"Sun will soon have a proprietary linux compatible OS that is enhanced with all sorts of Microsoft technology. That's going to be hard to compete against."

LOL, and you think that people will actually use that stuff? Of course not, they will (rightly) avoid it like a deadly disease... Commercial sharks still do not understand the phylosophy of Open Source. It's FREE as in FREEDOM, not as in GRATIS... The commercial sharks are just plain dead meat, their reign is over. They have to accept it and get on with their lives.

JM.

The intellectual property lawyers at Sun, Oracle, IBM,
Microsoft and every other proprietary software company are
probably rolling around on the floor in laughter right now.
An unenforceable, preempted copyright license that's not
unconstitutional. That's a major victory for sure!

Every IP lawyer worth his salt is intimately familiar with
the two prong "extra element" test for preemption under sec.
301 of the Copyright Act. In order to avoid preemption, a
contract such as the GPL must contain an "extra element"
claim that complains about something distinct from one of
the exclusive rights granted in the Copyright Act. See for
example: Wrench LLC v. Taco Bell Corp. 256 F.3d 446.

The courts have at times found it difficult to discern
whether there exists an "extra element" but in the case of
the GPL Richard Stallman made it crystal clear. The GPL
boldly claims:

"Activities other than copying, distribution and
modification are not covered by this License; they are
outside its scope."

The first prong of the preemption test asks: does the subject matter concern copyrights? I believe everyone will concede the GPL covers copyrights enumerated in sec. 106 of the copyright act.

The second prong asks: is there a claim other than violation
of copyright involved? The GPL boldly states there is not.

Presto! Instant preemption. All that beautiful GPL'd code
permission out there waiting to be claimed through
promissory estoppel claims.

In case your wondering why those proprietary companies don't
just file for promissory estoppel permissions, that's easy
to see. Promissory estoppel requires good "faith reliance"
upon the GPL. If you admit it's broken then you couldn't
have relied upon it in good faith could you?

That's why the FSF has so far convinced potential defendants
the GPL is valid... defendants desire the code more than
they desire to break the GPL.

That's where SCO or some other proxy comes in. SCO is dead
meat. They have nothing to lose by claiming (rightly) that
the GPL is void. Once the GPL is ruled broken everyone
claims promissory estoppel.

Sun will soon have a proprietary linux compatible OS that is
enhanced with all sorts of Microsoft technology. That's
going to be hard to compete against.

>> Daaaaarl commented on 30 April 2004:
>> * How can SCO keep this up?

Daaaaarl, let me tell you... You can thank a stupid Canadian
bank called RBC (Royal Bank of Canada). They gave even MORE money to SCO's war-chest than BayStar (Microsoft "PROXY").

I'm going to laugh watching the slowly dissolving entity
called SCO piss away all that RBC money. Poor RBC customers
who will inevitably make up for the loss in additional
service charges.

I hope a lot of Linux friendly businesses and investment
firms boycot RBC.

David Boies (SCO lawyer) must be like a moth drawn to a flame.
How he could continue to be willing to represent such an
attack-and-retreat, slander-and-retract @$$hole like
Darl McBride, is unimaginable.

If I were David Boies, I'd be embarrassed and hiding.
(Oh well, he's pretty much retiring anyways, too bad he
chose to go out in a ball of flames.)

Thanks for the url, FollowThe$$$$ - I see SCOX is still far above where they were in 2002.

I don't think that Darl McBride sold any stock yet, though lots of the SCO officers have been (legally) selling SCOX stock regularly.

The entire SCO/Linux fiasco is a perfect insider stock scheme. Someone has put options on SCO and is laughing his head off: yesterday SCOX hit its new low for the year.

How can SCO keep this up? With all this idiocy, it would seem SCO are doomed. How could any company maintain with this much erosion to their credibility?

They can just drop claims from the IBM lawsuit without consequences in it. However, they'll have to answer for it in the Red Hat lawsuit. I bet Red Hat will jump on this as a reason to restart that lawsuit, since SCO made a claim that damaged Red Hat's business and that they no longer intend to support. The judge had put the case on hold because SCO was going to try to prove their claims in the IBM case; now they don't seem interested in doing so, so they've essentially lost the bit of the IBM case relevant to the Red Hat case.

