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SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD |
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Tuesday, February 24 2004 @ 10:43 AM EST
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Here is SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION
TO SUPPLEMENT THE RECORD. SCO's argument is that Darl McBride's speech
at Harvard and the three letters to Lehman Brothers, which Red Hat requests the judge to consider, all happened after Red Hat
filed its lawsuit against SCO. They cite a case that says, "The test for an actual
case or controversy is an objective one. Reasonable apprehension and the other
jurisdictional prerequisites must exist at the time suit is filed."
This argument ignores that Red Hat's request to supplement was asking to add them as *more examples* of
what they say has been going on for some time.
SCO argued originally
that there was no "actual controversy" between the parties, asserting
that Red Hat was asking the court merely for "general guidance" for the Linux industry.
Red Hat said there really was an imminent danger their customers would be sued, and now they wish the court to take a
look at what has just happened as another example of SCO's conduct that proves that what they told her before was true.
Here is what their papers said:
"As more fully explained below, letters sent by SCO after the motion to dismiss was fully briefed provide compelling further evidence that a justiciable case or controversy exists and contradict earlier representations made by SCO to this Court. These letters explicitly accuse one of Red Hat's customers of infringing SCO's copyrights by using the computer operating system Linux distributed to that customer by Red Hat. The existence of a justiciable controversy was also confirmed by the public statements made just this week by SCO's Darl McBride, that SCO intends to begin suing end users of Linux "within the next few weeks" and "by February 18." Because these letters and statements occurred only recently, this evidence was not available to Red Hat when it opposed SCO's motion. . . .
"This information should be made a part of the record before this Court because it demonstrates - if any more demonstration was necessary - precisely the unfair tactics and unsubstantiated, claims that SCO has utilized for almost one year to stall the growth and business of companies like Red Hat who distribute and support the Linux operating system. Red Hat and its customers should not be forced to wait for the hammer to fall before being able to demonstrate in court that SCO's year-long public campaign against Linux, companies like Red Hat, which distribute and support Linux, and companies like Lehman Brothers who utilize it, is an emperor without clothes. These circumstances are exactly those for which the declaratory judgment statute was created."
SCO here also tries to say that Red Hat is filing this Motion to Supplement because SCO, in its Reply Brief in Support of Its Motion to Dismiss, "demonstrated that Red Hat consistently failed to allege the requisite 'reasonable apprehension of suit' necessary to sustain an action under the declaratory judgment statute." Red Hat's Motion to Supplement, they argue, is in response to their pointing out this alleged "failure". Slick, but one might argue, since some of us read the arguments quite differently at the time, they are submitting the motion because everything they said SCO was threatening to do, it has now taken further down the road to fulfillment, proving Red Hat's point even more completely than before. The December letters to Lehman Brothers, after all, make reference back to the May letters that got the ball rolling. Red Hat is merely saying to the judge: "Remember that rock we said SCO was starting to roll down the hill and aimed right at us? Well, it's true what we told you, because look where the rock was before, and look where it moved to further down the hill toward us."
Interestingly, SCO calls those
receiving its letters "purported Red Hat customers" which indicates to me that
it maybe didn't realize that Lehman was a customer of Red Hat's.
Woops.
Here is the Memorandum. We *really* owe poncewattle a big thank you. He ran to the courthouse not once but twice. Page 4 was missing on the first trip, and he had to go back. Well, he didn't *have* to, but he just did. Thank you, poncewattle!
***************************************************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
_____________________________________________
RED HAT, INC.,
Plaintiff,
v.
THE SCO GROUP, INC.
Defendant.
_______________________________________________
DEFENDANT THE SCO GROUP'S MEMORANDUM OF LAW
IN OPPOSITION TO RED HAT'S MOTION
TO SUPPLEMENT THE RECORD
Civil Action No. 03-772-SLR
______________________________________________
In its Reply Brief in Support of Its Motion to Dismiss ("SCO Reply
Brief"), SCO demonstrated that Red Hat consistently failed to allege the
requisite "reasonable apprehension of suit" necessary to sustain an action
under the declaratory judgment statute. In response to the SCO Reply
Brief, Red Hat filed its Motion to Supplement the Record ("Motion to
Supplement"). In this motion, Red Hat points to a February 2, 2004 speech
by SCO's CEO, Darl McBride, in addition to three letters sent by SCO to
various end users of Linux. According to Red Hat's Motion to Supplement,
these items somehow demonstrate that "SCO has yet again engaged in conduct
that gives rise to an objectively reasonable apprehension on Red Hat's
part that Red Hat and its customers will be sued." (Motion to Supplement,
9). The fundamental flaw with this argument, and the reason why the Motion
to Supplement should be denied, is that each of these letters is dated
months after Red Hat filed its complaint. Notably, Red Hat did not include
within its Motion to Supplement a single reference nor shred of evidence
related to any threats of litigation made by SCO prior to the filing of
the instant suit. Red Hat's position that the Court should consider these
post-filing letters in its determination of SCO's Motion to Dismiss is
without legal support. Therefore, SCO respectfully requests this Court
deny Red Hat's Motion to Supplement.
