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The License, Should You Choose to Accept It |
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Wednesday, August 06 2003 @ 11:25 PM EDT
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LWN has it posted.They say SCO sent it to them upon request. The part that is surprising is the warranty. Or should I say the lack of much of one. What happened to all that trash talk about Linux not indemnifying its customers? This warranty, as far as I can see, and assuming that it's authentic, has a warranty for SCO's code only, and only up to a point. There doesn't seem to be any warranty for any GNU/Linux code or any warranty regarding infringement of any third party IP either.
Remember yesterday, when McBride taunted Red Hat for saying essentially the same thing in its SEC filing? Am I missing something? I guess they don't feel they can indemnify beyond their own code, under current circumstances, but they don't seem to be doing that altogether either, so it does mean that the indemnification is narrowly defined, at least compared with what I was expecting after all the lyrical poetry about indemnification. On first, quick reading, I see that they are letting you run their stuff and they won't sue you over doing that, if you meet all the other conditions. Wherever you see "Company", that would be you: 7.0 LIMITATION OF WARRANTY
SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS AGREEMENT. SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.
8.0 LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF
YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. [emphasis added]Sorry for their screaming, but that's typical in warranty sections of legal docs. Look what you can't do if you get the license for a desktop:1.4 "Linux Desktop System" means a single user computer workstation controlled by a single instance of the Linux Operating System. It may provide personal productivity applications, web browsers and other client interfaces (e.g., mail, calendering, instant messaging, etc). It may not host services for clients on other systems. Here's an interesting bit: 2.3 Provided Company provides the Linux System information and pays SCO the applicable right-to-use license fees required as included Section 1 of Exhibit A to this Agreement, SCO grants Company the right to use all, or portions of, the SCO Product only as necessary to use the Linux Operating System on each Linux System for which the appropriate CPUs have been licensed from SCO. Company must take reasonable means to assure that the number of CPUs does not exceed the permitted number of CPUs. Such right is granted to use the SCO Product in conjunction with the Linux Operating System solely in Object Code format. Oh, they get to audit you too, and if you didn't do your proper bookwork, well, it's out with the wallet. Naturally. If you underpaid by a certain threshold, you pay for the audit yourself, you thief. Thou also shalt not "reverse engineer or decompile, translate, create derivative works or modify any of the SCO Product", without writing to them first, just in case any of you were thinking of getting cute: If Company wishes to exercise any rights under Article 6.1b of the EC Directive on the Legal Protection of Computer Software (Directive 91/250), Company shall, in the first instance, write to SCO's Legal Department at the address above. If you are unhappy with them, go to Utah courts only to sort it out. You agree it's Utah or nowhere: 9.5 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Utah and the United States of America, specifically excluding the United Nations Convention on Contracts for the International Sale of Goods, and without giving effect to conflict of laws. Any litigation or arbitration between the Parties shall be conducted exclusively in the State of Utah. And they don't have to actually serve you in person. You must agree that they can serve you by mail, certified or registered. Far be it from me to tell anyone what to do, either SCO with its business, or anyone out there wanting to get one of these things. No doubt you have your attorney you can ask to advise you. But, as long as we're getting misty-eyed about rights, does anyone really want to be treated like this? SCO has brought that question to the fore, and speaking only for myself, I can't see how anything could highlight more plainly the difference between proprietary and free software than this case and this license do. Does it sound like both sides have rights, in an equitable arrangement of benefit to both parties, or does it read like a plea bargain deal? According to this article, now SCO wants us to pay them $32 per device using embedded Linux. Eek. I guess that means your Zaurus is now contraband. There's just one thing. Maybe SCO's never used a Zaurus or a Tivo, which is another device us pirates need to pay them $32 to run, but, as cool as your Zaurus and your Tivo are, unless they have a secret life when you aren't looking, do they need NUMA or RCU? Mwuahahahahaha. Which reminds me: did you note in the transcript of the teleconference that McBride only mentioned these two, not the complete foursome?... Uh oh. Hide your Linux watch. No. Do the right thing and turn yourself in and get your lawyer to work out the best deal possible. Favorite quotation from the article is from, believe it or not, an analyst, who says: "This situation is rather odd in a lot of ways," said Gordon Haff, a senior analyst at Illuminata." Sounds like the Onion. This analyst, to quit horsing around for a minute, seems to actually get it. ********************************
THE SCO GROUP, INC.
INTELLECTUAL PROPERTY
COMPLIANCE LICENSE FOR LINUX
This Intellectual Property Compliance License Agreement for Linux
("Agreement") is made and entered into on the date last executed by and
between The SCO Group, Inc., for itself or its Subsidiaries
(collectively referred to herein as ("SCO"), a corporation of the State
of Delaware, with its place of business at 355 South 520 West, Suite
100, Lindon, Utah 84042, U.S.A., and __________________ ("Company"), a
corporation of the State of ___________________, with its place of
business at ______________________________________.
