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More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Monday, June 21 2010 @ 01:38 PM EDT

Were you imagining that "Paul Murphy" was going to apologize for his attacks on Groklaw or for being so wrong in his support of SCO? Or that he'd keep his promise to stop blogging if SCO lost? Or that he'd finally admit SCO has no case?

Au contraire. He continues to insult, and he predicts SCO, or a new owner of Novell, will surely succeed yet in fulfilling SCO's plot, in what he believes, if I've understood him, will be a legal Hail Mary pass to go down in history. The new FUD is his article, Suicide by Victory: More on SCO, in which he predicts gloom and doom for Linux because Novell won at the jury trial in Utah.

I know. He's so funny. It makes no sense. But I'll answer him seriously anyway. I'm beginning to wonder if he and Marc Rochkind were the guys who cooked up this whole fiasco. Rochkind, you ask? Yes, he tells us what his "testimony" was, even though Rochkind never testified and his expert report for SCO was and is under seal. I don't know how that strikes you, but it strikes me that perchance "Murphy" has more of a direct connection to the SCOfolk than he tells us. If so, this article might represent a trial balloon, in which case it's worth responding to, in the hopes that the world will be spared the long version.

Here is where his article is, if you just must give him clicks: suicide-by-victory-more-on-sco/1832

And here is "Paul Murphy", in as close to an admission as he's likely to get, but not close enough for my taste:

Well I was clearly wrong about the jury verdict - still find that hard to believe - but not, I think about the facts of the case. One of those facts being that SCO did not have a scheme against Linux - their lawyers tried to license Linux as a way of valuing the claim against IBM, nothing more (or less either since that was a very bad idea.)
SCO did not have a scheme against Linux? The man should write history for Stalin.

He not only is still right, in his own eyes, or claims to be, he insists that we have SCO all wrong if we think they were attacking Linux. Not at all, and he says he tried to debunk the "myths surrounding this 'attack on Linux' idea" back in October of 2003. It was just about putting a dollar value on the copyrights for the SCO v. IBM litigation. Ten years later, that's his story and he's sticking to it. Well, seven, but it feels like ten. ZDNet, what are you thinking publishing this? Seriously. Is there no requirement that articles must match reality at all? Do you employ fact checkers? Editors? Is he a lawyer or legally trained, by the way? Does he even quote a lawyer to support his musings on the law?

He states it was never about copyrights for SCO, to which I'd ask him, how do you know SCO's motives?:

1) the copyrights are a distraction - this would have left the way clear for the original lawsuit to go ahead and it didn’t have to have any impact on Linux.
Puh lease. It was about copyrights, and it was intended to impact Linux substantially. And not in a good way. In case you point out I'm not a lawyer either, here's one for you, Greg R. Vetter, who wrote up a legal paper [PDF] about Open Source licenses, using SCO as Exhibit A -- he uses Groklaw in places as a reference source -- and Vetter says that SCO suing AutoZone shows SCO absolutely intended to go after end users for copyright infringement because it did so. That's what it was about.

I don't recall "Murphy" being referenced in any legal work but SCO's, now that I think of it -- SCO positively dotes on his every word -- but since he claims this saga was not about Linux and not about copyrights and merely about licensing Linux to come up with a price for damages in the SCO v. IBM litigation, perhaps he can tell us why SCO sued AutoZone for copyright infringement? Here is the complaint, so you can see for yourself what it was about. By the way, if he were correct that this was SCO's motive, may I just say how much I despise any company that would do such a disruptive thing? Poor AutoZone, being used, in this posited scenario, as a means to an end, without actually having done anything to deserve it.

And please explain to us, Mr. "Murphy", why SCO wrote a letter to Congress [PDF] alleging that Open Source was damaging the US economy and that Linux “gained many of its capabilities through the illegal incorporation of code ‘borrowed’ from the rightful owners”)? Sounds like an attack to me. Not to mention being untrue. Mr. "Murphy" may not see it that way, but what about a reality check. How is that *not* an attack on Linux? What is he claiming, that all the public attacks were just to make some money from IBM?

And why the aspersions on Linux users as criminally inclined? Remember SCO pretending that the MyDoom malware was from Linux programmers, when it turned out to be Windows guys, criminal gang types in Russia wanting to send spam using other peoples' computers? Why the GPL-is-Unconstitutional gambit if SCO didn't mean to attack Linux? Perhaps he can explain David Boies' threatening words against Linux users here in this 2003 teleconference, where he clearly threatens Linux users with the DMCA and copyright infringement litigation.

It's true SCO *also* wanted to get money from licensing Linux, and in fact they did so with SCOSource, or as another lawyer, Olufunmilayo B. Arewa, puts it in his paper, Strategic Behavior and Competition Intangibles, Intellectual Property and Innovation [PDF], they were attempting to extend the scope of their copyright rights, if they had actually had any:

The SCO-Linux dispute highlights how a holder of or entity with the right to enforce a copyright may seek to expand the effective scope of the right and attempt to extract licensing revenues from exercise of previously unrecognized rights. SCO asserts that Linux includes copies of segments of the Unix code in which SCO has rights. As a result, SCO claims that it is entitled to receive licensing revenues from all users of Linux.
So over for SCO. No copyrights. It's so funny when bullies get knocked down in the playground, don't you find? But that is what this was about, all right, trying to extend what SCO owned. Except it didn't. But imagine a world in which it could succeed.

This lawyer states, by the way, "Linux has been characterized as a Unix-family operating system but is neither genetic Unix nor a trademark Unix." Amen. He references Eric Raymond & Rob Landley's OSI Position Paper on the SCO-vs-IBM Complaint, which SCO really should have read back in 2003. It would have saved them and us a lot of grief.

The lawyer has another theory on why SCO did what it did:

Through the threat of litigation and aggressive litigation tactics, SCO has in fact persuaded a number of companies to pay the license fees so as to avoid litigation, despite the fact that many of SCO’s claims remain largely unsubstantiated.

The value of the intellectual property rights it asserts are connected to SCO’s strategic vision and quest for profitability. This value, however, has very little if anything to do with innovation. SCO’s aggressive tactics have clearly been orchestrated within an eye toward the value of SCO’s stock. Prior to the announcement of its IBM lawsuit, between October 29, 2002 and March 5, 2003, the day before it announced its suit, SCO’s stock had traded for an average price of $1.43 per share.302 From the time of announcement of the IBM suit in March 2003 until April 2004, SCO’s stock traded at an average price of $11.43 per share, an increase in average stock price of close to 700%.303 The fact that SCO first showed the allegedly infringing source code to stock market analysts reflects SCO’s market-driven strategy. A big part of the value that the assertion of Unix enforcement rights gives SCO relates to SCO’s market capitalization.

This is an example of how companies can derive value intangibles in a way that gives incentive to value maximizing behaviors with respect to intangibles that may be asserted based on even the most tenuous of intellectual property rights claims.

