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Red Hat's Latest Letter to the DE Judge - as text
Thursday, October 14 2004 @ 02:33 PM EDT

Here's Red Hat's letter to the judge in Delaware bringing her up to date on events in all the other cases in the last 90 days, as per her order. I think you will agree after you read it that by the time the Red Hat case goes to trial, SCO's name is going to be mud with this judge, if Red Hat keeps informing her of all the contradictory things SCO says in other courtrooms in other cases.

Again, Red Hat asks the judge, the Honorable Sue L. Robinson, Chief Judge of the United States District Court, to please reconsider her sua sponte stay and let the Red Hat case go forward. SCO's strategy, Red Hat tells her, is "delaying for as long as possible resolution of the copyright claims that are at the heart of the pending lawsuits." They tell her that all they know about the other cases is what they read in the papers, so to speak. They are not a party to any of the other cases, so they provide information culled from "publicly available information", which is another way of telling her that she kind of should let this case go forward, in their opinion, because none of the other cases settle their issues.

SCO's letter, already filed, tells Their Side of the Story.

*************************

Young Conaway Stargatt & Taylor, LLP
[letterhead]

October 4, 2004

BY HAND DELIVERY

The Honorable Sue L. Robinson
Chief Judge
United States District Court
[address]

RE: Red Hat, Inc. v. The SCO Group, Inc.
Civil Action No. 03-772-SLR

Dear Judge Robinson:

Pursuant to the Court's April 6, 2004 Order requesting a quarterly report on the status of various related litigation matters, Red Hat, Inc. submits this letter as an update to its previous letter dated July 6, 2004. Although Red Hat is not a party to these other related cases (and on that basis urges the Court to reconsider its order staying this Red Hat litigation), Red Hat offers the following summary based upon publicly available information.

1. SCO Group, Inc. v. International Business Machines Corp.

As of the date of Red Hat's previous letter, two substantive motions were pending before the court. SCO's motion to dismiss, or in the alternative, stay IBM's counterclaim ten and IBM's motion for partial summary judgment on IBM's tenth counterclaim for a declaratory judgment of non-infringement of copyrights. On September 15, 2004, a hearing was held to address these motions.

The crux of SCO's argument in support of its motion to dismiss IBM's declaratory judgment claim that it infringes no SCO copyrights is that the declaratory judgment claim goes beyond the breach of contract claim raised in SCO's complaint. In other words, SCO argued that there was not enough overlap between SCO's claims for breach of contract and IBM's counterclaim for non-infringement of copyrights to justify allowing IBM's counterclaim to proceed. IBM asserted that SCO's complaint for breach of contract directly raises the issue of copyright infringement. (Tr. at 24:21-22.)

IBM also noted that SCO has made a plethora of contradictory statements about the nature of its claims against IBM. More specifically, IBM pointed to SCO's representation to this Court that "[t]he infringement issues that Red Hat seeks to adjudicate in this case are currently before United States District Judge Dale A. Kimball in the SCO v. IBM case pending in the Utah Federal District Court." (Tr. at 28:6-9.) SCO maintained to the Utah Court -- in direct contradiction to its statements to this Court -- that "[the IBM case] is not about it, it never was about copyright violations." (Tr. at 39:5-6).

IBM argued that the Utah court should enter summary judgment in its favor on its counterclaim for a declaratory judgment of non-infringement of copyright because SCO failed to substantiate its public accusations of copyright infringement by IBM and others. IBM asserted that SCO's failure to respond to interrogatories that request identification of the specific code IBM is accused of infringing reveals that SCO cannot support its public claims of infringement. IBM argued that the only evidence SCO requires to prove copyright infringement is the Unix code -- which SCO has in its possession -- and the Linux code -- which is publicly available.

The court took all of the motions under advisement and adjourned the hearing.

SCO Group, Inc. v. Auto-Zone, Inc.

As of the date of Red Hat's previous letter updating the Court on the status of these related cases, Autozone had filed a motion seeking to stay the action pending resolution of the Red Hat case, the IBM case, and the dispute between Novell and SCO regarding ownership of the UNIX copyrights. On July 12, 2004, the Court held a hearing on this motion, during which SCO argued that the Autozone case should not be stayed and asserting, inter alia, that it sued Novell for "essentially a slander of title. It is not a copyright case. It is not a copyright infringement case." (Tr. at 16:21-24);

By its order dated August 6, 2004, the court granted Autozone's motion to stay, requiring each party to submit an update letter to the court every 90 days as to the status of the IBM, Novell, and Red Hat cases. Notwithstanding this stay, the court allowed the parties to take limited expedited discovery related to the issue of preliminary injunctive relief.

