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Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement
Tuesday, February 17 2004 @ 11:13 PM EST

Here's Exhibit D to Red Hat's Motion to Supplement, Lehman Brothers' attorney's reply to SCO's threatening letters. Lehman Brothers, clearly, rejects SCO's invitation to be sued, as well as SCO's legal theory that it has the right to sue end users at all. Take it up with Red Hat, Lehman suggests, and if you must contact us again, direct it to the attorneys only. They expect no need for further contact. Icy. Clear. There is no rollover. Thank you, Lehman Brothers.

I gather Lehman Brothers understands the GPL better than SCO does, not that that's hard to do. SCO has been trying to tell the world that the no warranty provision in the GPL is the same as no indemnification for IP claims. It's not the same thing at all. It's saying if there is a problem with the code, sorry, but you got it for free. Microsoft's EULAs say very similar things. That's a clause that is in the GPL because individual coders are really not in a financial position to provide tech support. But the no warranty clause does not intend to say that if there is an IP issue, the end user is the one to be sued. Only SCO thinks that way, and here Lehman says to them, Sorry, we are just the end user. You've made a mistake looking to us for relief of any kind. I'm just the guy that bought that book in Barnes & Nobles Eben Moglen talked about, and you're barging into my living room accusing me of infringement for reading the book I paid for. If there is any copyright infringement, talk to the infringer.

Red Hat, in turn, on receipt of the letters, ran to the judge to spread them before her and ask her now for justice, telling her that it's up to them to respond, their customer is in danger of being sued, and their response is to ask for her protective intervention, first in denying SCO's Motion to Dismiss, and ultimately for a declaratory judgment that SCO is all wet. That's not legalese. But it's what they mean. Hopefully, the judge won't wait so long the damage becomes irreversible.



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

LEHMAN BROTHERS
Dauna Williams
Associate General Counsel and Vice President
Technology Intellectual Property
Corporate Law

30 January 2003

VIA FACSIMILE and OVERNIGHT COURIER

Mr. Ryan E. Tibbetts [sic]
General Counsel

Mr. Gregory Petit
Regional Director, Intellectual Property Licensing
SCO
[address, fax]

Gentlemen:

SCO's letters of December 19, 2003 and January 16, 2004 to Mr. Richard Fuld and of January 16, 2004 to Mr. Jonathan Beyman (all attached) have been forwarded to me for reply.

The issues you raised concerning use of Linux software have been directed to our vendor, Red Hat Inc., for response. Understandably, they are the appropriate recipient and are better positioned than we to respond to your issues and concerns.

Please direct any further correspondence on the subject to Red Hat. To the limited extent you must communicate with Lehman Brothers in the future (admittedly unlikely, given our request herein), please direct any such communications directly to my attention.

Very truly yours,


_______________
Dauna Williams
Associate General Counsel and Vice President

Enclosures

LEHMAN BROTHERS INC.
[address, phone, fax]


______________________________


I, John W. Shaw, Esquire, hereby certify that copies of the foregoing document were caused to be served on February 11, 2004, upon the following counsel of record:

BY HAND DELIVERY

Jack B. Blumenfeld, Esquire
Morris, Nichols, Arsht & Tunnell
[address]

BY FEDERAL EXPRESS

Mark J. Heise, Esquire
Boies, Schiller & Flexner, LLP
[address]


_____________________
John W. Shaw

  


Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement | 59 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement
Authored by: bobn on Tuesday, February 17 2004 @ 11:34 PM EST
YES.

[ Reply to This | # ]

Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement
Authored by: WhiteFang on Tuesday, February 17 2004 @ 11:39 PM EST
I detect a pattern here.

Every single 'response' to SCOX has been clear, to the point and well written.

Every assertion and claim by SCOX has been muddy, pointless and poorly written.

This is regardless of venue be it the legal arena or trial by press.

As my grandfather would say: "Well, ain't that sumpthin."

:-D

[ Reply to This | # ]

One liner missed...
Authored by: kberrien on Tuesday, February 17 2004 @ 11:45 PM EST
>The issues you raised concerning use of Linux software have
>been directed to our vendor, Red Hat Inc., for response.
>Understandably, they are the appropriate recipient and are
>better positioned than we to respond to your issues and
>concerns.

And it was with this words, Dauna Williams missed an apportunity to go down in
history with a great one liner, such as General McAuliffe's famous response to
surrounding german armies seeking his surrender, "Nuts!".

... otherwise, a perfect response.

[ Reply to This | # ]

Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement
Authored by: Anonymous on Tuesday, February 17 2004 @ 11:45 PM EST
New Book authored by SCO Executives:

HOW TO LIVE IN SOMEONE ELSES DIMENSION

This Fabulous publication comes with Bonus material that's sure to find a home
even with the most mal-adjusted corporate executive, they include:

- Creating Facts from Imagination
- Creating Expert Testimony from Hallucinations
- Betting the Company on Space Cadet looking Legal Staffers
- Denial of Real World Situations
- Interpretations of Contracts (to Justify YOUR View)
- Licking the RIGHT Magic Mushroom

All This and More!