Memorandum of Law
As a prerequisite to filing suit under the Declaratory Judgment Act (28
U.S.C. §2201), a declaratory plaintiff must demonstrate that it has a
"reasonable apprehension that it will face an infringement suit."
Honeywell Intern., Inc. v. Universal Avionics Systems Corp., 288 F.Supp.
2d 638, 644 (D.Del. 2003). The "reasonable apprehension" requirement is a
means by which a court ensures it is properly exercising its jurisdiction
over an actual "case or controversy" as mandated by Article III of the
U.S. Constitution. Id. In infringement suits, facts leading a declaratory
plaintiff to have a "reasonable apprehension" must exist prior to and
contemporaneously with the filing of its complaint. G. Heileman Brewing
Co., Inc. v. AnheuserBusch Inc., 676 F.Supp. 1436, 1478 (E.D.Wis. 1987)
("The test for an actual case or controversy is an objective one.
Reasonable apprehension and the other jurisdictional prerequisites must
exist at the time suit is filed.").
As exhibits to its Motion to Supplement, Red Hat attaches three letters
received by purported Red Hat customers from SCO dated well after the
filing of the complaint in this action. The earliest of these letters is
dated December 19, 2003. The latest is dated January 16, 2004. The instant
suit was filed by Red Hat on August 4, 2003. Clearly, the letters included
by Red Hat as exhibits to its Motion to Supplement could not have created
the necessary "reasonable apprehension of suit" as they did not exist
until months after Red Hat filed suit. On the very first page of its own
Motion to Supplement, Red Hat states "these letters and statements
occurred only recently" (Motion to Supplement, p. 1). This fact, in
conjunction with established law, requires this Court to deny Red Hat's
Motion to Supplement.
Red Hat cites to the recent letters attached to its Motion to Supplement
as exhibits as justification for its decision to file suit under the
Declaratory Judgment Act. However, the law is clear as to the use of such
post-filing events:
Courts have addressed . . . whether events occurring subsequent to the
complaint's filing are relevant to establishing reasonable apprehension.
Unanimously, the answer to the latter question has been a resounding "no."
This sensible result follows from the fact that a declaratory plaintiff's
objective, reasonable apprehension at the time of filing cannot be based
on events that had not yet occurred.
CAE Screenplates, Inc. v. Beloit Corp., 957 F.Supp. 784, 789 (E.D.Va.
1997) [emphasis in original] citing West Interactive Corp v. First Data
Resources, Inc., 972 F.2d 1295, 1297 (Fed. Cir. 1992); Spectronics Corp.
v. H.B. Fuller Co., Inc., 940 F.2d 631, 635 (Fed. Cir. 1991) overruled on
other grounds by 355 F.3d 1361 (Fed. Cir. 2004); Arrowhead Indus. Water,
Inc. Ecolochem, Inc., 846 F.2d 731, 736 (Fed. Cir. 1988).
Under similar circumstances, the Eastern District of Virginia denied the
plaintiff's motion to supplement the record with the declaration of
plaintiff's employee who relayed communications from defendant to one of
plaintiff's potential customers related to its intent to sue made after
the filing of the complaint. Ion Beam Applications S.A. v. Titan Corp.,
156 F.Supp. 2d 552, 556 (E.D.Va. 2000). The CAE holding was central to its
decision to deny the Motion to Supplement. Id. ("Like in CAE, none of the
facts learned by the plaintiffs subsequent to the filing of this action
are accorded any weight in the jurisdictional calculus."). See also Bell v.
Illinois Central RR Co., 236 F.Supp.2d 882, 894 (N.D.Ill. 2001) ("Only the
actions of a declaratory defendant known to a declaratory plaintiff at the
time the action is commenced can be considered in determining whether such
a threat exists."); Friede & Goldman, Ltd. V. Gotaverken Arendal Consultants, AB, 2000 WL 288375, *5 (E.D. La.) ("It is well-established that the existence of an actual controversy must be determined at the time a complaint for declaratory relief is files."); Waters Corp v. Hewlett-Packard Co., 999 F.Supp. 167, (D.Mass. 1998), citing Spectronics Corp. v. H.B. Fuller Co., 940 F.2d at 635 ("[L]ater events may not create jurisdiction where none existed at the time of filing.")
As stated above, Red Hat has not alleged that SCO threatened it or any of its customers with litigation prior to the filing of the complaint. Nor has it alleged it had any awareness of letters similar to those it attached to its Motion to Supplement. Without any evidence to substantiate its claim of reasonable apprehension prior to the filing date, this Court should determine Red Hat's Motion to Supplement to be baseless. See Performance Abatement Services, Inc. v. GPAC, Inc., 733 F.Supp. 1015, 1019 (W.D.N.C. 1990) ("[Plaintiff] has produced no evidence establishing that it actually knew of these other factors when it filed its declaratory judgment action. The Court believes [Plaintiff] cannot attempt to justify its claimed apprehension on factors that occurred after [Plaintiff] filed this action.")
