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SCO Wants Court To Block Any IBM Escape Hatches From Discovery Order

SCO Reminds the Court that the Order Already Has the Backing of Two Judges; Meantime, O'Gara Likens Groklaw to Zoroastra

"MAUREEN O'GARA SHOW" with HOST ROGER STRUKHOFF
Friday, March 11, 2005 - 2:00 PM EST (11:00 PST)

Guest: JOHN C. DVORAK on Bloggers and Blogging Culture
Guest: RICK ROSS on Open Source and Sun Microsystems


SCO has asked the court hearing its $5 billion suit against IBM to deny IBM any escape from the discovery order that the court slapped IBM with on January 18.

In a 10-page response to IBM's attempt to wiggle out from under the full weight of the court order, SCO reminded the court that the order already has the backing of two judges and claimed that IBM's unusual bid for reconsideration "fails even to meet the threshold for a proper motion" by bringing nothing new to the table, merely the tired old arguments it's used for the last 19 months.

IBM wants out from under the order to turn over to SCO the records of 3,000 of its people who worked on AIX, Dynix and Linux. It claims it's too great a burden.

SCO says the court already considered the burden argument and dismissed it. SCO also says that IBM provides no evidence of its contention that searching through all those files would turn up nothing "meaningful" to SCO. It says the court already decided that the search was likely to produce what the court itself called "evidence that is not obtainable from other sources" and "information concerning IBM's treatment of the contracts" it had with SCO.

SCO points out that the January 18 order is the second time the court has ordered IBM to produce the discovery. The first time was on March 3, 2004. SCO says it want it now.

SCO objects to the fact that IBM merely asserts that the search through the files of 3,000 people is a burden and claims it's "impossible" to do in six months without any substantiation. It suggests that IBM might bring in more lawyers or let the developers search their own files. It also says that IBM's claim "rings hollow" given that it's had over 19 months now to start the search.

SCO also wants the court to knock the idea out of IBM's head that it's only required to produce "AIX and Dynix material from CMVC and RCS," its code-tracking systems. Repeating the words of the order, SCO says IBM is supposed to cough up "all versions and changes to AIX and Dynix" and claims that that also means "source code or revision information that is not contained in its electronic databases."

SCO says this is particularly true since "IBM contends that its CMVC systems goes back only to 1991 (six years after IBM first licensed the Unix software) and that "some early versions of Dynix are available only from archived media."

SCO also wants the court to disabuse IBM of the idea that it doesn't have to turn over information concerning its contributions to Linux. It wants the court to remind IBM of the court's March 2004 order, which told IBM to hand over "non-public information" relating to IBM's Linux contributions, and to remind IBM of the language of the January 2005 court order, which specifically covered "AIX, Dynix and Linux."

SCO says the Linux information goes to the "very core" of its claims and posits that "in many instances there may well have been a development process - including one conducted by IBM or Sequent programmers immersed in SCO's proprietary Unix - between the selection of AIX or Dynix material for Linux and the actual contributions to Linux."

Lastly, SCO wants the court to tell IBM that it can't - as IBM is proposing to do - exclude any AIX source code or revision information having to do with hardware system designs, firmware, manufacturing-related components, middleware and other software designed to run on top of AIX or Dynix.

SCO claims that "such information could help show how IBM used its knowledge of Unix to make Linux easier to use by entities who were using applications and middleware designed for Unix - issues that are directly relevant to both liability and damages."

The SCO filing, dropped off at the court on Monday, includes the first written confirmation that IBM told the court at a hearing on October 17 that it couldn't find its AIX 5 for Power code.

When Linux Business Week related what IBM said, the story inexplicably set off a hail of some 30,000-40,000 hate mails from the open source community, led by the Groklaw paralegal propaganda site, attacking the veracity of our story. Although the hearing was held in open court, the transcript of the hearing was sealed right after.

Monday's filing says in a footnote:

"IBM's suggestion that it 'continues to search for, but has to date been unable to find, any revision control information for AIX source code prior to 1991' is reminiscent of IBM's earlier claims in this case that it could not find an earlier version of its AIX for Power product (Version 5.0), into which IBM first improperly dumped SCO code that it had obtained through Project Monterey. After the issue of the 'missing' code arose during the October 2004 discovery hearing, and the court inquired whether IBM would produce an affidavit to support its claim that the code had been lost, IBM 'found' the AIX 5.0 code (in both CMVC and in hard copy) within a couple of days. IBM's claim that the AIX revision information is 'missing' also raises questions concerning how IBM can claim that its AIX code is 'homegrown' if it cannot even find the early programming history evidence relating to that code."

Groklaw, to its shame, fails to make any note of this footnote.

In its usual way, Groklaw characterizes the whole SCO filing as a bid for "more, more, more." When the court gives SCO an inch, it says, "they interpret it to mean a mile, and then they criticize IBM for refusing to give them the mile"

In Groklaw's Zoroastrian view, "The truth is, the order wasn't altogether clear, so now both sides are providing the judge with an interpretation they hope she will accept, IBM by saying, 'How about we do this? Is that what you meant?' And SCO says, 'Those evil malingers won't agree to broaden your order to mean what *we* say it should mean.'"

Ah, well, that's the best you can expect from a paralegal.


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Most Recent Comments
Give the Troll thing a rest 03/12/05 09:49:55 PM EST

This Wallace guy is just a troll. He's trying to get a rise out of you guys, so his email inbox doesn't seen so empty. So, stop replying to his obvious efforts to elicite a response, and he'll go away.

DaveF 03/12/05 08:25:49 PM EST

To Wallace:

If your argument is so well-reasoned, why is it that you can't name a single attorney who supports your position? I'm not referring to your endless out-of-context quotes from dicta. Given the dozens and dozens of times you've posted the same argument, you should be able to point us to a single instance of an attorney, somewhere, who said, "I agree with Wallace."

You can't because there isn't one.

On the other hand, several attorneys have posted to say that you're wrong.

So, it appears your supposedly well-reasoned argument is, like your entire reality, simply a figment of your imagination.

As far as my "adolescent challenge" is concerned, it wasn't my challenge to begin with; it was, to the best of my knowledge, originally posted by Mathfox. And you've ignored it (other than to deride it) entirely at every turn. It's really quite simple. You either believe in what you write or you are a hypocrite. If you have are convinced in the correctness of your position, there is, in fact, no risk to you in accepting the challenge.

No, it appears, instead, that the extent of your courage is in your repetitiveness.

Take a GPL programme, make a derivative of it, distribute it and then inform the world.

If the GPL is as unenforceable as you claim it is, there is no way you could be touched. Try it. It's really quite simple. If you fail to do that, then your endless assertions are entirely useless and you have demonstrated yourself to be a hypocrite.

Finally, I'm not sure what schools "over there" teach, at all. Your ad hominem attacks simply reveal you to be without a shred of "well-reasoned argument."

crackput buster 03/11/05 07:46:21 PM EST

To Wallace.

