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Red Hat's Reply in Support of its Motion to Supplement the Record
Monday, March 01 2004 @ 03:47 PM EST

Here is Red Hat's Reply in Support of its Motion to Supplement the Record. The PDF is here. Thanks once again to the faithful poncewattle for going to the courthouse. Red Hat says SCO is just wrong. They point to their earlier Opposition to Motion to Dismiss and say that it is full of facts and case law to support their position. The supplemental material is just more proof of the ongoing threatening conduct already in the record, and the new letters they hope the judge to take notice of refer back to the earlier May, 2003 letters, all of which were received by the same Red Hat customer. You get the feeling that Red Hat is saying, Your Honor, their arguments are so wrong, we're confident you already realize it.

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

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.

_______________________________________________

REPLY OF RED HAT INC. IN SUPPORT
OF MOTION TO SUPPLEMENT THE RECORD

Civil Action No.: 03-772-SLR

_______________________________________________

On February 11, 2004, the plaintiff, Red Hat, Inc. ("Red Hat") moved to supplement the record with regard to the motion to dismiss for lack of a justiciable controversy filed by The SCO Group, Inc. ("SCO"). SCO argues that no supplementation should occur because the test for the existence of a justiciable controversy - a "reasonable apprehension" of suit - is determined by evidence that exists as of the date that suit was brought, and the supplemental materials submitted by Red Hat are dated after that time. SCO's arguments completely miss the point. Red Hat's motion to supplement cites additional evidence to demonstrate that an apprehension of suit was indeed reasonable when Red Hat filed its Complaint, because SCO's threatening conduct has continued unabated and has escalated - exactly as Red Hat predicted. Simply put, by explicitly stating now that suits against end users of Linux are going to be commenced, SCO has demonstrated that Red Hat's fears that exactly that would happen were not misguided or ill-founded, but were objectively reasonable.

As an initial matter, both parties agree that the test for a justiciable controversy is whether a "reasonable apprehension" of suit exists. Red Hat, in its opposition to SCO's motion to dismiss, detailed an exhaustive list of factual evidence and case law that plainly establish such a reasonable apprehension in this case. Among other things, in its Complaint, Red Hat specifically noted that "in May 2003, SCO sent approximately 1,500 letters to actual or potential users of LINUX, claiming that those companies could be liable to SCO for using LINUX." (Complaint, Paragraph 42). Red Hat quoted from the letters themselves, in which SCO plainly stated that LINUX "infringes on [its] Unix intellectual property and other rights," explicitly threatened "to aggressively protect and enforce these rights," and warned that "legal liability" to SCO may rest with end users of LINUX. (Id.). In its opposition to SCO's motion to dismiss, Red Hat noted these threats. See Red Hat Opposition to SCO's Motion to Dismiss, at 12-14.

SCO's recent letters and public statements - as articulated in the motion to supplement - are simply proof that Red Hat's apprehension of suit against Red Hat or its customers was reasonable at the time Red Hat filed its Complaint - the apprehension, according to SCO itself, is about to become a reality. [1] Nothing in the law requires an actual suit to have been commenced for "reasonable apprehension" to exist, but the fact that a suit is subsequently filed or even more explicitly threatened plainly demonstrates that an earlier apprehension was in fact more than reasonable. That is exactly the case here.

Second, the letters attached to Red Hat's motion demonstrate that a specific Red Hat customer was one of the recipients of SCO's May 2003 threats, prior to the filing of this case by Red Hat, and that SCO's conduct since that time demonstrates that the apprehension that a Red Hat customer will be sued was reasonable. That is, SCO's December 19, 2003 letter to a Red Hat customer (attached to the motion to supplement) explicitly makes reference to SCO's May 2003 letter. In its December 19 letter, SCO itself characterizes its earlier, pre-suit letter as a warning: "In May 2003, SCO warned about enterprise use of the Linux operating system violation of its intellectual property rights in UNIX technology." (Red Hat Motion to Supplement, Ex. A). In December, SCO asked that steps be taken to "discontinue these violations," and then publicly promised to begin suing Linux end users this month. (Motion to Supplement, at Paragraph 8). These post-suit activities are proof that exactly the kind of campaign and tactics that Red Hat predicted would continue in its Complaint have in fact continued and escalated - from warnings and threats to aggressively enforce intellectual property rights to explicit statements about the imminent commencement of lawsuits.