I'd opine that suing Novell and seeking damages for a drop in SCO's stock value also is quite germane as to "SCO's market-driven strategy". It didn't work out for SCO, but they tried. The lawyer continues:
The reaction to SCO’s claims has been largely quite negative. SCO’s tactics do reflect a dominant intellectual property portfolio management strategy used today whereby companies attempt to secure streams of licensing revenue from existing intellectual property rights. The fact that SCO is using such tactics is evident in the statements of SCO officials when they describe their overall strategic approach. Darl McBride, the Chief Executive Officer of SCO, told The Economist, for example:
Immediately, he says, he started thinking about “how to monetise our assets”—ie, Caldera’s [SCO’s] rights to Unix . . . Sure enough, says Mr. McBride, he soon found “massive and widespread violation”’ of Caldera’s [SCO’s] intellectual property in the Linux code. At a more general level (and surprisingly for a Linux distributor), he found the entire free- software trend “communistic”, he says: “we don't get the whole free-lunch thing.”
SCO’s timing, however, also appears to reflect a tactic of a market incumbent or aspiring market incumbent seeking to delay or otherwise hinder the development of new and competing technologies.

Linux has only recently gained significant support from major technology companies, including IBM, Novell and Hewlett-Packard.287 In making assertions against Linux at the particular point in time that it chose, SCO may have inflicted some damage on Linux and may have had a negative impact on the competitive position of Linux by making prospective Linux users more cautious about implementing Linux-based technologies for fear of litigation.

A relationship may also exist between SCO and Microsoft, a major vendor of proprietary software technologies and a fierce opponent of open source, nonproprietary technologies such as Linux, which has “struggled unsuccessfully to stem the Linux tide for several years.”

Ah. The sweet smell of truth. And may I just mention how much the world despises Microsoft for its tactics? I believe it's a factor in why folks no longer adore their products. They may use them when they have to, but the company's reputation isn't glowing. No one respects a bully.

After commenting on the GPL licensing of Caldera's code, this lawyer sums up:

One way to interpret SCO’s current strategy is as one that attempts to compensate for the failure of a business model by moving towards an extractive model that involves wringing maximum benefits from prior inventions of others in which SCO had no involvement. The fact that these inventions were cumulative ones in which many parties played a role underscores the consistent tension between communal creations and individual proprietary interests in the products of such creations that is so characteristic of the operation of intellectual property frameworks under the intangibles paradigm.
And that last is exactly why buying Novell to get the Unix copyrights, such as they are, is a losing gamble, in my view. And I dare say I know quite a lot more than the average investor about Unix and copyrights. He continues, more on the theme of the damage SCO caused, while executives and insiders benefited, albeit temporarily:
Although SCO’s stock has since declined in value, SCO and its principals have benefited significantly from these positive market effects. SCO corporate insiders sold stock worth close to $4.5 million between March 10, 2003 and April 2004.

Some have asserted that one motivation for the IBM lawsuit was a desire by SCO to be acquired by IBM. SCO’s strategy was an important factor in its being able to attract investors, and SCO was able to close a $50 million investment round in October 2003. Part of SCO’s strategy has been to vigorously attack the open source movement at all levels, through appeals to Congress, open letters to the public, court cases and aggressive licensing letters.

Once rights such as those claimed by SCO are asserted, the current intellectual property rights climate means that multiple litigations may ensue, all being initiated with at times less ability, because of verifiability issues, to understand the basis of competing claims. The use of intellectual property rights in this fashion is of concern because it imposes immense transaction costs while having little productive benefit in terms of creation, invention or diffusion of technologies and may effectively operate as an anticompetition force.

So, it was an attack on Linux. Deeper, it was an attack on other people's ownership rights to their own code and the license they chose for their own creative work. Is that how IP law is supposed to work? And then seven years later, here comes "Murphy" claiming it was never an attack? After Novell and IBM have been compelled to spend literally millions to defend against SCO's attack? That's a bit over the top.

Here's "Murphy's" theory of the case, why he thinks SCO is right, by the way:

It’s my belief that the official System 390 Linux port done in Germany and released to the community via SuSe was done with the assistance of people who worked, or had worked, on AIX maintenance and development - and who therefore brought a lot of that system specific knowledge and access along with them. (It didn’t help that the project was an emergency funded, ego driven, put down response to a much better and cleaner but highly unofficial Linux 390 port by a guy who’d managed to offend his entire management chain within IBM.) I think the author of the advanced unix programming book [Marc Rochkind] testified at length about the impact this had on the code base ...
Here's IBM's copyrighted work entitled Linux Kernel S390 Support [PDF], by the way, in case you are not a geek and therefore are tempted to believe him. But even if SUSE had done something it shouldn't, and I don't believe it did, but even if, why would IBM care or be responsible for that? And as for Linux end users, if SUSE did it, Novell owns SUSE, and so Novell certainly can't sue over anything it's been releasing under the GPL for years, unless it wishes to sue itself. And should it sell assets to someone who wants to sue end users, BLAM. There's the GPL again, hitting these vicious greedo investment types in the face once again. Can't they learn in any way but the hard way?

You see, you can't sue over code you freely licensed to the world already. Duh. Don't these investment guys even notice what happened to SCO? How dumb are they?

That is a real question. Just how stupid are guys on Wall Street? I mean, they nearly destroyed the world's economy already. Where do they draw the line? Open Source and Linux are valuable to the world's economy. People wrote it to benefit the world freely, not so a cabal of selfish men who care only about money could kidnap it and tie it to the railroad tracks. Do you really, seriously believe the world will let you?

Maybe Murphy doesn't read Groklaw the way he should. IBM presented that copyrighted work as one of hundreds of exhibits in support of its summary judgment motions, which will be revived if and when SCO v. IBM is revived, and which I believe will absolutely crush SCO or any Son of SCO. What we learned at the recent trial was that SCO was bluffing, holding nothing. Really. Nothing. Murphy's posited theory is nothing too.

By the way, his slip is showing. Marc Rochkind never testified at all. He never will, I don't believe in SCO v. IBM, except in some alternate universe. He was one of SCO's experts that it wanted to use, but he was wanting to testify about methods and concepts -- Murphy himself states that it's not line for line copying even being alleged, by the way -- and because SCO failed to bring up methods and concepts as their theory of the case until discovery was over and never did identify code with specificity in connection with methods and concepts, the judge ruled it was too vague, too late. He can't testify now.

Interestingly, his expert report was never made public. How would Murphy know what he said, one wonders, unless he has ties to SCO or its legal team and someone is spilling some beans inappropriately? Sealed materials are not supposed to be leaked.

"Murphy" then spins some ideas, if you can call them that, on how Novell's win is actually a loss for Linux:

3) now that copyrights have been made an issue, someone capturing Novel can most probably really do what SCO’s lawyers only thought they could do: issue real Linux licenses and make them stick....
Nah. No one will buy one, actually. You know why? Because Linux comes with a license already, one that forbids any license on top of that license. If anyone tried to do that, they'd get sued, actually, for at least inducing copyright infringement. Plus, we saw that movie already, and we know how it comes out.

Deeper, while the judge and the jury agreed that Novell didn't transfer any copyrights to Santa Cruz, that isn't the same as stating that they have valid copyrights on any SYSV code mentioned so far in any litigation SCO started. SCO came up essentially empty as far as showing any meaningful code.

There is one more piece of silliness in his argument, in response to the following question:

Do you believe that Novell retained the right to control SYSV contracts (I believe this was in section 4.16 of the APA) and could have prevented the SCO - IBM lawsuit?
And here's his answer:
No - whoever holds the AT&T contract is contractually obliged to enforce it - i.e. if Novell held the rights, they also held the obligation.
Except that's not true. The APA specifically said Novell could waive infringement. So there is no contractual obligation to enforce, as I read the contract. Here's the section referenced, 4.16, the part about waiver:
4.16 SVRX Licenses. (a) Following the Closing, Buyer shall administer the collection of all royalties, fees and other amounts due under all SVRX Licenses (as listed in detail under item VI of Schedule 1.1(a) hereof and referred to herein as "SVRX Royalties")....

