Hey rjack, are you really "surrogate"? He he. PJ-gloklaw's spin masterpiece:
---------- The GPL, Stage Front and Center - IBM Answers SCO's Attack Sunday, November 26 2006 @ 06:34 AM EST The intent of the GPL, as expressed in the unambiguous language of that license, is that fees and restrictions not set out in that license are barred. I hope Novell and Microsoft read this quotation from this IBM filing, its Redacted Memorandum in Opposition to SCO's Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims [PDF]. Then just apply it, and we can all be friends. Joke, joke. I know Microsoft isn't looking for friendship. It's looking to kill the GPL. Why would anyone help them? Believe it or not, SCO is asking the court to kill IBM's copyright infringement counterclaims, the ones based on the GPL violations, on the grounds that SCO pretends it never violated the GPL. Here is its position, as stated in the Memorandum in Support of its motion for summary judgment: I. SCO DID NOT BREACH THE GPL IBMs Sixth and Seventh Counterclaims fail as a matter of law because SCO did not breach the GPL. First, where SCO has copied and re-distributed Linux, it has done so in compliance with the requirements of the GPL. Second, nothing in the GPL which by its very terms is limited to copying, distribution and modification of Linux precludes SCO from issuing licenses to its UNIX software. Breathtaking, is it not? Can't they read? There can't be proprietary code mixed in with GPL code. Period. Their only remedy was to take it out pronto, if there ever was any such. They've certainly never identified any that we've seen. Or let it join the Free World of the GPL. There was no GPL option to leave proprietary code mixed in with GPL code and then charge for it. Of course, the option to remove would be only a courtesy, an optional one. Since SCO continued to distribute knowingly, as IBM points out, after it became aware of the alleged "infringement," it lost that argument long ago. SCO's fanciful reasoning includes the absurd proposition that the GPL is a per se antitrust violation. Yes. Again. Well, well, that's very much a match with the arguments of surrogate pro se litigant Daniel Wallace who was recently resoundingly defeated in his attempt to prove SCO's theory -- what a coincidence! -- and who, despite their best efforts, ended up instead helping IBM, who quotes liberally from the judgments against Wallace, who was quite literally mocked out of court. That's what you get for listening to folks who don't understand the GPL and maliciously wish to sidestep its clear purpose and intent. But of course, SCO must try again. I've put the text of SCO's filing below IBM's, so you can read them together. Folks, is it not obvious that this is all about trying to undermine or destroy the GPL? Microsoft hates it. GNU/Linux's corporate friends are a bit ambivalent, at least about GPLv3. And so GPLv3 will have to try to deal with all the attempts to water down or destroy the GPL, what I'd call the FOSS "corporate ethics policy," so to speak. Ethics is the differentiating factor and the added value of Free and Open Source software. Corporations have the practice of defining at the most senior executive level the company's "corporate values". They publish a document defining their corporate values and ask or require their employees to read it and comply with it. FOSS has done the same thing from the very beginning, starting with the GNU Manifesto, then the Open Source Definition. There is the Debian Social Contract as well. These well-known texts are published and serve the essential purpose of defining what the community stands for. Unlike corporate value statements, the ethical position of the community is enforced by a process, the licensing process. Licenses must comply with their ethical statements. Approved licenses are published to allow users to know at all time when a particular software complies. Corporations have nothing similar to enforce their value statements. This underlines how important ethics is to FOSS that the community devised an enforcement process where corporations did not. Circumventing the spirit of the GPL is circumventing that process. It is not a matter of being emotional about the license. It is a matter of being faithful to the very essence of FOSS and the ethics that everyone that chooses that license accepted as a value statement. And that's why the Novell-Microsoft patent agreement is getting a much larger and more intense reaction than the Sun-Microsoft agreement did. The former is attacking what makes Free Software free software. It's attacking community ethics. Getting back to this particular defense of the GPL, IBM correctly points out that as a Linux company for some years, SCO can be presumed to understand how the license it itself used for years works. SCO actually claims that it had no notice that it was infringing IBM's copyrighted works, despite the