At bottom, the notion underlying SCO's opposition to the motion to supplement - that nothing it later does can be proof that an earlier fear of suit was in fact reasonable - is simply wrong. Accordingly, Red Hat's motion to supplement should be allowed, and SCO's motion to dismiss should be denied.

DATED: February 26, 2004

Respectfully submitted,

RED HAT, INC.
By its attorneys

Josy W. Ingersoll (#1088)
Adam W. Poff (#3990)
Young Conaway Stargatt & Taylor, L.L.P. [address, phone, fax]

William F. Lee
Mark G. Matuschak
Michelle D. Miller
Donald R. Steinberg Hale and Dorr L.L.P.
[address, phone]


[1] Indeed, even SCO does not question that its recent statements would constitute a "reasonable apprehension" of suit.


CERTIFICATE OF SERVICE

I, Josy W. Ingersoll, Esquire, hereby certify that copies of the foregoing document were caused to be served on February 26, 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, L.L.P.
[address]

_________signed________________
Josy W. Ingersoll


  


Red Hat's Reply in Support of its Motion to Supplement the Record | 196 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: Anonymous on Monday, March 01 2004 @ 04:26 PM EST
Well, it was EXACTLY as I expected.....

That worries me :p

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: Anonymous on Monday, March 01 2004 @ 04:27 PM EST
poncewattle, Thanks!
PJ, Thanks.

[ Reply to This | # ]

How to deal with this symbolic* escalation of FUD by SCO
Authored by: Anonymous on Monday, March 01 2004 @ 04:36 PM EST


How to deal with this symbolic* escalation of FUD by SCO

1. Assemble a list of email addresses, fax numbers, cell phone numbers, street
and office addresses and other contact info for computer-related writers,
interested parties, legal authorities if applicable, official newspapers of
record if applicable, parties having a neutral standing with regards to ongoing
SCO-related court actions (these may or may not exist in the USA or elsewhere)
and anybody else I may have overlooked.

2. send a communication via letter (typed or printed), fax, etc. with a clearly
worded statement to the effect that personal attacks have commenced and include
as many sources as possible.


3. Do not include your personal views if at all possible. These may serve to
cloud the issue.

*symbolic in this instance indicates that interested parties are conspiring to
smear their opponents.
The key word here is conspiracy, of course. The best way to deal with this
pre-meditated attack on an individual is to expose it.

[ Reply to This | # ]

Deja Vu, all over again...
Authored by: Jude on Monday, March 01 2004 @ 04:36 PM EST
Red Hat's argument sure sounds a lot like Groklaw's best shot at what they
should say.

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: hbo on Monday, March 01 2004 @ 04:36 PM EST
That has got to be the shortest non-judicial filing I've seen in any of these
cases so far!

What was that about the inverse relationship between the number of words and the
strength of the case? 8)


---
"Even if you are on the right track, you'll get run over if you just sit there"
- Will Rogers

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: snorpus on Monday, March 01 2004 @ 04:45 PM EST
At bottom, the notion underlying SCO's opposition to the motion to supplement ... is simply wrong.

I sure wish Red Hat would quit pussy-footing around, and say what it really means.

---
73/88 de KQ3T

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: meat straw on Monday, March 01 2004 @ 04:56 PM EST
"In December, SCO asked that steps be taken to 'discontinue these violations,'
and then publicly promised to begin suing Linux end users this month."

When
using FUD, it comes back to haunt.
I am happy to see SCOG feeling the
repercussions of thier negative publicity campaign.

[ Reply to This | # ]

Red Hat is arguing post hoc ergo propter hoc
Authored by: Anonymous on Monday, March 01 2004 @ 04:57 PM EST
>> SCO's arguments completely miss the point. Red Hat's motion to
supplement cites additional evidence to demonstrate that an apprehension of suit
was indeed reasonable when Red Hat filed its Complaint, because SCO's
threatening conduct has continued unabated and has escalated - exactly as Red
Hat predicted. <<

Actually, although I hope SCO crashes and burns, Red Hat's argument here is
incorrect. It's a classic example of the post hoc ergo proper hoc logical
fallacy. That an event occurs is no evidence that the belief that that event
would occur was reasonable. For example, I remember reading years ago about a
guy who was convinced that his destiny was to be struck and killed by lightning.
He did everything he could to avoid situations where that might occur, and yet
he was in fact struck and killed by lightning. Was that event proof that somehow
his fear was reasonable? Of course not. And yet Red Hat is arguing on the same
basis.