SCO v. Novell, Inc.

On January 20, 2004, SCO filed suit against Novell, Inc. in Utah state court asserting a single cause of action for slander of title. The complaint alleges that Novell has caused damage to SCO by publicly and falsely representing that it owns copyrights to Unix and UnixWare. The action was removed to the District Court for the District of Utah and shortly thereafter, Novell brought a motion to dismiss, arguing that SCO failed to sufficiently plead its falsity and special damages claims. Concurrent with the filing of its opposition to Novell's motion to dismiss, SCO brought a motion to remand the case to state court. A hearing was held on both of these motions on May 11, 2004.

By its order dated June 9, 2004, the court denied SCO's motion to remand, finding that there was a substantial question as to whether Section 204(a) of the Copyright Act had been satisfied. The order also denied Novell's motion to dismiss as to SCO's pleading of falsity, and granted Novell's motion to dismiss as to SCO's pleading of special damages. Soon after this order was issued, SCO amended its complaint. Novell responded with a motion to dismiss, which is currently pending before the court.

SCO v. DaimlerChrysler Corporation

On March 3, 2004, SCO filed suit in the Circuit Court for the County of Oakland in the State of Michigan against DaimlerChrysler Corporation ("DaimlerChrysler") claiming that DaimlerChrysler was in breach of its Unix System V licensing agreement. The basis of the alleged breach was SCO's assertion that DaimlerChrysler had refused to respond to a December 2003 letter from SCO requesting a "certification of compliance" as required by the agreement. DaimlerChrysler moved for summary judgment on April 15, 2004, arguing that it had submitted the necessary certification of compliance, even though it has not used the software for more than seven years and it was under no obligation to provide the certification. At the hearing held on July 2, 2004, SCO asserted that DaimlerChrysler failed to provide full certification because it had not certified that it had kept the source code confidential. The court disagreed with SCO, and granted summary judgment to DaimlerChrysler on all of the claims with respect to the sufficiency of DaimlerChrysler's certification, leaving only one remaining claim challenging the timeliness of DaimlerChrysler's certification.

* * *

In conclusion, the events in these related cases over the past 90 days provide further evidence of SCO's litigation strategy of delaying for as long as possible resolution of the copyright claims that are at the heart of the pending lawsuits. As demonstrated by IBM at the September 15, 2004 hearing, SCO continues to make inconsistent statements to this Court and to other courts, taking whatever position suits its purpose at the time. For these reasons, we respectfully request the Court to lift the order staying the case filed by Red Hat as requested in Red Hat's pending Motion for Reconsideration.

Respectfully submitted,

___[signature]_____
Josy W. Ingersoll

JWI:cg
cc: Clerk of the Court (by hand)
Jack B. Blumenfeld, Esquire (by hand)
Stephen N. Zack, Esquire (by facsimile)
Mark G. Matuschak, Esquire (by facsimile)


  


Red Hat's Latest Letter to the DE Judge - as text | 223 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here as usual
Authored by: Anonymous on Thursday, October 14 2004 @ 02:36 PM EDT
Loïc

[ Reply to This | # ]

OT -- Off Topic
Authored by: Anonymous on Thursday, October 14 2004 @ 02:38 PM EDT
With nice anchors if you please.

Loïc

[ Reply to This | # ]

Proofs of copyright infringement
Authored by: Anonymous on Thursday, October 14 2004 @ 02:49 PM EDT
should come here.

Loïc

[ Reply to This | # ]

Sealed documents
Authored by: Anonymous on Thursday, October 14 2004 @ 02:54 PM EDT
Does the redhat court have access to documents submitted under seal in the SCO
VS. IBM case? Since there may be information that directly bears on that case?
Is there some process by which RedHat can get sealed documents unsealed?
Thanks,
Cecil

[ Reply to This | # ]

Red Hat's Latest Letter to the DE Judge - as text
Authored by: Nick_UK on Thursday, October 14 2004 @ 03:05 PM EDT
LOL.

The hurricane hits...

Nick :)

[ Reply to This | # ]

Red Hat's Latest Letter to the DE Judge - as text
Authored by: blacklight on Thursday, October 14 2004 @ 03:27 PM EDT
"... you will agree after you read it that by the time the Red Hat case
goes to trial, SCO's name is going to be mud with this judge ..." PJ

That's the idea!

[ Reply to This | # ]

It is sort of sad...
Authored by: Groklaw Lurker on Thursday, October 14 2004 @ 03:51 PM EDT
That the Delaware judge won't lift the stay. Although IANAL, it seems painfully
obvious to me that Redhat is telling the judge the truth about SCO's behavior
and activities. The facts speak for themselves.

Only time will tell I guess...