RECITALS
WHEREAS, SCO is a licensor, manufacturer and distributor of SCO software
and related products and materials, and
WHEREAS, SCO wishes to grant and Company wishes to accept certain
limited rights to use certain SCO software programs, which rights
Company wishes to accept;
NOW, THEREFORE, in consideration of the mutual promises made herein it
is agreed as follows:
1.0 DEFINITIONS
1.1 "Code" shall mean computer programming instructions.
1.2 "CPU " shall mean a single physical computer processor.
1.3 "General Purpose Computer System" means a commercially available
system which is intended to be reprogrammable by the end user and is
either (i) intended for primary use as a general purpose business
computer, a personal computer, or a scientific/technical workstation; or
(ii) part of a network configuration whose primary purpose is for
executing general application programs supporting general business,
personal, or scientific/technical activities.
1.4 "Linux Desktop System" means a single user computer workstation
controlled by a single instance of the Linux Operating System. It may
provide personal productivity applications, web browsers and other
client interfaces (e.g., mail, calendering, instant messaging, etc). It
may not host services for clients on other systems.
1.5 "Linux Operating System" shall mean an operating system
distributed under the name Linux or a derivative thereof.
1.6 "Linux Point of Sale/Embedded System" means a computer system,
controlled by a single instance of the Linux Operating System, that can
not be used as a General Purpose Computer System and, as such, is (1)
restricted in normal use to the execution of a predefined set of
special purpose applications, and (2) does not allow an end user,
directly or indirectly, to (i) add or run general purpose application
software; (ii) add or administer users; or (iii) provide system
administration functions other than diagnostics and maintenance.
1.7 "Linux System" shall mean a computer system, containing the
licensed CPUs, controlled by a single instance of the Linux Operating
System.
1.8 "Object Code" shall mean the Code that results when Source Code
is processed by a software compiler and is directly executable by a
computer.
1.9 "SCO Product" shall mean the SCO intellectual property in Object
Code format included in any or all of the following: (i) the Software,
(ii) the Updates and (iv) any copy of the Software or Updates; to the
extent made available to You.
1.10 "Software" shall mean the Linux Operating System in Object Code
format.
1.11 "Source Code" shall mean the human-readable form of the Code and
related system documentation, including all comments and any procedural
language.
1.12 "Update" shall mean the updates or revisions in Object Code
format of the Software that You may receive.
2.0 GRANT OF RIGHTS AND OBLIGATIONS
SCO MAKES NO GRANT OF RIGHTS OF ANY KIND WITH RESPECT TO ANY SOFTWARE
OTHER THAN THE SCO PRODUCT COVERED BY THIS AGREEMENT.
THIS AGREEMENT DOES NOT INCLUDE ANY RIGHTS TO ACCESS, USE, MODIFY OR
DISTRIBUTE ANY SCO SOURCE CODE IN ANY FORM UNDER ANY LICENSING
ARRANGEMENT.
2.1 Provided Company complies fully with this Grant of Rights and
Obligations, SCO will not consider such use of the SCO Product licensed
by Company under this Agreement to be in violation of SCO's intellectual
property ownership or rights.
2.2 This Agreement does not grant a right to receive any
distribution of software from SCO. SCO grants Company a limited and
non-exclusive right to SCO Product under the terms and conditions of
this Agreement. Company acknowledges that it is not granted any other
right except for the rights specifically set forth herein.
2.3 Provided Company provides the Linux System information and pays
SCO the applicable right-to-use license fees required as included
Section 1 of Exhibit A to this Agreement, SCO grants Company the right
to use all, or portions of, the SCO Product only as necessary to use the
Linux Operating System on each Linux System for which the appropriate
CPUs have been licensed from SCO. Company must take reasonable means to
assure that the number of CPUs does not exceed the permitted number of
CPUs. Such right is granted to use the SCO Product in conjunction with
the Linux Operating System solely in Object Code format.
3.0 ORDERS, PRICE AND PAYMENT
3.1 Company's initial order for the right-to-use licenses, including
Linux System details and License Fees, is included in Exhibit A of this
Agreement. SCO shall invoice Company, at the time of execution of this
Agreement, pursuant to the information contained in Section 2 of Exhibit
A.
Caldera shall have the right to increase any list price on thirty (30)
days prior written notice.
