We now have from the court in Delaware, at last, the letters each side has sent to Judge Sue Robinson, listed on Pacer. To begin, here is SCO's letter of June 17th as text. These are paper documents, so I'll try to get a PDF done later, but we are swamped with court documents. It appears that SCO is very, very worried that IBM will win their Motion for Partial Summary Judgment and they are sending the courts both in Utah and Delaware a great deal of verbiage to try to forestall that possibility.
Here SCO faces the unhappy task of explaining to this judge why it told her that the IBM case would settle most if not all of the copyright issues in the Red Hat case, and then told other courts it wouldn't. Now they wish her to clarify her thoughts and realize they didn't mean *all* issues. Since she ordered a stay, sua sponte but no doubt based on their representation, which she obviously believed, they are in rather a pickle.
IBM also took them at their word, told the other court what they'd said in Delaware, and put in a counterclaim which referenced their statement, which is obviously terrifying SCO because IBM is threatening to checkmate them by saying, in essence, "Fine. It's *all* being decided here? OK. Then we want a declaration from this court that no one has infringed your stupid code. You haven't shown us any infringement that adds up to a hill of beans in Utah, so since you say this court can settle it all, let's settle it right now."
That would put SCO out of business, the litigation business. So now SCO frantically tells the Red Hat judge something that translates from legalese into plain English in my mind something like this:
"Um...you know how we told you back in September that the IBM case would settle most if not all of the issues of copyright infringement and misappropriation before you in the Red Hat case? Well, that isn't exactly what we meant. It sounded like that is what we said, but we meant to stress the word 'most'. It really won't settle *all* of them.
"And anyway, that was then. This is now. We meant it at the time, sort of, comparatively, but since we said that, we found out somebody other than IBM violated our copyrights with respect to Linux, and if IBM wins this counterclaim, why, we'd be knocked right out of the case, all of them, pretty much, and then that'd be very bad for us.
"And those meanies at IBM used what we said to you and they misconstrued it to mean what we said, and that's so unfair. And now they've brought a counterclaim that could mean curtains for us.
"Oh, and er, the reason we can't find any significant infringing code isn't because we brought a bogus, phoney lawsuit without so much as a shred of evidence. It is because tech stuff is really hard, and it'll take a long time for humans to look at all the code and everything, because computers can't do stuff like that well, especially because we're kind of looking for code that kind of looks the same but isn't actually line-for-line infringement. That's why we are empty-handed, but we're sure, if we get more code, and take up a lot more of everybody's time, we'll find that needle in the haystack somewhere. After all, the world is full of Linux authors. Just think how long this could drag on.
"Oh, and about us going after end users, why, Your Honor, really, we're not litigation addicts. We only sued one itty bitty end user, AutoZone. We're making an example of them, and we think that should do the trick, and for the rest, arm-twisting, er, negotiations should be enough. We're not out to sue the universe, despite what you may have heard, so you don't need to protect anybody. No. Really."
It's quite a performance, and if she buys it, she's either clueless about tech, and never met a liar in her life, or she has been vacationing in the Bermuda Triangle and hasn't been following the other cases at all. It reminds me of a cynical husband explaining to his wife with bluster about lipstick on his collar, and how he didn't get it the way she thinks he did.
Morris, Nichols, Arsht & Tunnell
[address, phone, fax]
June 17, 2004
BY HAND DELIVERY
The Honorable Sue L. Robinson
United States District Court
RE: Red Hat, Inc. v. The SCO Group, Inc.,
C.A. No. 03-772-SLR
Dear Chief Judge Robinson:
As Your Honor may recall, in September of last year, SCO asserted in support of its motion to dismiss Red Hat's complaint that the pending lawsuit between SCO and IBM in the District of Utah addresses "most, if not all, of the issues of copyright infringement and misappropriation" in the Red Hat case. (D.I. 9 at 15.) Given its September 2003 view that "most, if not all" such issues were in the IBM case, SCO expressed its view to the Court at that time that "The infringement and misappropriation issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court" (Id. at 2.)