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

No credibility in Delaware...
Authored by: Latesigner on Thursday, October 14 2004 @ 04:06 PM EDT
At this point I think SCO is dead as far as Judge Robinson is concerned.
How long till they get tossed out of court ?

[ Reply to This | # ]

Where is the link to the original ?
Authored by: forked_process on Thursday, October 14 2004 @ 04:43 PM EDT
Any sign of the reference to the original ?
Please :-) Ta.

[ Reply to This | # ]

Notable Difference
Authored by: Anonymous on Thursday, October 14 2004 @ 05:00 PM EDT
One especially notable difference between the letters filed by SCO and Red Hat
is their length (and content, of course), almost as if SCO was saying that not
much is happening, and it's all favorable for us, while Red Hat is obviously
saying, "Look at all the shenanigans going on out there."

I expect Judge Robinson is getting the picture now, even if she hadn't before.

Should prove interesting...

Larry N.

[ Reply to This | # ]

Question for legal gurus
Authored by: jmc on Thursday, October 14 2004 @ 05:06 PM EDT
Can RH appeal the stay now?

Or do they have to wait for Judge Robinson to refuse to lift the stay before
they can appeal?

[ Reply to This | # ]

What's wrong with this picture?
Authored by: NemesisNL on Thursday, October 14 2004 @ 05:22 PM EDT
I have seen posts by many people explaining why this is all taking so long even
though it's obvious to anyone with half a brain that SCO hasn't got a leg to
stand on. I'm sure they are all correct and the judges in these various cases
are making sure there is nothing left to appeal before they render judgement.

I just want to stop for a moment and point to what seems clear to me. Something
is very wrong with this system if it has to allow a company like SCO to distort
the truth, make contradictory statements in different courts and in general let
them get away with way to much just to make sure these cases are not going to be
appealed by SCO. SCO is forcing IBM to spend loads of money, SCO is spending
shareholders money on lies, SCO is damaging buisness for other people that are
trying to promote Linux, SCO is forcing the courts to spend taxpayer dollars on
a frivolous lawsuit.

I know people say SCO will have to pay for this in the end but I'm sure they
will be nothing left of SCO before this house of cards comes tumbling down.

Ofcourse everybodies rights need to be protected but what of the shareholders
right, what about the taxpayers rights and what about IBM's rights? IBM can
afford a few dollars in loss I'm sure but that's not the point. The point is
they are having to spend all this money because somehow the system is incapable
to deal with lawsuits like these in an efficient manor. This would have been
over very quickly if SCO had been forced to show at least a little evidence that
their claims against IBM had merrit. The judge had that chance, took it and
orderd SCO to produce and then let SCO get away with what is basically a total
ingnoring of the order. Again I'm sure everything is done according to the rules
of the system.....that just, in my mind, points to the amount of trouble this
sytem is in. Time for reforms?

[ Reply to This | # ]

To Stay or Not to Stay -- Also, Why DC?
Authored by: hsjones on Thursday, October 14 2004 @ 06:04 PM EDT
Why did SCO want a stay in the Red Hat case but is fighting the stay in the
AutoZone case? Isn't that itself an inconsistency that forces them to argue
conflicting positions in the two cases?

Also, why is the DC case even being linked to the rest of these any more, since
it was reduced to a routine license compliance issue that, yes, happened to
involve UNIX, but doesn't have anything to do with Linux or with any of the
issues being contested in either the IBM or Novell cases?

[ Reply to This | # ]

Instant Dogma's Gonna Get You
Authored by: Pat Pending on Thursday, October 14 2004 @ 06:30 PM EDT
'As demonstrated by IBM at the September 15, 2004 hearing, SCO continues to make
inconsistent statements to this Court and to other courts, taking whatever
position suits its purpose at the time.'

Having maintained a PR torque so intense it would make a figure skater hurl,
Dikephobic Darl and the Bowlegged Lindon IP Posse continue the tradition in the
courts. The entrails tell me that their protracted evisceration in the Court of
Public Opinion will be mirrored in the Halls of Justice.

Break out the popcorn.

---
Thanks again,

[ Reply to This | # ]

ATTN PJ - SCO gets more time for CC8 and Breach of Contract claims
Authored by: N. on Thursday, October 14 2004 @ 07:08 PM EDT
http://www.utd.uscourts.gov/reports/ibm/00000318.pdf

http://www.utd.uscourts.gov/reports/ibm/00000319.pdf

SCO has up to 23rd Nov, IBM has up to Jan 14th to respond, (assuming providing
Santa doesn't get in the way of their lawyers...)

---
N.
(Recent [well, since mid-2003] convert to Linux)

[ Reply to This | # ]

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