NetNews Usenet Archive 1992 #16/NN_1992_16.iso/spool/gnu/misc/discuss/2541

Internet Message Format | 1992-07-25 | 1.8 KB

Path: sparky!uunet!sun-barr!news2me.ebay.sun.com!exodus.Eng.Sun.COM!rbbb.Eng.Sun.COM!chased
From: [e-mail] (David Chase)
Newsgroups: gnu.misc.discuss
Subject: Re: What is LPF position on AT&T v. BSDI?
Date: 24 Jul 1992 23:18:30 GMT
Organization: Sun Microsystems, Mt. View, Ca.
Lines: 30
Message-ID: <[e-mail]>
References: <[e-mail]>
NNTP-Posting-Host: rbbb

In article <[e-mail]> [e-mail] (Jeffrey Kegler) writes:
>The AT&T argument goes like this:

>1)  You (BSDI) claim you are distributing UNIX.
>2)  This is false, so you must stop claiming it.
>3)  And, since you are distributing UNIX, you must license it from us.

>I think the lawyers call this arguing in the alternative.  One argues
>two mutually exclusive points of view, under both of which your client
>prevails.  That way, whatever the court decides, you win.

As I understand it, you are entirely correct.  I am told that one case
in which lawyers failed to "argue in the alternative" was the Pennzoil
vs Texaco case.  As it was described to me, Pennzoil argued that they
had been harmed by Texaco, and that the harm was large
($3,000,000,000, roughly).  Texaco argued that they had not harmed
Pennzoil, but did not dispute the figure provided by Pennzoil.

The judge decided that Texaco had harmed Pennzoil, and (lacking any
other estimate) used Pennzoil's figure for the dollar value.  This
apparently also made winning an appeal much less likely, because there
was no obvious predjudice on the part of the judge (he took the only
estimate that he had -- Texaco must have agreed with it, or they would
have argued that point, too, right?)

Perhaps this makes the actions of AT&T lawyers look slightly more
rational.

David Chase
Sun