Clearly we must have touched a sore nerve, exposing you as a crackpot. Now, you're starting to sound like that Monty Python sketch, where Michel Palin has paid fo ran argument and argues with John Cleese what constuitutes an argument.

You are clearly a brilliant mind, but it is a sad thing to waste.

to DaveF 03/11/05 05:23:13 PM EST

>> Take a programme licenced under the GPL, make a
>> derivative work without releasing the changes, and
>> then tell everyone you did it.
>> If you're right, no one who will be able to do
>> anything about it and you have nothing whatsoever
>> to lose by the test.

Your adolescent challenge to a well reasoned argument
tells me your mother should take away your computer
privileges.

When you grow up, maybe you too can use the logic and
rhetoric of exposition to formulate a real argument,
instead of mindless attacks. Is this what the schools
teach you over there?

DaveF 03/11/05 12:19:15 PM EST

I see Daniel Wallace is back again, like a dead mouse stuck in the wall the smell of which one finds difficult to
exorcise.

Say, Mr. Wallace, remember when you told us that "a simple check with a competent attorney" would prove you right? And then, when a number of attorneys, including Eben Moglen and Celia Santander, said that you were wrong, you pretty much changed your assertion to "a simple check with a competent attorney except for those who have already posted the stuff that says I'm wrong will prove me right."

Now, you're basically saying that Ms Santander is an incompetent attorney.

Look, Daniel, give it a rest. There are blue skies outside and the birds are chirping. Children are playing in the park and there are dogs that need walking. Please stop posting this same stuff over and over again. This has to be at least 100 times that you've returned here and other similar sites to spout exactly the same stuff.

As Mathfox posted to you months and months ago, if you're so convinced that you are right and those attorneys are wrong, why don't you test it? Take a programme licenced under the GPL, make a derivative work without releasing the changes, and then tell everyone you did it.

If you're right, no one who will be able to do anything about it and you have nothing whatsoever to lose by the test.

Failing that, we have to assume that the only thing that motivates you is listening to yourself talk and your assertions are like those of a fool: "full of sound and fury and signifying nothing."

crackput buster 03/10/05 08:57:10 PM EST

Another thing about the field of law:

It is not like logic. An appeals court can reverse a lower court, and the same court can give oposing opinions, and judges can even completely disregard past law if they have anough of a majority to get it their way. Someone can argue in supreme court, and be armed with precedences to the hilt, and present a waterproof argument, but they can still lose.

If law was just like logic, we would not need a supreme court, and the supreme court would never have split decisions.

crackput buster 03/10/05 08:42:50 PM EST

"Who you gonna believe? The Supreme Court or Ms. Celia
Santander Esq., Adjunct Professor of Law?"

All I know is that I'll never believe a single-tracked crackpot. I don't know what happened to you to put you on this track, but I've seen this kind of thing frequqntly enough. Guys messing with numerology to preduct the future, guys claiming to have cold fusion working, but only at extreme cost of energy. Guys who think they've found a way to corner the stock market, but didn't include enough parameters in their model. The difference between yourself and a real lawyer, is that a lawyer has to come up with something that can fly in court. quoting reams of past court decisions that tangentially supports your view only proves that you've lost track of the big picture, and the intent behind the laws. I sure hope your cracked pot still can be mended.

As a retired physics guy, you should know Occam's razor: Don't use more parameters than you need.

Also Einstein's, that you must use enough paramters.

You somehow manage to violate both of these principles at the same time, which is astonishing if it is true that you're retired physicist.

Mr ROFL 03/10/05 08:29:57 PM EST

You are incorrect.

No opensource guy ever claimed that attack. And as to the speculation about who was behind the attack, the theory that SCO did it themselves was only one of many flying around, adn SCOs' heavy exploitation of the incident in media put them in a suspicious light. A prominent opensource guy posted an open letter asking for the attacks to stop, but that's not proof of anything.

Daniel Wallace 03/10/05 08:27:43 PM EST

>> Firstly, as a threshold issue, you cannot analogize
>> patent law to copyright law. It is like comparing
>> apples to zebras. As just a couple of the many
>> examples of why this is true, consider some
>> fundamental differences between the two bodies of
>>> law:

Ms. Celia Santander, Adjunct Professor of law, seems to
have missed a couple of things.

Below the Supreme Court of The United States lie the
thirteen United States Courts of Appeals. Now, the
Supreme Court in referring to patents, opined in 1927:

"No formal granting of a license is necessary in order
to give it effect. Any language used by the owner of
the patent or any conduct on his part exhibited to
another, from which that other may properly infer that
the owner consents to his use of the patent in making
or using it, or selling it, upon which the other acts,
constitutes a license, and a defense to an action for a
tort. Whether this constitutes a gratuitous license, or
one for a reasonable compensation, must, of course,
depend upon the circumstances; but the relation between
the parties thereafter in respect of any suit brought
must be held to be contractual, and not an unlawful
invasion of the rights of the owner." --- DE FOREST
RADIO TEL. & TEL. CO. v. UNITED STATES, 273 U.S. 236
(1927)

"A license is governed by the laws of contract. See
McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920, 36
USPQ2d 1289, 1291 (Fed. Cir. 1995) ("Whether express or
implied, a license is a contract governed by ordinary
principles of state contract law.").--- JAZZ PHOTO, ET
AL. v ITC , 264 F.3d 1094 (Fed. Cir. 2001)

This principle was held to apply to copyrights in the
Ninth Circuit Court of Appeals in 1996 (quoting the
Second Circuit Court of Appeals):

"Generally, a 'copyright owner who grants a
nonexclusive license to use his copyrighted material
waives his right to sue the licensee for copyright
infringement' and can sue only for breach of contract."
Id. at 1121 (quoting Graham v. James, 144 F.3d 229, 236
(2d Cir. 1998) (citing Peer Int'l Corp. v. Pausa
Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir.
1990))."
--- Sun Microsystems, Inc. v. Microsoft Corp.,. 188
F.3d 1115 (9th Cir. 1996)

The Eleventh Circuit Court of Appeals is in accord
with this principle:

"Implicit in that permission was a promise not to sue
for copyright infringement–a promise that at least one
court has found to be the essence of a nonexclusive
license. See In re CFLC, Inc., 89 F.3d 673, 677 (9th
Cir.1996) ("[A] nonexclusive patent license is, in
essence, "a mere waiver of the right to sue' the
licensee for infringement.") (quoting De Forest Radio
Telephone & Telegraph Co. v. United States, 273 U.S.
236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625 (1927)). "
--- Jacob Maxwell Inc., v. Veeck, 110 F.3d 749
(11th Cir. 1997)

Now you have the Second, Ninth and Eleventh Circuit
Courts of Appeals applying a principle handed down by
the Supreme Court in a patent case. This directly
contradicts Ms. Santanders assertion that "[F]irstly,
as a threshold issue, you cannot analogize patent law
to copyright law."