(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. Buyer shall not, and shall have no right to, enter into future licenses or amendments of the SVRX Licenses, except as may be incidentally involved through its rights to sell and license the Assets or the Merged Product (as such term is defined in the proposed Operating Agreement, attached hereto as Exhibit 5.1(c)) or future versions thereof of the Merged Product.

Novell is the Seller, Santa Cruz the buyer. It says Novell can direct SCO to waive and if it doesn't, Novell can insist.

That is the opposite of being compelled to enforce. And Judge Stewart said exactly that, that Novell can waive any infringement by IBM or Sequent or any other licensee.

Is he just being silly to get hits? I don't think so. Here's the part where he floats an idea:

And that brings us to one of many consequences arising from the jury verdict: because if the deal didn’t transfer the rights, it’s reasonable to conclude that the obligations didn’t transfer either. Given that, I’d guess (and this is pure speculation: actually working out the details would take legal expertise and a lot of time) that it should now be possible to argue that the verdict, along with Novell’s testimony leading to it, negates the entire sales agreement - and because Novell’s own CEO and chief negotiator didn’t know what they weren’t selling, an allegation of fraud isn’t any crazier than what actually happened with the copyrights - possibly leaving Novell on the hook for all of the costs and losses incurred by SCO since this started.
First, may I reference the testimony of Novell's Jack Messman, who was a board member and later CEO, who testified that he knew that Novell wasn't selling the copyrights. He didn't intend to, because the Novell board decided Santa Cruz didn't have enough money to buy the copyrights. See what I mean about ZDNet needing fact checkers? Here's what Judge Ted Stewart just wrote about Novell's witnesses and what they did know and did intend, as per their testimony:
b. Novell's Witnesses

48. Tor Braham, outside counsel for Novell and lead drafter of the APA, testified that Novell was selling to Santa Cruz the UnixWare business while Novell "retained all of the economics and relationships arising out of the UNIX business." Mr. Braham testified that the exclusion of the copyrights was agreed upon by the parties. He also stated that the purpose for excluding the copyrights was to protect Novell's interest in the UNIX business that it had retained. Mr. Braham further testified that Santa Cruz could use the assets that it received "to then build a new version of UnixWare, and it would own the copyrights in what it built on top of the base UNIX and UnixWare software that it had a copy of." Santa Cruz could then license that product to third parties.

49. David Bradford worked as Novell's general counsel from 1985 to 2000. Mr. Bradford testified that it was "very clear" that Novell retained the copyrights. Mr. Bradford further testified that the Novell board of directors agreed that under the APA Novell would retain all of its copyrights.

50. James Tolonen, Novell's Chief Financial Officer at the time of the APA, testified that the copyrights were purposefully excluded from the assets to be transferred to Santa Cruz.

Mr. Tolonen explained that retaining the copyrights was done: (1) as "part of [Novell's] strategy and [was] really necessary under the nature of the transaction"; (2) because Santa Cruz was relatively small and could not afford the entire value; (3) to avoid ownership issues with other products; and (4) because of concerns with the long-term viability of Santa Cruz. As will be discussed in more detail below, Mr. Tolonen also testified that Amendment No. 2 was meant to address use rights, not ownership of the copyrights.

51. Michael Defazio, an Executive Vice President at Novell at the time of the APA, testified that the intent of the APA was not to transfer the copyrights and that the copyrights were retained as a way to "bulletproof" Novell's financial asset stream.

52. Jack Messman was a member of Novell's Board of Directors at the time of the APA and would later become CEO. Mr. Messman was present for a telephonic meeting where the APA was discussed. Mr. Messman testified that, based upon that meeting, he understood that the copyrights were not sold as part of the transaction between Novell and Santa Cruz and that there was a specific discussion on that issue. Mr. Messman stated Novell retained the copyrights because SCO was a "fledgling company" and because Novell was worried about the SVRX revenue stream. Mr. Messman tesfied that retention of the copyrights "was the key part of the deal that convinced the board to do that deal." Mr. Messman further testified that the copyrights were not required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies as the plan was for SCO to develop new code.

I've left out the footnotes, but if you want to trace what he bases his decision on, do take a look. I would suggest Mr. "Murphy" do so, by the way, since he seems to have no fact checkers to help him get facts right. He is talking about the then-CEO Robert Frankenberg, and his deputy Duff Thompson, and maybe Ed Chatlos, who claimed they thought copyrights were supposed to transfer, and here's what the judge wrote about them:
10. In 1995, Robert Frankenberg, then-CEO of Novell, made the determination that it would be in the best interest of Novell to sell the UNIX business. Mr. Frankenberg appointed Novell Senior Vice President Duff Thompson as the individual responsible for accomplishing the sale of the UNIX business. Mr. Thompson and others from Novell had discussions with various individuals from Santa Cruz, which was ultimately chosen as the buyer.

11. It was the initial intent of Novell to sell the entire UNIX business. However, during the negotiations, the parties realized that Santa Cruz could not afford to pay cash or stock for the entire purchase price sought by Novell. Therefore, the deal was structured so that Novell only sold certain of the assets that it had acquired when it purchased the UNIX business from AT&T. In particular, Novell sold Santa Crux the UnixWare business, that is the right to exploit and develop UnixWare. As will be discussed below, Novell retained substantial rights in the UNIX business, that is the UNIX System V source licensing business where source code was provided to customers to create a binary product. Specifically, Novell retained the UNIX and UnixWare copyrights and the right to receive SVRX royalties. For its part, SCO was to act as Novell's agent in the collection of those royalties and SCO acquired certain UNIX-related assets, such as contracts and employees, to aid in this role....

38. Robert Frankenberg, the CEO of Novell at the time of the APA, testified that it was his intent to sell the UNIX business in its entirety, including the UNIX copyrights. However, Mr. Frankenberg's testimony revealed that he was only involved in the high-level negotiations, that he did not read the entire APA before he signed it, and that he relied on the advice of the attorneys and others in accepting the APA.

39. Duff Thompson, the Senior Vice President of Corporate Development for Novell at the time of the APA, testified that he was instructed to sell the UNIX business in its entirety. As part of that sale, Mr. Thompson testified that he "assumed" that the copyrights were being sold as well. Despite this assumption, Mr. Thompson offered no testimony on any actual discussions concerning the copyrights. Mr. Thompson also testified that around the time of the APA he had already decided to leave Novell. Mr. Thompson subsequently became a board member of Santa Cruz and ultimately of SCO. Mr. Thompson was part of the SCO board when SCO made the decision to sue Novell and voted in favor of that decision. Mr. Thompson also has a financial interest in SCO and stands to gain financially if SCO is successful in this lawsuit.

40. Edward Chatlos, the Senior Director of Strategic Relationships at Novell at the time of the APA, was a primary negotiator of the deal between Novell and Santa Cruz. Mr. Chatlos testified that the general nature of the transaction was to sell"the entire business," including the copyrights. Mr. Chatlos admitted that his wife works for SCO and that she had stock options that could become more valuable if SCO succeeded in this lawsuit.

