| Correction On Red Hat Injunctive Relief |
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Tuesday, August 05 2003 @ 12:35 AM EDT
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I had time to read Red Hat's complaint more carefully, and there was an error in what I earlier wrote. The media, in two places that I saw, reported that Red Hat was asking for a preliminary injunction, and that's what I wrote about too, because I didn't at the time have the actual complaint, only media reports. I have corrected what I wrote earlier, but I'm highlighting it here so you won't think you were dreaming.
What I am reading in the actual complaint is that they are asking for a permanent injunction, stopping SCO from saying bad things about Linux, in effect, and several orders, under the Declaratory Judgment Act, declaring that SCO's trade secrets have not been stolen by Red Hat or its customers, and that any such trade secrets claimed to be misappropriated are unenforceable, that Red Hat and their customers aren't guilty of copyright infringement, and that any copyrights are unenforceable, and that the Linux kernel and operating system are public and therefore can't be a trade secret.
Here's the actual wording:WHEREFORE, Red Hat respectfully requests:
A. A permanent injunction restraining SCO and its officers, directors, partners, agents, servants, employees and attorneys, and those persons in active concert or participation with SCO from representing by any means whatsoever, directly or indirectly, or doing any other acts or things calculated or likely to cause confusion, mistake or to deceive purchasers, business partners and/or investors into believing that Red Hat's LINUX products and/or the LINUX products used by Red Hat's customers and partners violates any of SCO's intellectual property or trade secret rights;
B. Under Count I, a Declaratory Judgment pursuant to 28 U.S.C. Sections 2201 et seq. that Red Hat's and its customers' actions in providing, creating, maintaining, debugging, developing, copying, selling, transferring, installing, operating, or otherwise using any of Red Hat's LINUX products and services do not violate any SCO rights under Section 106 of the Copyright Act, 17 U.S.C. Sections 101 et seq., and a Declaratory Judgment that any SCO copyright claimed to be infringed by Red Hat or its customers in conjunction with any of Red Hat's products is unenforceable;
C. Under Count II, a Declaratory Judgment pursuant to 28 U.S.C. Sections 2201 et seq. that Red Hat's and its customers' actions in providing, creating, maintaining, debugging, developing, copying, selling, transferring, installing, operating, or otherwise using any of Red Hat's LINUX products and services do not constitute a misappropriation of any SCO trade secret, a Declaratory Judgment that the LINUX kernel and operating system are public and therefore cannot constitute a trade secret; and a Declaratory Judgment that any SCO trade secret claimed to be misappropriated by Red Hat or its customers in conjunction with any of Red Hat's products is unenforceable; . . . It then goes on to ask for actual damages, in an amount to be determined at trial, trebled, plus attorneys' fees.
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| Authored by: Anonymous on Monday, August 04 2003 @ 11:35 PM EDT |
| For the uninitiated what are the differences between a preliminary and permanent
injunction?
And what are the implications, if any.
PS. your blog is a breath of fresh air :-)
Chris Moore[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 12:06 AM EDT |
| SCO's response:
http://biz.yahoo.com/prn
ews/030804/lam110_1.html
summary:
What? You're suing us? Well, of all the mean things that someone could do. We
told you to believe us. We showed our code to a bunch of non-coders like that
really nice DiDio lady. I called my buddy Matthew to try to convince him. And
now, we're completely surprised to be sued. I suppose we'll have to respond to
your very unfriendly note. Of course, now we'll claim that you infringe our
copyright, are conspiring to do something, and have taught monkeys how to type
Shakespeare. You Gunky!
Frank[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 12:54 AM EDT |
| Chris: Thanks. If you look in either Legal Links page or SCO Archives, you'll
find material on your question. The short answer is preliminary is like in the
Napster case, where they wanted immediate shut-down, even prior to the trial's
end. And got it. It's subject to the final determination of the case.
Permanent means exactly that.