The Supreme Court has explicitly stated:

"[T]he closest analogy is provided by the patent law
cases to which it is appropriate to refer because of
the historic kinship between patent law and copyright
law."
SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S.
417 (1984)(See also n.19)

Who you gonna believe? The Supreme Court or Ms. Celia
Santander Esq., Adjunct Professor of Law?

JOKELAW 03/10/05 07:40:08 PM EST

Not surprised the mind control freaks at Jokelaw would ignore something critical of IBM.

Remember the time Jokelaw claimed SCO was launching a denial of service attack against itself, only to have an open source guy admit it was one of them?

ROFL, that was classic!

Heh Mr Lawyer! Oh... and that Daniel Wallace guy too 03/10/05 07:24:03 PM EST

I'm wondering, if SCO's claim concerning derivative works applies to the license, rather than the copyright, does this make any difference? It wouldn't be covered under any copyright law, but contract law, instead. And what would contract law say about a contract clause that claims that derivitive works are automatically the property of the license holder?

And I'm sort of confused about the meaning of derivitive. To use cooking terms, if I license your copyrighted chicken, and then create a unique wine sauce (say I used Pinot Noir (this is my Sideways movie reference for the day) instead of Burgundy) to make coq a vin, e.g. a derivitive of chicken, does that mean that you own that coq a vin recipe and also the wine sauce recipe and implied copyrights to both of those recipes? i.e. I'd have to license that wine sauce recipe from you to make, say veal marsala?

I think that is what these 'derivitive works' freaks are saying.

"I own Unix, if you think about Unix, or talk about Unix or write software that makes you think about Unix, I own your ideas, too!"

Seems kind of freaky to me! It's kind of like a virus; the way human thought process works (through association), by exposing one thought to another and making derived thoughts, pretty soon SCO would end up owning all though processes and all products of those thought processes. The'd be almost as rich as Bill!

Or maybe not... :-)

Dear Daniel Wallace 03/10/05 06:03:00 PM EST

Yeah! What he said!

Daniel Wallace is not a lawyer 03/10/05 05:42:55 PM EST

In your face, Daniel Wallace. The following was posted by a real lawyer, elsewhere to refute Wallace's crackpot legal opinions.

To the Editor:

I am an Adjunct Professor at Duquesne University School of Law teaching upper-level intellectual property law, former director of legal affairs for TimeSys Corporation (an embedded Linux developer), and former vice-president of technology asset management for PNC Bank. In addition to teaching, I currently advise a number of corporate clients regarding information technology matters with related intellectual property issues, and, in particular, risk management issues related to Linux and other open source programs.

I was disturbed to read your recent posting of a letter to the editor authored by Daniel Wallace. I was equally disturbed by the lack of legal expertise reflected in most of the posted comments. I feel strongly that a proper legal response is required, and needs and deserves equal exposure in your paper - not a buried posted response.

So - I am requesting that you publish the following response to Mr. Wallace's letter in the next available issue.

Most sincerely,

Celia Santander Esq.

Mr. Wallace correctly describes a number of different legal principles, including a fair description of the rights involved in derivative works. However, his key assumption - the foundation of his entire argument - has absolutely no basis in case law, statutory law or even reasonable legal analogy. His argument is based on one key principle: That in order to grant a unilateral license, the licensor may only impose conditions to the license that involve the licensor's exclusive rights, and that the licensor may not impose any conditions that involve any of the licensee's rights.

He cites a Supreme Court case (General Talking Pictures Corp v Western Electric Co Inc) for this principle. There are a number of problems with this case and Mr. Wallace's interpretation.

Firstly, as a threshold issue, you cannot analogize patent law to copyright law. It is like comparing apples to zebras. As just a couple of the many examples of why this is true, consider some fundamental differences between the two bodies of law: patents allow each co-inventor to exercise her exclusive rights without any accounting to the other(s) while copyright law requires co-authors to report to and compensate as appropriate their fellow co-authors for any exercise of rights that results in revenue generation; patents cover ideas while copyrights cover expressions of ideas; copyrights arise naturally - they exist without the author taking any formal action at all, while patents involve formal processes of application and prosecution via the US Patent and Trademark Office to have a patent granted. These are just a few of the many, many differences that make patent case law wholly inapplicable to copyright law.

We could stop right here on solid ground that Mr. Wallace's arguments are without merit, having been based entirely on patent case law. However, just for the sake of argument, let's analogize anyway, and see if we can follow Mr. Wallace's train of thought.

So let's look at the patent case that Mr.. Wallace relies on - General Talking Pictures Corp v Western Electric Co, Inc., 305 US 124. This case does not discuss in any detail whatsoever the scope or nature of permissible conditions to unilateral license. The case merely cites another case (United States v General Electric Co) to affirm that a patent license may be require, as a condition of the license, certain performance of the licensee provided that such performance reasonably relates to the benefits that the patent holder can expect to receive from his patent. The case cited (United States v General Electric Co) has since been called into question by the Supreme Court and its holdings are no longer good law.

Moving right along -

The other lines of patent cases that Mr. Wallace refers to (aside from being patent cases and therefore not applicable to copyright law) merely reinforce that licenses can be conditioned on the performance of the licensee; still other lines of cases discuss the principle that once a tangible commodity is produced from a patent, the patent holder's ability to control what happens with that tangible commodity is greatly diminished and eventually disappears. The only thread of reason from all of these cases is that a condition imposed on a patent license by the licensor must have some relationship to the rights of the patent holder. For example, if I license my patent to ABC Manufacturing, I can make the license conditional upon ABC using only top-grade materials, conforming to ISO standards, selling only to Australia, etc, but I cannot make the license conditional upon the president of ABC standing on his head for one hour every Tuesday morning at 9:00 am. Why? That condition has no relationship to the benefits I can expect to gain from my status as a patent holder. I suspect this is the principle that Mr. Wallace grossly misconstrued as "the conditions he places must involve only his exclusive rights and not the exclusive [rights] of parties involved..."

If we take this principle and apply it to the GPL, the original licensor is conditioning his license to the world at large on one simple condition - "If you want to copy and make derivative works of my code, you have to license those derivatives under a license like this one...." If Mr. Wallace insists on analogizing to patent law, there is nothing wrong with this condition. It relates directly to the benefits the copyright holder can expect to obtain. A copyright holder benefits by having sole control of his copyrighted work, to do with as he sees fit, including, if he so desires, to donate the copyright to the public domain, a common practice of universities and government entities. The copyright holder in this case is merely conditioning his license to create derivative works on the condition that such derivatives be licensed under similar terms, to prevent the licensee (for example) from copying his code and incorporating it into a proprietary product for which she can then charge money, competing with the original copyright holder, and denigrating the benefits the copyright holder derives from his copyright. This is a direct correlation to the rights of the copyright holder - a perfect example of exactly the type of condition that is appropriate for a licensor to impose on a licensee. This is no different from a patent licensor conditioning manufacture of his surgical device being restricted for sale in the US and/or manufactured only from surgical stainless steel.