Under these circumstances, it is apparent that Red Hat's Motion to Supplement is simply an attempt to further argue its opposition to SCO's Reply Brief rather than an effort to complete the record before this Court. The law is clear; Red Hat may not bolster its position that it held a "reasonable apprehension" of an infringement suit at the time its complaint was filed by pointing to letters sent by SCO well after the filing date. Accordingly, Red Hat's Motion to Supplement with facts that are legally irrelevant should be denied.
WHEREFORE, The SCO Group respectfully requests this Court deny Red Hat's
Motion to Supplement the Record.
OF COUNSEL:
Stephen N. Zack
Mark J. Heise
Boies, Schiller & Flexner, LLP
[address]
February 19, 2004
Respectfully submitted,
MORRIS, NICHOLS, ARSHT & TUNNELL
B. Blumenfeld (#1014)
Jack C. Schecter (#4335)
[address, phone]
Attorneys for Defendant
The SCO Group, Inc.
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing were caused
to be served this 19th day of February, 2004, upon the following counsel
of record in the manner indicated:
BY HAND DELIVERY
Josy W. Ingersoll
Adam W. Poff
Young Conaway Stargatt & Taylor LLP
[address]
BY FEDERAL EXPRESS
William F. Lee Mark
G. Matuschak
Michelle D. Miller
Donald R. Steinberg
Hale and Dorr LLP
[address]
Signed, Jack C. Schecter
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:13 PM EST |
So if SCO succeed in stiking out Lehman Bros
correspondence from the present case, presumably Red Hat
could start a new case on that evidence.
So what's the point, apart from procedural delay?
vl [ Reply to This | # ]
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Authored by: miss_cleo_psy4u on Tuesday, February 24 2004 @ 12:16 PM EST |
Some may be tempted to think procedural delay IS the name of
SCO's legal game. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:17 PM EST |
http://money.cnn.com/2004/02/24/technology/techinvestor/hellweg/
Stowell says only, "We hope people will take us seriously as well and will
compensate us."
...
One potential defendant is said to be Google -- a company with at least 10,000
servers running Linux, according to SCO spokesman Blake Stowell. Stowell says he
can't comment on which companies SCO will sue, but that "you can expect
something from us soon."
P.S.
Note to self (and maybe Stowell), who at SCO will be left standing when the
music stops.[ Reply to This | # ]
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Authored by: kberrien on Tuesday, February 24 2004 @ 12:20 PM EST |
Once again, a non-substantiative court filing from SCO.
Its been a while, but reading the RedHat motions, etc, they had lot of a case
law supporting a non-direct link between the lenhem act offender, and an
industry company (thus being effected).
I would think RedHat securly set grounds for a basis of having a case, and thus
future (after the filing) actions would be immisable. (man, bad spelling day).
SCO's argument seems more, you filed, so we filed, and less any valuable
argument. Either SCO's legal teams really stink, or they are being forced into
all this, just for face/press value by SCO.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:25 PM EST |
"reasonable apprehension" must exist prior to and contemporaneously
with the filing of its complaint
Ok, then these latest court filings are not the basis of the "reasonable
apprehension" but an affirmation that their "reasonable
apprehension" was a valid and not just a perceived apprehension.... I
would think that they would only have to have one objective thing that they can
point to and the rest would be let in as substantiating that the first
"feeling" was a correct one..... any lawyers out there?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:25 PM EST |
Is Leman's a New York State based company?
If they are... then, PJ and the Groklaw letter to SCO (that was the first major
group project) would have the Consumer Protection laws that would come to bear.
If so, then maybe the NYS Attorney General's office might like to look closely
at the SCO letters.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:28 PM EST |
that the letters were mailed after the suit was filed, are they not implicating
that they have merit as evidence? I mean, otherwise, wouldn't they just dismiss
them as being irrelevant or 'not what this case is about'?
By acknowledging
that the letters and Darl's hair trigger mouth going off at Harvard could both
affect the case, but by virtue of chronology should be ignored, are they not
admitting guilt?
Not only that, then are they not opening their flank to Red
Hat producing letters sent to their customers before the suit was filed?
Is there not ample quotage from the various shallow pans helming SCO that
predates the Red Hat filing that is equally damning as Darl's 'Oops I did it
again' Harvard gassing?
Judge Judy could handle this one.
Thanks
again, a not logged in Tim Ransom[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:30 PM EST |
By reading this motion, I don't see it as "another crappy motion" as
one other poster said.
It seems to me to be a well-reasonable and decently argued complaint against
amending the record. While it will probably fail, it's not a deliberate
misreading of the law, and it's an argument supported by case law.
