Mo' MOG Mistakes & Larry Rosen on Daniel Wallace's Anti-GPL Lawsuit: "It's Bunk."

Mo' MOG Mistakes & Larry Rosen on Daniel Wallace's Anti-GPL Lawsuit: "It's Bunk."

by Pamela Jones
Groklaw

May 02 2005

I think the Register needs to do an expose of journalists and their errors and poor fact-checking when writing about legal news. Of course, they should start with themselves, and then I propose they take a look at The Collected Works of Maureen O'Gara.

There is a new specimen today ( http://linuxbusinessnews.sys-con.com/read/80782.htm ), in which she announces an Indiana lawsuit, brought pro se by Daniel Wallace against the FSF. He would like the GPL outlawed for price fixing or something like that. Ms. O'Gara styles him a "Groklaw gadfly", but as usual, she is wrong.

I assure you, Groklaw claims no proprietary rights on this Internet gadfly, who can be found all over expounding his personal theories about the GPL, and whose anti-GPL crackpot theories, as they've been called by some, have been repeatedly debunked, by attorneys and others knowledgeable about the GPL. And everybody on the dark side attacks Groklaw these days, including Ms. O'Gara, not just Daniel Wallace. I'm starting to figure out it's coordinated, not random. They seem to just pass the baton around, taking turns like Nazi interrogators in World War II beating prisoners, so none of them ever got tired but the victim never got a moment's relief, not that it helped them win the war. [Note it's a simile, a limited simile, to a technique of a group attacking a single individual by turns, not comparing anyone to Nazis, just to a technique they were famous for.]

Ms. O'Gara spouts a number of inaccurate explanations about the GPL, pretends "Open Source leaders" think the GPL can't stand up in court (I am guessing she means Larry Rosen is the leader, but as usual she doesn't say), garbles what happened in the MySQL case, where the GPL did stand up in court, despite what she thinks, and mischaracterizes attorney Rosen's writing about the GPL, once again (you can read it here, if you must: http://linuxbusinessweek.sys-con.com/read/48732_f.htm&e=10053 ). He already corrected her once. She is, I gather, not concerned with what he says he means, as she continues, after his first correction, to mischaracterize his writing. I wonder. If she keeps that up, at some point, is it actionable?

Here's Larry's comment on her latest piece of work:

Oy vey!
Maureen O'Gara continues to misquote my comments about the GPL in order to fuel her personal vendetta about that license. I have never disputed the GPL's legitimacy or its enforceability as a copyright license.

Many individuals and companies have proposed other licenses they prefer to the GPL for a variety of reasons that I summarize in my book. But to suggest that this means the GPL is invalid, or to propose, as "Groklaw gadfly" Daniel Wallace now apparently does, that the license creates "a restraint of trade," is to misrepresent the legal and business situations that drive license diversity. The GPL is chosen, not forced.

As to Wallace's lawsuit, it's bunk. The conscious effort of the free software community to deliver "free" software shouldn't in any way impede Mr. Wallace's efforts to sell his at a higher price, assuming his software is better. What he really wants, it appears, is the opportunity to sell derivative works of *my* software without paying *my* price--a deal the law doesn't require me to give him.

No kidding, Andrew. You need to look into this. You won't end up with dog doo on your shoes this time, either, if you write about it. I promise.

You might like to do a search [ http://www.google.com/search?q=%22Daniel+Wallace%22+GPL&btnG=Search&hl=en&lr=&client=safari&rls=en ] on Google for "Daniel Wallace" and "GPL", so you can get a measure of the man. By the way, he did have an account on Groklaw, back in the early days, and then he left, because no one accepted his wrongo ideas about the GPL. So many able comments made him look completely wrong about the GPL, I guess he gave up and left for greener pastures.

Of course, Ms. O'Gara discovered this anti-GPL lawsuit by means of her constant scouring of Indiana civil suits in Federal court, I'm sure. We know she lives to understand the law, and we wish her the very best in her pursuit of specialized knowledge. Here's a hint: the proper docket number if you are searching on PACER is 1:2005-CV-00618, or 1:02-CV-00518, not "1:05-cv-0618-JDT-TAB", as Ms. O'Gara wrote. That's the Civil Complaint number stamped on the complaint, but it's not the PACER number, so you can't find it that way. Just a tip. You can also search for it by "Free Software Foundation". Or read the complaint here [ http://www.groklaw.net/pdf/Wallace-Complaint.pdf ] for a belly laugh. [UPDATE: Some are complaining they are having trouble with the PDF. If you are too, please try this version [ http://www.groklaw.net/pdf/Wallace-Complaint_clean.pdf ]. Or update Acrobat Reader. That seems to solve it for some.]

True fixations don't fade upon confronting facts that disprove them, of course, and so finally Wallace has brought a lawsuit against the FSF seeking to outlaw the GPL. I know. It's hilarious. Like the courts are going to shut down the software industry's Linux cash cow, because Mr. Wallace says he personally can't make a living due to the GPL. Hint to gumout: you could try changing your business model. Just a suggestion. You too, SCO.