I'm not saying no fraud is in the picture, but surely not the type "Murphy" imagines. Here's the judge's conclusion:
c. Conclusions from the Testimony

53. The Court finds the witnesses presented by SCO on the parties' intent to be less credible than Novell's witnesses for a number of reasons. First, many of SCO's witnesses were involved only in the "high level" negotiations and did not participate in the actual drafting of the APA where the details of the deal were agreed to. Thus, while these individuals may have provided relevant testimony as to what the parties were intending or hoping to do at the outset, their testimony has less relevance as to what actually happened as the negotiations unfolded and the APA was actually drafted. This fact is critical here because the transaction could not be completed as it had been initially envisioned, specifically it had to be structured to account for the fact that Santa Cruz did not have the financial resources necessary to purchase the entire business and there was uncertainty about its long-term viability. Second, many of these witnesses seemed to take for granted that the copyrights would transfer, but there was surprisingly little evidence of any actual discussions concerning the copyrights. Finally, a number of SCO's witnesses, though not all, have a direct financial interest in this litigation....

e. Conclusion on the Intent of the Parties

61. Based on the evidence presented at trial, the Court finds that it was not the intent of the parties to transfer ownership of the UNIX and UnixWare copyrights. Rather, the Court finds that Novell intentionally retained the UNIX and UnixWare copyrights. The Court finds that the copyrights were retained by Novell for the following reasons: (1) to protect the SVRX royalty stream; (2) because Santa Cruz could not afford to purchase the entire UNIX business; and (3) because of concerns with Santa Cruz's future financial viability.

That's that. No fraud. Clear intent, expressed in the APA, which was sent to all parties, and which some maybe didn't bother to read. You should read what the judge wrote about the Santa Cruz witnesses, for more hilarity.

Anyway, some rights did transfer, just not ownership of the copyrights. And we know obligations did transfer, even without the copyrights, because SCO has to pay Novell millions that it was obligated to pay back in 2003 when it did the deal with Sun. It failed to do so, and so the court has ordered it to pay now. It just did agree to pay over to Novell what it had put into a constructive trust, indicating it will not appeal that issue.

Where does he get his ideas, I wonder? Or his faith is SCO's case? He seems to be predicting a SCO victory in the end in spite of SCO losing before two judges and one jury. Well, more than that, actually, since it lost the DaimlerChrysler case too. Yet he has the nerve to claim that those who predicted SCO would lose do so out of sheer meanness:

Overall this is a case in which the next surprise has almost always seemed a red herring to those judging on the basis of the underlying issues - and red meat to those to those using any available means or information to attack SCO.
Bub, it's SCO attacking Linux, and it's not a matter of viewing SCO's legal assertions as red herrings. It's that they are wrong.

His predictions for the future are quite strange:

Right now, I have no idea about what’s going to happen next: imaginary scenarios run from IBM trying for cover by directly or indirectly acquiring Novell, to Microsoft buying them out and ultimately making Linux either its own core OS or impractically expensive - conceivably we could even get an outbreak of sanity - but one thing seems clear: with this much money on the table somebody’s going to do something, and just about all the longer term scenarios look net negative for the Linux and open source communities.
I'm trying not to laugh out loud about Microsoft buying Novell. Microsoft can't buy Novell without a blizzard of antitrust complaints being filed against them. I would file one myself, if no one else did. And I wouldn't need to. I surely could write a great one, having all the facts handy and all about Microsoft funding SCO, directly and, according to two SCO insiders, Michael Anderer [memo and letter] and Lawrence Goldfarb [PDF], also indirectly, with the anticompetitive goal of destroying Linux, and particularly Red Hat. If it dared to buy Novell, even through a partner, there would be consequences.

Personally, after all these years, I think it was more about trying to inspire IBM (and the world) not to use Linux in supercomputers and mainframes, by the way, from Microsoft's standpoint, not just servers. But in any case, whoever buys Novell for Unix copyrights is buying a pig in a poke. I won't elaborate much on that point, because I love the idea of some idiot wasting his money on such an evil plot only to end up like SCO, holding absolutely nothing but failed litigation and a bleak future indeed. Not that the idea of Microsoft distributing GPL'd software isn't an appealing thought, but it's in the Nevah Happen category. It would invalidate the second wave of litigation attacks on Linux, the patent infringement claims.

You can't kill Linux. It doesn't care about you. It doesn't need to. Thank you, Mr. Stallman, for the GPL. And you can't coopt it. You can coopt individuals. Microsoft already has. You can subvert organizations too. We saw that in the OOXML fiasco at ISO. But Linux can't be bought. It can't be bought off. And it can't even be subverted. That is precisely why SCO can't win, and neither can Microsoft, and neither can anyone. Thank you, Linus, for choosing such a powerful license, one that intentionally protects the freedom of the code from the vicious and the greedy.


More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win | 391 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: bsm2003 on Monday, June 21 2010 @ 01:53 PM EDT
You know the drill.

[ Reply to This | # ]

News Picks Here.
Authored by: bsm2003 on Monday, June 21 2010 @ 01:54 PM EDT
You know the drill.

[ Reply to This | # ]

Off Topic Here.
Authored by: bsm2003 on Monday, June 21 2010 @ 01:56 PM EDT
You know the drill.


[ Reply to This | # ]

More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: joef on Monday, June 21 2010 @ 02:04 PM EDT
Was the phrase "Murphy's Law", or "The Law According to
Murphy?" I forget.

[ Reply to This | # ]

More "Paul Murphy" *just the usual* Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: eggplant37 on Monday, June 21 2010 @ 02:12 PM EDT
I keep wondering who that is behind the Paul Murphy mask. I keep
wondering if it's a known trolling journalist who thought that he
needed personal protective weaponry for fear of the nassssty
Linuxes trollses. I can't name names, since I can't prove a thing,
but the rant reminds me of that other golem's style.

[ Reply to This | # ]

More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Monday, June 21 2010 @ 02:40 PM EDT
I really don't understand why he is hanging his hat on s390 Linux. After using
s390 Linux since almost the moment it came out, it is mostly just bog-standard
Linux. That AIX code would be of value when adapting Linux to run on s390
hardware seems to be over-reaching quite a bit, since the hardware base for AIX
is *SO* different.


[ Reply to This | # ]

Microsoft buying [Novell] out and ... making Linux its core OS
Authored by: Anonymous on Monday, June 21 2010 @ 02:52 PM EDT
At least one thing that he said was tantalizing, though quite fantastic!

[ Reply to This | # ]

More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: jmc on Monday, June 21 2010 @ 02:57 PM EDT
I think Rudy de Haas aka Paul Murphy just gets a kick out of spewing nonsense
partly because he hasn't got anything sensible to say and partly because he
enjoys the reaction - as here.

This whole item could be troll-feeding perhaps?

[ Reply to This | # ]

"The man should write history for Stalin."
Authored by: cpeterson on Monday, June 21 2010 @ 03:04 PM EDT
Remembering the old saw "History is written by the victors", Mr.
Murphy finds the fact that he still can write as a sure sign that he is among
the "victors".

People who want to monetize *everything* seldom have any qualms about monetizing
their own integrity; then they wonder why it has so little resale value.

[ Reply to This | # ]

System specific knowledge
Authored by: OutRiders on Monday, June 21 2010 @ 03:05 PM EDT
"who therefore brought a lot of that system specific knowledge and access along with them"
IMNAL, but I believe that bringing "system specific knowledge and access along with them" is not illegal. This is what experienced programmers and engineers normally do.

