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The Red Hat Order
Friday, April 09 2004 @ 04:25 PM EDT

Here's the Red Hat Order, at last, as PDF. Judge Robinson had it in chambers, and for two days we couldn't get it from the court. Nothing goes fast in Delaware, it seems.

As you will see, Darl's mouth is why she dismissed SCO's Motion to Dismiss. I get a lot of satisfaction from that. However, she doesn't seem to understand that there are issues outside of the IBM lawsuit that are particular to Red Hat. Rather, she concludes that the IBM contract issues are the core of the dispute and that the copyright claims are dependent on how that plays out. I disagree. I know SCO has said that the two are separate, and I believe to some extent they are. Maybe she isn't a tech person and didn't catch all the finer points yet. When it goes to trial, she'll get up to speed, but what I get from the order is that she isn't yet there and she granted the stay based on her misunderstanding of that key point. I don't know if Red Hat plans to appeal the stay, but I believe they probably could if they decide they want to.

On the other hand, she understands the law very well, if not the tech. You'll get a very clear understanding of when judges grant requests for declaratory judgments and when they don't by reading the first section. Because so much of IBM's counterclaims are asking for declaratory judgments, it will help you to measure their chances for being granted the relief they are asking for. Enjoy.

By the way, if you look on the IBM Pacer list, you will find that apparently IBM is seeking a deposition that SCO is objecting to. Here's what it says: "Certificate of service re: SCO's Objections to EBM's Amended Notice of Deposition by SCO Grp", I think they meant to say IBM, not EBM. As usual, reserve judgment until there is more information, as clerk notations are not, as you see, always accurate.


The Red Hat Order | 70 comments | Create New Account
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The Red Hat Order
Authored by: NetRanger on Friday, April 09 2004 @ 04:52 PM EDT
This is beautiful and simple, yet I wonder if even this will keep Darl's mouth

We live in a world where soap has real lemon, and lemonade is artificial.

[ Reply to This | # ]

The Red Hat Order
Authored by: jbeadle on Friday, April 09 2004 @ 04:52 PM EDT
I'm certainly glad Judge Robinson seems to read all the material presented to
her. <g>


[ Reply to This | # ]

Red Hat 2: The SCO Group 0
Authored by: Anonymous on Friday, April 09 2004 @ 05:00 PM EDT
To me a non lawyer it sounds like Red Hat scored big time
over The SCO Group.

Given that The SCO Group was most likely going to sue Red
Hat, Red Hat scored by choosing a neutral jurisdictions
for the suit. And! Red Had scored by not having to spend
corporate resources to defend against The SCO Group claims
until The SCO Group proves that those claims have

To me that means Red Hat's score so far is 2
while The SCO Group score so far is 0.

[ Reply to This | # ]

Authored by: Anonymous on Friday, April 09 2004 @ 05:11 PM EDT
Darl's mouth finally causes real damage. All the talk about RedHat's "day of reckoning" finally backfired. The SCO Group's day of reckoning is near. Do I feel the earth moving?

"Millions and millions of lines..." - Darl McBride

[ Reply to This | # ]

Authored by: Anonymous on Friday, April 09 2004 @ 05:20 PM EDT
Does this set a precedent which will likely be followed in the other SCO cases,
such as AutoZone and DC?

Is there any benefit to staying the IBM case until SCO vs Novell is settled? It
seems like that is where the primary case is. If the copyrights were never
transfered, then SCO doesn't have much of a case (I know there's still IBM's
counterclaims to deal with). If copyrights were transfered then the IBM case
picks back up. Then the questions are:

- Does Novell have the ability to "pardon" any alleged misdeeds by
- Can SCO prove that any Linux code actually is infringing?
- Can SCO prove that IBM contributed anything in violation of a contract with

Can a judge order SCO to stop filing new lawsuits until the matter of copyright
ownership has been established?

[ Reply to This | # ]

The Red Hat Order
Authored by: rickmci on Friday, April 09 2004 @ 05:21 PM EDT
McBride?? Have you figured out you can not win yet? Microsoft talked you into
doing there dirty work and now SCO and YOU are going to take the fall.

