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The Red Hat Order - as text
Friday, April 09 2004 @ 06:47 PM EDT

Thanks to sfohey and Samuel Blomqvist, we have the Red Hat Memorandum Order as text. What stands out is that the judge didn't even need the new material Red Hat asked her to consider. She decided there was an actual controversy based on SCO's earlier public comments.











Civ. No. 03-772-SLR


At Wilmington this 6th day of April, 2004, having reviewed the pending motions and the papers filed in connection therewith;


1. The motion to dismiss filed by defendant The SCO Group, Inc. ("SCO") (D.I. 8) is denied.

a. The Declaratory Judgement Act limits the use of declaratory judgments to cases of "actual controversy." 28 U.S.C. $ 2201; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239- 40 (1937). Generally, the presence of an "actual controversy" within the Act depends on "whether the facts alleged, under all circumstances, show that there is a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). Plaintiff, as the party seeking to invoke the court's jurisdiction, bears the burden of proving by a preponderance of the evidence that an "actual controversy" exists at the time of the complaint's filing, and continues to exist throughout the pendency of the action. See International Med. Prosthetics Research Assoc. v. Gore Entrp. Holdings, 787 F.2d 572, 575 (Fed. Cir. 1986). Even when it is determined that an actual controversy exists, federal courts may decline to exercise that discretionary jurisdiction. See Public Affair Assoc. v. Rickover, 369 U.S. 111, 112 (1962) ("The Declaratory Judgment Act was an authorization, not a command. It gave federal courts competence to make a declaration of rights; it did not impose a duty to do so.").

b. In deciding whether to allow a claim for declaratory relief to proceed in patent and copyright cases, federal courts use a two-step analysis in determining whether an "actual controversy" exists. First, defendant's conduct must have created a reasonable apprehension on plaintiff's part that it will face a suit for infringement. This test is an objective one, focusing on whether the defendant's conduct rose to a level sufficient to indicate an intent to enforce its patent or copyright. Goodyear Tire & Rubber Co. v. Releasomers, Inc., 824 F.2d 953, 955 (Fed. Cir. 1987). Courts have not required an express infringement charge. Id. at 956. Absent an express charge, courts must consider under the totality of the circumstances whether the defendant's conduct meets the first prong. Id. at 955. Second, the plaintiff must have engaged in allegedly infringing acts, or possessed the capability and definite intention to engage immediately in such acts. Id. This second prong, in essence, prohibits declaratory judgment plaintiffs from seeking advisory opinions on their potential liability for initiating some future activites. Arrowhead Indus. Water v. Ecolochem, Inc., 846 F.2d 731, 736 (Fed. Cir. 1988) (citations omitted). Declaratory judgment plaintiffs must be engaged in an actual making, selling, or using activity subject to an infringement charge or must have made meaningful preparation for such activity. Id. (citations omitted).

c. Plaintiff Red Hat, Inc. ("Red Hat") has alleged that defendant SCO is engaged in a campaign to create fear, uncertainty, and doubt about the LINUX operating system, with resulting direct harm to Red Hat. Moreover, Red Hat has submitted multiple press releases which indicate that SCO, in fact, has embarked on a campaign to protect its proprietary interests in its UNIX OS, particularly as against the LINUX industry which, SCO claims, is illegally appropriating its UNIX source code. (See, e.g., D.I. 10, exs. E, F, G) Although SCO chose as its first adversary International Business Machines Corporation ("IBM") (the "Utah litigation") (see D.I. 10, exs. A, B), nevertheless, SCO has publicly stated that it has issues with Red Hat, that it will likely file a new suit or amend its controversial lawsuit against IBM to target other companies" like Red Hat in the LINUX industry, that "[t]here will be a day of reckoning for Red Hat," and that "chances for negotiating with such companies [as Red Hat] appear to be slim." (D.I. 10, exs. E - G)

d. Under these circumstances, the court concludes that SCO's conduct has created a reasonable apprehension of suit. Moreover, there is no question that Red Hat is a LINUX software developer who is engaging in the allegedly infringing activities.

e. Given the court's conclusion, SCO's motion to stay discovery pending resolution of the motion to dismiss (D.I. 21) is denied as moot.

