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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)


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