Of course, Red Hat's position is reasonable in the sense that (a) mad dogs bite
anything they can get their teeth into, and (b) SCO is a mad dog. On that basis
Red Hat might argue successfully that SCO should have been taken at their word.
Of course, SCO has threatened numerous times to do things that they haven't
done, so perhaps they really never did intend to take any action against Red Hat
customers. It was pretty clear that SCO has no idea who Red Hat customers are
anyway. Of course, it'd be nice to see SCO argue that side, "Your Honor, we
threaten a lot of things that we don't really mean, and anyway we're too stupid
to figure out what we're doing."


[ Reply to This | # ]

According to Lewis Mettler, Redhat may...
Authored by: cfitch on Monday, March 01 2004 @ 04:59 PM EST
have additional evidence now because of the EV1 SCO IP license announcement.
Perhaps this was already stated on Groklaw and I missed it.

Anyway, EV1 Redhat Linux on its servers that it uses for hosting in addition to
BSD and Windows. Lewis said that this might be proof now of interference in
Redhat's business with its customers since EV1 *might* be a Redhat customer.

This might end up being pretty big if it's true..

thoughts?

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: Ares_Man on Monday, March 01 2004 @ 05:02 PM EST
I just installed Fedora on my home computer and I'm pretty excited about it.
Oops. Sorry, SCO, no money went to you.

[ Reply to This | # ]

It doesn't matter if I'm right?
Authored by: rsteinmetz70112 on Monday, March 01 2004 @ 05:04 PM EST
SCO has taken the novel approach of arguing that it doesn't matter if Red Hat
was right to be scared, just because SCO continued to threaten its customer and
continued to demand money from its customer, but did it after Red Hat filed
suit. That's odd, even for lawyers.

To be perfectly clean the judge could simply deny the original motion to
dismiss, on the basis of the original filing and let this motion to supplement
die a natural death. All of the stuff in the motion to supplement can be brought
in at trial when necessary.

[ Reply to This | # ]

Sorry, need to vent
Authored by: Anonymous on Monday, March 01 2004 @ 05:06 PM EST
My network/hosting provider, EV1 (18,000+ servers) has decided to pay SCO their
extortion fees.

PJ, can you find any EV1 Microsoft connections? I'm moving elsewhere, but this
sucks big time. I thought SCO was lying about "licensees", but it's
apparently true! Some idiot will always part with their money. And the fees are
non refundable, if SCO loses!

[ Reply to This | # ]

Red Hat and tinfoil
Authored by: inode_buddha on Monday, March 01 2004 @ 05:07 PM EST
I'm sure Blake Stowell and all the relevant attorneys had this document long before we did. Hence all the FUD today.

Thanks for everything, PJ and poncewattle! I'm beginning to regain my faith in humanity from this site.

---
"Truly, if Te is strong in one, all one needs to do is sit on one's ass, and the corpse of one's enemy shall be carried past shortly." (seen on USENET)

[ Reply to This | # ]

OT: EV1 and their SCO IP license
Authored by: geoff lane on Monday, March 01 2004 @ 05:11 PM EST
So how much did EV1 pay for the license? They certainly didn't pay list price as that would come to many $millions. Did EV1 pay anything at all? Concidering the bad feelings being expressed in the Ev1 customer forums they may well lose some business.

Can we expect to find that EV1 now owns a chunk of SCOX options?

[ Reply to This | # ]

OK, I'll bite ...
Authored by: jre on Monday, March 01 2004 @ 05:27 PM EST
I can accept that

"the test for the existence of a justiciable controversy - a "reasonable apprehension" of suit - is determined by evidence that exists as of the date that suit was brought ... "

because that's just the way it is.

But that doesn't stop me from asking why?

From the standpoint of the public good, it would seem that such a rule only encourages the defendant in a declaratory judgment case to engage in even more misbehavior: "Ha, ha, you've already filed, so now is my chance to get in all the licks I can!"

From a purely practical standpoint, I wonder if Red Hat is somehow barred from making the same complaint in two (non-overlapping) filings. If not, then they could just drop this one and file again, to re-start the clock and admit all the new bad stuff SCO has done.

That seems awfully clunky, and brings me back to my original question -- what purpose does it serve to slam the door on evidence arising after the suit was brought? It seems just as relevant as the earlier evidence.