3.2 Should Company require to add additional right-to-use licenses
for Linux Systems or additional CPUs, Company shall submit a purchase
order to, and subject to acceptance by, SCO's Sales Administration
Department located at SCO's Santa Cruz, California facility. Such
purchase orders shall state the Linux System details and License Fees
included in Exhibit A of this Agreement and shall reference and bind
Company to the terms and conditions of this Agreement.
3.3 License Fees are exclusive of all applicable taxes. Company
agrees to pay all taxes associated with right-to-use licenses ordered
under this Agreement, including but not limited to sales, use, excise,
added value and similar taxes and all customs, duties or governmental
impositions, but excluding taxes on SCO's net income.
3.4 Payments for shall be due and payable thirty (30) days from
date of invoice. SCO may charge Company interest at the rate of 1 1/2
percent per month, or such maximum rate as may be permitted by law,
whichever shall be less, with respect to any sum that is not paid when
due.
3.5 Company shall make all payments in United States Dollars.
4.0 RECORD KEEPING AND AUDIT
4.1 Company shall keep full, clear and accurate records with respect
to Linux Systems and the number of licensed CPUs per Linux Systems.
Such records shall contain all information necessary to determine
exactly all fees due hereunder. Company shall provide to SCO, upon
request by SCO, reports with such records including the number of copies
of made by Company.
4.2 SCO may cause an audit to be made at its expense (except as
provided herein) of the applicable records to verify statements rendered
hereunder, and prompt adjustment shall be made by the proper party to
compensate for any errors or omissions disclosed by such audit. Any
such audit shall be conducted during regular business hours at Company's
offices and in such a manner as not to interfere with Company's normal
business activities. In the event that an audit discloses an
underpayment by Company to SCO of the greater of five percent (5%) or
the equivalent of Five Thousand United States Dollars ($5,000), then
Company agrees to bear the cost of the audit.
4.3 Upon written request, SCO agrees to make available to Company,
in the event that SCO makes any claim with respect to such audit, its
records and reports pertaining to the audit and any such records and
reports prepared for SCO by third parties.
5.0 TERM OF AGREEMENT; OBLIGATIONS UPON TERMINATION
This Agreement shall remain in effect until terminated as set forth
herein. Company may terminate this Agreement, without right to refund,
by notifying SCO of such termination. SCO may terminate this Agreement,
upon reasonable notice and without judicial or administrative
resolution, if Company or any of Company's employees or consultants
breach any term or condition hereof.
Upon the termination of this Agreement for any reason, all rights
granted to Company hereunder will cease.
6.0 PROPRIETARY NATURE OF SCO PRODUCTS AND OWNERSHIP
6.1 No title to or ownership of the SCO Product is transferred to
Company. Notwithstanding any provision of this Agreement to the
contrary, Company acknowledges that SCO, owns and retains all title and
ownership of all intellectual property rights in the SCO Products.
6.2 SCO Products and related materials, and all copyrights, patent,
trade secret and other intellectual and proprietary rights therein, are
and remain the valuable property of SCO and its suppliers. Company
shall not reverse engineer or decompile, translate, create derivative
works or modify any of the SCO Product. If Company wishes to exercise
any rights under Article 6.1b of the EC Directive on the Legal
Protection of Computer Software (Directive 91/250), Company shall, in
the first instance, write to SCO's Legal Department at the address
above.
7.0 LIMITATION OF WARRANTY
SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO
ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS
AGREEMENT.
SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.
SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL
MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR
ERROR FREE.
ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU
MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO
COUNTRY.
8.0 LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF
YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION
IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF
OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH
LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU
TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE
DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
9.0 MISCELLANEOUS
9.1 Neither party shall be liable for any delay or failure in its
performance hereunder due to any cause beyond its control provided,
however, that this provision shall not be construed to relieve Company
of its obligation to make any payments pursuant to this Agreement.
9.2 Company may not assign, sublicense, rent, lend, lease, pledge or
otherwise transfer or encumber the SCO Products, this Agreement or any
of the individual licenses granted under it or Company's rights or
obligations hereunder.
9.3 All notices and requests in connection with this Agreement may
be sent or delivered to the addresses above by hand, by certified mail
return receipt requested, by fax, or by courier.
9.4 Support and maintenance are not available under this agreement.
9.5 This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Utah and the United States
of America, specifically excluding the United Nations Convention on
Contracts for the International Sale of Goods, and without giving effect
to conflict of laws. Any litigation or arbitration between the Parties
shall be conducted exclusively in the State of Utah.
Company expressly consents to the jurisdiction of such courts. Process
may be served by U.S. mail, postage prepaid, certified or registered,
return receipt requested, by express courier such as DHL or Federal
Express, or by such other method as is authorized by law. Nothing in
this Section will prevent SCO from seeking injunctive relief against
Company or filing legal actions for payment of outstanding and past due
debts in the courts.
