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Letters to the Judge in Red Hat v. SCO, as text
Tuesday, December 13 2005 @ 03:11 AM EST

Here at last are the most recent SCO v. Red Hat letters to the judge, as text, thanks to Steve Martin. The "at last" is entirely me. He had this ready quite a while ago, but I've been too busy to get to it, because of so much breaking news and behind-the-scenes work.

SCO's letter [PDF] is the usual piece of work. And Red Hat's follows their usual style as well. I've written about the letters in more detail here, and even after all this time, when I reread it, I feel again a bit of the anger I felt on first reading SCO's letter.

The advantage of waiting a while before doing the text transcripts is this: I don't hyperventilate and my blood pressure doesn't shoot up when I read older documents, because I know how it turned out.

In these letters, for example, we know that all the SCO spin in their letter about IBM allegedly withholding Linux materials went absolutely nowhere at the October 7th hearing, and in fact SCO was scolded. Judge Wells was not fooled by their "interpretation" of her orders, so I didn't need to get all worked up about the letter, as it turned out.

I seriously can't wait to read SCO's next letter to the judge in the Red Hat case. Let me guess: they'll tell her about their objection to the judge's order. That hearing is today actually. So I'll let you know later how it goes. Then, if they lose, they'll tell her about their new motion to compel, trying to get the Judge Wells to revisit the matters she ruled on at the October hearing. They tend to talk about future events in their letters, and that way, I guess they think it makes it look more positive.

But no matter what spin they put on the ball to make it look like they are getting somewhere, if you look at these letters, you see SCO failing over and over. Red Hat lists:

1. IBM succeeded in limiting its 9th Counterclaim
2. SCO lost its motion to file a 3rd Amended Complaint
3. Novell filed its answer with counterclaims, alleging SCO tried to get its Unix copyrights but was turned down

Even the SCO letter, given what happened, isn't positive news:

1. SCO's motions heard at the October 7th hearing, which SCO lists with enthusiasm, were all denied, except they were allowed 10 more depositions, after asking for 25.
2. Novell filed counterclaims against SCO.

So, in this round, it was nearly a SCO shutout. IBM won everything else, and now here comes Novell, telling the court that it never sold the UNIX copyrights to SCO and that it has the right to waive all issues with IBM and anybody else. Oh, and its counterclaims include "slander of title, breach of contract, declaratory relief for certain rights and duties under the Asset Purchase Agreement, restitution/unjust enrichment, and for an accounting for monies owed by SCO under the Asset Purchase Agreement."

All in all, these letters reflect a quarter that paints a gloomy picture of SCO legal losses and a future that, if the Novell claims are believed by the court, could be very bleak indeed. For them. Bleak for *them*. It won't bother me one bit. You see, I'll remember all the vicious things SCO said about Linux and Linus, about alleged copyright infringement -- remember that? the mountain of code they claimed they had as evidence before they started spinning it as just a contract dispute? -- and deep divers that disappeared off the face of the earth when it was time for proof and SCOsource, trying to force Linux users to pay them for a conflicting license when we already had a license, the GPL, and the anti-Open Source letter to Congress and the GPL-is-unconstitutional claim and the low-down attempts at character assassination of me and Groklaw by SCO and their loathsome media helpers. I'll remember it all, and I'll be chirping like a happy little bird at sunrise.

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

[Young Conaway Stargett & Taylor LLP letterhead]

September 29, 2005

BY E-FILE

The Honorable Sue L. Robinson
Chief Judge
United States District Court
[address]

Re: Red Hat, Inc. v. SCO Group, Inc.,
Civil Action No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to the Court's April 6, 2004 Order requesting a quarterly report on the status of various related litigation matters, Red Hat, Inc. submits this letter as an update to its previous letter, dated June 30, 2005. Although Red Hat is not a party to these other related cases, Red Hat offers the following summary based on publicly available information.

1. SCO Group, Inc. v International Business Machines Corp.

As reported in Red Hat's letter dated June 30, 2005, the court in the Utah case held a hearing on April 21, 2005 to address various motions, including IBM's motion for entry of an order limiting the scope of its ninth counterclaim and SCO's motion for leave to file a third amended complaint. By its order dated July 1, 2005, the court denied SCO's motion for leave to file a third amended complaint, finding that SCO had not demonstrated "extremely compelling circumstances" or "good cause" under F.R.C.P. 16(b).

By an order dated August 1, 2005, the court granted IBM's motion to narrow the scope of its ninth counterclaim, which relates to its Unix activities. As argued in its motion, IBM in its ninth counterclaim sought only a declaration that, because IBM had not breached its license agreements with AT&T and SCO's purported termination of those licenses is invalid, IBM's continued distribution of AIX and Dynix products does not infringe SCO's alleged copyrights. SCO, on the other hand, claimed to construe IBM's ninth counterclaim to encompass additional non-Linux activities, specifically IBM's alleged use of its code in its AIX for Power products. The court granted IBM's motion, limiting IBM's ninth counterclaim to a declaratory claim that "IBM has not infringed SCO's alleged copyrights based on alleged breaches of license agreements with AT&T and SCO's purported termination of those licenses."

1

2. SCO Group, Inc. v. AutoZone, Inc.

Since the filing of our last letter to the Court, no significant activity has occurred in this case.

