly allowed by the copyright holder. Void the license if the file is deleted or changed otherwise.

    Perhaps it would be good to stipulate that a copyright-holder who is dead or otherwise unavailable officially abstain from voting.

    Would this be a fruitful way to tackle the problem? Just tell me if I am on crack.

    Kind regards,
    Esben Høgh-Rasmussen

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  • Four great operating systems
    Authored by: Anonymous on Sunday, July 15 2007 @ 12:14 PM EDT

    Remember, too, that IBM still controls one of the world's Big Four operating
    systems – there's Microsoft Windows, Apple OS X, Linux, and, that's right, Unix.
    (SCO has licenses -- and misused them wildly in its lawsuits against Linux – but
    the courts have agreed that the intellectual property belongs to IBM.)

    Doze is
    not an operating system, and the other three are all the same. IBM actually
    controls two of the big two operating systems, VM and z/OS...

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    Re: Laws and Morals
    Authored by: Anonymous on Monday, July 16 2007 @ 12:40 PM EDT

    Actually, most of the laws we have stem from a flawed understanding of the proper purpose of laws.

    A person's most fundamental right is the right to make his own choices for himself. All of the other rights (freedom of speech, thought, religion, assembly, etc.) derive from this simple fact -- we are our own masters.

    The corollary to that is that people must respect others' rights to make their own choices for themselves.

    This means that if someone is gay (whether or not it's a choice) or a vegetarian or a pot smoker or a Hindu, these are all personal choices that are entirely up to the individual himself and must not be legislated.

    Laws are wrong to the extent that they violate this simple rule. Laws against murder and rape and theft and torture and kidnapping are proper because all of these situations are examples of someone trying to force a choice on someone else. If it wasn't my choice to give you my car, you don't have any business taking it. If it wasn't my choice to die, you don't have any business trying to kill me. (On the other hand, if it was my choice to die, that's none of the state's business.)

    That's what freedom is about. That's what being free is. Free to make my own choices.

    On the other hand, there are such things as shared resources. The right to get totally plastered drunk does not give one the right to go driving on our shared resource -- the road system -- and risk others' lives. There are even decency laws (no sex in public parks, for example) which are, again, restrictions that we accept on shared resources. These are right and proper. Your right to engage in whatever practices you want does not mean I should have to suffer for it.

    But laws that permit manufacturers to lie about the contents of food (i.e. force a choice on us about what we're eating), or that incriminate people for choosing what substances they ingest (forcing a choice not to use certain substances), or the entirety of the IRS taxation system (forcing reporting of financial data, forcing payment of money to support a hyperbloated government and banking system), etc., etc., etc... These are all examples of laws which are simply wrong.

    These are laws which do not support freedom or the rights of the individual.

    It's an old tradition that morals have been made into laws and then enforced on people. Someone decides that something is wrong, claims God said so, and then compounds the crime by getting people to murder others for having committed whatever the "wrong" act is. Public stonings were all the rage in the day, but it's time we grow up as a species and get over it. Women are not men's property, slavery is passé, shellfish are good food sources (although still potentially toxic), styling one's hair is a virtual requirement these days, no one cares if a woman is menstruating, we can work whatever days we want to, we can plant whatever crops we want together, and we don't much care about how dirty pigs are. All of these were issues that could get one murdered by religious edict once upon a time, and the law is no less a tyrant now than it was then.

    The founding of America was a good start (actually a continuation of what had begun elsewhere, if you study the documents that pre-date the Constitution, for example), but the various would-be tyrants have been hard at work in the last 230+ years doing their best to try to undo what was done back then. The legal system is the tool being used to try to re-enslave us. We must reject all attempts to use law to violate rights instead of protect them, most especuilly those laws that enshrine one group's morality and force it on the rest of us.

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    The Nazi Dilemma
    Authored by: Anonymous on Monday, July 16 2007 @ 05:12 PM EDT
    I disagree so strongly with the "law = morality" example of the Nazi Dilemma that I had to comment. Unlike "most of us", I would argue that it was the wrong result. Laws proscribe actions; morality is a bit fuzzier, and goes further into intentions. For example, suppose the introduction had read
    It is 1944 in Nazi Germany. A woman, fearing that anything that might undermine the Nazi government could lead to anarchy, collapse of the war effort, and untold suffering of the German people at the hands of the Soviets for decades to come, denounced her husband....
    Should she then be found guilty? Her actions were the same; it's only her underlying motivation that was different. Put another way, should she be punished for having impure thoughts? Especially when her actions were explicitly legal under existing statutes? One could argue that it was a bad law, and perhaps someone who violated such a law should not be punished, but that's a different matter than punishing someone who obeyed the law. (That's not to say that this shouldn't happen, but it should be reserved for people such as Nazi prison camp guards and executioners who committed blatant offenses against what the referenced paper calls "natural law".)

    The analogy may be a bit stretched, but it's a little like the separation of church and state. One tends to focus on the individual, and on internal beliefs and motivations ("don't have bad thoughts"), whereas the other focuses on society ("don't do bad things"). They are undoubtedly related, especially when it comes to the inevitable interpretations of written law, but there is still a fundamental difference.

    So I agree with Linus. You shouldn't try to inject personal morality into things (like software licenses) that affect society at large, especially when your personal morality may not be shared by everybody.

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    • The Nazi Dilemma - Authored by: Anonymous on Friday, July 20 2007 @ 02:35 AM EDT
    hypothetical: gplv4 bans military applications
    Authored by: Anonymous on Wednesday, July 18 2007 @ 02:54 PM EDT
    Since GPLv2 and GPLv3 come with "or later" provisions, what if GPLv4
    includes a provision such as:

    Software licensed by the GPLv4 will not be used as part of a targeting or firing
    system for a military system, nor can it be used by members of the intelligence
    community for any non-public purpose.

    What would happen then?

    [ Reply to This | # ]

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