Now let's look at the common sense definitional view. Mr. Wallace states that for a licensor to place conditions on a licensee that involve the licensee's "exclusive rights" falls "outside the definition of a unilateral permission." However, nowhere does Mr. Wallace attempt to define a "unilateral permission" nor does he cite any support whatsoever for this statement. So let's take a look. A unilateral permission is a permission granted by one person that a second person can choose to accept or not accept. I realize that "unilateral" signifies one person only, but simply because I give you my unilateral permission to swim in my swimming pool does not mean that you have to or that you will. You can choose to do so or not, and your actions do not make my permission any less "unilateral."

Unlike a contract, a unilateral permission does not require the second person (accepting the permission) to do anything to signify acceptance. In a contract, the second person would have to sign his name on a document, click a web site icon, begin performance, send a check, or any other number of acts that signify acceptance. It is this performance of an act signifying acceptance, and the first person (offeror's) awareness of this act (acceptance) that concludes formation of the contract. What makes a unilateral permission different is that the second person does not need to do anything to accept the permission - he does not need to perform any act signifying acceptance, and the first person (offeror) does not need to ever know if the second person accepted the permission or not. That is the difference.

When a unilateral permission is conditioned upon something, however, the condition must be fulfilled in order for the license to be valid. This means the licensee must do something to fulfill the condition. However, the licensor does not ever need to know about it, and doesn't care. Either the condition is fulfilled and the permission (license) is valid, or the condition is not fulfilled and the permission is not valid.

Now here is the key point and a basic fact of law - Anytime a person does something that they are not legally obligated to do, or voluntarily refrains from doing something that they have a legal right to do, they are acting in a manner that affects their personal and exclusive "rights" - they are giving up one of their "rights." Therefore, anytime a person voluntarily fulfills a condition in order to obtain a unilateral permission (license), they necessarily are performing acts that involve their own personal exclusive rights. After all, they don't have to fulfill the condition - there is no legal obligation to do so - but they choose to give up a right that they have in order to receive the benefit of the unilateral permission that was so conditioned. It matters not one whit that the exclusive rights we are talking about here are copyrights.

So - Mr. Wallace's basic premise - that the GPL is unsound because it requires the licensee as a condition of the unilateral permission of the licensor to do something affecting the licensee's "exclusive rights" is an impossible assertion. He concedes that unilateral permissions can be conditional, but ignores the fact that you cannot fulfill a condition without affecting your rights (copyright or otherwise)(your right to free speech, your right to seek employment, you right to go or not go to the supermarket, your right move to Alaska, etc). We all have innumerable rights and have to exercise at least one of them to fulfill any condition.

Perhaps what is confusing Mr. Wallace is this: It is true that you cannot interfere with the rights of a copyright holder without his/her permission. Mr. Wallace, I believe, views the GPL as interference by one party (the licensor) with the copyrights of another party (the licensee) because the license is conditioned upon the licensee taking certain actions regarding his copyrights. He presents the following alleged conundrum: Either the second party (licensee) is agreeing to this interference, in which case the GPL cannot be a unilateral permission since now we have two parties agreeing with each other (sounds like a contract); or, the second party (licensee) is not agreeing to this interference in which case the GPL is not valid because it is a violation of copyright law. (Mr. Wallace ignores the issue of whether or not a valid contract has been formed under the first scenario.) The answer to Mr. Wallace's purported conundrum is this: The second party is consenting to the interference by fulfilling the condition of the unilateral permission, but merely fulfilling such a condition does not change the nature of the unilateral permission as unilateral.

Re: Mr. Wallace's quotations from IBM's amended counterclaims, IBM's reference to the GPL as a "public agreement" cast in a "binding legal form," has nothing to do with the characterization of the GPL as a unilateral permission. It has been a common and unchallenged legal practice for countless years for copyright holders who wish to donate their copyrights to the public to do so by unilateral permission, generally in the form of a notice contained in the copyrighted work to that effect. Members of the public can "agree" or not "agree" to accept the permission by copying or not copying the proffered work. This is what IBM is talking about when it refers to a "public agreement" cast in a "binding legal form" and, yes, they are talking about copyright permissions. That is the subject, is it not?

Finally, Mr. Wallace's discussion of federal preemption is not applicable. Certainly, federal law preempts state law if there is a conflict. However, there is no conflict here, and the FSF's use of a euphemism "copyleft" does not somehow create a conflict in laws where one does not otherwise exist. The GPL is founded and can only exist on the basis of copyright law and the rights of authors to do what they want with their own work and to condition licenses to others as they see fit. There is no conflict, merely the fear of the uniformed when encountering a new exercise of freedom and rights granted by the same laws that have governed us for almost a century.

As an aside to Mr. Wallace's comments, I believe that the GPL functions as either a unilateral permission or a contract, depending upon how it is being implemented by any given party. So, for example, if a company offers you an online download of Linux and asks you to click an "I agree" button acknowledging that the download of Linux you are about to receive is subject to the GPL (and you have been given an opportunity to read the GPL before clicking), and you click, seems to me you've just entered a binding agreement called the GPL no different from a Microsoft EULA effected in the same way. By contrast, simply placing the GPL in a tarball with the code in my mind falls squarely into the category of "unilateral permission." I see no conflict here - merely a difference in administration, both equally effective.

Daniel Wallace IS Kevin McBride 03/10/05 05:26:17 PM EST

Daniel Wallace IS Kevin McBride.
It all fits too well. This talk about congress and GPL, sounds very much like Darl's open letter, and Daniel did not refute my earlier claim.

Dear Daniel Wallace 03/10/05 05:08:18 PM EST

>Until Congress changes the rules, a copyright license
>that purports to control evolving derivative "open
>source" code is forbidden.

Absolutely correct in what it says. Your spin is interesting, but not to the point.

Linux was created legally, under the laws currently on the books.

You miss the point entirely, NO ONE WANTS TO COPYRIGHT OPEN SOURCE. Otherwise it would not be open source.

No one wants to steal copyrighted code, that would be a violation of the entire point.

>Open source advocates are limited to releasing their >original creations under an "academic" (BSD style) license.

i realize you choose your words to belittle the effort. but most open source licenses are not acedemic, they are open.

'Academic' in the real world usually means 'not worthy'. When new college grads cme on my projects, it is interesting to see what acedemia has taught them. Then, we teach them about simplicity, resiliency, and reliability, which are much more valuable in the real world.

Your intemation that Open Source is academic seeks to place Linux and other OS projects in that same bucket as the new grads: green, naiive and un worthy.

But this is not the case, and that's what is scaring you and your employers.

>After releasing those works under this licensing model, >they may then look forward to the commercial world picking >their creations apart with software patents.

In the animal world, replace the words 'commercial world' with hyenas and vultures. Taking software created and licensed under the open source model and copyrighting it is ....'stealing', I believe it is called.

If through some narrow interpretation of the current law, stealing open source is legal, then the law does need to be changed. To protect open source from the commercial hyenas.

>It is far too often the open source community attempts
>to shoot the messenger for conveying the words of
>Congress.

I think I missed your point here, are you saying that is is OK to steal from open source? Or is this the old argument that it is not OK to steal from closed source ?

