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| Red Hat's Motion to Supplement the Record and Proposed Order |
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Tuesday, February 17 2004 @ 10:19 PM EST
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Here is the motion that Red Hat just filed in Delaware. It's a motion to supplement the record, asking the judge to allow this new information be added. They also put in a proposed order, so if the judge says yes, all she has to do is sign on the dotted line. Here is the heart of it:
"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."
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
________________________________________
RED HAT, INC.,
Plaintiff,
v.
THE SCO GROUP, INC. (formerly Caldera International, Inc.),
Defendant.
_______________________________________
MOTION TO SUPPLEMENT THE RECORD
Civil Action No.: 03-772-SLR
_______________________________________
Red Hat, Inc. ("Red Hat"), hereby moves pursuant to Local Rule 7.1.2(c), to supplement the record with regard to the motion to dismiss filed by The SCO Group, Inc. ("SCO").
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.
In support of this motion to supplement the record, Red Hat respectfully represents as follows:
1. On August 4, 2003, Red Hat filed a complaint against SCO seeking, inter alia, a declaratory judgment that Linux software sold, used or distributed by Red Hat does not infringe any rights that SCO may have pursuant to Section 106 of the United States Copyright Act, or otherwise.
2. On September 15, 2003, SCO moved to dismiss Red Hat's Complaint claiming, inter alia, that this Court lacks subject matter jurisdiction to decide the copyright declaratory judgment claim, arguing that there is no "actual controversy" between the parties, and asserting that Red Hat is merely attempting to seek "general guidance" for the Linux industry. Red Hat opposed SCO's motion, and the matter has been fully briefed.
3. As explained in Red Hat's opposition to SCO's motion, threats to Red Hat's customers plainly establish an "actual controversy" justifying declaratory relief. Indeed, the Third Circuit specifically has held that "it is not necessary that notice be given directly to the plaintiff or that any threat be made to sue the plaintiff. Notice to plaintiffs customers is sufficient." Aralac, Inc. v. Hat Corp. of Am., 166 F.2d 286, 292-93 (3d. Cir. 1948). See also Cargill, Inc. v. Sears Petroleum & Transp. Corp., No. 02 Civ.1396, 2002 WL 31426308, at *5 (S.D.N.Y. Oct. 28, 2002) (stating that "informing customers of a potential patent dispute is exactly the sort of damaging claim that the [Declaratory Judgment Act] is designed to address"); Nippon Elec. Glass Co., v. Sheldon, 489 F. Supp. 119, 121-22 (S.D.N.Y. 1980)(stating that accusation need not be made directly to the declaratory judgment plaintiff, but may be made to its customers or to the industry at large").
4. In Red Hat's Complaint and in its opposition to SCO's motion to dismiss, Red Hat detailed a number of statements that SCO had already made to Red Hat's customers and potential customers. SCO recently has sent a letter to a Red Hat customer claiming that the customer's use of Linux infringes SCO's copyrights. In fact, the customer has advised both SCO and Red Hat that it is looking to Red Hat for a response. Red Hat's response is this declaratory judgment action to demonstrate - once and for all - that SCO's prominent public statements about copyright infringement are false. Only in this way can SCO's avowed campaign to discredit and inhibit the use and sales of Linux products and services distributed by Red Hat be stopped.
5. More specifically, on December 19, 2003, SCO sent a letter (Exhibit A) to Lehman Brothers Holdings, Inc., a Red Hat Linux customer. In this letter, SCO refers back to a May 2003 warning that use of Linux violates SCO's intellectual property rights in UNIX. The letter identifies a portion of the code that SCO alleges was copied without authorization, and explicitly states that use of the Linux operating system, and thus the one distributed to Lehman Brothers by Red Hat, violates SCO's rights under the United States Copyright Act. SCO demands that Lehman Brothers "discontinue these violations" and that SCO "will take appropriate actions to protect [its] rights."
6. Following up on its first letter, SCO then sent two more letters to the Lehman Brothers' Chairman and Chief Executive Officer, Richard Fuld (Exhibit B), and its Chief of Operations and Technology, Jonathan Beyman (Exhibit C). These letters reiterate SCO's position that use of Linux violates the Copyright Act. SCO concludes this letter by stating that:
If you fail to respond to our efforts to pursue a licensing arrangement, WE WILL TURN YOUR NAME OVER TO OUR OUTSIDE COUNSEL FOR CONSIDERATION OF LEGAL ACTION.
