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Lawyers Everywhere Say Huh? Rubbish. Weird. A Stretch
Wednesday, October 29 2003 @ 05:03 AM EST

The legal community is starting to react, and after a brief pause while they probably called around to make sure that what they'd read wasn't a hoax, they are starting to regain their ability to speak.

SCO really said it. It's not a parody or a hoax. They really said the GPL is unconstitutional and unenforceable and void and/or voidable.

Well, they also said IBM's patents were invalid too, and what are the odds of that being true? Slim? Or none? We'll start with Eben Moglen, the attorney for the Free Software Foundation:

"It's just rubbish," said attorney and Columbia Law School professor Eben Moglen. "There's nothing about giving permission to copy, modify or redistribute that violates the U.S. Constitution or any other law of the United States."


IBM reacted too, in the same Stephen Shankland article, and you can almost hear them chuckling:
"IBM strongly believes in its counterclaims and looks forward to trying its case in the court of law," where IBM will address SCO's specific claims, such as the GPL issue, spokesman Mike Darcy said.
IBM is way cool. So understated. So sure. In contrast, the unfortunate Blake Stowell, having to do PR for the SCO funny farm, did his best, saying that Congress, not the FSF, regulates copyright. Um. Oh. 'Kay.

Shankland asked whether SCO was offering indemnification on Samba, a GPL product they are releasing in their current software offerings. Well, hem and haw. No. They are not. Bravo for asking the right question, Mr. Shankland.

TechNewsWorld has more stunned legal eagles reacting to SCO's GPL position. Jeff Berkowitz, at Finnegan Henderson, said that SCO's response shows that the two sides in the dispute are "digging in their heels."

Either that, or it shows one side is getting wildly desperate. Here's what he said, in part:

"I'm sure they did sufficient research to raise those defenses -- they're not woefully inappropriate," he said. "But some of them appear to be a stretch. It's just unusual to see these sorts of defenses under the facts in this case."
High praise, indeed. "Not woefully inappropriate." What is that, would you say? A D minus? or a D plus?

Phil Albert, with Townsend and Townsend and Crew, said SCO's position that the GPL was unconstitutional is "weird" and that SCO is shooting itself in the foot.

He must be new around SCOville. I think they must be up to the knees at least, by now. They ran out of feet some months back. Here's more from the head-scratching Mr. Albert:

"For SCO to say 'We're in possession, but the license is not valid and is unconstitutional' -- that leaves them in the position of copyright infringer," Albert said. "That's kind of the inconsistency."
Yup. Kind of.

Consistency? He wants consistency? He's looking to the wrong party for that, as we old timers can attest. Unless consistently stoooopid about the GPL counts. And here I've been giving them remedial classes in the GPL since May, too. They just are not applying themselves.

And another lawyer on hearing the news thinks it's so ridiculous, they must have been misquoted:

"It appears to be a totally bizarre argument," said James Boyle, a professor at Duke University's law school (Durham, N.C.). "It's hard to imagine what they're thinking." . . .

Boyle of Duke University argues that while federal copyright law prevents IP owners from protecting their property too much -- users can make a single copy of a software program, for example -- it makes no provisions regarding owners who want to protect their property less.

"How can copyright law pre-empt a copyright holder who says, 'I don't want to limit people's ability to reproduce?'" Boyle asked. "The GPL people are the people who own the code. They can do with it whatever they want. . . . From the outside, it appears so bizarre and so ridiculous that I fear their argument is being misstated," he said.
Poor David Boies. He's in danger of going down in history as the lawyer who couldn't understand the GPL. He needs to jump overboard and start swimming for shore before he loses all credibility in the legal profession. Never mind the sharks. Just jump and swim for it, David. That's my advice. But hey, I'm no lawyer, so feel free to ignore me, by all means. But because I do grok the GPL, you might want to think it over very, very carefully and consider your options. You're on a slow SCO boat to nowhere good. A good name is better than money. It's in the category of precious things no amount of money can buy. So, jump, David! Jump!

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