Dear Daniel Wallace 03/10/05 04:52:46 PM EST

Please read the posting in it's entirety before spouting your tired-*ssed rhetoric.

Open Source advocates developing and freely licencing created code/product/applications/systems/whatever, by the authors of owners of that code/product/applications/systems/whatever.

Nobody nowhere nohow, other than what has been claimed by closed source advocates, suggests that copyrights be invalidated/expropriated/stolen. If any of Linux is stolen from copyrighted code owned by SCO, then by all means, fry their butt, put them in jail, sue them, whatever.

One open source code/product/applications/systems/whatever; Linux, which looks like Unix, but was developed from scratch by Linus and others, has severely threatened the closed source community. They have seen that, based upon the acceptance of Linux, Open Source is good, and that they will come, and it scares the living sh*t out of them. How will they be able to build a house like Bill Gates in an open source world?

So, a cloud of FUD results. Threaten to sue users of open source (Fear), challenge the licensing schemes as unworkable or un-Constitutional (LOL) (Uncertainty) and accuse IBM of stealing SCO copyrights (Doubt). Slow the growth of open source to give the closed source community time to catch up.

BTW. has anyone seen Dvorak's article about ripping Linux apart, putting in the Windows drivers, and putting it all back together again under the MS-LINUX brand? He's got a point, Microshrift would once again rule for world for the foreseeable future.

Perhaps that's the reason Microshrift is covertly funding the SCO claim? Delay the growth of Linux until Microshrift can announce MS-LINUX?

It's a shame that the Judge gave approval for SCO's fishing expedition without showing a single line of 'stolen' code . But we are only waiting for this to complete before SCO's case is thrown out anyway.

Bill, Daniel, will this give you enough time to for your upcoming announcement?

2803 03/10/05 03:27:18 PM EST

MOG bad....PJ gooooood!

SCOXE: Ah crap we suck....

MOG: No you don't...I will make you great with stupid articles and no facts.

PJ: I will counter.

MOG: HA! HA! The truth will never be as good as my lies.

PJ: You sound like President Wilson.

MOG: Who is that?

IBM: What the heck do they want now?

MOG: A bunch of stuff that has no relevance.

IBM: Um...ok. What stuff?

MOG: Go to www.groklaw.net and you will find out...I am the master of nothingness.....buwhahahhahhahhaa!

PJ: Hey IBM...same stuff as before...just a boatload.

IBM: Useless info? Again. When do we get the evidence?

SCOXE: Evidence? EVIDENCE? We don't need no stinking evidence...by the way here is another motion requesting a motion to respond to the motion of the motion that we don't know what we are doing motion that we requested on the other motion to the motion of the ocean.

PJ: ???

IBM: ???

MOG: AH HA! I will post this and say it is a death blow to IBM.

PJ: ???

IBM: ???

SCOXE: Who's your daddy and what does he do?

I figured it all out in this one post.

Daniel Wallace 03/10/05 11:36:17 AM EST

>> It's about creativity and freedom; a bazaar, if you
>> will. So, when will be get back to the important
>> topic: what can open source do for you?

Creativity and freedom are wonderful things --- they
are noble goals for a society to attain. Having said
that, in the U.S., society sets the rules by which we
attain these goals in copyright matters through an
elected body known as the United States Congress. The
Open Source Community may not like those rules --- *I*
certainly don't like all the rules. Unfortunately, in a
democracy, 51% make the rules which the other 49% may
not like but are bound to follow.

Until Congress changes the rules, a copyright license
that purports to control evolving derivative "open
source" code is forbidden. Open source advocates are
limited to releasing their original creations under an
"academic" (BSD style) license. After releasing those
works under this licensing model, they may then look
forward to the commercial world picking their creations
apart with software patents.

So what can open source do for you? Very little outside
of what the patent law euphemistically defines as
"philosophical inquiry".

It is far too often the open source community attempts
to shoot the messenger for conveying the words of
Congress.

Open Source Community 03/10/05 09:49:01 AM EST

The most obvious fact seems to be escaping most people:

SCO and IBM and their little dust-up are irrelevant. What is under attack is the right of all parties to go with an alternative to prorietary software and/or licenses, e.g. Open Source.

Open Source and the various licensing schemes out there are an alternative to toeing the company line. Developers need a release to their creativity. i.e. they just want to write code, they don't work for SCO, IBM or Microshrift, but they want to create tools that people use. No Open Source developer seeks to steal from another, that's the exact opposite of what open source is all about. It's about creativity and freedom; a bazaar, if you will.

So, when will be get back to the important topic: what can open source do for you?

MOG's #1 FAN 03/10/05 09:28:58 AM EST

Don't miss her show tomorrow.

Tomorrow at 2p.m. I think every Friday at 2 p.m. Tomorrow's guest is John Dvorjak. The topic says blogers. I heard a rumor they will show PJ's photo on the show. I wrote down MY questions to email them in. :)

RPooja 03/10/05 09:20:56 AM EST

Maureen needs to step down and go home. Does she really think she is intelligent and brilliant? How much is SCO paying her?

MG 03/10/05 09:11:30 AM EST

GhostBuster

"She was co-organiser but never appeared at OSCON as befits her general `modus operendi`."

BTW "She was "co-organizer" not a "co-organiser" and it is her general "modus operandi" not "modus operendi". But I'm not one to complain about spelling because I'm the worst; especially with my "fat finger" typing skills. But I digress.

Which one is it? She organized an event, but she doesn't exist because she didn't personally attend. How can someone organize an event; but not existing? Interesting. Besides it is quite common for people to organize events and never get to attend them because of any number of reasons. In fact with our PR department, they only get to attend to about 50% of the events they personally organize and we have events all the time.

“You postulate she is a real person and then challege people to prove she doesn't exist. If she wants people to believe she not an IBM invention let her show a real face... otherwise it's IBM FUD.”

No, my point was never to prove she exists. My point has always been "who cares". You seem to be the only one hell bent on knowing if PJ is real or not. You should be happy she doesn't step into the limelight. What else would you argue about? Certainly not the facts or common sense; those seem to allude you for some reason.

Pamela Jones of Grokloaw.net 03/10/05 06:59:42 AM EST

//I'm not really butt-ugly, am I?//

Daniel Wallace 03/09/05 07:28:24 PM EST

>> Kevin McBride commented on 9 March 2005:
>> * I am NOT Daniel Wallace! Don't slander me!

I believe the written word is "libel".
Here's one of my favorite flames:

"DaveF commented on 19 September 2004:

* I see Daniel Wallace is back again, like a dead mouse stuck in the wall the smell of which one finds difficult to
exorcise."

You need to top this one to be at all affective.

GhostBuster 03/09/05 07:13:34 PM EST

>> She attended OSCon in Portland, OR in 2004, where
>> she participated in "a moot court organized by UC
>> Berkeley law >> professor Pam Samuelson and Groklaw
>> founder Pamela Jones.

She was co-organiser but never appeared at OSCON as
befits her general `modus operendi`.