clear notice in the GPL itself, until IBM filed its counterclaim. Even if that were true, how does it explain its continued distribution after IBM filed its counterclaim? We're talking years, not weeks or months. IBM tells the court that SCO continued to distribute at least until August of 2006. SCO admits to the violation, without seeming to realize it, by saying it was obligated by certain UnitedLinux contractual terms to make the code available for a time. Okie dokie. In short, you did continue to distribute despite having no license and hence you infringed IBM's copyrighted works. IBM says they also continued to sell Linux after they claimed to have stopped. What is it about the GPL that folks find it so hard to comprehend? Or is it just that they can't bear to comply? It can't just be that they don't want it to be the way it is, although you can see that very clearly I think in SCO's conduct and its explanations. But it seems deeper -- like the Bible story about the enemy armies blinded by God when they were viciously looking to arrest a prophet. He was standing right in front of them, but they couldn't discern it. Here it strikes me the same way. The terms of the GPL aren't that hard, and yet SCO presents arguments that reveal them to be either incredibly blind to what they are admitting to or ... or what? I confess, I'm stumped. But then, we now have the Novell blindness too, so what in the world is the explanation? I know. Money blinds people sometimes. But as you read this filing, I hope you will be noticing how similar the Novell-Microsoft deal is in effect to the SCOsource arrangement. Both SCO and Microsoft want the same thing -- to be paid for some unidentified "intellectual property" inside Linux that each claims is in there and that they'll sue end users over if they don't pay up. Do you see any difference, just because SCO tried to use copyrights and Microsoft patents? (If it is patents -- "intellectual property" doesn't actually mean anything in the law. There are no laws about "intellectual property", the laws are specifit to copyrights, patents and trademarks, etc. But there is no law about "intellectual property", so when someone tells you to pay up for "IP", tell them to be specific. Microsoft: please be specific.) I hope you will also notice as you read this all the reasons why many are disturbed about Tivo and view its conduct as contrary to the clear intent and purpose of the GPL. But you say, they are keeping to the literal, technical GPL requirements. Is that enough? And if you say yes, what do you think will happen next to the GPL, with entities like SCO and Microsoft in the game? And finally, ask yourself: if GPLv2 is so "perfect", how come folks do to it what SCO here tries to do and Microsoft and Novell are now trying to do too in yet another permutation of getting around the clear intent of the license? It's important not to be blind ourselves to what is going on -- and the bottom line with the GPL, as IBM so perfectly expresses it is simply this: The intent of those who offer or accept licenses to software under the GPL is clearly stated in its Preamble.... At its simplest level, the GPL provides that anyone may copy, modify or distribute the work on a royalty-free basis, provided they agree to distribute that work -- and to license any derivative works -- only under the terms of the GPL.... As the Preamble to the GPL states, in part: [T]he GNU General Public License is intended to guarantee your freedom to share and change free software -- to make sure the software is free for all its users. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. To protect your rights, we need to make restrictions that forbid anyone to deny you these rights.... These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. For example, if you distribute copies of [a program licensed under the GPL] ... you must give the recipients all the rights that you have. You must give the recipients ALL the rights you have. Is that not English? Is it not clear? There is no use telling me that you've decided it doesn't matter. Or you don't care. The license cares. That is a fundamental purpose of the GPL. And folks need to respect other people's "intellectual property", not just their own. Whatever the license says, that's what it means. SCO, IBM points out, would like to be a "super Linux licensee" -- able to enjoy the free code with all the rights that the GPL provides, while restricting and charging everyone else. That yearning is one that Microsoft appears to share. If you wondered what it would look like to bring arguments to a court regarding the GPL, you can pretty much use this as a template. Although this document is in response to SCO's motion for summary judgment, the arguments IBM raises are pretty much what you'd use anyhow if you wanted to sue someone for violating the GPL. ------------ regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
