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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.

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