... I wanna see the world from Darl's angle, that'd be a real Jolt, wouldn't it?

[ Reply to This | # ]

Where's Judge Wells' Order?
Authored by: webster on Tuesday, February 17 2004 @ 11:46 PM EST
PJ, why don't you post Judge Wells' order? Tell her to hurry up if you have to.
Doesn't she know we are curious?

---
webster

[ Reply to This | # ]

How does Delaware court sort its cases?
Authored by: Anonymous on Tuesday, February 17 2004 @ 11:50 PM EST
Does the Delaware court just tell their litigants to take a number, or is there
some assessment of a case's importance? If the latter, I wonder which cases are
trumping Red Hat's?

[ Reply to This | # ]

OT: SCO having data removed from google cache!?
Authored by: Anonymous on Wednesday, February 18 2004 @ 12:13 AM EST
check out this /. comment:
http://yro.slashdot.org/comments.pl?sid=97235&cid=8311807 .

I Googled "cache:www.sco.com" and it also told me "Content
removed at the request of the site's publisher". This, needless to say, is
not something you see everyday. Same thing for
"cache:www.thescogroup.com". So, is SCO attempting to prevent their
words from being used against them again?

[ Reply to This | # ]

Not sure if any of this matters...
Authored by: Anonymous on Wednesday, February 18 2004 @ 12:20 AM EST
I did minimal checking of stories circa the 1995 sale of Unixware to oldSco. What's interesting is in the few stories I looked at, none mention actually selling copyrights, only the _product_. Her e is an announcement of Novell selling Unixware to oldSCO.

Note this comment:
Unixware has never achieved a substantial market share

Another quote, again no mention of _copyrights_

X/Open introduces the UNIX 95 branding programme.
Novell sells UnixWare business to SCO

nwfusion makes this interesting distinction:

1992 - Purchases rights to AT&T UNIX
1995 - Sells Unixware to Santa Cruz Operation

from Novell's 1996 Financial report:

During fiscal 1996, Novell sold its UnixWare and personal productivity applications product lines in exchange for significant ownership interests in the two acquiring companies.
In December 1995, Novell sold its UnixWare product line to the Santa Cruz Operation, Inc. (SCO). The Company realized a small gain and recorded $19 million of Unix technology royalty revenue from this transaction in the first quarter of fiscal 1996. Under the agreement, Novell received approximately 6 million shares of SCO common stock, resulting in ownership of approximately 17% of SCO common stock. The agreement also calls for Novell to receive a revenue stream from SCO based on revenue performance of the purchased UnixWare product line. This revenue stream is not to exceed $84 million net present value, and will end by the year 2002. In addition, Novell will continue to receive revenue from existing licenses for older versions of UNIX System source code. Novell acquired this product line as part of its 1993 purchase of UNIX Systems Laboratories, Inc.

Again, no mention of copyrights... Is there a story here?

jaymzter

[ Reply to This | # ]

Finally I Know What This Theory Is All About!
Authored by: Weeble on Wednesday, February 18 2004 @ 01:46 AM EST
"SCO has been trying to tell the world that the no warranty provision in
the GPL is the same as no indemnification for IP claims. It's not the same thing
at all. It's saying if there is a problem with the code, sorry, but you got it
for free."

Thanks for this comment, PJ. I've been wondering from what planet a long, long
time ago in a galaxy far, far away SCOG got its brain-dead theory that "the
GPL pushes liability to end users" from. Now I know. The theory's even
stupider now that I know where they derived it from.

If SCOG takes this theory to court, they'll be lucky if they ONLY have the case
laughed out of court and THEY get thrown out on their ear. SHEESH!

---
"Every time I think I've heard it all from SCO, they come
up with a new howler." Steven Vaughan-Nichols, eWeek

[ Reply to This | # ]

yikes!
Authored by: Anonymous on Wednesday, February 18 2004 @ 07:33 AM EST
This letter sounds as if Darl rung the front door, and the butler just told him
that "deliveries must be made to the servants' entry, and if in the future
you should have any matter that truly deserves m'lord's attention, you may reach
his ear, through me". (The "peasant!" is never spoken, only
implied)

It truly gives me the creeps.

One more reason to enjoy the fact that I'm not Darl, I guess.

tc

[ Reply to This | # ]

OT: No warranty clause
Authored by: Anonymous on Wednesday, February 18 2004 @ 01:11 PM EST
The best "no warranty" clause I have ever read was:
"If you break it, you get to keep all the pieces"
Sorry, but I can't remember what the software was.

[ Reply to This | # ]

Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement
Authored by: stuman_uk_42 on Wednesday, February 18 2004 @ 03:30 PM EST
I could never get my head round this i have yet to find any software which
offers a warrenty, microsoft dosent and i have yet to find any one who does.
Also if there is something wrong with a product which cuases loss on a
subsequent 3rd party i always assumed that the liability went to the
producer/retailer (well at least in the UK) so i coulkd never get how they could
claim this. Its just further proof that they are totaly useless at almost
everything bar FUD

---
If in the long run we are all dead then surly in the short run we are all
screwed?

[ Reply to This | # ]

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