Since SCO's latest filing in this Court, SCO's adversaries in related, pending federal actions have misconstrued SCO's September 15, 2003 statements to this Court to argue that SCO is taking inconsistent positions to different courts. In particular, as previously described to this Court, IBM has now sought to add to the District of Utah action a counterclaim that would encompass all copyright issues relating to Linux -- whether arising from IBM's own contributions to Linux or from contributions by others unrelated to IBM. In support of its efforts to add that counterclaim, IBM filed a brief in the District of Utah on May 18 (since SCO's last submission to this Court) that quoted SCO's statements to this Court in an effort to suggest that SCO's complaint against IBM already included all of the issues relating to the propriety of Linux.
Such assertions -- which unrealistically assume that time has simply stood still since September 2003 -- are inaccurate. Accordingly, we feel compelled to expound on our September 15, 2003 statements in light of evidence that has more recently developed and to explain why characterizations like IBM's are unwarranted and inaccurate. SCO has already clarified these issues in summary form for the Nevada District Court in the AutoZone matter and -- given that the parties in each of the related litigations are obviously monitoring all developments -- we believe that Red Hat and IBM are inevitably aware of SCO's previous description of these issues. To ensure that SCO's position is clear to this Court, however, we respectfully submit this letter.
SCO continues to believe that IBM's violations of its license obligations and U.S. copyright law through its improper contributions of SCO's intellectual property to Linux -- the issues that SCO's complaint in Utah presents -- are of paramount importance and will continue to predominate, as a comparative matter, over other issues potentially affecting Linux. That comparative fact was true when SCO cited it in support of its motion to dismiss Red Hat's complaint and -- given the extent and importance of the challenged IBM contributions to Linux -- remains true today.
At the same time, since September 2003, SCO has obviously had the opportunity to conduct further investigation of improper contributions to Linux by parties other than IBM. Through that investigation, SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux. That non-IBM conduct is conduct that SCO's complaint in Utah -- by its express terms -- does not challenge or encompass.
Although SCO has thus made substantive progress on the issues relating to contributions to Linux by parties other than IBM, SCO's ongoing investigation in this regard has proven laborious. Computer programs can help to identify potentially similar lines of code, but because of varying types of cosmetic changes that may be made to code (for example, to punctuation, abbreviations, and spelling), such programs cannot substitute for time-consuming visual review by software engineers. Unix System V contains 17, 741 individual files and approximately 6.5 million lines of code, while Linux contains 11,717 individual files and over 5 million lines of code. Computer programs are even more dependent on human review for purposes of identifying "substantially similar" portions of computer code, which are often functionally similar (but not exact copies) due to shared code structures and/or sequences.
Of course, SCO's statements to this Court many months before much of this investigation could have occurred (and much longer before it could possibly be completed) cannot preclude SCO from protecting its rights, including by engaging in continuing investigation of contributions to Linux by parties other than IBM. Nor can the progress made in such investigations -- relating to contributions to Linux by parties other than IBM -- be a basis for claiming that SCO's statement to this Court last Fall somehow undermines later statements made to another court. This point is further underscored by the fact, as noted above, that the issues relating to IBM's improper contributions to Linux continue to predominate over other potential issues that affect Linux.
Finally, SCO has made clear since at least SCO's counsel's public comments on November 18, 2003 that its litigation plan was to identify (at the time, within ninety days) "a defendant" to "illustrate the nature of the problem" -- i.e., "a significant user that has not paid license fees and is in fact using proprietary and copyrighted material." Since that time, SCO has sued one end-user (AutoZone) -- "a defendant" to "illustrate" the nature of the end-user problem. As SCO's actions have thus made clear, it continues to believe that the most rational route to an overall resolution of this problem is through negotiation, and not broad-based litigation.
Jack B. Blumenfeld
cc: Peter T. Dalleo, Clerk (By Hand Delivery)
Josy W. Ingersoll, Esquire (By Hand Delivery)
William F. Lee, Esquire (By Facsimile)
Stephen N. Zack, Esquire (By Facsimile)
 See SCO's Opposition to Red Hat's Motion for Reconsideration (D.I. 39 at 3-4). As further described in that brief to this Court, SCO is opposing the addition of that IBM counterclaim to the pending case in Utah. Id. at 4 n.2.