For that matter, that was supposed to be an affirmative defense against IBM's copyright infringement countersuit. If they can't come up with some other justification for their massive piracy of IBM's work, IBM is in the position to demand the SCO either GPL its putative IP or pay all of its assets in damages.

How can they make claims and drop them like that? No consequences??

There are corporations that weren't choosing linux or were delaying programs because of this .. there were real losses. It's just wrong that you can make risk-free arbitrary claims and accusations as scare and/or FUD to try to advance your agenda .. without worry of consequences.

Darl has claimed to own AIX and IBM code many times:

"SCO is in the enviable position of owning the UNIX operating system," said Darl McBride, president and CEO, SCO, in an interview with eWeek Thursday. "It is clear from our stand point that we have an extremely compelling case against IBM. SCO has more than 30,000 contracts with UNIX licensees and upholding these contracts is as important today as the day they were signed."

[...] "IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code," he said. "And so it's a huge problem for us. We have been talking to IBM in this regard since early December and have reached an impasse. This was thus the only way forward for us."

Darl McBride, 2003-03-06

"Yesterday I had a request from a $28 billion company, an IBM customer, who sent us a request asking to see the AIX source code and the derivative work that came out of that. It is crystal clear to us here that certain parts of IBM are regularly reinforcing that we do have pretty strong ownership of the AIX code base,"

Darl McBride, 2003-03-07

Darl McBride, SCO's CEO since June, said in an interview this morning that the lawsuit was inspired by public comments made recently by IBM executives who have allegedly said they're moving features from IBM's AIX Unix into Linux to benefit enterprise customers as part of IBM's Linux strategy. The problem with that, McBride said, is IBM doesn't own AIX, but licenses it through SCO.

[...] "This case is about IBM making commitments to us and honoring them."

Darl McBride, 2003-03-07

At one of their conventions this year, an IBM executive stood in front of an audience and said that IBM was going to destroy the value of Unix and move it all over to Linux. They were going to take the know-how, the people, the methods they developed over the years around AIX--which is our licensed version of Unix--and they were going to transport all that in a wholesale fashion over to Linux. Those statements alone caused us alarm. When we dug deeper, we found they, in fact, had been doing that and they were going to do more.

Darl McBride, 2003-06-16

I see some people, here and elsewhere, making a leap of faith from the fact that SCOX has dropped their unconstitutionality claim from this matter, to concluding
that SCOX has thereby admitted that the GPL is constitutional.

Actually, a cynic like myself would argue, removing that claim from these proceedings prevents that question from being definitively decided against them and thus gives them the opportunity to introduce that very same claim in other
matters and proceedings, with the intent to further prolong the fear, uncertainty, doubt, confusion, and delay.

This would be, furthermore, consistent with the methodology of the "Big Lie," which says that the more times people hear a lie, the more often they are to believe it.

Assuming that some court finally rules that SCOX lacks the copyrights to UNIX or that Linux is clean anyway, and the rest of their court cases begin to crumble, how long will it be until SCOX sues Tarantella claiming that during the great Unix Licensing and name swap that OldSCO misinformed NewSCO about what exactly they were buying?

I wish I was kidding about this, but as SCO lawsuits go, it wouldn't really even be the most bizarre...

This truly is the text book example of how to mess up your own case by becoming befuddled from your own attempt to befuddle others. Some hapless fools, actually no, some hapless criminals they turned out to be.

They'll file a 3rd amended complaint and this time they'll claim that Linux violates Article 17 of the UN's Universal Declaration of Human Rights. Then if that doesn't work, Darl will call Linux a WMD.

Darl smokes crack. Linus Torvalds said so it must be true :-)

A legal question: Can someone make a claim in a lawsuit, then drop that claim later on, even though the defendant has made responses/counter-claims to it?

Can you really say "Oops, please ignore what we said before, here is what we really mean?" without sanction?

I think the FSF could cure this issue by issuing a press release to the effect
of "For your information, the people claiming the template licence called the GPL was unconstitutional just dropped the claim. You may find this reassuring if creating/using GPL software so we thought you should know."

OTOH that would be stating a negative and could make matters worse.... Ho hum...

SCO is easy to defeat but the damage will be difficult to reconstruct afterwards. We just need to stick at it untill the job is done...

For SCO, it looks better to remove them now, than have them shot down in october or whenever by a judge. It won't look like a loss that way.