7. Lehman Brothers responded (attached as Exhibit D), and among other things, noted that it purchased Linux products and services from Red Hat.
8. Further, at a public presentation at Harvard Law School on Monday, February 2, 2004, SCO's President and Chief Executive Officer, Darl McBride, emphasized that SCO is planning to begin suing end users of Linux. McBride promised that SCO would be "in the courtroom with an end user by February 18," that lawsuits against end users are "coming up within the next few weeks," and that SCO's outside legal counsel has told McBride that "we'll have them filed by February 18" and "we expect that to happen."
9. 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 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 and that conduct is, therefore, further evidence that a case. or controversy does exist. See Interdynamics, Inc. v. Firma Wolf, 698 F.2d 157, 166 (3d Cir. 1982) (patent infringement); Dow Chem. Co. v. Exxon Chem. Patents, Inc., Civ. A. No. 94-572-SLR, 1995 WL 562289, at *7 (D. Del. Aug. 16, 1995).
10. These SCO letters and statements also contradict earlier representations made by SCO to this Court. See SCO Reply Br. p. 1- 2 ("...Red Hat has not alleged a `reasonable apprehension' that SCO has threatened it or its customers with claims for copyright infringement...."); (SCO Reply Br. p. 5-6.)(denying that there is an "unmistakable threat of litigation" which would put customers "in reasonable apprehension of suit...."). Plainly, SCO's recent letters and statements do exactly what SCO previously denied.
WHEREFORE, Red Hat respectfully requests that this Court enter an order, in the form submitted herewith, permitting the submission of this information in further support of Red Hat's opposition to SCO's motion to dismiss.
DATED: February 11, 2004
Respectfully submitted,
RED HAT, INC.
By its attorneys
______________
Josy W. Ingersoll (#1088)
Adam W. Poff (#3990)
Young Conaway Stargatt & Taylor, LLP
[address, phone]
William F. Lee
Mark G. Matuschak
Michelle D. Miller
Donald R. Steinberg
Hale and Dorr LLP
[address, phone]
**********************************************************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
______________________________________
RED HAT, INC.,
Plaintiff,
V.
THE SCO GROUP, INC. (formerly Caldera International, Inc.),
Defendant.
______________________________________
ORDER
Civil Action No.: 03-772-SLR
_____________________________________
WHEREFORE, the Court having considered Red Hat, Inc.'s Motion to Supplement the
Record, and the parties' submissions,
IT IS HEREBY ORDERED that Red Hat, Inc.'s Motion to Supplement the Record is granted.
Dated:
U.S.D.J.
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:46 PM EST |
| Lying to a judge is not cool. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:47 PM EST |
Here's another company being threatened by SCO.
www.gavinroy.com/~gavinr/sco_threat.gif
I don't know what flavor on Unix or Linux they may be using.
The letter certainly makes its point, though it may not be the effect that SCO
intended.[ Reply to This | # ]
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| Authored by: overshoot on Tuesday, February 17 2004 @ 10:54 PM EST |
| Did the Court allow the motion? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:54 PM EST |
| "These circumstances are exactly those for which the declaratory judgment
statute was created."
Such a finding of fact is usually left up to the
Judge to decide. However, this Judge is "too busy" to bring Justice to this
matter, and Redhat are trying to wake her up from her slumber^w, sorry, other
pressing cases. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:15 PM EST |
Well, tomorrow's February 18th, and SCO has promised us as recently as a week or
two ago that they would be in court with an end-user by then.
Assume for the nonce that SCO actually follows through with its threat tomorrow.
Will Red Hat file a further addendum to include SCO's action in its complaint?
If SCO sues a Red Hat client, will that give RH the opportunity to refile its
complaint in such a manner that it's not up to the judge's discretion, and can
proceed on a timely basis?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:15 PM EST |
In 2006, or so, when the judge finally gets around to looking at this; the
court will probably rule in redhat's favor. Of course, by then, scox will be
long gone. And Darl, Sontag, Yarro, etc., will be much richer.