2. Despite the above ruling, the court has concluded that the instant action should be stayed pending a resolution of the Utah litigation between SCO and IBM.

a. From the materials of record, SCO has accused IBM of engaging in a scheme to "deliberately and improperly destroy the economic value of UNIX and particularly the economic value of UNIX on Intel-based processors" by, inter alia, "misappropriat[ing] the confidential and proprietary information from SCO in Project Monterey." [1] Furthermore, SCO claims in its suit against IBM that "IBM . . . misused its access to the UNIX source code" by, inter alia, "working closely with the open source community [and] contributing technologies and resources" to the LINUX system, thus benefitting Red Hat, among others. (D. I. 10, ex. A)

b. From the allegations found in the complaint, 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, especially when the first filed suit in Utah involves the primary parties to the dispute.

c. Therefore, this case is stayed pending further order of the court. The parties shall each submit a letter every 90 days as to the status of the Utah litigation. If, for any reason, that litigation is not progressing in an orderly and efficient fashion, the court may reconsider the stay.

_____Sue L. Robinson____________
United States District Court

[1] Project Monterey is a 64-bit UNIX-based operating system for a new 64-bit Intel platform jointly developed by SCO, Intel, and IBM. (D.I. 10, ex. A)


The Red Hat Order - as text | 195 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Spotted mistakes here
Authored by: WojtekPod on Friday, April 09 2004 @ 07:49 PM EDT
This is a first post, so please post here any mistakes in the text.

[ Reply to This | # ]

OT: FUD works again...
Authored by: WojtekPod on Friday, April 09 2004 @ 07:53 PM EDT
Read this:
Some people like to play dirty tricks on competitors and Linux, it seems...

[ Reply to This | # ]

The Red Hat Order - as text
Authored by: blacklight on Friday, April 09 2004 @ 08:16 PM EDT
I had cast aspersions on judge Robinson's efficiency, which may or may not have
been be unfair. However, the text of judge Robinson's ruling clearly shows she
is a competent jurist who applies the law in clear, concise language and
demonstrates sound judgment when it needs to be demonstrated - After all, she
was under no obligation to accept RH's motion. Judge Robinson's decision is the
first solid indication to me that if RH argues in a way that makes sense, RH
will get through this with flying colors.

[ Reply to This | # ]

Waiting on the IBM suit
Authored by: Khym Chanur on Friday, April 09 2004 @ 08:16 PM EDT
The judge mentioned SCO's claims against IBM, not IBM's counterclaims against SCO. SCO itself said that even if all it's accusations against IBM were dismissed, there'd still be infringing material in the kernel. So it makes me a bit apprehensive that the judge cited SCO's claims, rather than IBM's counterlcaims.

Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life.

[ Reply to This | # ]

OT: declaring the evidence you'll use
Authored by: Khym Chanur on Friday, April 09 2004 @ 08:24 PM EDT
I know that in a lawsuit, you have to tell the other side what evidence you're going to use before you go before the jury. I assume this happens after the deposition phase, since you'll get getting evidence during this phase. So there's a phase after deposition but before the jury trail starts? How long does it last, and how many phases are there to a case?

Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life.

[ Reply to This | # ]

The key is
Authored by: Anonymous on Friday, April 09 2004 @ 09:17 PM EDT
that it's clear that RedHat DOESN'T get a declaratory judgement if it turns out
SCOG is right, AND that will likely be determined in the SCOG vs. IBM case.
Sooo, if SCOG's claims that RedHat would be sued for infringing SCOG's IP turned
out to be true, then any damage RedHat is claiming it's suffering would be the
result of illegal acts by RedHat.

Before the flames start up, I don't believe for a minute that SCOG has any case,
anywhere (not even Daimler Chrysler). However, the judge here can't just decide
to give RedHat a free pass if RedHat is indeed infringing SCOG code. Besides,
free speech is a fundamental right and the FSW likens the GPL to free speech, so
we can hardly get upset if the judge favours it, for now.

Finally, this IS proof that the courts will consider Darl and his mouths. There
is justice; we all get to watch and comment (thanks PJ) and the laughs just keep
on comin'!

[ Reply to This | # ]

Now we need a user to step forward and for the court to STOP all SCO's Licensing actions/suits!
Authored by: Anonymous on Friday, April 09 2004 @ 10:05 PM EDT
PJ - would the defense fund come to a users aid if they felt threatened by SCO's
actions enough to ask the court, like Red Hat has, to stop SCO's license program
(and agressive posturing), until the other suits are settled?