[ Reply to This | # ]

AT&T contract
Authored by: Anonymous on Monday, June 21 2010 @ 03:09 PM EDT
No - whoever holds the AT&T contract is contractually obliged to enforce it - i.e. if Novell held the rights, they also held the obligation.
Except that's not true. The APA specifically said Novell could waive infringement. So there is no contractual obligation to enforce, as I read the contract.
I don't think the APA could be legally binding with respect to Novell's obligations to third parties under the SVRx licenses. The APA would have probably made SCO Novell's agent in carrying out those obligations, and it would make no sense for the APA to talk about Novell waiving rights it didn't have, but that's as far as it goes, I think.

I think Paul was trying to conflate Novell's purchase of USL with taking out a license from AT&T, so it is as if Novell has an obligation to AT&T to enforce the terms of the contracts.

Either that or he was conflating licensee with licensor. As an example of a typical license, the original AT&T / IBM license said:
2.06 LICENSEE shall use its best efforts to enforce the agreements with DISTRIBUTORS and customers specified in this Sublicensing Agreement.
Either way, he seems to be trying to apply that obligation to Novell.

It's hard to make sense out of nonsense, of course, but I think that is the bogus logic he was trying to slip by people. People know that Judge Stewart ruled that the APA allowed Novell to waive SCO's ability to enforce the contracts, so I don't think this FUD is about the APA anymore.

[ Reply to This | # ]

"Paul Murphy" Biography...
Authored by: kds on Monday, June 21 2010 @ 03:18 PM EDT
... as noted as a link on the ZDnet website (bold mine):
Originally a Math/Physics graduate who couldn't cut it in his own field, Paul Murphy (a pseudonym) became an IT consultant specializing in Unix and related technologies after a stint working for a DARPA contractor programming in Fortran and APL. Since then he's worked in both systems management and consulting for a range of employers including KPMG, the government of Alberta, and his own firm. In those roles he's "been there and done that" for just about every aspect of systems management and operation.
I don't think he is cutting it in this field either. But that is my opinion based on his story.

[ Reply to This | # ]

I wonder if it's about the "stock"?
Authored by: Anonymous on Monday, June 21 2010 @ 03:33 PM EDT
I mean, just how much of the feed for this poor dead cow did Paul Murphy supply?
And now that it's dead and the meat has been found to be not only diseased, but
has spoiled, is he just desperate to recoup some of his own cost? Because, IMO,
not even the glue factory is going to want to take anything of what's left. In
fact, they're probably going to have to call in a HazMat team to safely dispose
of the remains... once they can chase away the vultures that are still clinging
to the corpse.

[ Reply to This | # ]

Thanks PJ ... Where's Alice?
Authored by: Anonymous on Monday, June 21 2010 @ 03:39 PM EDT
Read this article at lunch time and was less than impressed then. Was
considering sending you the link for your take on it because it did seem that I
was staring through the looking glass.

A thorough and surgical gutting of his attempted perversion of the facts.

phantomjinx (not logged in)

[ Reply to This | # ]

My favorite:
Authored by: Anonymous on Monday, June 21 2010 @ 03:49 PM EDT

Of all his logic disconnects, I'd have to say his instance that "it's about the methods and concepts, not about copyright" that is the most amusing to me.

If it truly isn't about copyrights, it must be contractually related. If it is contractually related, only those who are signatories to the contract can be held liable for any breach of the contract. Third parties are entirely untouched. Ergo: Linux is safe.

If Mr. Murphey is being honest then it appears he believes a contract between him and his bank can be used to sue the US President into paying for Mr. Murphey's bank fees.


[ Reply to This | # ]

Interesting Article - Thanks PJ.
Authored by: SilverWave on Monday, June 21 2010 @ 03:53 PM EDT

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

I like that one
Authored by: Anonymous on Monday, June 21 2010 @ 04:51 PM EDT
"Well I was clearly wrong about the jury verdict - still find that hard to

I am impressed. Deeply impressed. Others would take this as a strong hint to
adjust their position. Ok, not all, some are resistant to reason.


[ Reply to This | # ]

Lemme get this straight...
Authored by: sirwired on Monday, June 21 2010 @ 04:53 PM EDT
The protracted, and costly, Linux litigation's only purpose was to set damages
amounts for IBM? If so, that has to be the most boneheaded business and legal
strategy on the planet.

Does he realize that if Novell hadn't perused the copyright question, IBM almost
certainly would have?

Does he realize that if SCO thought suing IBM was a good idea (it wasn't), they
were going to need every last dime they had to fund that battle, and that a
separate fight against Linux users would drain needed funds from that case?

Does he realize that IBM has a gigantic "defensive" IP portfolio, and
takes rather unkindly to highly public IP extortion attempts? And that they
have a IP portfolio so strong, they could easily counter-sue SCO for a
half-dozen different reasons?

Does he realize that SCOs few remaining customers were likely to flee at the
first opportunity after it decided to threaten to sue Linux users, in addition
to suing IBM? Which would in turn deprive SCO of much-needed cashflow? (Most of
SCOs users also used Linux, and didn't get that Linux from SCO. Suing your own
customers is generally regarded as Not A Good Idea.)

Does he have any understanding whatsoever of the Parol Evidence Rule? It
literally DOES NOT MATTER what the executives thought they were buying. Even if
they testified to the gospel truth about the understanding of the deal, the
plain language of the contract and testimony of the lawyers that wrote it always
trumps what the executives "thought." If you are buying a house for
$300k, and you sign a deed that says $300k, but were told it was $100k, it DOES
NOT MATTER. If the written contract plainly says $300k, and you sign it, your
oral contract loses. Every time. (Think precedence rules in C, for you geeks.)

[ Reply to This | # ]

Great job, PJ
Authored by: artp on Monday, June 21 2010 @ 05:09 PM EDT

Great job, PJ, especially on an article that I thought you didn't need to write.

I think that the burden of making sensible responses to such drivel as this is one of the strategies that the FUDsters are using. In my previous comment, I mentioned Novell's response to tSCOg's Motion for Judgment/New Trial as the best example of sanity answering insanity.

But you sure do a great job of responding. As long as you got the pep, let 'em have it!

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley sinks ?

[ Reply to This | # ]

  • Great job, PJ - Authored by: PJ on Monday, June 21 2010 @ 06:20 PM EDT
    • Care to share? - Authored by: Anonymous on Monday, June 21 2010 @ 08:26 PM EDT
    • Great job, PJ - Authored by: Anonymous on Monday, June 21 2010 @ 08:36 PM EDT
    • Justifying sealing - Authored by: Anonymous on Tuesday, June 22 2010 @ 01:22 PM EDT
You give Rudy too much credit
Authored by: whoever57 on Monday, June 21 2010 @ 05:26 PM EDT
I don't think Rudy (Paul Murphy) read the Rochkind report, just like he showed
that he has clearly not read the APA.

I think that he just makes stuff up. His one asset is a very fertile
imagination, espeically fertile when it comes to all things SCO-related.

His blog is the equivalent of mental diarrhea. There is no knowledge behind it,
no reseach, nothing. All he knows is his hatred of Linux.

[ Reply to This | # ]

"whoever holds the AT&T contract is contractually obliged to enforce it..."
Authored by: Anonymous on Monday, June 21 2010 @ 05:47 PM EDT
Sounds like Murphy is confusing trademark law with copyright law - with
trademarks, there is an inherent obligation to enforce or risk losing the

[ Reply to This | # ]

  • No obligation - Authored by: Anonymous on Monday, June 21 2010 @ 09:08 PM EDT
"I'm trying not to laugh out loud about Microsoft buying Novell."
Authored by: Anonymous on Monday, June 21 2010 @ 05:59 PM EDT
As much as you want to pin this idea (absurd or otherwise) on Murphy - it's not
his idea:

More research into where some of these "ridiculous" ideas came should
have been conducted.