The problem with the commentary on this site is that there's this presumption
that SCO lawyers only write stupid crap. Why not approach every motion from
either side with respect? It'll get you farther in understanding what a judge
will do, and what will ultimately happen with the case.[ Reply to This | # ]
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- Predictable - but fell into a Red Hat's trap - Authored by: Anonymous on Tuesday, February 24 2004 @ 12:37 PM EST
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- Why is this "another crappy motion from SCO"? - Authored by: brenda banks on Tuesday, February 24 2004 @ 01:08 PM EST
- So PJ is a Troll-Hunter now - Authored by: Anonymous on Tuesday, February 24 2004 @ 03:10 PM EST
- YABT Yet Another Boring Troll - Authored by: Ruidh on Tuesday, February 24 2004 @ 03:47 PM EST
- So PJ is a Troll-Hunter now - Authored by: Anonymous on Tuesday, February 24 2004 @ 03:47 PM EST
- First of all - Authored by: Anonymous on Tuesday, February 24 2004 @ 03:53 PM EST
- First of all - Authored by: Anonymous on Tuesday, February 24 2004 @ 04:20 PM EST
- Thankfully - Authored by: Anonymous on Tuesday, February 24 2004 @ 04:34 PM EST
- Thankfully - Authored by: beast on Tuesday, February 24 2004 @ 04:58 PM EST
- So PJ is a Troll-Hunter now - Authored by: inode_buddha on Tuesday, February 24 2004 @ 07:32 PM EST
- Re: Troll-Hunting and Sanctimony - Authored by: martimus on Tuesday, February 24 2004 @ 07:32 PM EST
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- SCO own worst enemy - Authored by: J.F. on Tuesday, February 24 2004 @ 01:04 PM EST
- Tell it like it is. - Authored by: tintak on Tuesday, February 24 2004 @ 01:07 PM EST
- Tell it like it is. - Authored by: Anonymous on Tuesday, February 24 2004 @ 01:21 PM EST
- Tell it like it is. - Authored by: Anonymous on Tuesday, February 24 2004 @ 03:42 PM EST
- Payment - Authored by: the_flatlander on Tuesday, February 24 2004 @ 04:27 PM EST
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- ??? - Authored by: Anonymous on Tuesday, February 24 2004 @ 01:36 PM EST
- Re: ??? - Authored by: Anonymous on Tuesday, February 24 2004 @ 02:35 PM EST
- Re: ??? - Authored by: Anonymous on Tuesday, February 24 2004 @ 03:50 PM EST
- Re: ??? - Authored by: Anonymous on Tuesday, February 24 2004 @ 05:49 PM EST
- Re: ??? - Authored by: Anonymous on Wednesday, February 25 2004 @ 02:45 PM EST
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- Groklaw is PJs site. - Authored by: RSC on Tuesday, February 24 2004 @ 04:21 PM EST
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Authored by: rand on Tuesday, February 24 2004 @ 12:39 PM EST |
I've got to stop mixing Mountain Dew and SCOGroup lawsuits...luckily there's a
box of keyboards in the back hall.
Does a Motion to Supplement need to include the all the original complaints? I
would think not.
And is it my imageination, or did SCOG fail to disavow the threats?
"Yer'oner, if it please the court, Plaintiff can't go around offering proof
that we're doing exactly what they were afraid we would do."
---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)[ Reply to This | # ]
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- Spew! - Authored by: Weeble on Tuesday, February 24 2004 @ 09:46 PM EST
- Spew! - Authored by: rand on Wednesday, February 25 2004 @ 03:51 AM EST
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:40 PM EST |
How amusing.
Red Hat files a suit because of public threats TSG made
against Red Hat specifically (or more specifically Darl McBride made to the
press about Red Hat), plus vague, general threats about Linux and Linux users,
and TSG argues that it never officially threatened Red Hat or its customers so
the suit has no merit. Then TSG goes ahead and follows through with the threats
that it (or its officers) made in public forums, and Red Hat brings this
evidence to light to further show that its concerns had merit, and TSG begs to
have the court ignore this evidence that Red Hat's concerns were
valid.
It seems to me that it's time to set a new legal precedent by
allowing the information. All Red Hat is doing is showing that TSG is pursuing
its strategy of threatening Linux users and harming Red Hat's business and
reputation.
When TSG sought to amend its complaint, IBM had no objection.
Translation: IBM knows TSG has no case, amended or otherwise. When Red Hat
sought to amend its complaint, TSG objected. Translation: TSG knows Red Hat has
a valid case, and the new evidence is quite harmful to TSG's
"defense".
IANAL...
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 12:40 PM EST |
Presumably RH's "reasonable apprehension" was based on inter alia
SCO's May 14th release, which began :"The SCO® Group (SCO)(Nasdaq: SCOX),
the owner of the UNIX operating system, today warned that Linux is an
unauthorized derivative of UNIX and that legal liability for the use of Linux
may extend to commercial users."
Given that this is directly referred to in SCO's letter to Lehmann, I can't see
that SCO have a leg to stand on. All RH are doing is pointing out that SCO's
later conduct, directly linked by SCO themselves to the statement which gave
rise to their reasonable apprehension, only serves to strengthen it.
Both barrels. Both feet. Every time.[ Reply to This | # ]
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- Exactamundo - Authored by: Anonymous on Tuesday, February 24 2004 @ 12:52 PM EST
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Authored by: jmc on Tuesday, February 24 2004 @ 12:51 PM EST |
Of course SCO's motion to dismiss was crap before this came up in any case so it
hardly seems worth SCO going through the motions - except Judge Robinson now has
something else to decide.
