Palaces For The People
Monday, July 19, 2004
GrokLaw - Digging for Truth

SCO Discovery
Authored by: Anonymous on Monday, July 19 2004 @ 05:01 AM EDT
Here's the gestalt:

TSCOG UNIX was dying, and their Linux was not moving well against the
competition. Ray Noorda, who bought UNIX from USL and sold UNIX to Old-SCO while
big boss at Novell, quit Novell, invested in Old-SCO to buy UNIX back this time
for his Canopy Group shell company. He has litigation fever and just went
against two bigger companies: Microsoft and Computer-Associates. He calls in
Darl, who was his leutenant at Novell, who sued his own boss in the meanwhile
between Novell and TSCOG. Clearly, a litigation plot is in the works.

Numerous groundwork occurs just prior to the initial opening shot, leading
belief that a picture of forced buyout was planned as the end-game to a

The "prop" to get the buyout was an irritant lawsuit based on a
peculular interpretation of the contract. The interpretation is the SERFDOM
theory of contracts, that a contract can be so onerous that a party can be bound
for eternity and forced to give up all future creativity. It is coupled to the
TARBABY theory, where once anything touches the tarbaby it can never get free

While there is little likelihood that the lawsuit would prevail, it has to have
some merit to have sticking power or the whole scheme fails.

LINUX is free from copyright infringement of literal copying, but the TSCOG
SERFDOM-TARBABY theory says that IBM code added to UNIX for AIX or other code
added to DYNIX/PTX has TSCOG added as "co-owner" in perpetuity.

In order to add IBM code from elsewhere it has to be adapted, and this
adaptation process is the focus of the requests for all interim version of
AIX/DYNIX/PTX. Showing that the IBM-copyrighted code was adapted to a *NIX gives
them the co-ownership trial that leads to millions of lines they
"own". The fact that much of IBM code was developed for other projects
and adapted to fit *NIX is their foot in the door to STEAL IBM's IP. They get
very sactimonious about theft of IP, except about their own claims of
SERFDOM-TARBABY theft of somebody else's work.

Getting royalties is nice: they tried that -- the Chrysler/Autozone lawsuits
were to stampede small companies into buckling under from fear -- it failed. The
broad FUD of claims of LITERAL copying (MIT rocket scientists, etc) has failed.
They are going back to the original plan of irritant lawsuit, dragging it out as
long as possible.

The fly in the ointment is that IBM's contract is not binding on anybody else.
IBM's contributions of code might get a breach of contract verdict in court but
it will never affect LINUX. IBM will be required, if they lose, to pay any
penalty, but nobody else will be, or can be, involved.

Breach of Contract is the PREFERRED choice by American courts -- they will side
with the parties right to breach a contract over onerous (unenforceable)
compliance of contract. Of course, the breacher must pay money, but the payment
of money ends the contract and the contract demands.

It would be corruption of a magnitude not seen since the 9th circuit was
created, for this court to impose compliance over payment for breach.

If IBM gets a summary judgement on 10th counterclaim, than the story is over in
Delaware, Michigan and Nevada, and all that is left is a contract dispute with a
company much larger and stronger than itself -- no more copyright arguments, no
more licence demands.

The public will not understand the legal aspects, just get the sense that TSCOG
is on a losing streak. Reporters will no longer be interested in its side of the
story. It is all or nothing on this throw of the dice for TSCOG.

Meanwhile Microsoft aroused a hornets nest with AdTI's clumsy attempt to play
think-tank-gang-attack. Because they got too greedy they too have put it all on
one last throw of the dice. The dismemberment of the think-tank network is
proceeding nicely, and some top execs at Microsoft will be doing the perp-walk
in handcuffs for felony conspiracy to defraud and Sherman Antitrust Act
violations when we get an honest Attorney General again next January.

If you do a GOOGLE search for AdTI you find them surrounded by debunking sites,
a rather embarrassing situation.

Results 1 - 100 of about 8,700 for "Alexis de Tocqueville Institution"
... most of which are hostile pages. Out of the top 40 or so listings there is
only one page besides theirs which is favorable to them. My contributions are
numbers 23 & 24.

Do stick your head out to the larger world sometimes -- a lot has hapened in the
past month alone. My contributions are posted on my website; Where are Yours?

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