[ Reply to This | # ]

  • Huh? - Authored by: Anonymous on Monday, June 21 2010 @ 09:20 PM EDT
    • Huh? - Authored by: Anonymous on Tuesday, June 22 2010 @ 09:31 AM EDT
      • Huh? - Authored by: Anonymous on Wednesday, June 23 2010 @ 11:23 AM EDT
More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Monday, June 21 2010 @ 06:02 PM EDT
Of course there's always the possibility that he and
Rochkind are the same guy ....

[ Reply to This | # ]

Funny (ironic?) verification by Rudy de Haas that he is "Paul Murphy" (link)
Authored by: bugstomper on Monday, June 21 2010 @ 06:05 PM EDT
This appears to be email from him on a public archived mailing list, so I don't consider it an invasion of privacy, and it is too funny not to point to. I did redact in my excerpt here the phone number, although it appears to be a business phone number anyway.

Here is Rudy de Haas, aka, Paul Murphy, writing to a bug mailing list asking for help in running GNU Chess under X-Board, both programs under GPL and from the FSF. Admittedly, he was trying to run them under Solaris, not Linux, but I still think it is funny:

[Bug-XBoard] Problem with book

His signature in the email says:

Rudy de Haas
[phone redacted]

Author (As Paul Murphy) of: column on Unix and Telecom
The Unix Guide to defenestration (see )
Multiple Series on Linux and business issues

[ Reply to This | # ]

Stalin, communism, SCO and Linux
Authored by: Placid on Monday, June 21 2010 @ 07:29 PM EDT
Hm, again "Stalin", "communistic model of software development" etc. This reminds me: in their attempt to paint Linux software development model as "communistic" SCO folk do get some historical facts backwards (is anybody surprised?). It's actually a minor issue but seems interesting to me. So let me clarify.

In 1930's Stalin and communist party started a forceful collectivization of agriculture in the USSR. Farmers were forced to pull their land, livestock and tools together and work collectively thereafter. But. There was a lot of agricultural communes at that time already in Russia. Many followers of Leo Tolstoy (think "Russian Ghandi") ideology had banded together voluntarily, were working on the land and selling produce on the (still pretty much capitalistic up to that time) market. Much like Israel kibbutz today: collective work in capitalistic environment. Do you think these voluntarily created communes were preserved and supported by communists when a country-wide collectivization started? Absolutely not! Voluntarily created communes were all - up to the last one! - disbanded, their land confiscated and the people were forced to disperse.

Why? Simple. (And that's a point of this story). The goal of Stalin and communists was not a creation of collective labor per se. Their goal was the expropriation of fruits of collective labor. The plan went like: expropriate agricultural produce -> finance industrialization -> produce war equipment -> win the war. (And the plan worked. But it's another story). There was no place in this plan for real, voluntarily created communes: they were much harder to control, even harder to expropriate from.

So. One can see for oneself whose part in SCO saga is actually communistic-like, can't one? (sorry for my English)

[ Reply to This | # ]

Succinctly sums up why I'm on Linux
Authored by: Anonymous on Monday, June 21 2010 @ 08:37 PM EDT
"You can't kill Linux. It doesn't care about you. It doesn't need to. Thank
you, Mr. Stallman, for the GPL. And you can't coopt it. You can coopt
individuals. Microsoft already has. You can subvert organizations too. We saw
that in the OOXML fiasco at ISO. But Linux can't be bought. It can't be bought
off. And it can't even be subverted. That is precisely why SCO can't win, and
neither can Microsoft, and neither can anyone. Thank you, Linus, for choosing
such a powerful license, one that intentionally protects the freedom of the code
from the vicious and the greedy."

This is a great paragraph, PJ. Like most Americans, I am sick and tired of the
untoward influence corporations have over everything, including government.
Especially government. It is nothing but corruption, plain and simple.

Linux is a manifestation of the spirit of freedom from such dreck. That spirit
will never be defeated. The vicious and greedy are trying to chain a ghost.
The more chains, the more the ghost slips away, and the only ones being pulled
down by the chains are the vicious and greedy themselves left holding those
heavy empty bonds.

[ Reply to This | # ]

Murphy's "e-mail" conversation is staged
Authored by: Reven on Monday, June 21 2010 @ 11:15 PM EDT
I read the Murphy article, and I am convinced that the e-mail he is quoting is completely scripted. By that I mean that he wrote both sides of the conversation.

First of all, it's just too pat - it fits the flow of the article too well. Of course, one might say sure, because the article was written around the e-mail conversation. Look at it, though. It's just way too pat. The flow of the article is too natural to have been built around a back-and-forth conversation like that.

Secondly, and perhaps more telling, is the way it follows a classic infomercial pattern.

Step 1) The initial skepticism: This is where the infomercial patsy introduces the doubts and suspicions that people will generally have about the (dubious) product. The patsy will be careful to make it look like he's a 'normal joe' with the same suspicions you or I might have, but not to actually attack the credibility of the product presenter at all.

Infomercial Example:
"Hey Ron, I'd love to buy a CrapChop but I'm just not convinced that simple device can do so much! Come on, you have to agree that's just impossible."
This leads into the presenter answering that concern.

Article Example:
"Come on “Paul”, you need to step up someday and admit that you have been wrong all along about SCO and their scheme against Linux. You can do it, I know you can!"
Note the style of this comment. Makes the "writer" look like he is initially siding with public opinion, but is still very careful to be upbeat about Murphy. On a side note, who actually writes like that anyway? Anyway this leads Murphy to answer the initial concern.

Step 2) The "skeptical concession": This is where the "patsy" sort of concedes the resolution of the concern without looking like he is really fully convinced, but still setting aside the concern in the eyes of the viewer/reader.

Infomercial example:
"Ok Ron, that looks good and I'll try that myself to see if it really works. But that's just a soft tomato. What about hard radishes?"
This leads to the presenter saying "Gee, I'm glad you asked that", and answering that one too.

Article example:
Forgetting the copyright issue for a minute, do you really think there are “tens of thousands” of lines of Unix V copied into Linux and if so why didn’t SCO disclose any of them?
Note that this comment doesn't actually come out and say "ok that resolved my concern", because there will be skeptics reading that won't believe the answer he gave. So this comment just sort of sets aside the issue, which a reader will accept pending resolution, but it doesn't really resolve. So the issue goes away without going away. Anyway, Murphy follows his script exactly when he comments: "And, because that’s a pretty good question I wrote a long response".

Step 3: "Tell me more!": This is where the patsy's eyes go wide and asks for more info.

Infomercial example:
"Wow, Ron, I had no idea the CrapChop was so versatile. What else can it do?"
Now the presenter tries to sink the hook and make you forget any of your doubts.

Article example:
"OK, you have peaked my curiosity and have my attention. How would the Linux community come ahead if SCO had actually won?"
That first sentence is the real dead giveaway about the e-mail conversation being staged. It builds Murphy's credibility up in a way no real person would do. Basically bowing before the great oracle.

Step 4: More talking points: The patsy just basically acts as an introducer for any further talking points the presenter wants to add.

Infomercial example:
"And doesn't the SlapChop have a grinding attachment too?"
Self explanatory.