[ Reply to This | # ]
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Authored by: greg_T_hill on Tuesday, February 24 2004 @ 12:54 PM EST |
"Just because I went and really did what he said I was going to
do shouldn't count because I hadn't really done anything yet
when he came to you the first time and you hadn't said anything
to me yet so..."
"Go stand in the corner with your face to the wall and don't
move or speak until I say you can!"
I don't know, [standard disclaimer], but I don't think this motion
is going to be well recieved. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 01:05 PM EST |
SCO#1 says: "Red Hat didn't have enough evidence when they sued."
SCO#2 says: "Months later, we still don't have enough evidence to sue IBM.
We need IBM's source code first."
SCO#1 says: "RH hasn't shown one instance of actual threat, even though
they claim it."
SCO#2 says: "We haven't shown one instance of misappropriation/trade secret
violations/etc, but we will run our mouths and claim we have millions of
examples."
SCO#1 says: "Throw out Red Hat's suit -- it's baseless."
SCO#2 says: "Our suit is legit."
Anybody else see the hypocrisy?[ Reply to This | # ]
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Authored by: blacklight on Tuesday, February 24 2004 @ 01:16 PM EST |
"The test for an actual case or controversy is an objective one. Reasonable
apprehension and the other jurisdictional prerequisites must exist at the time
suit is filed." Mark J. Heise, Counsel for the SCO Group
Unfortunately for the SCO Group, it can be argued that particular test was
already met at the time of Red Hat's filing. The SCO Group's memorandum of law
is no better than a throw of the dice against heavy odds. On the other hand,
Heise added some billable hours for his law firm.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 01:20 PM EST |
This is how Netcraft characterizes the Utah District Court's server:
Microsoft-IIS/4.0 on Linux
You techies gotta help me with this one.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 01:22 PM EST |
So the lawyers in this case say that you have to have evidence of a misdeed
before you file a suit. Shouldn't these SCOG lawyers sue the Utah case SCOG
lawyers for incompetence/misdeeds since they (Utah lawyers) didn't have evidence
of IBM misdeeds? Maybe these SCOG lawyers should file a motion for IBM to have
SCOG's case thrown out in Utah.[ Reply to This | # ]
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Authored by: brenda banks on Tuesday, February 24 2004 @ 01:36 PM EST |
has anyone looked at the case law offered in this suppliment?
it seems to be only coming up under fee base account offerings
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 02:11 PM EST |
"The test for an actual case or controversy is an objective one.
Reasonable apprehension and the other jurisdictional prerequisites must exist at
the time suit is filed."
Says it all[ Reply to This | # ]
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- Hypocrites - Authored by: Jude on Tuesday, February 24 2004 @ 07:30 PM EST
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Authored by: Anonymous on Tuesday, February 24 2004 @ 02:18 PM EST |
Apologies for the offtopic.
I (like many) am awaiting the new word on discovery in the IBM case. It's
taking a long time. I'm wondering, is it possible that Wells has made her
decision, conveyed it to IBM and SCO, and it's just not showing up in the court
documents yet? Is is a given that this order will be made public? Just
curious.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 02:24 PM EST |
Nothing says loving... [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 02:27 PM EST |
I often thought this whole SCO case should be filmed, or made into a musical
(normal ones or like the Disney ones). Feeling a little creative, I thought of
how Darl should be introduced and what song to sing. I came up with some lyrics
bases on 'The Java Jive'. A fittingly deranged song :p
If you can come up with better lyrics, please do!
Location: Darl at home
Situation: Darl has just discovered some obscure clause which he thinks gives
his company the rights to Unix.
* Lead singer: Darl Mcsnide
* background voices between brackets, [], by Richard Stillmen, Linos Tarvulds
and Bruce Porans
* Female guest voice by Laurie Dodio
The Darl Jive
-------------
(intro)
I love Unix, I love AT&T
I love my bro' Kevin and he loves me
AT&T and the Unix and me
our prop-, our prop-, our prop- our property
[Oh!]
I love source code, sweet & hot,
woops IBM, we need just what you've got
show us the lot
and we'll hit the jackpot
our prop-, our prop-, our prop- our property
[No!]
Oh pay us the fee for our wondr'ous IP
and even the analysts are siding with me
Buy a couple of our stocks, chump
[Pump&Dump.
Traitor, traitor, litigator
]
I love Unix, I love AT&T
I love my bro' Kevin and he loves me
AT&T and the Unix and me
our prop-, our prop-, our prop- our property
[Oh boy!]
Utah state [Beehive state]
I said this itty-bitty criminal state ['t will decide your fate]
Oh there's no better state
to litigate
unless it is the Utah-Utah state, boy!
I love Unix, I love AT&T
I love my bro' Kevin and he loves me
the AT and the T and the Unix and me
our prop-, our prop-, our prop- our property
(Laurie Dodio)
hmmm... I'll throw around some mud spread even more FUD
before I even know there's Open source guys at work
'cause my mind is so chaotic
[so didiotic...
Traitor, traitor, impersonator
]
I love Unix, I love AT&T
I love my bro' Kevin and he loves me
AT&T and the Unix and me
our prop-, our prop-, our prop- our property
Boy!