SCO has enough press to show evidence that many of us users do indeed feel
threatened by SCO's ACTIONS surrounding their IP license program (and suits
against at least two LINUX users)!

THE TIME IS NOW! We need a "commercial" user to step forward and for
the court to say NO to FUD and Licensing suits and... those very same kind of

We have users who have legally acquired LINUX from actual (SCO it'self),
apparent or ostensible (any distributor that SCO has refused to sue or attack to
stop them from distribution) agents... all agents of the self declared IP owner

SO - a court needs to stop the license sales and threat of suit... BY COURT
ORDER - pending the resolution of the IBM, Novell, and RED HAT suits.

THIS NEEDS TO HAPPEN NOW. Does anyone feel threatened enought to take this to
court? And would the defense fund set up for defending against SCO pay for the
lawyer to go after this type of INJUNTION against SCO's actions?

Estoppel, Laws of Agency, Consumer protection laws and SCO's own acquiescense on
the matters regarding it's LACK of actions to stop all distribution... would
lead one to think that a judge would think it FAIR to the LINUX users, who are
innocent in all these matters, TO STOP the THREAT of LAWSUIT for infringement
TODAY! THE SOONER that this one remaining legal step is taken the better!

ANYone want to step up?

PJ, are you a commercial LINUX user... do you use it during your course of doing
business (for profit or's all business if it's business)?

[ Reply to This | # ]

The Red Hat Order - as text
Authored by: Anonymous on Friday, April 09 2004 @ 10:11 PM EDT
Judge Robinson says that SCO is accusing IBM

"misappropriat[ing] the confidential and proprietary
information from SCO in Project Monterey."

Isn't that tantamount to the complaint that IBM
"stole" SCO's "trade secrets". I thought that SCO
had dropped all claims to trade secret infringement
(if that is the right term). Could someone explain
the difference between "trade secrets" and "confidential
and proprietary information" for me. Thanks.

[ Reply to This | # ]

Authored by: Anonymous on Friday, April 09 2004 @ 10:24 PM EDT
I'm sure this has been discussed before but why couldn't Linus Torvalds get an
injunction against SCO making "unsubstantiated" claims regarding
Linux? It seems to me that he would have a good case because they are not
willing to show him the alleged infringing code and he has "copyright"
ownership. Therefore, he could sue for injunctive relief from their claims. That
wouuld at least tell SCOX they need to put up or shut up. I'm sure this has been
tossed around before. but quite frankly I wouldn't know where to start looking.

The reason that occurs to me is Judge Robinson's decision that the public
statements by SCOX were strong enough to warrant Red Hat's case.

Don Kauffman
Comp Sci student too busy to get really involved but enjoys perusing GROKLAW!!

[ Reply to This | # ]

OT: Forbes vs Lessig
Authored by: Tim Ransom on Friday, April 09 2004 @ 11:27 PM EDT
Larry Lessig's new book received a scathing review from Forbes writer Stephen Manes, whose bio lists his credentials as being the co-host of a public cable access TV show and co author of a biography of Bill Gates. Lessig responded on his blog, resulting in another ordinance from Manes. Aspersions and rhetoric ensue.

The first review, called The Trouble With Larry


'A more honest title? Freeloader Culture: A Manifesto for Stealing Intellectual Property.'

Lessig's response


'I love it when non-lawyers sing of the virtues of "fair use."'

And, finally, Manes rebuts


'I suspect the Mies van der Rohe estate won't sue me for saying it's clearer than ever that when it comes to copyright law, Lessig is Moron.'

Thanks again,

[ Reply to This | # ]

Is SCO litigious?
Authored by: Anonymous on Saturday, April 10 2004 @ 12:55 AM EDT
I recall a case in which the judge declared that someone litigious was and
ordered her not to sue anybody else.

I had hoped that the judge would have said something like: "SCO, there is
considerable doubt that you have the rights that you say you do. Until you have
proven that you have those rights in another court, you must not sue anybody

[ Reply to This | # ]

Progressing in Delaware Court terms?
Authored by: grouch on Saturday, April 10 2004 @ 01:24 AM EDT
" c. Therefore, this case is stayed pending further order of the court. The
parties shall each submit a letter every 90 days as to the status of the Utah
litigation. If, for any reason, that litigation is not progressing in an orderly
and efficient fashion, the court may reconsider the stay."