9.6 If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The Parties will seek in good faith to
agree on replacing an invalid, illegal, or unenforceable provision with
a valid, legal, and enforceable provision that, in effect, will, from an
economic viewpoint, most nearly and fairly approach the effect of the
invalid, illegal, or unenforceable provision.
9.7 This shall be the only agreement between the Company and SCO
with respect to the subject matter herein and shall not be modified
unless a written amendment has been signed by one of SCO's and Company's
officers.
9.8 This Agreement is signed by Company on behalf of all the
employees and agents entitled by Company to use of . Company undertakes
to make all users of aware of their responsibilities under this
Agreement. This Agreement supercede all prior agreements between SCO
and Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the last date properly executed by both parties. All
signed copies of this Agreement shall be deemed originals.
THE SCO GROUP, INC. ___________________________________
By: By:
Name: Name:
Title: Title:
Date: Date:
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Authored by: Anonymous on Wednesday, August 06 2003 @ 08:32 PM EDT |
Could somebody, preferably PJ, explain the meaning of section 9.6?
Do you have to keep paying and submitting to audits even if a court finds their
is no SCO IP in Linux, or if the SCO IP has been removed from your
distribution?
Likewise what happens if a court finds there was no SCO IP in Linux in the first
place, or there wasn't in your particular distribution, would you have keep
paying and submitting to audits in this case? quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 08:33 PM EDT |
Add to both questions, especially last question: Would you be able to get your
money back for the licenses already purchased? quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 09:16 PM EDT |
Ask your lawyer, quatermass, but those are good questions to ask. For real.
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">pj[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 09:41 PM EDT |
http://www.vnunet.com/News/1142837
Looking forward to seeing SCO sued into oblivion. Z[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 10:29 PM EDT |
Hm... Z's comment has me thinking. I wonder at the depth of financial resources
SCO has and how many fronts they can fight on at once? It would be nice to see
the Linux community mobilize in as many countries as possible and launch as many
legal assaults on SCO as can be managed in order to force SCO to run through
their funds in court cases much more quickly than they anticipated.
They'll either, a) die the death of a thousand legal cuts, or b) the people
backing them (*cough*Sun/Micro$oft*cough*) will be forced to expose themselves
by dumping more money into SCO to fund their legal efforts.
Does anyone have any thoughts on this? Sean[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 10:34 PM EDT |
Yup, it looks like it violates the GPL. Quick, someone who contributed to Linux
get a preliminary injunction! Aaron[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 06 2003 @ 11:22 PM EDT |
Reading SCO's license conditions, I prefer to use my Linux under the GPL. Anyway
I don't want to be on SCO's list of people and companies to whom a useless
licence can be sold with some legal threats. Think about the dozens of
"salesmen" lining up at your front door when SCO starts selling that list.
With regard to the financial situation at SCO: their actions give me the
impression that they are in desperate need of some cashflow. Is there someone
with a financial background that can confirm it, checking SEC filings for
example? MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 01:20 AM EDT |
My exact thoughts Aaron. They are just taking the whole of the Linux kernel as
their own "VALUABLE TRADE SECRETS."
Notice they are calling their "product" Linux. Correct me if I'm wrong, but
Linux is a registered trademark to Linus. I was not aware that a judge
transferring ownership to his Royal Highness, McBride.
What's more, I noticed, they refuse to provide you with any of the *actual*
binaries they are requiring you to only run it with. How can you not, "reverse
engineer or decompile, translate, create derivative works or modify any of the
SCO Product," without them providing you a binary? Wouldn't compiling the
source code effectively be creating a derivative work? What if you compile in
Robert Love's Preempt patch? Oh right, SCO owns anything that runs on UNIX.
Perhaps they expect you to keep the source code, but just don't dare look at
it! nexex[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 03:20 AM EDT |
nexex:
I am not a lawyer, so I'm just going by their web site, Darl quotes, etc.
According to my interpretation of SCO's statements, you supposed to only install
Linux binaries, but install you get from some Linux distributors (but not SCO).
Recompiling them, is not allowed.
If SCO's theories were true, then Linux distributors are committing a copyright
violation by giving you Linux in the first place, so in order to sign SCO's
Linux license, you must already have been party to an illegal act. In other
words, I think there is a massive internal contradiction.
When it gets to embedded Linux, the internal contradiction in SCO's theories is
even more apparent. SCO says on their site that their license is not given to
Red Hat, etc., because that would violate the GPL. Darl says Red Hat are
violating the GPL by distributing Linux. If this theory is true, it must also
apply to any embedded Linux manufacturer. So in order for an embedded OEM to
sign up as a SCO Licensee, they must according to SCO's theory, violate the GPL,
just like Darl seems to think Red Hat are doing now.