[ Reply to This | # ]
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- Nice (n/t) - Authored by: Anonymous on Tuesday, February 24 2004 @ 06:58 PM EST
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Authored by: Anonymous on Tuesday, February 24 2004 @ 02:37 PM EST |
Actually, this begins to look like the movie "Chicago"
[ Reply to This | # ]
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- Chicago... - Authored by: Anonymous on Tuesday, February 24 2004 @ 04:11 PM EST
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Authored by: codexwriter on Tuesday, February 24 2004 @ 02:59 PM EST |
Red Hat may not bolster its position that it held a "reasonable
apprehension" of an infringement suit at the time its complaint was filed
by pointing to letters sent by SCO well after the filing date.
***
But in their other case (ok one of their many other cases) they told the IBM
judge that they did't have evidence of IBM placing their (oh, wait - Novell's,
my bad...) code into linux and they can't make their case unless they are
allowed to root through IBM's code.
Its so hypocritical that it's actually funny.[ Reply to This | # ]
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Authored by: BubbaCode on Tuesday, February 24 2004 @ 03:28 PM EST |
Wind River systems has recently entered into a loose stategic agreement with Red
Hat. This has caught the eye of SCO.
Here's the
article
http://www.siliconvalley.com/mld/siliconvalley/business/columni
sts/gmsv/8021144.htm
Why is this important? Because now SCO has really
bitten off more than it can chew.
First a little
history:
Wind River is an embedded systems company that has been in
business for many years. After they bought out some of their major competition
years ago they are the clear leader in propietary embedded operating systems.
They make an development system known as Tornado. Their actual OS is known as
VxWorks. Most of Wind Rivers business is government related.
They,
like many in this business, saw the writing on the wall and have been trying
various ways to get Linux to work for them. Linux is very popular in embedded
systems for many reasons.
OK so why is going after little old Wind
River such a bad move for SCO? Because they are messing with the OS of choice
for MANY, MANY governement systems. The mars rovers (yep Spirit and company),
ALL of the US major tanks, the LCAC, most helicopters, etc.
While
SCO is trying to get government sympothy by writing letters to Congress, what
will really get Washington's attention is a threat to shut down or cause a large
amount of money to be charged against existing and ongoing projects. One thing
NASA and DOD administrators and contractors don't like is silly unjustified
threats to thier projects by outside forces like SCO.
Look for
REAL letters to be written from the likes of Lockheed-Martin, Textron,
Boeing, United Technologies, Litton, General Dynamics and others to Congress.
If it turns out that SCO ended up costing the government/contractors
for no cause, look for fines, look for legal action.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 04:04 PM EST |
Well, both sides need to be explored. But had the Judge been ready to see this
from SCO's point of view, it would have been
dismissed way earlier. What Red Hat did was to take the rope the SCO sent to
Lehman Bros, fashion it, into a necktie and handed it to the judge. Now the
judge must decide if it fits the SCO's neck. This is the case that counts to me,
the ibm case is sorta important as is the novell, only they don't address what
the red hat case does. SHOW US THE CODE. This is the one thing the SCO has been
trying to stay away from as long as possible showing the infringing code. The
day a judge orders the SCO to produce the code, is the day we can all feel free.
Now the real question is how will the judge handle this mess. Cause the letters
also go to prove that the SCO's intentions, which they demostrated to the court
earlier in this case, is an out right lie. You can lie to your doctor, but never
lie to your lawyer, and even worse, never lie to a judge, it will come back to
haunt. This is the problem the sco has to overcome, because their own paperwork
is the trap door on the gallows.
in my Tin Hat mode, I hope it was an M$ machine that cause the Lehman Bros
letter to be sent, that would be poetic.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 04:55 PM EST |
Novel has files suit, but on differant grounds. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 06:41 PM EST |
If I read TSG's reply correctly, all they're arguing is that the new evidence
can't be used to establish standing (that is, that this court has jurisdiction,
and that the plaintiff has a judiciable complaint against the defendant.)
Did RedHat's motion even *suggest* that the only purpose of the new evidence was
to establish standing? Or were they filing the new evidence to further
establish the preponderance of evidence that they'd need to actually win the
case (which is a whole 'nother animal?)
IOW, even assuming that TSG's arguments were correct, is that any reason to deny
the admission of the new evidence?
IANAL, nor have I read through every last blessed line in Red Hat's original
motion, or the relevannt case law...
[ Reply to This | # ]
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Authored by: PJ on Tuesday, February 24 2004 @ 07:08 PM EST |
I have reached a decision. Thanks to the new trolls, from now any
anonymous comments that appear to be trolls will just be deleted. No
questions. No arguments. I'm too busy to add troll-handling to the day's
activities.
If you get a membership and it's clear from a series of comments that you are
here just to disrupt, I'll eventually delete you too. Your comments and your
membership. You are invited guests. Groklaw is my house, so to speak, so
my rules prevail, regardless of how you think things should be. If you wish to
start your own site and do what I have done, you are free to do so. If you
don't like Groklaw, your solution is to not read it.