[ Reply to This | # ]
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- Does it matter? - Authored by: webster on Tuesday, February 17 2004 @ 11:29 PM EST
- Does it matter? - Authored by: Anonymous on Tuesday, February 17 2004 @ 11:42 PM EST
- Does it matter? - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:36 AM EST
- Does it matter? - Authored by: Anonymous on Wednesday, February 18 2004 @ 09:07 PM EST
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:20 PM EST |
IANAL, IMHO
Following is not my opinion, but what I think will be the gist of their likely
response. Challenge for groklawers is to shoot it down.
<DarlMode>
3. Linux is free. Therefore Red Hat has no customers. Therefore SCO can not be
giving notice or making threats to Red Hat customers. Therefore ignore this
point.
4. Ditto 3
4. to 8. Took place after the action was filed, and are therefore not relevant.
9. Ditto 3., and 4. to 8.
10. Ditto 3., and 4. to 8. Plus, Red Hat's pleadings do not include this
information, so this new information can not be relevant to reading Red Hat's
pleadings in their most favorable light, which is the standard for dismissal.
The motion to supplement the record should be denied, for the above stated
reasons.
Red Hat's complaint should be dismissed for the reasons stated in SCO's
opposition brief.
</DarlMode>[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:29 PM EST |
| Delaware -- the Roach Motel of lawsuits. Motions go in, but nothing comes out. [ Reply to This | # ]
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| Authored by: kberrien on Tuesday, February 17 2004 @ 11:30 PM EST |
I still don't understand why, why doesn't Red Hat get an emergency injunction to
stop unsubstantiated threats, claims, etc. What more evidence do they need?
Even the ownership of *Unix* is at dispute.
Granted, they are not being outwardly being harmed (linux use is up), but still.
This is all a stain that might wash off, or it might not.
I'm sorry. SCO's extra-court behaviour should not be tolerated in this country,
period! I'm certain (and I've seen some of this here) that Europeans and others
are amazed at all this, and why it can still go on.
Instead of being leaders in the field, the US software industry looks like a
bunch of baffoons right now. We've got a real circus going on. And its only
going to get worse.[ Reply to This | # ]
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- Injunction? - Authored by: Anonymous on Wednesday, February 18 2004 @ 02:59 AM EST
- Injunction? - Authored by: Anonymous on Wednesday, February 18 2004 @ 04:10 AM EST
- Injunction? - Authored by: Anonymous on Wednesday, February 18 2004 @ 05:32 AM EST
- Injunction? - Authored by: Anonymous on Friday, February 20 2004 @ 12:31 PM EST
- Injunction? - Authored by: Anonymous on Saturday, February 21 2004 @ 05:29 AM EST
- Injunction? - Authored by: farnz on Wednesday, February 18 2004 @ 04:34 AM EST
- Injunction? - Authored by: Anonymous on Wednesday, February 18 2004 @ 01:19 PM EST
- Injunction? - Authored by: Anonymous on Thursday, February 19 2004 @ 10:29 PM EST
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| Authored by: red floyd on Wednesday, February 18 2004 @ 02:10 AM EST |
And Ingersoll pulls a page from IBM's playbook with item 8.
Darl *HAS* to be regretting that talk at Harvard now.
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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| Authored by: odysseus on Wednesday, February 18 2004 @ 02:22 AM EST |
Aha! I was wondering how RedHat was going to get around
all these letters
going out AFTER their original filing and
SCO's motion to dismiss (SCO could
say "We had no intention
at that time, but changed our minds..."). Instead,
RH
quote
from the letter:
"In this letter, SCO refers back to a
May 2003 warning
that use of Linux violates SCO's intellectual property
rights in UNIX. "
i.e. RH is pointing out to the court that when SCO
sent
these letters out to one of their customers, they were
following up
on threats originally made BEFORE RH filed
suit, therefore those original
threats that RH complained
about and that SCO said weren't threats really are
indeed
threats as evidenced by SCO's further actions...
Once again,
SCO's own words show them up before the
courts. Here' hoping the Delaware
judge understands this,
and gets off her backside to rule on SCO's motion.
John. [ Reply to This | # ]
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