[ Reply to This | # ]

Ev1 customers react
Authored by: Anonymous on Monday, March 01 2004 @ 06:36 PM EST
EV1 customers angry, someone said Ev1 CEO will make a statement tonight, on their forum

[ Reply to This | # ]

We told you SCO
Authored by: Anonymous on Monday, March 01 2004 @ 07:09 PM EST
So who (apart from SCO) didn't know this response from Red Hat was coming?

Check out:

http://www.groklaw.net/comment.php?mode=display&sid=2004022404040924&tit
le=They+walked+into+Red+Hat%27s+trap&type=article&order=&pid=82886


They walked into Red Hat's trap
Authored by: Anonymous on Tuesday, February 24 2004 @ 10:00 AM EST

> Anyway, I got a copy and will be getting it to PJ asap. Basically, SCO is
saying
that Redhat shouldn't be permitted to supplement the record because the lawsuit
threats came after the suit was filed.

Assuming this is correct, I think they (SCO) walked into Red Hat's trap

Red Hat could have picked numerous different statements after they filed suit.
And SCO would argue these are inadmissable as they occurred after the suit was
filed.

However, Red Hat was clever, they didn't just pick any statement from SCO.
Rather they picked statements which explained earlier statements by SCO, i.e. a
letter which refers back to the May 2003 letters.


In short:

(A) Red Hat could have picked some random statement by SCO after the lawsuit
was
filed, and SCO might successfully argue the statement was inadmissable.


However:

(B) Red Hat picked a letter which refers back to the May 2003 letter. And
remember how SCO explained the May 2003 letter to the Delaware court?

RH: The May 2003 letter is a legal threat

SCO: Oh no it's not. It's just general information about the legal risks of
using Linux. It's not about RedHat customers. Blah Blah etc.

RH: Your Lenham Bro's threat letter refers back to the May 2003 letter, and is
about a Red Hat customer.

[ Reply to This | # ]

OT: What happened with Novell case?
Authored by: Anonymous on Monday, March 01 2004 @ 07:12 PM EST
From Novell case:

3 - Memorandum by Novell Inc in support of [2-1] motion to dismiss (blk) [Entry
date 02/10/04]


So it's been 20 days so far - any sign of a SCO reply?

[ Reply to This | # ]

SCO to sue end user tomorrow March 2, 2004
Authored by: Anonymous on Monday, March 01 2004 @ 07:47 PM EST
http://zdnet.com.com/2100-1104_2-5167829.html

[ Reply to This | # ]

NY Times story on EV1
Authored by: IMANAL on Monday, March 01 2004 @ 07:52 PM EST
"EV1Servers.net, a Houston-based company that hosts Web sites for clients and a division of Everyones Internet, signed a deal with SCO for running thousands of Linux servers without facing legal consequences from SCO. EV1Servers.net didn't immediately respond to a request for comment."

Read more of the following here:

[ Reply to This | # ]

What does all this matter?
Authored by: Anonymous on Monday, March 01 2004 @ 07:56 PM EST
It's pretty clear the courts are not going to address Red Hat's issue in any
timely manner.

What value is the Red Hat effort effort if SCO uses the stolen time just to end
up sueing anyway? Heck, what good two cents is the whole notion behind this law
anyway?

If you have a law, and it won't be enforced, do you have a law at all?

[ Reply to This | # ]

Red Hat's Reply in Support of its Motion to Supplement the Record
Authored by: the_flatlander on Monday, March 01 2004 @ 08:06 PM EST
I think this article, in particular, is a perfect example of what Blake Stowell was talking about when he refered to the lack of credibility:
I find that there is so much misinformation on Groklaw that is misconstrued and twisted that it's probably one step above a lot of the ranting and dribble that takes place on Slashdot.
PJ just trusts that poncewattle has not just "doctored up" a filing from Red Hat; and all the rest of us just fall into line with her "group think."

People, Look at the wookie...

I can see this is hopeless, if you are going to insist on reading the court record and acting like that means more than the SCOundrels' batherings to the press, well then I don't suppose there is ever any hope of your all coming around and seeing the SCOundrels' well-reasoned arguments. I mean, for goodness sake, would you all just for a minute look at the wookie?

The Flatlander

Thank you PJ and poncewattle, once again for supplying the facts in this case. There is no where else for the rest of us to turn.