If you are deleted and are sincere, write me an email and let me know your
views, if you wish. We can discuss.
I am imperfect and these are judgment calls, so I may make mistakes here
and there, but I'll do my best to be fair and not delete politely expressed
opposing views, which are fine, but I'm tired of the trolling and I think most
everyone else is too. It seems like a calculated program going on, from folks
with an agenda that is hostile to Groklaw. So that is the policy.
I'm not here 24 hours a day, so if you see an offensive post, just alert me by
email, so we can resolve this problem.[ Reply to This | # ]
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- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: Anonymous on Tuesday, February 24 2004 @ 07:15 PM EST
- GROKLAW's MEMORANDUM OF LAW IN OPPOSITION TO TROLLING - Authored by: dmomara on Tuesday, February 24 2004 @ 07:26 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: Anonymous on Tuesday, February 24 2004 @ 07:33 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: AdamBaker on Tuesday, February 24 2004 @ 07:40 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: Jude on Tuesday, February 24 2004 @ 07:40 PM EST
- Anonymous posters - Authored by: Anonymous on Tuesday, February 24 2004 @ 09:46 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: Steve Martin on Tuesday, February 24 2004 @ 07:40 PM EST
- OT: PJ, please consider again... - Authored by: belzecue on Tuesday, February 24 2004 @ 07:50 PM EST
- Good move - Authored by: Anonymous on Tuesday, February 24 2004 @ 08:12 PM EST
- Surviving the trolls - Authored by: a_dreamer on Tuesday, February 24 2004 @ 09:08 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: grouch on Tuesday, February 24 2004 @ 10:38 PM EST
- Thank you PJ. - Authored by: trox on Tuesday, February 24 2004 @ 10:47 PM EST
- agreed - Authored by: dan_d on Tuesday, February 24 2004 @ 11:33 PM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: blacklight on Wednesday, February 25 2004 @ 12:27 AM EST
- dTROLL - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:27 AM EST
- SCO's MEMORANDUM OF LAW IN OPPOSITION TO RED HAT'S MOTION TO SUPPLEMENT THE RECORD - Authored by: Anonymous on Wednesday, February 25 2004 @ 08:14 AM EST
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Authored by: Anonymous on Tuesday, February 24 2004 @ 07:10 PM EST |
I wonder if SCOG sent one of these letters to Merrill Lynch as well. I just
noticed this:
If I were a commercial end user independent of anything else, given the nature
of the GPL I would avoid modifying the code, I would avoid doing anything that
could be considered a distribution of my application. If I'm Merrill Lynch and
have a trading application proprietary to Merrill Lynch and deploy it across all
my trading desks, if that deployment occurred where the Linux OS and app are
distributed together there are arguments that Merrill would have to provide
their proprietary trading application in source form to everyone. That's a
problem. I'm sure all of Merrill's competitors would love to get that but it's
hard for a company to be financially viable when all of the basises are
shared.-- Chris Sontag, 2003-11-18
So, Lehman Brothers, and quite possibly (otherwise, why mention them - were they
trying to scare somebody ?) Merill Lynch.
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Authored by: Anonymous on Tuesday, February 24 2004 @ 08:15 PM EST |
I was browsing around the sco "buy your license"
web page, just idling using their bandwidth,
when I noticed something laughably amateur.
The links on the order page (where you can
"finalize" your order) all point to a non
SCO web site.
If, for example, you click on the "products" tab
you would be taken to http://www.scogroup.com/products/
Of course, there's no such page. scogroup is a
fiancial site of some kind which, I presume, has no
link with our dear SCO. Their link should be to
www.thescogroup.com/whatever ...
a very hastily, shoddily put together web site from
SCO, as we might expect [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 24 2004 @ 09:32 PM EST |
Following the story of SCO vs. IBM, vs. Red Hat, vs. therestoftheworld (apart
from M$) from the very beginning, I wonder what has happened to the so highly
admired country, called the U.S.A. (I'm not talking about the never-elected Bush
and his bunch). As a German and Citizen of Europe I can say, that Europe (and
especially Germany) owe so much to the U.S: peace, democracy, freedom and a
market economy. But, looking back in history, I am lucky, we didn't adapt the
anglo-american law, i.e. case law, after World War II. Most Eurpean countries
have legal systems based on Roman Law, which means that there is a certain
amount of laws which need to be interpreted by judges facing a special case.
Case law means that there are laws as well, but much of the shaping of the legal
sytem is done within the courts. That's why "precendence" plays such
an enormous role in the U.S. and (to a lesser extent) in UK or Canadian legal
system.
I won't dare saying that one legal system is superior to another, but to me it
seems obvious that U.S. case law has come to the same point, the German tax
system has already reached. This simply means it's a lottery - you'll never know
how much tax you'll have to pay or if you will even get money back in Germany.
Thousands of well payed specialists in Germany have nothing else to do than
searching for possibilities not to pay taxes. The reason for this was simply the
intention of all German governments to make tax law as just as possible - and
the result is that the more you earn, the less tax you'll have to pay which is
obviously unjust.
