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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Wed, 25 Mar 2009 13:52:11 +0100

Alan Mackenzie wrote:
> Tell me, at what exact point in time does such a putative contract come
> into existence?

Listen carefully to IBM lawyers, idiot.

SCO has taken source code made available by IBM under the GPL, included 
that code in SCO's Linux products, and distributed significant portions 
of those products under the GPL. By so doing, SCO accepted the terms of 
the GPL (pursuant to GPL § 5), both with respect to source code made 
available by IBM under the GPL and with respect to SCO's own Linux 


As a result of SCO's breaches of the GPL, countless developers and 
users of Linux, including IBM, have suffered and will continue to suffer 
damages and other irreparable injury. IBM is entitled to an award of 
damages in an amount to be determined at trial and to an injunction 
prohibiting SCO from its continuing and threatened breaches of the GPL.


SCO's GPL violations entitle IBM to at least nominal damages on the Sixth 
Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC 20 P.3d 
388, 392 (Utah 2001) (explaining that it is "well settled" that nominal 
damages are recoverable upon breach of contract); Kronos, Inc. v. AVX 
Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages are always 
available in breach of contract action".). Thus, SCO's footnoted damages 
argument is no basis for summary judgment as to liability. Moreover, IBM 
has proffered expert evidence that it was financially damaged by SCO's 
violations of the GPL.

First, as IBM expert Professor J. R. Kearl will testify at trial, under 
the methodology of SCO's own experts (offered in support of SCO's 
affirmative case), IBM has suffered quantifiable damages resulting from 
SCO's wrongful conduct, including its GPL violations. (¶ 28; Ex. 591 ¶¶ 
1.C, 33-34.)

... the Court need not reach the choice of law issue because Utah 
law and New York law are in accord on the issues that must be reached to 
address SCO's sole argument on this motion, namely, that SCO did not 
breach the GPL. Throughout this brief, IBM cites to both Utah law and 
New York law.


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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