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InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated

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Old 07-14-2007
Ricardo De Castro Aquino
 

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InformationWeek Declares SCO v. IBM Over and IBM Won. Huh? - Updated
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.

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 knows 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 result 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
http://www.groklaw.net/article.php?s...70713192403106




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