It seems to me that the same thing happened to the whole U.S. legal system. The
essential role of court rooms in shaping the legal system has led to an
overwhelming amount of *procedural* rules. These were originally designed to
make sure that court procedures are *absolutely* fair. But in the same way the
German tax system failed to prove just, the U.S. legal system nowadays fails to
do so. If you're just smart enough to fiddle procedural rules, you can delay a
final judgement until the end of times (or until you're bankrupt). And if you're
lucky enough to bring your case to a jury, you'll never know what will happen
because then much depends on rhetoric...
In my opinion, that's all SCO is aiming at. They know, they can't win their case
against IBM on a legal or factual basis. But they need a judgement that will
allow them litigation in the future. And then, the whole mess will begin from
start - simply by fiddling procedural rules.
The German Court in the SCO-case was quite clear: Prove it or shut up! That's
the way those things should be dealt with. And from many other European posts on
Groklaw I got the impression that such an absurdity would be impossible in
Europe. I believe that Darl & Co. would already be on trial because of fraud
and ... IAN€AL but a historian.
Sorry U.S., I love you, but I think hardly anybody in Europe wants your lousy
legal system to be implemented elsewhere. Law should protect competition instead
of preventing it![ Reply to This | # ]
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- Your logic is flawed - Authored by: Anonymous on Tuesday, February 24 2004 @ 10:06 PM EST
- not so flawed. - Authored by: Anonymous on Tuesday, February 24 2004 @ 10:34 PM EST
- no - Authored by: Anonymous on Tuesday, February 24 2004 @ 11:22 PM EST
- UK Law - Authored by: Anonymous on Wednesday, February 25 2004 @ 03:29 AM EST
- UK Law - Authored by: Anonymous on Wednesday, February 25 2004 @ 07:38 AM EST
- BWAAAAAAHAHAHAHAAA!!! - Authored by: Anonymous on Wednesday, February 25 2004 @ 08:57 PM EST
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Authored by: The Mad Hatter r on Wednesday, February 25 2004 @ 12:27 AM EST |
I've seen a lot of comment on the quality of SCO's legal pleadings, implying
that their lawyers are not competent. I think that many of you are missing some
very important points:
1) No matter how good a lawyer is, the quality of the client will effect what
actions that the lawyer can take.
2) Quality of the client's case will effect the chance of a win in a court
case.
3) Quality of the opponent will also have an effect.
4) Quality of the opponent's lawyers will also have an effect.
What we have is a situation where SCO's lawyers are effectively fighting on four
fronts for every case they are involved in, and they are involved in 6 cases (3
claims, and 3 counterclaims).
If we look at client quality we have to compare the actions of SCO Group
management against the actions of IBM, Red Hat, and Novell.
Look at the quality of the case SCO Group has, compare it to the USL/BSDI case,
and cases involving other tech companies such as Microsoft.
Look at the quality of the opponents, in other words compare them against SCO
Group.
And the compare the quality of the various law firms.
After doing this I came to the conclusion that SCO Group's lawyers are in the
position of the poor guy who tried to clean the Augean Stables before Hercules.
No matter how good they are, due to the nature of their client, their client's
case, and the opposition they have to run 3 times as hard just to keep up.
How do you defend the indefendable? Maybe we should ask Ted Bundy's lawyer to
comment on that.
---
Wayne
telnet hatter.twgs.org
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Authored by: Steve Martin on Wednesday, February 25 2004 @ 06:05 AM EST |
The "reasonable apprehension" requirement is a means by
which a court ensures it is properly exercising its jurisdiction over an actual
"case or controversy" as mandated by Article III of the U.S. Constitution.
I get suspicious anytime someone starts throwing
about the U.S. Constitution to support their arguments. Here's what Article III
says (from the Cornel
l University law school Web site):
Section 1. The
judicial power of the United States, shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain and
establish. The judges, both of the supreme and inferior courts, shall hold their
offices during good behaviour, and shall, at stated times, receive for their
services, a compensation, which shall not be diminished during their continuance
in office.
Section 2. The judicial power shall extend to all
cases, in law and equity, arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made, under their
authority;--to all cases affecting ambassadors, other public ministers and
consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies
to which the United States shall be a party;--to controversies between two or
more states;--between a state and citizens of another state;--between citizens
of different states;--between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, and
foreign states, citizens or subjects.
In all cases affecting
ambassadors, other public ministers and consuls, and those in which a state
shall be party, the Supreme Court shall have original jurisdiction. In all the
other cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such
regulations as the Congress shall make.
The trial of all crimes, except
in cases of impeachment, shall be by jury; and such trial shall be held in the
state where the said crimes shall have been committed; but when not committed
within any state, the trial shall be at such place or places as the Congress may
by law have directed.
Section 3. Treason against the United
States, shall consist only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or on confession
in open court.
The Congress shall have power to declare the punishment
of treason, but no attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attainted.
Can someone please find where SCO interprets the above
material to mean what they say it means? I must be blind.
--- "When I
say something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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- Nice Work - Authored by: Anonymous on Wednesday, February 25 2004 @ 04:36 PM EST
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