For customized Linux, SCO suggests people "outsource" the customization. So it's
all the contradictions in the "If SCO's theories were true" paragraph, plus they
require you to get a third party ("outsource") to also violate the GPL, plus the
third party ("outsource") must violating SCO's IP [because they haven't signed
for a SCO Linux license) or SCO's contract (because if they have signed they are
not supposed to recompile).
To me at least, it seems like the whole thing is just riddled with
self-contradictions
Sean: I think we will find out their financial condition around August 14th,
because that is when they have their conference call to discuss earnings. So I
expect they must file their quarterly results then, look at www.sec.gov. However
the results only give a snapshot of their condition at the close of the quarter,
so you'll have to guess how it's changed since then (one and a half months I
think). I have seen nothing to indicate Sun owes them any more money. I believe
Microsoft's existing contract has some to be paid over several quarters, and an
option for more, but I do not think it is enough to make a real difference to
SCO's overall position. I'm not sure when they stopped selling OpenLinux, but
they have lost any sales of that since then, and any of the new Linux license
sales will not ship up until next quarter. I believe SCO has got loans from
Canopy before, so this must be an option for SCO - they also could cut expenses
by laying off staff. anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 03:41 AM EDT |
Section 8.0: "MISREPRESENTATION" stood out. Is this usual in a software license?
If you signed up because of MISREPRESENTATION, according to SCO would you have
any come back?
Would the FTC agree?
I don't know if this is in any way analagous, but I can't help thinking about
some of those diet "miracles", multi-level marketing things, etc., where they
put some disclaimer or term of sale in really small print which totally
contradicts all the advertising and marketing material. anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 03:47 AM EDT |
That's not all they are doing to violate the GPL:
http://shop.caldera.com/cald
era/license.html
"Non-Commercial UNIX Licenses"
"SCO's Free Non-Commercial Use UNIX® Licensing Program has been
discontinued. We regret that we have been forced to take this action due to the
significant abuse of the program by commercial enterprises. However, you can
purchase a 60-day evaluation license with a UnixWare or OpenServer media kit, or
you can download a Non Commercial Use license for OpenLinux. Please see the
Download page for details."
Non-Commercial Use License for Linux!?
Not forgetting that offering a GPLed product under any other license, when you
are not the relevant license holder and thus have the source code under license
yourself, is misappropriation of someone else's work and reputation, and is
disallowed by the GPL. Wesley Parish[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 03:59 AM EDT |
Wesley, it is possible (under the GPL) to bundle a Linux kernel with propriatary
software. You can restrict integral redistribution of the whole system this way
(SuSE did (does) something like that with their YaST installer/configurator
tool). As long as the GPL software can be unbundled and freely distributed
seperate from the propriatary stuff this is legal.
Think Oracle selling CD's with Linux(free) and their database(payware). They
have the right to restrict distribution of the database that they provide on the
CD, but not the right to put additional restrictions on the Linux kernel. MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 04:15 AM EDT |
One last point before I crawl back to my basement to compile device drivers and
play LARPs (attention Forbes!).
It sounds to me the analogy to the RIAA vs Napster is a good one - but Darl has
it the wrong way round
Napster wanted to make money off distributing other people's copyrighted work
(music). They wanted to effectively (in practice if not in law) re-license this
work for their own (Napster's) benefit. David Boies represented them. David
Boies lost.
SCO want to make money off other people's copyrighted work (their contributions
to Linux). They want to effectively re-license this work (in practice if not in
law) for their own (SCO's) benefit. David Boies is representing them. David
Boies will ? anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 04:38 AM EDT |
Be careful with the EE Times article - it looks like they haven't been reading
carefully. EE Times say that it is the OEM who should buy the license but SCO
say (at http://www.sco.com/scos
ource/linuxlicensefaq.html) it is the end user. This is an important
distinction because if the OEM believes a license is required they cannot
distribute the non infringing parts according to the GPL.
This does however present a useful opportunity for anyone who has a device
running embedded Linux. All embedded devices will be running a modified kernel
with unnecessary parts removed. The supplier of your device must give you a copy
of this on request (as per the GPL) but you have no way of telling if it
contains SCOs claimed code. The version number is no clue as even if it says 2.2
it might have had 2.4 code merged into it - therefore every owner of such a
device should ask SCO to either say what code infringes so they can check or
check the kernel themselves. Of course they have to do the latter which with
only a few hundred requests could keep them out of mischief for a while :-)
The free license to anyone who has bought OpenLinux is also interesting as it is
a move away from the position that could just about be defended of OpenLinux
isn't properly licensed but we won't prosecute OpenLinux users to explicitly
granting a license. If they grant any license to OpenLinux customers it must
give them all of the rights of the GPL including free redistribution.