What? He couldn't find a lawyer to represent him? I can't help but wonder, if we watch carefully, if we'll find a Microsoft and/or SCO tie. Let's see if a lawyer volunteers his services or feeds suggestions informally. If there is a conspiracy, might the strategy be to have someone fight the GPL who has nothing to lose, unlike SCO, who can't fight the GPL and still distribute GPL'd code -- which they still do -- and who are vulnerable to copyright infringement claims, brought by IBM (and conceivably to be brought by the FOSS community at large) if they don't accept the validity of the GPL and yet distribute GPL'd code? Wallace certainly seems to share SCO's original ideas on the GPL and how it is ruining the marketplace for proprietary software. Remember Darl's Open letter on copyright [ http://www.sco.com/copyright/ ], which I called "Darl's Greed is Good Manifesto" [ http://www.groklaw.net/article.php?story=20031204195915515 ] ? And then there is the fact that MOG keeps giving him prominence when no one else I've seen takes him seriously.

Hey, FSF. I hope you are subpoenaeing his emails -- and Maureen O'Gara's too -- going back a couple of years, at least. We might get to the bottom of the conspiracy, if it exists, if my instinct is right. (Do I hear the sound of delete buttons clicking all over the country?... naughty, naughty. Oh, and smashing your hard drive... it's been tried, and it didn't work.)

Just for history's sake, here is one attorney's answer [ http://www.linuxbusinessweek.com/story/43614.htm+%22Daniel+Wallace%22+GPL&hl=en&start=12&client=safari ] to a Daniel Wallace letter to the editor [ http://www.google.com/url?sa=U&start=2&q=http://www.linuxbusinessweek.com/story/43495.htm&e=10053 ] Linux Business Week published (back when they called it that, prior to waking up to the fact that their name was a trademark violation), under the article title, "SCO Wins Convert to its GPL-Is-Invalid Argument". His letter was signed as "associate member" of the FSF, implying conversion. Trust me. There was no conversion. He must have joined the FSF the same way he joined Groklaw, to attack, one presumes, as he now has done officially. Just a truly dishonorable moment in journalistic history, in my book. Oh, he's not a lawyer, either, which his letter did not make clear.

For information on the MySQL case, I collected some [http://www.groklaw.net/article.php?story=120&query=MySQL ] back in July of 2003. Here's an attorney [ http://library.lp.findlaw.com/articles/file/00050/008924/title/Subject/topic/Intellectual%20Property%20Law_Licensing/filename/intellectualpropertylaw_1_239 ] explaining the judge's order [ http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=saris/pdf/progress%20software.pdf ] and how it validated the GPL in Progress Software Corp. v. MySQL AB, 1st Cir., No. 02-1402. The Free Software Foundation's attorney, Eben Moglen, submitted an affidavit in the case, which is here [ http://www.gnu.org/press/mysql-affidavit.html ].

The dynamic duo. Maureen O'Gara and Daniel Wallace. What a couple. It's a metaphor, one that informs us which side will win this anti-GPL war -- you can tell by the quality of the warriors on each side that the winner won't be Microsoft. They'd best learn to get along with and play nicely with the GPL. Get some execs on it right away, Microsoft. This is a Quixotic quest that can only damage you, battling the GPL. Windmills can hurt you if you draw your sword to fight them, as can the GPL.

UPDATE:

Groklaw's belzecue has found a helpful press release regarding the MySQL case, but I'll let him tell you himself:

MOG says:
NuSphere maintained that it hadn’t violated the GPL at all. It said the idea that it violated the license by statically linking proprietary software to MySQL is an extreme interpretation of the GPL.
It also claimed that MySQL had broken the GPL by adding conditions, something GPL disallows, demanding that a commercial license be used for code distributed over a network because of linking.

NuSphere had a problem with the Free Software Foundation’s view that even a trivial violation of the GPL puts the licensee at the mercy of the licensor, who may legally refuse to re-authorize the licensee to distribute the licensor’s GPL software even if the licensee fully rectifies his earlier violation.

Now, how about we let NuSphere speak for itself [ http://www.nusphere.com/releases/2002/110702.htm ]:

BEDFORD, Mass. and UPPSALA, Sweden-November 7, 2002 — NuSphere Corporation, an independent operating company of Progress Software Corporation, and MySQL AB, developer of the world's most popular open source database, today announced a settlement of the dispute between the two companies regarding use of the MySQL™ trademarks, copyrights, and compliance with the GNU General Public License (GPL). The settlement resolves all outstanding issues between the two companies including ownership and use of trademarks and domain names and assignment to MySQL AB of copyrights for all NuSphere contributions to the MySQL program, and MySQL AB has issued a letter to NuSphere Corporation verifying GPL compliance

04:49 PM EDT