You postulate she is a real person and then challege
people to prove she doesn't exist. If she wants people
to believe she not an IBM invention let her show a real face... otherwise it's IBM FUD.

Everyone should remember that the term "FUD" originated because of IBM.

Kevin McBride 03/09/05 06:43:06 PM EST

I am NOT Daniel Wallace! Don't slander me!

Maureen O'Gara 03/09/05 06:41:32 PM EST

Please don't call me a bad journalist!

I don't try to write bad fiction; I just write what they tell me to write.

That's not wrong, is it?

Maureen O'Gara 03/09/05 06:39:43 PM EST

I'm not really butt-ugly, am I?

Carmen Bin Ladin 03/09/05 06:06:47 PM EST

My brother-in-law

Usama Bin Ladin is also giving interviews. Don't you ever watch Al Jezira?

Who said that Usama is a fictional character and does not exist. He does exist. What is the problem here? Salman Rushdie is a real person too. Who said that he does not exist?

Not a person? Try again. Pamela, Usama, and Salman chose to stay undeground, so what? They are all shy.

It is to laugh...

Laughing Vergil 03/09/05 05:27:26 PM EST

So, Pamela Jones is a fictional person? Refuses to be interviewed? Never seen?

Does any one of the people propounding this ridiculous theory ever use Google? Try placing "Pamela Jones" in the google search, and hit "I'm feeling lucky" button. Voila, an interview with Pamela Jones, 2003.

Now - once the media circus forms around a person, refusing further interviews where they are not eeded, and trying to keep a low profile so that wackos and nut cases can not harass her seems to me like quite a reasonable idea. But don't try to claim that she has never been interviewed.

There are also the interviews on LinuxPlanet:

http://www.linuxplanet.com/linuxplanet/interviews/5176/1/

Wired: (Email only interview. Be paranoid. Very, very paranoid)

http://www.wired.com/news/infostructure/0,1377,62241,00.html

And terminaali.net:

http://www.terminaali.net/?action=showcol&id=17

There are also Pamela's articles on SYS-CON:

http://www.sys-con.com/author/?id=4922

Her job with OSRM clearly requires her to be a person, unless you believe some really unlikely conspiracy theories. Also, the Copyright notices specifying Pamela Jones means that she must be a person (or a "corporate" legal person, but that would require incorporation, and as far as I can tell, no stat has a Pamela Jones corporation).

She attended OSCon in Portland, OR in 2004, where she participated in "a moot court organized by UC Berkeley law professor Pam Samuelson and Groklaw founder Pamela Jones."

Not a person? Try again. This particular internet legend has no more reality than the one about Bill Gates paying you money for forwarding e-mails.

It is to laugh...
L.V.

Daniel Wallace is Kevin McBride? 03/08/05 09:12:44 PM EST

I am speculating that that might be the case.

Kevin McBride was ridiculed for his role in the SCO/IBM case, and probably lost any worth as an IP advisor. Can quote the law like a bible scholar, but bungles the meaning.

Since he is of no use for the litigation, and his IP lawyer business is probably cold as ice, he's been reduced to astroturfing using monikers such as Daniel Wallace, bakinfullfource etc. in an attempt to protect his SCO windfall shares.

Who is Daniel Wallace 03/08/05 08:57:34 PM EST

It appears that Daniel Wallace is a very confused person that has some of the lingo down, and keeps restating his dazed opinions, even when his strange concept of reality is refuted by lawyers. Do a google search on Daniel Wallace and GPL.

I'm almost starting to wonder if he might have been the ghost writer for Darl and Kevin McBride infamous letter to congress about how open source can't make money and GPL being unconstitutional.

Wallace has been given plenty of column space already, and even when proven wrong he does not change his opinion. So when the message doesn't make any sense, might as well have a look at the messenger.

Who Is Daniel Wallace?

BB 03/08/05 04:58:50 PM EST

I find this entire above rant little more than scattered facts amid stubborn opinions and poorly written flames. MG is the only poster who has actually used logic to conclude anything concrete. Danial W. may have a point but it is lost in the apathy of the OSS/FOSS group and organizers, but if they don't object to IBM holding the bag (or rights) at the end of the day, who are you to complain otherwise? The fact remains that it is the developers choice. what they do with their product, not yours. That is capitalism.
From the court records, regardless of the whole 'who is real and who isn't' argument going on here, (which, by-the-way is completely groundless when you realize that there has to be something behind the words and we might as well gauge their worth regardless of our personal bias), it seems that “PJ,” (whoever, whatever s/he may be), is closer to being unbiased than MOG, for the judge who has seen all the documents and is in charge of the proceedings is presently squared against SCO.
Take this as you like it. I live in Orem, Utah and have friends who work at SCO. I don’t like them loosing a job, but I personally, (yes this is an opinion, take your grain of salt now), wouldn’t give them,(SCO), an ice-cube’s chance in hell unless something drastic changes, like actual evidence being presented.

Yekrem Ffej 03/08/05 04:56:02 PM EST

Look, Daniel Wallace is a clueless troll. That's been established here (and elsewhere) time and time again. He whines about FOSS licences, as though they were a monolith, but he has said that the BSD licence is without reproach. The guy sucks and blows at the same time and is best ignored.

O'Gara is a moral reprobate who will tell the truth only when a lie won't fit. She has proven time and again that she does zero research and that she really cares not one iota for the truth.

Finally, PJ may be fictitious of whatever. Who the hell cares? I care about as much about whether PJ is real as I do about Wallace's and O'Gara's opinions which is, to be explicit, not at all.

At the end of the day the SCO v IBM suit will be ruled upon and the truth will out. When that day comes, Wallace's endless broken record copyright crap and O'Gara's unapologetic shilldom will amount to nothing.

Please, friends, don't keep clicking on these meaningless, fact-free, fanciful stories. All it does is up the click rate so this rag can charge more for advertising space.

to MG 03/08/05 04:19:26 PM EST

Your "in defense of cowardice" article is unconvincing.
Crawl back to Groklaw where everything is safe, sanitized
and censored. IBM has your paycheck waiting.

MG 03/08/05 03:37:32 PM EST

Daniel Wallace shots and...misses by a mile.

Are you still harping and crying about PJ and Groklaw? What is your problem; did she stand you up for a date? Did she refuse to marry you? I mean what happens on or to PJ and Groklaw is so far off the real subject that it is just mind boggling that you have to dwell on it. They could be shut down today and the facts still remain the same; SCO has presented no case to date. What’s worse; you have to drag your friends into the mix just to prove a moot point (which by the way I don’t believe you for a second because you HAD to drag in your friends to make your story more plausible).