To my mind the biggest issue now is how anyone can get a ruling before 2005.
Presumably Red Hat thought that they could get their declaratory judgement
sooner than that (maybe they still do) but SCO think they can drag that out even
longer than the IBM case.Is a preliminary injunction the only way to get
something to happen quickly? If so what grounds could there be for one? I
believe some kernel authors have assigned the copyright in their contributions
to the FSF, is there any chance that the FSF would act in a case that required a
kernel contributor to claim that SCO was illegally using their code? Adam
Baker[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 04:51 AM EDT |
I'm still here.
If SCO thinks it's the end users, and not the manufacturer, who must buy their
license, then why did Darl head off to Japan to talk to embedded
manufacturers?
If SCO thinks it's the end users: I thought they said their license is only for
commercial purposes.
If SCO thinks it's the end users: Are they really going to try and sue millions
of Tivo or Linux-mobile-phone owners? How do they even know who they are? What
are they going to do, write a letter to everybody in the telephone directory,
saying "You owe us $32 for each of the following you possess: Tivo, Sharp
Zaurus, etc. Please sign the attached contract, remit payment, and register at
our web site to activate your license(s)."? anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:31 AM EDT |
Let's each buy a share of SCO. If enough of us do it and assign our voting proxy
to someone like Linus Torvalds, we can force SCO's abuse to stop and not have to
wait for the courts. jim[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:37 AM EDT |
Sorry jim; even the thought of investing in SCO makes my stomach turn! I think
it's better to fight them in court. MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:39 AM EDT |
PJ, Your site sucks;-) It has made me into a bad Christian, thirsty for revenge
against SCO and the other foes of freedom, and now that thirst needs slaking.
What can individual users do to facilitate the fight? Is there a central
"defend Linux and free software" activism website? How can I donate my $32 to a
"sap SCO's resources and stomp them into the dust" fund? Thanks.
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Kevin
Murphy[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:44 AM EDT |
I want to write a letter to my local trading standards office - lets see if I
can persuade them to open a file on SCO. I am based in the UK, so if anybody who
knows British / European consumer law cares to suggest improvements I would be
delighted:
Dear Trading Standards,
It has come to my attention that a US based firm (called the SCO group), has
been engaged in what looks like an international protection racket. Basically
they are arguing that the widely-used free software product 'Linux'
(www.linux.com) contains stolen program information and that all users of Linux
based computers must pay them a license fee or risk litigation. The problem is
that they refuse to publicly state their evidence other than a viewing centre in
Utah USA, and then only under some unusual conditions.
In an announcement made yesterday they claimed that everybody who has bought an
appliance that makes use of Linux software in some way also owes them money -
for example they claim that owners of a Tivo machine (http://www.tivo.com - a computerised video
recorder that uses 'Embedded' Linux software) owe them $32 per appliance.
May I suggest that since this issue is only just beinning, you please open a
file on this company and keep observing their activities. This company wants to
mislead british businesses and consumers into thinking they have to pay for the
rigth to use Linux (which is a free software and therefore can be used without
paying anybody!).
I appreciate this is not exactly your 'run-of-the-mill' fraud, and there may be
verry little that Trading Standards can do untill there are any victims.
These sites contain very extensive analysis of the fuss SCO are making right
now:
http://radio.weblogs.com/0120124/Salim Fadhley[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:46 AM EDT |
I think that's a bad idea. You'd have to buy more than 22.5 million, as they
have the right to issue up to 45 million. It also rewards SCO's executives and
Canopy by increasing the stock price when they sell stock. I think that you'd
probably have to buy the whole 45 million, because you can't just trample on
minority shareholders. SCO want people to buy their stock.
If all these new shareholders are working together, they might be SEC rules
about it, I don't know. There are rules about lots of things.
We also haven't seen SCO's employment agreements, so if you just fire or demote
Darl and team, they might end up suing you. So the plan seems both unfeasible
and counter productive.
I think SCO thinks this can be resolved by a buy out or cash settlement. That
might resolve the short-term, but I think Linux vendors should also want show
the integrity of both their past and future actions, and a buy out or settlement
won't address that.
Lastly, I do not think the Linux side should be conceding in any way, when SCO
have not shown in public any verifiable evidence (I don't count some NDA session
in the Marriott, etc, where the evidence is selective, edited, and not open to
full examination). anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:47 AM EDT |
MathFox: Here are the possible outcomes. SCO's claims are baseless and no
Linux user need pay them a dime. We won't know this until 2005 or later. SCO's
claims have merit and we have to pay them $699 (or $1399). Or we buy the stock
at $13, give out proxies to Linus and make them, as shareholders stop this
nonsense. The $13 is not an investment in them but a very cheap way to make
this all go away. jim[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 05:49 AM EDT |
"Bad idea..." was about buying 1 share, in case that wasn't clear.