Frank, if you read about declaratory judgments in the two places mentioned,
you'll discern what's happening in those letters. It's in SCO's interests to
act like they never meant to sue Red Hat. It's in Red Hat's interest to say
they were just about to. It has to do with meeting the necessary requirements
to qualify for a declaratory judgment or not.
pj[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 01:19 AM EDT |
| Morning pj, I hope you slept well tonight...
I have taken a better look at the Red Hat complaint and paragraphs 1-69 (that
describe the case) will not contain any surprises for a regular Groklaw reader.
I don't think that Red Hat will have much difficulty in proving the
allegations.
The first claim (Count 1) is a "request for declaratary jugdgement of
noninfringement of copyrights". I think it will be hard for Red Hat to prove
paragraph 71: "No LINUX version sold, used or distributed by Red Hat, or used by
Red Hat's customers, infringes any rights SCO might have persuant to Section 106
of the Copyright Act..." It is easier to prove infringement than
noninfringement, even more so when the code you might be infringing is a secret
held by another company.
The second claim (Count 2) "request for declaratary jugdgement of No
Misappropriation of Trade Secrets" has good chances. There could be problems
when SCO is able to show some contracts with Red Hat.
Counts 3 to 7 are the usual "unfair business practices" claims with
references to various US and state laws. The only thing I want to say about this
is that if SCO can prove IP infringement in the Linux kernel, the Red Hat
allegations will lose a lot of their merit, but not all of them. SCO could have
given the Linux developers a fair chance to remove the infringement.
The relief requested is in line with the claims, a gag order, the declaratary
jugdement, (triple) damages and costs of prosecuting the case.
The press release of SCO is... what should I say... "As evidence of our
good intentions we provide the letter that we didn't send to Red
Hat." The rest of the stuff is the usual vague allegations, closed by "We'll
see you in court."
MathFox[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 01:29 AM EDT |
| Only just read this story thanks to the US-UK time difference - looks like I've
arrived fashionably late ;)
It would seem that the battle over this new case will not be over copyrights,
but over intent to sue. SCO will try very hard to convince the court that they
never intended to sue Red Hat. Why? Because if this defence fails, they can only
defeat the declaratory judgement by producing evidence to back up their claims -
the evidence they refused to show in Germany. Once it gets to that stage, SCO
cannot win in the long run. Either they don't produce the evidence, in which
case Red Hat get their judgement and SCO's stock tanks; or they do, and it is
either shown to be specious or the offending code is ripped out of the kernel in
a matter of days.
Of course Red Hat's complaint covers other matters like trade libel, but the
point to be borne in mind at all times is that SCO does not want, indeed cannot
afford, to let its claims of System V code copied into the kernel go to trial.
That would give it at best a pyrrhic victory.
Dr Stupid[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 02:04 AM EDT |
Dr Stupid, I think the "intent to sue" is covered because Red Hat also demanded
the declaratory judgement to include their customers... SCO has been
threathening the Linux users. Anyway, we'll see soon enough how SCO handles the
case in court.
MathFox[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 09:31 AM EDT |
| I've said this before, but *thank you thank you thank you* for this blog. It is
now daily required reading for my peace-of-mind regarding Linux.
BTW, in Red Hat's complaint, it seems like they keep shouting each time they
mention Linux :)
roq
RoQ[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 09:34 AM EDT |
| Morning, all. The intent to sue part relates to the elements you must
demonstrate to be heard in a declaratory judgment. It's discretionary with the
judge whether he accepts the case or not, as far as the declaratory judgment
requests are concerned. One thing you must show is that there is an actual case
or controversy, meaning you realistically expect to be sued, and that's why you
are asking the judge to step in and settle it now, so you don't have to live
with the threat. For example, you might want a judge to settle whether or not
you are in violation of someone's trademark before you spend gazillions on
manufacturing, distributing and marketing a product. If you got a threatening
letter from another company that saw a press release that you were planning on
making your product, in which they said they'll sue you if you go ahead, then
you can ask a judge to settle it now, instead of later.
Naturally, when you ask the judge for help, the other side may counter by
saying, "Who, me? Sue? Why no such thought ever entered my mind." It's just
part of the dance. See today's article on Helping Red Hat.