Article example:
"Do you believe that Novell retained the right to control SYSV contracts (I believe this was in section 4.16 of the APA) and could have prevented the SCO - IBM lawsuit?"
Notice the phrase "I believe this was..." - this is trying to introduce credibility for the e-mail writer by to make him look so knowledgeable about the issue that he doesn't look like a normal joe any more.

Now all the article is missing on the part of the "e-mail" writer is...

Step 5) The wrap up: Where the patsy says "Wow... and all this for twenty easy payments of $29.95"?

Murphy does the wrap up himself.

Ex Turbo Modestum

[ Reply to This | # ]

successor in interest
Authored by: IMANAL_TOO on Tuesday, June 22 2010 @ 12:43 AM EDT
Paul Murphy:
"now that copyrights have been made an issue, someone capturing Novel can most probably really do what SCO’s lawyers only thought they could do: issue real Linux licenses and make them stick...."
"Nah. No one will buy one, actually. You know why? Because Linux comes with a license already, one that forbids any license on top of that license."
Hm. I have been wrong before but doesn't GPL allow for some multiple licensing? Some examples include the MySQL database (recently bought by Oracle) and the Qt development toolkit (recently bought by Nokia).

This will probably never be feasible with the kernel, given that it has been developed by tens of thousands unique developers over more than fifteen years. From what I understand, it is a practical matter not a legal matter.

Besides, I doubt that buying a partial copyright holder, eg Novell would help one single bit there. In fact Novell would be a very bad idea, especially after the direct and indirect support Novell has given the GPL the last seven years, while also selling the Suse distro.

If Microsoft bought Novell, wouldn't Microsoft be the successor in interest to the views on GPL held and vested by Novell?

I have no idea if that is the case, as I'm absolutely not a lawyer. But it is an interesting idea. :)



[ Reply to This | # ]

SCO's attitude towards Novell
Authored by: Anonymous on Tuesday, June 22 2010 @ 12:46 AM EDT
A minor comment on SCO vs. Novell.

I was employed at GBC, a major distributor for Novell products from August 1992
until July 1995. I was brought in to be the first support engineer outside of
Novell for their soon-to-be-relased product, UnixWare.

When the public product announcement was made in October (as I remember; it may
have been September) the reaction from SCO was immediate. They saw that the only
competition for their piece of the Unix pie was Novell, and later in early 1993,
when Novell bought USL outright, they became vociferous. SCO (new or old) had
the only successful i386 Unix, and they wanted to keep it that way. The only
market that really mattered in this game was the retail point of sale systems
(POS) market, as the Fed would buy SUN for anything small.

I earned SCO's enmity by successfully running a number of POS apps on UnixWare
with NO extra code, merely a few symlinks from the SCO SVR3.2 libraries to the
equivalent SVR4 libraries. The demos were convincing enough to earn me a
complaint from SCO to my boss, and I saw the writing on the wall. I left there
when my (ex-)wife got a new job in Pennsylvania.

So I would say that SCO probably just wanted to protect it's small market, and
not have to put much effort into code enhancements or even maintenance. However,
the whole Intel Unix market had not really realized much growth, and by 1995,
Linux was proving to be a credible alternative. SCO's future was on the wall.

David H. Lawson

[ Reply to This | # ]

SysV copyrights were Never the root issue.
Authored by: mobrien_12 on Tuesday, June 22 2010 @ 01:09 AM EDT
3) now that copyrights have been made an issue, someone capturing Novel can most probably really do what SCO’s lawyers only thought they could do: issue real Linux licenses and make them stick....

No, Murphy yet again shows his complete ingorance of reality.

Copyright ownership was never the root issue.

Linux is clean of SysV code. Novell publically declared that. Now that Novell is the clear owner of the SysV copyrights, Linux is clean.

SCO made many wild accusations and kept their lawsuits up for years without providing any real proof.

Showing that Novell, not SCO, owns the copyrights is just the shortest path to victory. Even if SCO did own the copyrights, they still never showed any real proof that linux infringed on them.

[ Reply to This | # ]

More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Tuesday, June 22 2010 @ 03:51 AM EDT
Murphy claimed: "SCO did not have a scheme against Linux".

I make some assumptions to explain this baseless claim:
1)"Paul Murphy" works, directly or not, for SCO.
2)The trustee starts to grok "it".

From legal point of view, the situation is pretty weird.
Regardless of court decisions Novell and IBM will get very
little money, if any. Every "rational" company will just
settle the case ASAP just to stop the legal bills. Novell
and IBM show no sign of this "rational" thinking.


IMO SCO (trustee) starts to understand the PR value of the
court battles. Plenty of nerds, quite a few of them young,
will bless IBM and Novell if they will win. And those nerds
will decide, sooner or later, what hardware/software some
companies will buy. This PR worths a fortune. Paying the
lawyers is a cheap price for such PR with a long term effect.

So the only way to get Novell/IBM to settle is to cut the
PR value of their victories. "SCO did not have a scheme
against Linux" is a good line to use for that goal.

What do y'all think?

[ Reply to This | # ]

I have a complete counter to the message from Rudy
Authored by: Ian Al on Tuesday, June 22 2010 @ 04:39 AM EDT
Well, It's not really complete because he did not say anything about the title
of the piece, 'Suicide by Victory', in the main text of the article.

Anyway, I can match everything he put into the body of the piece.

Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Ut a sapien. Aliquam
aliquet purus molestie dolor. Integer quis eros ut erat posuere dictum.
Curabitur dignissim. Integer orci. Fusce vulputate lacus at ipsum. Quisque in
libero nec mi laoreet volutpat.

Aliquam eros pede, scelerisque quis, tristique cursus, placerat convallis,
velit. Nam condimentum. Nulla ut mauris. Curabitur adipiscing, mauris non dictum
aliquam, arcu risus dapibus diam, nec sollicitudin quam erat quis ligula. Aenean
massa nulla, volutpat eu, accumsan et, fringilla eget, odio. Nulla placerat
porta justo. Nulla vitae turpis. Praesent lacus.

You're impressed, aren't you?

I can tell you are!

Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

[ Reply to This | # ]

Hah! You're all wrong!!!
Authored by: Ian Al on Tuesday, June 22 2010 @ 06:08 AM EDT
PJ wrote.
So there is no contractual obligation [for SCO] to enforce [the existing SVrX contracts], as I read the contract.
The APA says,
1.1 Purchase of Assets

(b) Assumption of Liabilities. At the Closing, Buyer shall assume those obligations and liabilities of Seller set forth on Schedule 1.1(c) hereto (collectively, the "Assumed Liabilities").
Schedule 1.1(c)

Assumed Liabilities

1. All obligations, whether existing on the date hereof or arising hereafter, under the assigned contract listed on Schedule 1.1(a).

2. All obligations relating to the Business which arise subsequent to the Closing Date.

3. Obligation of product support and customer service concerning UnixWare and Eiger.
Now, PJ notes that the judge confirmed that Novell has a waiver against any obligations SCO has to litigate wrt the SVrX contracts. However, first SCO would have to have the obligation to litigate in the first place.

I originally considered these parts of the APA when I was considering if they obliged SCO to keep the SVrX code secret in just the same way as the licensees like IBM did. It was a stretch, but this was the only obligation under the contract that would seem to do so. Otherwise, SCO could allow Sun and Microsoft to publish the code and there would only be the copyright to stop that happening. Since SCO knew (or should have known) that they did not own the copyrights at the time they let the contracts, as confirmed by the court, they were guilty of selling copies of code and the right to further copy for material for which they did not own the copyright and did not have a licence permitting them to do so. As I asked, at the time, what possible obligations could the buyer have as a result of receiving the existing contracts as an asset?