Do you feel stupid yet?


[ Reply to This | # ]

The Red Hat Order
Authored by: eamacnaghten on Friday, April 09 2004 @ 05:25 PM EDT
I certainly understand why Judge Robinson wants to wait for Utah, but is this
not playing into SCO's hands a bit?

Please forgive me/correct me if I am wrong, but I thought...

Utah is primarily about a contract dispute that does not effect Linux users, the
only copyright claims there are (1) SCO's claims that IBM are distributing AIX
(not Linux) after SCO saying they could not and (2) IBM saying that SCO are
violating IBM's copyrighted GPL software by placing extra restrictions on
"licenses" they are selling to run it.

RedHat was complaining thet SCO said - totally separate to the Utah court case -
that there was SCO proprietary software copied into Linux and that users of
Linux owe SCO money, something RedHat says is inaccurate (on all counts), and
that this was costing RedHat business and wanted SCO to stop.

By linking the two it gives SCO and MS the opportunity to say that the license
surrounding Linux is dodgy and should be avoided until sorted. I can guarantee
they will say this despite the fact that the Utah case is nothing to do with
that. It would have been nice if Delaware, or someone, could quickly decide and
say "Yup - Linux is clean" or "No - Linux is dirty because of
such-and-such a file/routine is proprietary" - then Linux developers can
correct any issues (if there are any) and all can move on.

[ Reply to This | # ]

The Monterey Contract
Authored by: leguirerj on Friday, April 09 2004 @ 05:32 PM EDT
I am confused. Was the results of the work for Monterey that Old SCO and IBM did
end up in IBM's AIX product? Is TSG saying then that IBM is violating the
Monterey Contract by contributing to Linux what IBM should have contributed to
Monterey, thereby making Linux into the product Monterey should have been? This
then has nothing to do with old AT&T code.

[ Reply to This | # ]

Authored by: RedBarchetta on Friday, April 09 2004 @ 05:35 PM EDT
There's no better time than now to whip out some choice GROKLAW database quotes from everyone's favorite CEO, Darl "Shotgun" McBride:
"The reality here (is that) IBM and Red Hat have painted a Linux liability target on the backs of their customers," he said. "Due to IBM's and Red Hat's actions, we have no choice but to fight the battle at the end-user level."
Darl McBride, 2003-08-05 (dead link)

"Both companies [IBM and Red Hat] have shifted liability to the customer and then taunted us to sue them. So that's all they have left us to play with [..]"
Darl McBride, 2003-06-08 (dead link)

"Asked if SCO planned legal action against Red Hat and SuSE, SCO Chief Executive Darl McBride told CNET, "There's a point in time that has to be resolved with those guys, too." However, he said such action isn't currently part of SCO's legal proceedings...."
Darl McBride, 2003-05-04 (dead link)

And now for our #1 reason that The SCO Group was denied it's motion to dismiss:
"We approached Red Hat [about licensing source code libraries] and they thought [our claim] was interesting. They said they'd talk about it, but then called back and said we'll pass [on licensing the source code from SCO]. [Red Hat Chairman and CEO Matthew] Szulik said copyright issues scare him. But Red Hat has had a free ride. In its IPO filings, one of the warnings to investors stated clearly that Red Hat may be violating IP and one day they may have to step up and pay royalties. Why not? Every time I ship a copy of my operating system, I pay royalties to Novell and Veritas. There will be a day of reckoning for Red Hat and SuSE when this is done. But we're focused on the IBM situation".
Darl McBride, 2003-04-24

[ Reply to This | # ]

Darl McBride Is Useful Afterall
Authored by: dmscvc123 on Friday, April 09 2004 @ 05:51 PM EDT
He's doing his best for Linux/IBM/RH/etc by shooting off his mouth. With Darl
and Enderle for the plaintiff, who needs a defense?

[ Reply to This | # ]

The Red Hat Order
Authored by: Anonymous on Friday, April 09 2004 @ 06:11 PM EDT
I wonder if the key is the conservation of judicial resources comment. The
judge decided to let the IBM issue get solved in the hope it will either moot
this case or make a declaratory judgement probable. Either way avoids all the
time invested in a trial. The rest just justified that decision.