UK - SCO has an office, in I think Hatfield. BTW, I suggest you call the
Trading standards office as well as writing, maybe even before, as you can
probably get help on what issues are within their remit, your concerns etc., so
you know what to write about. anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 06:50 AM EDT |
I think one of PJ's great contributions to this whole affair is the humor she
brings to it.
The whole thing makes me so hopping mad (which is exactly what SCO wants to do,
piss off as many linux users as possible), that I can't keep my cool about it.
That is exactly when you can be tricked into making mistakes. At all times we
must keep our sense of humor.
How often do you hear, or feel like saying, "what can we do to just make this
thing go away?" Why are we in such a rush to make this "go away?" Perhaps,
when viewed properly, this is a great opprotunity.
Think about it. Our IP laws are in a broken state right now, and linux is
seriously rocking the boat. We should be thankful that the entire IP system is
being called into question by SCO's behavior. I recall reading on slashdot not
too long ago that the EU is currently debating whether to allow software patents
or not. What a wonderful thing to have SCO sabre rattling at this time. They
are even sabre rattling at the U.S. Gov right now.
Perhaps the longer this goes on the better. Let the world see how broken the
patent and general IP system is. Especially the lawmakers. Let them look long
and well upon it.
PJ's research is exactly what the doctor ordered. When the day of reckoning
comes, a full and accurate record will be required to make the most of it.
Chris Marshall Chris Marshall[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 06:53 AM EDT |
Personally, I don't know if the system is broken, it probably is, all systems
are broken
However, my opinion, I think SCO is going to lose even under the current broken
system anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 07:24 AM EDT |
anon:
"Broken" is not a binary distinction, it's a spectrum. Broken in what way, and
to what degree?
I meant broken in that it is retarding innovation, not accelerating it, which is
supposedly it's purpose. Now companies like IBM, which you would think could
turn the system to their advantage, feel its claws around their throat, and are
doing everything they can to help us and linux.
Imagine you are Cisco, and you are toying with the idea of patenting Network
Address Translation. You might be inclined to cheerlead legislative efforts to
strengthen you ability to enfore such a patent against the linux kernel. Then
you get a letter from SCO. They want $32 per router you sell. See my
point?
Of course SCO is going to lose. The question is, exactly how are they going to
lose and in what way? How can we make the most of it?
I am actually looking forward to having them around for a few years as an
existance proof.
Chris Marshall Chris Marshall[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 07:42 AM EDT |
My point is SCO can only (and in my opinion, will) be defeated within the
current legal system, not some idealistic future one.
SCO's claims against IBM relate to contracts - which will continue to exist,
whatever the system.
SCO's claims against Linux relate to types of IP, which I don't even think are
part of the system, in my opinion, namely (1) trade secrets which are apparently
not secret, (2) "control rights", (3) ability to over-ride somebody else's
copyrights, because you think you have a copyirght claim on part of something. I
am not a lawyer, but these don't seem like an established part of the legal
system to me, in my opinion. anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 08:51 AM EDT |
Anon:
I agree with you that SCO will be defeated in the current legal system. Your
summary of the issues is dead-on. I especially like your point 3, which is what
really gets me hopping mad at SCO, that they are trying to get their copyright
respected whilst simultaneously violating the copyrights of a much larger
contribution on the part of thousands of developers who volunteered their time
and talent and only asked that their work be kept free. 100 or a thousand lines
of code versus over 10 million. The sheer gall.
The thrust of my argument was not to pine for some future idealistic legal
system to be brought into existance. I just think software patents have gotten
out of control. Remember the one-click patent fiasco? This is the chickens
coming home to roost.
Something has to reign in the abuse of the patent system. SCO may be just the
ticket.
Chris Marshall Chris Marshall[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 09:00 AM EDT |
Anon:
I guess what I am saying is that I am looking forward to the precedents that
will be set, in the current legal system, as it deals with SCO in the next year
or two.
And that the last thing we want is for SCO to go away or be bought off. This is
very bad publicity for the nonsense of many of the software patents that have
been granted in the last 10 years. Many players have been cheering that
nonsense on. Let the stink of it reach the ramparts of heaven itself. Let all
be made aware, especially the makers of law.