It is much less of a stretch to read into it that SCO had an obligation to enforce the existing licences as well as collect royalties. That makes full sense of the waiver provisions in the APA and the statements in the jury trial about Novell's wish for the APA to protect their SVrX royalties. If SCO litigated in a way that did not fulfil Novell's interests Novell needed the waiver to stop the litigation. They testified in court that they feared for the IBM buy-out revenue and this was their reason for exercising the waiver.

So, from my reading, SCO had standing to sue IBM for contract violation. They also had the right to hit their head on every step down into the abyss when their claims were false.

Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

[ Reply to This | # ]

SCO Can Still Win? LOL
Authored by: Sunny Penguin on Tuesday, June 22 2010 @ 09:13 AM EDT
SCO group's case is not pinin'! 'The SCO group's case is passed on! This case is
no more! It has ceased to be! 'The SCO group's case has expired and gone to meet
it's maker! 'The SCO groups case is a stiff! Bereft of life, it rests in peace!
If you hadn't nailed 'im to the perch 'e'd be pushing up the daisies! it's
metabolic processes are now history! 'The SCO group's case is off the twig! 'The
SCO group's case has kicked the bucket, 'The SCO group's case shuffled off it's
mortal coil, run down the curtain and joined the bleedin' choir invisibile!!

EOD is a science of vague assumptions based on debatable data taken from
inconclusive experiments with instruments of problematic accuracy by persons of

[ Reply to This | # ]

Let me run this by you...
Authored by: HockeyPuck on Tuesday, June 22 2010 @ 11:59 AM EDT
Plan A:
What if Novell offers to buys back the Unix business in bankruptcy? Let the
trustee and judge determine who gets it (I would expect some bidding from
SCO/Microsoft "sleeper cell" companies). But Novell should have some
weight because they already owned the business and shown they can manage it.
They get together some investors who create a private company. Sell them the
business in its entirety. The investors operate a very small business and just
get revenues from existing customers.

Plan B:
Novell just gets investors to create a private start up company. They also could
invest in it (maybe not, I don't know). That company goes to bankruptcy court
with an offer for the Unix business. I emphasize 'private' so patent trolls and
SCO/Microsoft "types" cannot do a hostile take over.

Over time Unix is going to die away. Until then, they have a guarnteed revenue
stream. When Unix is on life support, SuSe or another Linux company offers to
buy the business (less chance of antitrust issues if the OS is about to die
out). They can also release the Unix copyrights to the community and everyone is

Would this be legal? Of course, the big question is SCO and the bankruptcy

[ Reply to This | # ]

By answering him, you give him credibility.
Authored by: Anonymous on Tuesday, June 22 2010 @ 12:19 PM EDT
Just because someone has an opinion on the case doesn't mean their opinion needs
to be dissected.

By answering him, you make it look like he has a point.

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on Marc Rochkind
Authored by: YurtGuppy on Tuesday, June 22 2010 @ 02:10 PM EDT
I admit to a fondness for Marc Rochkind.

I've never met the man. But I learned a lot from his book "Advanced Unix
Programming" (c 1985).

I would like to hear his thoughts on what methods and concepts migrated from
Unix to Linux, not for the
legal angle but for an understanding of what gems of
operating system construction have been proven by passage of time.

On the other hand, maybe he is a shrill partisan hack for SCO. If that is so it
would be easier to nourish these kindly thoughts in the warm bath of ignorance.

(I see he has an updated 2007 edition. Maybe I should absolve my debt by buying
a copy. But what then if it is also a wealth! I would be twice obliged.)

Speak not if you have nothing good to say. Heed the word of Thumper's father.


just swimming round and round

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Re: "Paul Murphy"
Authored by: Anonymous on Tuesday, June 22 2010 @ 02:12 PM EDT
My previous readings of Murphy's columns (some years ago since I cannot stomach
his tripe any more) made it clear to me that he is a Solaris bigot. A huge one.
So it doesn't surprise me one bit that he's got it in for Linux.

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More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Tuesday, June 22 2010 @ 04:36 PM EDT
The one thing this whole SCO trial, and the ensuing commentaries which still
continue, seem to have missed is that even if there was a huge issue with the
source code in Linux the community isn't going anywhere.

If there was offending code in the Linux tree it would be removed. If that
wasn't sufficient enough and Linux was co-opted, which I find hard to be
possible in the current legal landscape, the community wouldn't continue to
develop it. But they also wouldn't just sigh and install windows, or move to
Macs, or even BSD. They, we, would just start over. Linux isn't just Linus
anymore, or key members of certain distros, the community is massive. From
coders, to people who release distros, to the userbase.

Paid gum-flappers, like Mr. Murphy, don't understand we aren't just in this for
practical reasons. Linux is an amazing OS that we run because it is great
software, but we also run Linux because we believe in the cause.

If, and this is a big if, Linux was utterly destroyed by the greed of those
chasing it down in the legal system to take something that is not theirs, it
wouldn't end there. If Linux was no more and Linus put out the call to start
again hundreds of thousands of geeks, perhaps even millions, would answer the
call and the work would start again and we would rebuild. We would descend upon
the internet like a rising storm and make it again, bigger and better than

We beleive in what our operating system represents, we won't go away no matter
what you do. We're fanatics. We just happen to be fanatical about a good cause.

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Queasy Feeling - More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Wednesday, June 23 2010 @ 04:56 AM EDT
"I know. He's so funny. It makes no sense."

"it was never about copyrights for SCO"


Allow me to play devil's advocate for a second. It was not about
"attacking Linux". It was about getting money from every Linux user.
It was not actually an "attack". I'm sure SCO would have just been
deliriously happy for Linux to take over the world, and SCO get $677.00 per

Which brings us back to "copyrights for SCO". Here I agree with you
perfectly, it was exactly about copyrights for SCO otherwise the scheme had no

Now, as regarding the copyrights.

Again let me play devil's advocate. Player A buys all the Novell stock, takes
over the company, sells everything except Unix "IP", then sells the
company to Player B. Player B never distributed Linux, then does a SCO re-do.

Is this worth a two billion game to one specific company?

Or will that company be satisified with the patent FUD? Who knows? I have a
queasy feeling that those copyrights are still of some interest to a number of
people, and only time will tell.

As far as Paul Murphy is concerned, haven't gotten around to reading the guy

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Bring out your dead
Authored by: mexaly on Wednesday, June 23 2010 @ 02:18 PM EDT
Some of the diseased are still kicking.

IANAL, but I watch actors play lawyers on high-definition television.
My thanks go out to PJ and the legal experts that make Groklaw great.

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More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Friday, June 25 2010 @ 02:35 PM EDT
Reading his blog indicates to me that this guy, whatever his real name is, is
more than a corporatist thug to begin with. Among other things, he's a global
warming denier and stridently anti-net neutrality.

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More "Paul Murphy" Anti-Linux FUD: SCO or Son of SCO Can Still Win
Authored by: Anonymous on Friday, July 02 2010 @ 06:06 PM EDT
<blockquote>It’s my belief that the official System 390 Linux port done in
Germany and released to the community via SuSe was done with the assistance of
people who worked, or had worked, on AIX maintenance and

Why in the world didn't this Murphy guy simply talk to Boas, Karl-Heinz
Strassemeyer, Fritz and all the other folks including the Millenux crew about
how porting took place and who was involved. What a moron.

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