Based on the history of this case thus far, I will guess that the litigation in
Utah will be deemed "progressing in an orderly and efficient fashion"
if something from the Utah court appears at least every six months. So, if the
second set of submitted letters do not reveal some activity, the Delaware judge
will begin a six month reconsideration of the stay. SCOG should hurry; the judge
is only giving them an additional year to sling FUD.

Can you trust your computer?

[ Reply to This | # ]

Green Hills and FUD
Authored by: emmenjay on Saturday, April 10 2004 @ 02:00 AM EDT
It is probably not as clear cut as all that.

It is certainly possible that somebody could contribute code to Linux that had
malicious intent. You'd have to obfuscate the backdoor pretty well, but it
could be done.

The probability of getting something into the kernel is pretty low, as that code
gets so much attention, but it might be marginally easier in a more peripheral
bit - maybe a device driver or something like that.

Now it is a long jump from a theoretical risk to being "fundamentally
insecure and wide open", and I have little doubt that Mr O'Dowd has his own
motives, but we should still take it on board.

If you compare Linux to Windows, well we'd probably all prefer to take the
"theoretical risk" of Linux to the known problems of Windows. I have
no experience with the Green Hills software so I cannot comment on that.

Of course a malicious programmer could possibly get a job working at Green Hills
and do the same. However the average (closed source) software package has a
much smaller number of contributors than Linux so vetting them is easier.

Bottom line is that nothing is risk free, but being aware of the risks is an
important first step to managing them.

[ Reply to This | # ]

OT: SCOX target price
Authored by: geoff lane on Saturday, April 10 2004 @ 03:00 AM EDT
Yahoo Finance has for months used a 1yr target estimate of $25 for SCOX; yesterday it reduced this to just $5.

I can't find any explaination on Yahoo of how this estimate is obtained but as it's almost half of the current price, someone believes that SCOX is in for a very bad year.

[ Reply to This | # ]

not fully on target
Authored by: john hrdo on Saturday, April 10 2004 @ 08:49 AM EDT
> It is a waste of judicial resources to have two district
> courts resolving the same issue ...

The only copyrights claim SCO has against IBM is about the
continued sales of AIX after the 'termination' of SCO's
licence. Otherwise, their complaint is about contractual
violations: IBM's contributions to Linux are alleged to be
derivative work and need SCO's approval. Thus even if a
declaratory judgment is granted as requested by IBM (IBM's
Linux contributions do not infringe on SCO's copyrights) the
main point of contention will still be unresolved.

If Judge Robinson sees a duplication of efforts and waste of
resources, she needs better spectacles. RedHat is seeking a
declaratory judgment that their Linux *distribution* does not
touch SCO's copyrights. IBM can at best get a declaratory
judgment that their Linux *contributions* do not infringe
SCO's copyrights. Why should the RedHat case be on hold for

Still, this judgment is a blow to SCO because the case is
not remanded or dismissed. And because they have to provide
an official appreciation of the SCO-IBM court developments
on a regular basis. How are they going to put the fud in it?

[ Reply to This | # ]

OT: More M$-only bank access
Authored by: jmc on Saturday, April 10 2004 @ 10:17 AM EDT

The Co-op bank in the UK prides itself with its ethical stance but it has gone wrong as documented in this link which I can't put in as it doesn't start with www -,,8214-1067927,00.html

I was hit with this myself as I have a business account with them. Trouble is all UK banks are in Sir Bill's thrall and don't seem to care if you threaten to move accounts as you won't have anywhere to move to.

[ Reply to This | # ]

The Other Hammers
Authored by: hutcheson on Saturday, April 10 2004 @ 12:36 PM EDT
If I were Darl (scurrying from dark corner to nearsighted journalist, constantly
in deadly fear that some of the people I was trying to rob blind would shoot
back), there are two things I'd REALLY REALLY be worried about.

One of them is: Novell. Sooner or later they are going to get a court to compel
the SCOGbums to show that M$ contract, with a view towards collecting their
share. And that's going to be hard to wriggle out of in court, not to mention
big-time BAD PUBLICITY even in the fatcat-stuffed-suit-venues.