Chris Marshall Chris Marshall[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 09:09 AM EDT |
IBM have filed a counter claim http://news.com.com/2100-101
6_3-5060965.html
IBM alleges things SCO violating GPL (and therefore copyright), and SCO products
infringing 4 of IBM's patents.
For the patents, "IBM is seeking unspecified monetary damages and an injunction
stopping SCO from shipping its software" - "The infringing SCO software, IBM
said, is its UnixWare and OpenServer operating systems, its SCO Manager remote
administration tool and its Reliant HA " anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 09:38 AM EDT |
Hi guys,
On the trading union issue, I wonder if the EU Commission would be interested?
They just put out a report recommending open standards. I'll see if I can find
the url. pj[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 09:39 AM EDT |
Here: http://europa.eu.int/information_society/eeurope/action_plan/index_en.htmpj [ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 09:55 AM EDT |
Yes, EU and national governments are very serious about the adoption of open
source. (They don't mind to spend on software, but prefer to stimulate the
European instead of the American economy.)
For a SCO complaint I would contact the National or EU fair trade buro.
Sorry, I don't have phone numbers or adresses. :( MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 10:18 AM EDT |
pj, is there anything that we, the Linux community, can do in this situation
other than just watch? I'm a Linux Newbie myself and this whole SCO-Scam makes
me mad as hell. We need an outlet for the rage of this injustice and I'd prefer
it be something useful in helping to obliterate the SCO-Scourge and their
illegal activities.
Contact the SEC? BBB? FBI? DOD? Do any of the new anti-terrorist laws apply to
anything they're doing (since the Feds in the U.S. use Linux)? I'm grasping at
straws here.
Z Z[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 10:47 AM EDT |
Z: Start by spreading the word about SCO and why nobody should pay them. Maybe
you can help to bring in the killer penguins to the SCOforum2003 in Vegas (Aug
17-19) or organize some flash-mobbing there. Be creative, keep it legal and
fun! MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 10:52 AM EDT |
Z
I think the most constructive thing you can do is continue using linux and to
have fun doing it. Help other people learn how to use linux once you are good
enough at it.
Whatever you do, don't let the whole SCO thing get you down. There is no way in
hell SCO is going to go the distance. Not even the slightest chance. The only
real question is will we be no better and no worse off, a little better off, or
a lot better off 2 years from now. I'm betting a lot better off.
Four years ago I was the first person at my company using linux. I started
solving serious problems for my company by using linux, and building on top of
it.
I didn't have to convince anyone it was better than windows, I just started
saving them money and the more I saved, the more they asked me to keep doing
it.
Now there are at least 10 people here who are developers and they are all using
linux. We operate a satellite network and the software we run on our packet
switch used to run on top of PSOS on VME processor cards. Now we have ported it
to linux running on commodity linux boxes.
The momentum linux has behind it is unstoppable at this point.
Relax and have fun learning how to use linux.
Chris Marshall Chris Marshall[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 11:05 AM EDT |
Its funny (not in Ha Ha way but more of DoH! way) but I got interested in Linux
because of what appears to me a blatant Big Brother future for Microsoft's
products. The more I look at what they're doing the more I need an escape pod
for when the defecation hits the oscillator. I decided to start learning Linux
before it was too late and I ended up doing so just in time for SCO-Scam 2003.
Despite that, I'm having a great time at this site (though I wish there was a
full-fledged forum). Pamela's humor is terrific, she's very knowledgeable and
she doesn't pull any punches. She's giving her best back to the community in its
darkest hour and doing a tremendous job. Z[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 07 2003 @ 06:16 PM EDT |
Hi Z and all,
Thanks for the compliments. Sorry to inspire unChristian thoughts, but I'm
struggling with that myself these days.
I'm open to suggestions about figuring out a better forum. When I started, I
never thought anyone much would visit. I was just writing to the air. And I
chose radio software because an atty who I was thinking of doing some work for
used it and my work would have entailed helping with his blog. Groklaw was born
from a need to learn blogging. I actually would like to make a move. I need a
place for Groklaw to live more permanently and more accessibly. I want to
switch software, maybe to A List Apart? Groklaw just took off, and no one is
more amazed than I am. It's been a real pleasure, but it's clear I need to move
to larger quarters and figure out a better system of commenting. Anyone's ideas
are welcome. Groklaw isn't just mine any more. So, specific suggestions will
be taken seriously. Of course, I'd have to be able to actually handle it, from
a tech standpoint. That's where the specificity will be helpful.
As to the question of what to do, ask your lawyer for ideas if you wish to do
something, or donate money to the appropriate legal fund you feel would be most
effective. Money is very important in a legal fight. It costs a great deal to
fight well, so money is a significant and truly meaningful help.
PS: I think IBM already has money. : ) pj[ Reply to This | # ]
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