[ Reply to This | # ]

The Red Hat Order
Authored by: javajedi on Friday, April 09 2004 @ 06:20 PM EDT
I may be really dense here but I have been following these SCO lawsuits here on Groklaw since the beginning and if this question has been answered I apologize but: Why on earth can't the US court system do something similar to the German court system?

I understand that the legalities of who owns the copyrights need to be decided in court and the IBM case is taking a long time but wasn't RedHat basically asking for the same "Give proof or keep your mouth shut until you do that the German case succeeded at doing?

If that was not the thrust of the RedHat case, then why hasn't someone asked for an injuction to simply keep SCO from making unproved alligations in public until such time as they present some sort of evidence in a court of law?

The Matrix is real... but i'm only visiting...

[ Reply to This | # ]

The Red Hat Order
Authored by: bsm2003 on Friday, April 09 2004 @ 06:36 PM EDT
Finally Legal confirmation that DM Let his aligator mouth overload his lizzard Butt

[ Reply to This | # ]

The Red Hat Order
Authored by: Anonymous on Friday, April 09 2004 @ 07:22 PM EDT
Shouldn't the judge also have placed a gagging order on SCO if she
put the case on hold until the IBM case is settled. After all to deny
RedHat justice until the IBM case is settled but to allow SCO to carry
on damaging RedHat's business in the meanwhile would be profoundly

[ Reply to This | # ]

90 Days
Authored by: OldPro on Friday, April 09 2004 @ 07:23 PM EDT
(less now, actually), and then SCOG gets to write a letter to the judge in
Deleware explaining that their main efforts in Utah have been to delay that case
even further and why that meets the criteria of satisfactory progress.

[ Reply to This | # ]

  • *giggle* - Authored by: Anonymous on Friday, April 09 2004 @ 07:27 PM EDT
  • 90 Days - Authored by: Anonymous on Friday, April 09 2004 @ 11:56 PM EDT
Darl's mouth...
Authored by: Anonymous on Friday, April 09 2004 @ 08:16 PM EDT
...sure is pretty.

[ Reply to This | # ]

The Red Hat Order
Authored by: rsteinmetz70112 on Friday, April 09 2004 @ 09:02 PM EDT
Seems perfectly reasonable. The judge is probably hoping that IBM and SCO settle
or that one becomes the clear winner, then this case gets simplified out of

I expect we will see similar action in the Auto Zone case. I'm not sure what the
Chrysler case is all about, but that seems relatively simple, more like a
fishing expedition than anything else.

Odd we have heard nothing about those cases since they were files. When are
responses due?

[ Reply to This | # ]

"EBM, not IBM" ?
Authored by: Anonymous on Friday, April 09 2004 @ 09:26 PM EDT
The letters "E" and "I" are pretty far apart on a keyboard.

Could this be an OCR error? Or a think-o?

[ Reply to This | # ]

No, Groklaw; Robinson is right
Authored by: Anonymous on Saturday, April 10 2004 @ 04:08 AM EDT
I don't understand why you say that Robinson should not have stayed the proceedings pending outcome of the SCO/IBM action. Her reason as quoted in the pdf file says in part:

"the core issue of whether the LINUX system contains any misappropriated UNIX system source code must be decided. It is a waste of judicial resources to have two district courts resolving the same issue,"

Makes perfect sense to me. On what ground do you disagree?

[ Reply to This | # ]

The Red Hat Order
Authored by: blacklight on Saturday, April 10 2004 @ 04:22 AM EDT
"... but what I get from the order is that she isn't yet there and she
granted the stay based on her misunderstanding of that key point." PJ

Given the way SCOG's pleadings zig and zag, judge Robinson's understanding may
turn out to be not so far off after all. Who the hell can predict anything with
these guys? In dealing with SCOG, judge Robinson may find that a crystal ball is
a valuable accessory to an analytical mind.

[ Reply to This | # ]

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