So you are saying that because you don’t see PJ, she must be a liar. Strange theory. Let me elaborate; you’ve seen Dan Rather haven’t you? What about his recent debacles and lying about verifying resources. Maybe you are not old enough; but did you see President Nixson declare to the world on TV that “I’m not a crook” just before he was forced to resign or he would be impeached because of lying about his involvement in Watergate. Perhaps you remember President Bush (W) and all the conclusive evidence that Iraq has WMDs? We both know that the evidence never existed there either. Funny how looking into someone eyes has little or no difference about whether they are telling the truth or not. Public servants or trusted journalists; they all lied and looked you in the eye to do it. And not just once; but many times.

to Daniel Wallace 03/08/05 01:46:44 PM EST

Maureen O'Gara has one thing Pamela Jones will
never have... the courage to look you in the eye.

...and lied to you face, too bad you can't see that.

Daniel Wallace 03/08/05 01:29:01 PM EST

>> Last but not least; why does PJ, Groklaw have to
>> prove anything to you or anyone else? That is not
>> their purpose.

What *is* "their" purpose?

The pseudonymous Pamela Jones has attacked both me and
my friends both through private email and publicly on
his/her blog. She posits untenable legal garbage and
ridicules those who would differ.

What goes around comes around. The time has come for
the invisible PJ to appear and face those he/she so
cowardly attacks and denigrates from anonymity.

Innocent children play Hide and Seek. Groklaw plays
Attack and Hide.

Maureen O'Gara has one thing Pamela Jones will
never have... the courage to look you in the eye.

Groklaw richly deserves a reward for Spineless
Journalism of the Year.

MG 03/08/05 09:04:54 AM EST

To Daniel Wallace

I'll bite. PJ can't produce a case supporting GPL anymore than you can produce one that invalidates it (not that she would even bother for you or anyone else). The SCO vs. IBM case is the closest we have so far and it is mainly about contracts, with a little Copyright thrown in here and there to make it interesting. But it is mainly about contracts. If this is your precedence; you are in trouble.

Your book quote applies to Closed Source (it specifically mentions “shrinkwrap”; mainly associated with Closed Source, proprietary software) as much or more so than Open Source; so what exactly is your point? That a contract can make a mess of a Copyright and visa versa depending on what state you are in? Until it goes to a court it means absolutely nothing. But the main thing is the author did not distinguish between closed and open source.

Last but not least; why does PJ, Groklaw have to prove anything to you or anyone else? That is not their purpose. If you want someone to defend Open Source licenses then ask the authors. PJ's admitted job is to produce documentation supporting a position and she adds her personal opinion based on her previous legal work and the opinions of lawyers and other credible sources. She has never said she knows everything and certainly has never claimed to be able to completely explain and defend Open Source licenses. This is something you dreamed to justify your argument. But that fell through because you cannot produce any evidence or cases that support your argument either.

MG 03/08/05 09:00:55 AM EST

To Daniel Wallace

I'll bite. PJ can't produce a case supporting GPL anymore than you can produce one that invalidates it (not that she would even bother for you or anyone else). The SCO vs. IBM case is the closest we have so far and it is mainly about contracts, with a little Copyright thrown in here and there to make it interesting. But it is mainly about contracts. If this is your precedence; you are in trouble.

Your book quote applies to Closed Source (it specifically mentions “shrinkwrap”; mainly associated with Closed Source, proprietary software) as much or more so than Open Source; so what exactly is your point? That a contract can make a mess of a Copyright and visa versa depending on what state you are in? Until it goes to a court it means absolutely nothing. But the main thing is the author did not distinguish between closed and open source.

Last but not least; why does PJ, Groklaw have to prove anything to you or anyone else? That is not their purpose. If you want someone to defend Open Source licenses then ask the authors. PJ's admitted job is to produce documentation supporting a position and she adds her personal opinion based on her previous legal work and the opinions of lawyers and other credible sources. She has never said she knows everything and certainly has never claimed to be able to completely explain and defend Open Source licenses. This is something you dreamed to justify your argument. But that fell through because you cannot produce any evidence or cases that support your argument either.

Daniel Wallace 03/07/05 06:15:58 PM EST

>> Answer this quick quiz:
>> 1)What is FOSS licensing?

The FOSS licensing model is any licensing scheme
whereby an author releases source code under a
non-exclusive copyright license that purports
to force all future authors to publicly license
derivative modifications in a sequence of derivative
works (i.e. keep the source code open). That's the
whole objective of FOSS... force the code to remain
available to the public.

Any attempt to publicly regulate copyrighted works
was preempted by Congress.

For those unfamiliar with copyright authority the
following is an excerpt from the description online at
the LexisNexis Bookstore concerning the famous
published legal reference "Nimmer on Copyright".

http://bookstore.lexis.com/bookstore/catalog?action=pro
duct&prod_id=10441&cat_id=T&pcat_id=15&pub_id=1

[begin quote]
Melville B. Nimmer, author 1963-85; David Nimmer,
revision author 1986 to present
"Cited in more court opinions than any other treatise
on the subject of U.S. copyright law, Nimmer on
Copyright provides comprehensive insights into
copyright protection in the digital age as well as
exhaustive discussions of traditional issues. This
definitive work on copyright law is a rich resource for
the expert, as well as the practitioner just beginning
to explore the arena.

Nimmer on Copyright has been cited in over 2000 federal
court opinions, including landmark U.S. Supreme Court
cases like Tasini and Eldred AND we are unable to keep
up with all the law journal articles, newspaper
articles, magazine articles, court briefs, memos,
copyright committee reports, U.S. Copyright Office
reports, U.S. Congress reports, books, treatises,
dissertations, E-mails, white papers, testimonies, and
speeches mentioning Nimmer on Copyright."
[end quote]

Here is Professor Nimmer's description of open source
"shrink wrap" licensing schemes":

"[A]t times a breach of contract cause of action can
serve as a subterfuge to control nothing other than the
reproduction, adaptation, public distribution, etc. of
works within the subject matter of copyright. That
situation typically unfolds when the "contract" at
issue consists of a "shrinkwrap license" to which the
copyright owner demands adhesion as a condition to
licensing its materials. To the extent that such a
contract is determined to be binding under state law,
then that law may be attempting to vindicate rights
indistinguishable from those accorded by the Copyright
Act. Under that scenario, the subject contract cause of
action should be deemed pre-empted."
--- 1 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright 1.01[B] at 1-19.

Pamela Jones at Groklaw claims the GPL is "a
license not a contract" and that's her escape from
preemption analysis, notwithstanding the fact can she
cite no precedent decision in the whole of federal case
law to support her claim.

She seems to be able to research and cite reams and
reams of case law to attack SCO but when challenged on
the preemption issue she lapses into babbling about
"fishing license". Ask her to cite federal case law
supporting her GPL FUD and she suddenly grows silent.

So Pamela's Groksters should be asking "where's the
federal case authority PJ?". Instead they wallow in
his/her pseudonymous attacks on people, seemingly
incapable of independent thought or inquiry of their
own.

Where's the legal beef (federal case precedent)
Pamela? Lay down your hand for the world to see.

Wallace is a dunderhead. 03/07/05 05:02:18 PM EST

He wrote:
"The SCO case has brought up legal questions concerning the FOSS model of software development. IBM has known since 2000 about the flaws in FOSS licensing. It is ironic that everyone hates SCO and adores IBM when it
is IBM that is playing the FOSS world for complete fools. IBM/Novell effectively owns Linux when the licensing model fails but the FOSS world is too arrogant to see the truth."