3. SCO v. Novell, Inc.

Following the court's June 27, 2005 denial of Novell's motion to dismiss, Novell filed its answer and counterclaims on July 29, 2005, essentially denying that it transferred any of its rights in Unix to SCO and asserting additional rights under the September 19, 1995 Asset Purchase Agreement entered into between Novell and SCO. Novell alleges that SCO repeatedly contacted Novell in late 2002 in connection with its "SCOsource" campaign, designed to obtain UNIX licensing fees from Linux users, and that "[i]n aid of its scheme, SCO requested that Novell transfer its UNIX Copyrights to SCO." The counterclaims assert that Novell rejected all such requests. Novell sets forth seven claims for relief in its counterclaims, including slander of title, breach of contract, declaratory relief for certain rights and duties under the Asset Purchase Agreement, restitution/unjust enrichment, and for an accounting for monies owed by SCO under the Asset Purchase Agreement. SCO filed its answer to the counterclaims on September 12, 2005.

Respectfully submitted,
(signature)
Josy W. Ingersoll (No. 1088)

JWI:cg

cc: Clerk of the Court (by CM/ECF and hand delivery)
Jack B. Blumenfeld, Esquire (by e-mail)
Stephen N. Zack, Esquire (by e-mail)
Mark G. Matuschak, Esquire (by e-mail)
Michelle D. Miller, Esquire (by e-mail)

2

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

[Morris, Nichols, Arsht & Tunnell letterhead]

LESLIE A. POLIZOTI
[phone, email]

October 3, 2005

BY ELECTRONIC FILING

The Honorable Sue L. Robinson, Chief Judge
United States District Court
[address]

Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to this Court's April 6, 2004 Order, SCO respectfully submits this 90-day status report to apprise the Court of events that transpired since our last update (on July 6, 2005) in SCO v. IBM, Case No. 03-294 (DAK), and SCO v. Novell, Case No. 04-139, which are pending before the Honorable Dale A. Kimball in the United States District Court for the District of Utah.

SCO's Motion to Compel Linux Contribution Information

On April 19, 2005, the Court rejected IBM's attempt to limit its obligations to produce documents concerning its contributions to Linux. "The Court's prior orders make it clear," stated the Court, "that IBM is to provide ALL non-public Linux contribution information." Order (4/19/05) at 5 (emphasis in original).

On July 19, 2005, IBM represented to SCO that it had produced "all the nonpublic Linux contribution information" that it is obligated to produce. However, in reviewing IBM's production after August 1, 2005 (the deadline for IBM to produce all required documents), SCO found a virtual absence of that information, even from IBM projects, affiliates, and partners publicly known to have staged its Linux contributions.

1

On September 6, 2005, after IBM had twice confirmed it would not produce that information, SCO filed its most recent Renewed Motion to Compel. On September 26, IBM filed its Opposition, admitting that it had withheld that information. Although the Court's Orders had made clear that the development history of Linux was central to SCO's case and had directed IBM to produce even documents concerning the programming history AIX and Dynix as interim stages in that development, IBM now argued that the direct development history of Linux was "immaterial, unnecessary, and irrelevant." The Court will hear oral argument on this motion on October 7, 2005.

SCO's Pending Renewed Motion to Compel Discovery

The Court will also hear oral argument on October 7 on SCO's December 23, 2004 Renewed Motion to Compel Discovery seeking Linux-related documents from the files of IBM's senior executives and Board of Directors.

New Motions

On September 20, 2005, SCO filed its Expedited Motion and Supporting Memorandum for Leave to Take Additional Depositions. SCO asked the Court for leave to take twenty-five additional depositions, based on certain developments since the time of the original allotment, including IBM's assertion of fourteen counterclaims and the Court's finding that materials from thousands of programmers are relevant to SCO's case. SCO also stated that it would not oppose any IBM request to take the same number of additional depositions. The Court will also hear oral argument on this motion on October 7, 2005.

On September 26, 2005, IBM filed its Motion to Compel Production of Documents on SCO's Privilege Log, alleging that SCO withheld "hundreds" of documents based on the privilege claims of its predecessors in interest.

Novell's Counterclaims and SCO's Reply

On July 29, 2005, Novell filed its Answer and Counterclaims, asserting seven claims for relief. Contrary to the language of the Asset Purchase Agreement ("APA"), the intent of the parties to the APA, and Novell's own conduct during the seven-plus years that followed the APA's signing, Novell alleges that it did not transfer those copyrights and that it retained the right to take actions (such as waive SCO's claims against IBM) that destroy the value of the UNIX business for which SCO's predecessor paid over $100 million in consideration.

2

On September 12, 2005, SCO filed its Answer to Novell's Counterclaims. Among other things, SCO set forth specific facts dispelling the assertion that SCO contacted Novell in 2002 to ask for the transfer of the UNIX copyrights.

SCO will submit its next 90-day update letter by January 2, 2006.

Respectfully,
/s/ Leslie A. Polizoti (#4299)

LAP/bav

cc: Peter T. Dalleo, Clerk (By Hand)
Josy W. Ingersoll, Esquire (By Hand)
William F. Lee, Esquire (By Fax)
Edward Normand, Esquire (By Fax)

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