The other is: IBM's dropped patent. IBM carefully served one patent on each of
SCOG's four product lines. Just one. That, as has been pointed out before, looks
like a hint. Now they carefully drop one patent, and don't take the opportunityh
to replace it with another one, even though SCOG hasn't been able to seriously
challenge to any of them. Why?

An accident? Yeah, right... and even so, they could have let SCO struggle with
it for months, chewing up money and the even more scarce brainpower, and then
could have dropped it at any time. But they didn't.

IBM wants to give SCO a chance to recover its old business after the suit is
over, by leaving them one unencumbered product line? Yeah, right...

So this is a plan, or a message. The message would have to be "we don't
need a patent to take this away from you. We have a bigger hammer." But
even if a message, why would IBM bluff at this point unless there's a plan
behind it?

What's bigger than a patent? I can only speculate. But my guess would be they
have evidence evidence that some of the "copied code" was copied FROM
Linux. They're hoping SCO will raise the issue first, but will raise it
themselves if necessary. SCO hasn't asked for IBM's analysis of the
"identical code", and obviously it doesn't depend on an AIX
intermediary ... so when IBM introduces it in the courtroom, they will be
shocked, shocked! that SCO professes no knowledge of it -- didn't SCO have three
teams do all that analysis themselves? sorry, we believed your asseverations and
thought you already had this -- in fact, whatever happened to that copy of the
teams' report we were supposed to get? Oh, it was all a LIE? Will the judge note
for the record the Lanham Act implications? And now, can you show that this code
was in your product before Mr. J. Jones, communist longhair hippie and C coder
extraordinaire but not IBM or SCO employee, offered it to Linus?

Unclean hands? Given a choice between eating dinner with Typhoid Mary and
IP-infection Darl, who'd ever pick Darl? Typhoid at least is treatable.

[ Reply to This | # ]

OT: FOIA Information Request for Help.
Authored by: NastyGuns on Saturday, April 10 2004 @ 02:45 PM EDT
I have been unsuccessful in determining if there is the equivalent of a FOIA
(Freedom of Information Act) request that can be submitted to the courts and/or
the SEC that would be able to answer questions of some of the antics that have
apparently been reported to them about TSCOG and M$. Yes, I know that the courts
are open, but I'm wondering more from the aspect of what the courts are doing in
the monitoring of actions and other things which may not be broadcast, but still
publicly accessable via a FOIA type request.

Does anyone know?

Thanks for the help.

[ Reply to This | # ]

OT - More news for Darl
Authored by: Anonymous on Saturday, April 10 2004 @ 04:01 PM EDT
Interesting article referenced on Linux Today. The author seems to have several of the usual problems about the GPL, but his points about EC directive 91/EC/250 punch holes in the claims about header files, APIs etc.

[ Reply to This | # ]

The Red Hat Order - as text
Authored by: darkonc on Saturday, April 10 2004 @ 05:37 PM EDT
Plaintiff, as the party seeking to invoke the court's jurisdiction, bears the burden of proving by a preponderance of the evidence that an "actual controversy" exists at the time of the complaint's filing, and continues to exist throughout the pendency of the action.

Hmm.. This may be what Robinson is waiting on...
If IBM does the "Black Knight" thing to SCO, (and, oh boy does Darl remind me of The Black Knight), then the acutal controversy may disappear in a puff of logic and all we'll have left will be Darl's mouth chattering away like mechanical teeth.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Two HUGE points - SCO lost, big time
Authored by: Anonymous on Sunday, April 11 2004 @ 01:44 AM EDT
Two comments from the judge:

"..of sufficient immediacy and reality" - there is no doubt that the
threat was/is immediate, but the judge seems to be saying there is no *reality*
to SCO's claims.

and later:

"Second, the plaintiff must have engaged in allegedly infringing

In other words, RedHat and Linux are not engaged in allegedly infringing acts
(or likely to do so), so SCO's threats against them were/are empty. This also
matches with the first point, that therei is *no reality* to SCO claims.

Massive defeat for SCO, though I thourougly expect Darl and Blake and Chris and
Ralph and Ryan to continue their bold- faced lying through their teeth to the

[ Reply to This | # ]

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