Your feet needs to be held towards the fire: Can you with specificity explain to use what parts of Open Source is problematic? There is no such thing as a single open source license. There are dozens of them. Your statement is overy broad, and makes no sense. As to hatred to SCO and idolation of IBM, you are also very incorrect. SCO has 2 main detractors: The financial wizards, and the loinux crowd. The financial wizards are concerned with what appears to be a massive stock scam, adn the linux crowd is concerned with what appers to be a massive extortion scheme. Most could care less about IBM, but are grateful that IBM chose to fight in court instead of passing the hot potato to the next victim of the Great SCO Heist.

Answer this quick quiz:

1)What is FOSS licensing?

MG 03/07/05 02:50:16 PM EST

Tim Wrote -- "Earlier I wrote that "O'Gara is stupid and ugly" and it got a nice response. O'Gara is probably smart and decent looking, but I don't care. I just mindlessly wrote what I think without even reading her background or taking a few seconds to look for her pic and I have no facts to back my statement. Now you know what it's like to read a post that's a balant lie.
Have a good day."

Or one of MOG's articles.

MG 03/07/05 02:47:20 PM EST

Daniel Wallace wrote:

The SCO case has brought up legal questions concerning the FOSS model of software development. IBM has known since 2000 about the flaws in FOSS licensing. It is ironic that everyone hates SCO and adores IBM when it is IBM that is playing the FOSS world for complete fools. IBM/Novell effectively owns Linux when the licensing model fails but the FOSS world is too arrogant to see the truth.

SCO's business success or failure is irrelevant.
Groklaw is IBM's version of the Piltdown man... a marvelous distraction from the real events unfolding on the computing scene.

1. IBM has known a lot longer that 2000 about the pros and cons of certain licensing. FOSS is not a license; they use GNU, LGNU and several other license types. So that statement is wrong or misleading at best.

2. IBM/Novell cannot effectively own anything in Linux. The GNU prevents this. You contribute to Linux, it’s Open Source; period. That is what the GNU license says. You can add proprietary to the mix, but not under GNU (if you do, it becomes Open Source). You are trying to work the "Intellectual Property" argument with a "license" statement. They don't mix because one is a contract (which can supersede an IP copyright) the other is not.

3. Why do people keep dwelling on Groklaw? That just doesn't make any sense to me for any reason other than having someplace to point fingers at. They just do not have the power you seem to imply they have (IBM backed or not). They are just a website, no different from this one and millions of others. Sure there are those that go there because they were already influenced by FOSS and Linux, but I doubt there are many folks that just “became aware” of FOSS, GNU and SCO by visiting Groklaw (I’m sure there a few and I’m also sure that Groklaw would love this to happen as much as possible). You make them sound like some big lobby group or other highly influential entity. They’re not.

MG 03/07/05 02:13:27 PM EST

factoid

Glad you mentioned this; "Neither side? But Groklaw doesn't have a motion pending. Maureen O'Gara (and CNET, and Forbes) do." Why is it so easy overlooking unsealed court documents, facts and the majority of media outlets that all say SCO is losing badly? It seems easy for you to listen to MOG; but completely ignore the ruling of the actual presiding judge?

Uh, just how will unsealing court records (supposedly for the public's interest; even though the public is not asking for it) change the outcome of this case? That's just not going to happen, period. The most they can accomplish is exposing possible procedural problems; but it will not overturn a judge's decision. Judicial oversight rarely punishes a judge if they make mistakes and cannot legally overturn any case. The case would either be a mistrial or it could be used in an appeal (the later being more likely). You are in a dream world if you think their interference will amount to anything but a circus event. And by the way; MOG and the others are not questioning the judge’s performance. They just want some dirt to report on and are using a legal statute to try and get their hands on the dirt.

Finally; I believe the judge Kimball has already told MOG, CNET and the others what he feels about their little ploy with his recent ruling. Keep in mind the judge was well aware of the motion to unseal court records when he wrote this ruling. It seems pretty clear that he is saying “go ahead and expose sealed documents and court records to the public; this matters not because to me (Judge Kimball) because I’ve already seen and understood both. I know the law and how each piece of evidence applies to the law and my decision so far is that SCO doesn’t have a case.”

Just in case you forgot, Judge Kimball wrote which is published on almost all credible media sources covering this case. Keep in mind the rest I leave off is in court documents and you can read them on Pacer, Groklaw and any legal court record resource (of course, you won’t see the entire ruling, a link or any way to get to read it in full on this web site for some reason):

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.4 Further, SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights. Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment on IBM's Tenth Counterclaim. ..."

Ms. Unprofessional 03/07/05 01:52:00 PM EST

Ms. Unprofessional

1. People, don't stoop so low that you call O'Gara ugly. I'm not a pretty boy myself, but that have never been used as an argument against my opinions.

2. Feel free to call O'Gara stupid, but that would be underestimating her.

3. What we have here, is a case of biased and unprofessional reporting.

Unprofessional is a moniker that suffices.

Tim 03/07/05 11:06:14 AM EST

Typo :)
balant should be blalant.

Daniel Wallace 03/07/05 11:03:25 AM EST

>> 3. PJ is real -- MOG says so in this article. Again
>> so what? What does this have to do with the actual
SCOP case?

The question: "What does this have to do with the
actual SCO case?" is off the mark.

The real question is: "What does the SCO case have to
do with the *world of Linux*?"

SCO as a company is actually irrelevant. SCO has a
less than even chance to prove that IBM violated
contractual rights in project Monterey. Who cares?

In analogy to Clinton's principle "it's the economy
stupid!", the focus of debate should be "it's the
licensing model stupid!".

The SCO case has brought up legal questions concerning
the FOSS model of software development. IBM has known
since 2000 about the flaws in FOSS licensing. It is
ironic that everyone hates SCO and adores IBM when it
is IBM that is playing the FOSS world for complete
fools. IBM/Novell effectively owns Linux when the
licensing model fails but the FOSS world is too
arrogant to see the truth.

SCO's business success or failure is irrelevant.
Groklaw is IBM's version of the Piltdown man... a
marvelous distraction from the real events unfolding
on the computing scene.

Tim 03/07/05 10:57:28 AM EST

Earlier I wrote that "O'Gara is stupid and ugly" and it got a nice response. O'Gara is probably smart and decent looking, but I don't care. I just mindlessly wrote what I think without even reading her background or taking a few seconds to look for her pic and I have no facts to back my statement. Now you know what it's like to read a post that's a balant lie.
Have a good day.

factoid 03/07/05 10:26:46 AM EST

+++Somehow this site and Groklaw will have a say to the actual SCO vs. IBM case. On what planet? Neither site will sway a judge or the law.+++

Neither site? But Groklaw doesn't have a motion pending. Maureen O'Gara (and CNET, and Forbes) does.