[ Reply to This | # ]

OT: Explaining EV1
Authored by: Anonymous on Monday, March 01 2004 @ 08:41 PM EST
<tinfoil hat>
I wonder if there is a connection between the EV1 `license' and the promise of a
new suit against a linux user tomorrow.

<imagine>
Darl on the Phone to Bill Gates
BILL: YOu need to sue a linux user Darl. We've got to turn up the heat. These
guys are laughing at us.
DARL: Look - you know I'd love to help you guys - but we're already stretched to
the limit with the lawsuits we've got. The cashflow situation frankly isn't
looking good. If you could see your way clear to buying another `linux license'
or three, we could maybe manage it, but otherwise ...
BILL: We can't do that Darl. We've already got one, and it would be just a bit
obvious if we started buying more. Tell you what though - let me talk to some
people. There are a couple of companies owe us big favours, and we might be able
to persuade them to buy a license if we agree to refund the cost. I'll get back
to you on that one ...
</imagine>

It would explain a lot yes?
</tinfoil hat>

... bloody conspiracy theorists. What a load of rubbish ...

[ Reply to This | # ]

Ev1 now ON TOUR with SCO ????
Authored by: Anonymous on Monday, March 01 2004 @ 09:01 PM EST
Innocent victim or willing accomplice - you decide


Here are some new articles with quotes from Robert Marsh of EV1Servers.net:


http://zdnet.com.com/2100-1104-5167825.html

EV1Servers.net isn't financially tied to SCO, he added. "We don't have any stake in SCO, and we don't own any options on a personal or corporate basis. Nor are investors in our company investors in SCO," Marsh said.


http://www.informationweek.com/story/showArticle.jhtml?articleID=1 8201361

Marsh was in San Francisco on Monday with SCO Group CEO Darl McBride attending the Software 2004 Conference. McBride was at the conference hosting a session titled "Hardball With Darl McBride."


One oddity struck me....

In the ZDNet article, Marsh repeatedly asserts that EV1Servers.net has no financial type arrangement with SCO.

Meanwhile, in the InformationWeek article, we discover Marsh and McBride are attending a conference together.


While the two are not contradictory, you have to ask **WHY** would a "SCO victim" be attending SCO PR events?

Do antelopes go on vacation with lions?

Does your chicken dinner jump up on your plate, and tell everybody that it feels good to be eaten?


You can draw your own conclusions about the nature of the relationship between EV1Servers.net and SCO - but when you do - please take in account the two seem to be going on a little tour together!

[ Reply to This | # ]

SCO swares to sue somebody tomorrow
Authored by: jog on Monday, March 01 2004 @ 09:01 PM EST
Earnings report for Wed. must really be bad. :o)

jog

[ Reply to This | # ]

OT: Darryl in Dilbert Comic
Authored by: Anonymous on Monday, March 01 2004 @ 09:08 PM EST

A bit dated and quite off-topic:

Dilbert Comic by Scott Adams, March 29th, 1993
Scene: Dogbert is a television news reporter, last frame.

Our person of the week is Darryl, who,
despite his tiny brain, found success through a life of crime.

Ref: Still Pumped From Using The Mouse, A DILBERT Book by Scott Adams, p. 65
(I could not find a link.)

[ Reply to This | # ]

Linux survey by Evans Data Group
Authored by: Anonymous on Monday, March 01 2004 @ 09:59 PM EST
CNET News.com has an article up titled "Survey: Linux programmers yawn at SCO". According to CNET, the Evans Data Group survey found that most Linux developers (73%) do not believe SCO's claims. Not surprising.

More interestingly, they also report that:

About 29 percent of programmers using Linux write no open-source software, while 13 percent write nothing but open-source software.
I don't claim to know if this is good or bad, but it is interesting.

[ Reply to This | # ]

No grand jury, I suppose
Authored by: Anonymous on Monday, March 01 2004 @ 10:09 PM EST
I guess there isn't a law enforcement officer in the country who has even the
slightest interest in how this happened.

[ Reply to This | # ]

Is Red Hat SCO's best chance?
Authored by: rsteinmetz70112 on Tuesday, March 02 2004 @ 07:21 AM EST
I've been thinking lately that the Red Hat case is SCO's best chance for a win.
That is because for Red Hat to prevail, they haev to prove their allegations, in
essence show that there is no Unix code in Linux. It's mostly a matter of who
has the burden of proof.

[ Reply to This | # ]

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