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New story! - Elf M. Sternberg
elfs
elfs
New story!
A new story is up at the Pendorwright site. The ASSD code is M/M Fur(rept). The title in unimaginative, Rear, but I couldn't come up with anything better. It's a cute story. I should write more M/M stuff, I really should.


I just read with amusement SCO's last collection of counterclaims to IBM's complaint filing. Among the other titters, SCO claims that "Caldera was not established for the purpose of creating Linux solutions," "Linux was developed in order to destroy proprietary operating systems" (again, SCO goes for the intentional confusion of the word proprietary; it won't succeed as any judge can cite the definition out of Black's Law Dictionary), and "SCO denies participating in the Open Source Development Labs with the purpose of furthering open source development." Hey, is that last one fraud?

Amusingly enough, SCO is laying claim to the idea of Unix. Even if everything Linus did is legally available, it's still illegal because Linux didn't ask the holders of the Unix trademark. But this has been covered ever since Compaq successfully reverse-engineered the IBM BIOS. No case.

And IBM finally raised an estoppel argument, meaning that they're accusing SCO of saying so many contradictory things that nobody really knows what they're saying and the judge should throw out SCO's complaint. Rockin'.


US Donates A Lot Of Sperm.

A Constitution of Convenience. I think Technoshaman will get a charge out of this one: A j'accuse that the U.S. Government is selectively enforcing only those parts of the constitution that give them power, not charge them with responsibility, while doing the opposite to the people.

Current Mood: amused amused
Current Music: Enigma, TNT For Your Brain

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Comments
From: technoshaman Date: November 3rd, 2003 08:04 pm (UTC) (Link)
Cite your sources on the estoppel argument? I'd love to post that....
elfs From: elfs Date: November 3rd, 2003 08:13 pm (UTC) (Link)
IBM Amended Counterclaims, Paragraph 118:

Promissory Estoppel:As a result of its reliance upon SCO's promises, IBM has sustained injuries and is entitled to an award of damages in an amount to be determined at trial. In addition to an award of damages, IBM is entitled to declaratory and injunctive relief, including but not limited to a declaration that SCO is not entitled to assert proprietary rights with respect to products distributed by SCO under the GPL except upon the terms set out in the GPL.

IANAL, but as I read it, IBM is basically saying that SCO promised one thing in its press statements, and another in its legal complaint, and that IBM therefore has no idea what SCO really intends, but acting on SCO's public statements has consequently hurt IBM and that represents such egregious and non-lawful interference that the court should throw out SCO's complaint entirely.
rfreebern From: rfreebern Date: November 3rd, 2003 09:16 pm (UTC) (Link)
It reads to me like IBM is saying SCO's use of the GPL constituted an implied promise to abide by the terms set forth in the GPL, and that IBM feels that SCO has broken that promise by now attempting to lay commercial claim to GPL'd material; hence estoppel, or damage caused by violation of a promise.
elfs From: elfs Date: November 3rd, 2003 10:33 pm (UTC) (Link)
I suspect this is more concrete. Note in the portion I quoted, IBM has sustained damages.... IBM is saying that it has reacted to public statements SCO has made that have damaged IBM's business relations, only now to find that SCO is denying that IBM's interpretation of those statements is the correct one. SCO is arguing that if IBM had understood SCO's statements correctly, IBM would not have suffered damages.

It is now up to the judge to determine if a reasonable person would have found SCO's public statements threatening (promissory of action) and warranted a reaction that, as IBM put it, sustains damages. If the judge so rules, estoppel is warranted because SCO is claiming in court that it never meant to say any such thing. The appeals could go on forever, true, but that's the basic gist.
rfreebern From: rfreebern Date: November 4th, 2003 01:46 am (UTC) (Link)
But if you look at paragraph 114, you'll see that the promise that IBM claims SCO made is that SCO would copy, modify or distribute programs distributed by IBM and others under the GPL only on the terms set out in the GPL; and would not assert rights to programs distributed by SCO under the GPL except on the terms set out in the GPL.

They go on to state that they made business decisions based on this promise, and that SCO's violating the promise caused injuries to IBM. It's not about any public statements that SCO made, it's about SCO implicitly agreeing to the GPL at some point in the past (described in paragraphs 108 through 112) and then breaking that agreement.
juuro From: juuro Date: November 3rd, 2003 08:06 pm (UTC) (Link)
It's a cute story. I should write more M/M stuff, I really should.

Perhaps you should. I have been reading you on LJ for a time now, but didn't get to the authorship site before now. Impressive. I like it when a story that takes place in an unfamiliar world really can stand on its own. Apparently I need to read you more.

wendor From: wendor Date: November 3rd, 2003 09:08 pm (UTC) (Link)
While I agree with Mr. Napolitano's sentiments in his "A Constitution of Convenience" article, it appears that he is leaving out critical facts in order to make his emotional point.

He states "First, the government must confront the self-inflicted problem of federal jurisdiction - which it has claimed does not exist for acts committed in Cuba."

In reality, the government does not have to establish federal jurisdiction at all. Air Force Senior Airman Ahmad I. al-Halibi is charged under the Uniform Code of Military Justice with violation of section 906a Article 106a (ESPIONAGE). Jurisdiction is established by his voluntary enlistment into the Air Force and his explicit, signed, and sworn acceptance of the jurisdiction and restrictions of the UCMJ. Section 802 Article 2, which he also made explicit, signed, and sworn acceptance of establishes that he is subject to the jurisdiction of the UCMJ for his entire term of enlistment and Section 805 Article 5 establishes that jurisdiction as applying in all places.

While I'm sure that Mr Napolitano's credentials are impeccable from the standpoint of constitutional law, he makes the appearance of being quite ignorant of military law. Since I'm sure that this is not the case in actuality, I have to suspect that he is avoiding the facts intentionally in order to add emotional support to his position.

The rights of the three key groups in Guantanamo Bay, Cuba....US Military personnel, US Citizens, and non-US citizens....are quite different and he does all three a great disservice by (apparently) ignoring those differences.

UCMJ link: http://www.au.af.mil/au/awc/awcgate/ucmj.htm


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