Homework: read up on declaratory judgments. : )
Links in Legal Links page and archives.
pj[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 09:34 AM EDT |
| Morning, all. The intent to sue part relates to the elements you must
demonstrate to be heard in a declaratory judgment. It's discretionary with the
judge whether he accepts the case or not, as far as the declaratory judgment
requests are concerned. One thing you must show is that there is an actual case
or controversy, meaning you realistically expect to be sued, and that's why you
are asking the judge to step in and settle it now, so you don't have to live
with the threat. For example, you might want a judge to settle whether or not
you are in violation of someone's trademark before you spend gazillions on
manufacturing, distributing and marketing a product. If you got a threatening
letter from another company that saw a press release that you were planning on
making your product, in which they said they'll sue you if you go ahead, then
you can ask a judge to settle it now, instead of later.
Naturally, when you ask the judge for help, the other side may counter by
saying, "Who, me? Sue? Why no such thought ever entered my mind." It's just
part of the dance. See today's article on Helping Red Hat.
Homework: read up on declaratory judgments. : )
Links in Legal Links page and archives. Also, SCO will have to show the code
now, MathFox. No choice.
pj[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 09:35 AM EDT |
| Morning, all. The intent to sue part relates to the elements you must
demonstrate to be heard in a declaratory judgment. It's discretionary with the
judge whether he accepts the case or not, as far as the declaratory judgment
requests are concerned. One thing you must show is that there is an actual case
or controversy, meaning you realistically expect to be sued, and that's why you
are asking the judge to step in and settle it now, so you don't have to live
with the threat. For example, you might want a judge to settle whether or not
you are in violation of someone's trademark before you spend gazillions on
manufacturing, distributing and marketing a product. If you got a threatening
letter from another company that saw a press release that you were planning on
making your product, in which they said they'll sue you if you go ahead, then
you can ask a judge to settle it now, instead of later.
Naturally, when you ask the judge for help, the other side may counter by
saying, "Who, me? Sue? Why no such thought ever entered my mind." It's just
part of the dance. See today's article on Helping Red Hat.
Homework: read up on declaratory judgments. : )
Links in Legal Links page and archives. Also, SCO will have to show the code
now, MathFox. No choice.
pj[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 09:39 AM EDT |
| Sorry about the triple post. The software said, "Connection refused," so I
tried a second time, same thing, so a third.
Of course, I end up looking like a dope.
Ah, a new day has begun. : )
pj[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 10:17 AM EDT |
| No sweat, pj. Personally I think SCO will have a basic problem with claiming
they didn't intend to sue Red Hat - namely, Red Hat are one of the biggest
distributors of the kernel, especially to commercial users. For SCO to say "we
have no intention of suing the single biggest violator of our copyright" sounds
not just bizarre, but surreal.
As for the mention of conspiracy in their press release, I had to grow an extra
eyebrow so I could muster sufficient eyebrow-raisage. Perhaps SCO intend to show
the SysV code was copied into the kernel by a man on the grassy knoll? ;)
BTW, did anyone notice this comment from Novell Vice-chairman Chris Stone?
"It's great they [Red Hat] sued them. That takes the heat off us. Go Matt!
(Szulik, Red Hat, chairman and CEO) SCO doesn't have any friends left. And
remember, we never said the copyright thing between us and SCO was over. We'll
see."
That last sentence looks interesting...
Dr Stupid[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 10:18 AM EDT |
Sorry, second-to-last sentence ;)
Dr Stupid[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 05 2003 @ 03:03 PM EDT |
I went to the Legal Links page and looked up the definitions of Permanent
Injunction and Temporary Injunction. I'm not sure why Red Hat went after a
Permanent Injunction. I had an idea, though: does requesting a Permanent
Injuction grant Red Hat any greater discovery powers prior to the hearing?
Might it make it easier for Red Hat to find out what the supposed infringing
code is?
Ed Hannaford[ Reply to This | # ]
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