SCO "Disappointed" by Red Hat Lawsuit

schmidt349 writes "SCO has issued a preliminary response to Red Hat's lawsuit, in which President and CEO Darl McBride advises that SCO will prepare a "legal response" to Red Hat's requests for injunctive relief. In addition, he promises that the countersuit that SCO will file may include "counterclaims for copyright infringement and conspiracy." His final statement-- that Red Hat's "decision to file legal action does not seem conducive to the long-term survivability of Linux--" is chilling in light of the business strategy that SCO has adopted in its sales of UnixWare licenses to actual and potential users of the Linux kernel."

Comments

good faith discussions

[ArmageddonLord]

"I am also disappointed that you have chosen litigation rather than good faith discussions with SCO about the problems inherent in Linux."

I don't seem to remember SCO giving IBM much of a chance for "good faith discussions"

Re:good faith discussions

[rgmoore]

Red Hat is going to be drained of money for a loooong time in court.

That should be at least as much a worry for SCO, though. As numerous people have pointed out, RedHat has a lot more cash than SCO does, and their basic business is burning through that cash a lot more slowly, so that if the lawsuit comes down to being a battle of attrition than RedHat is likely to win. Just because SCO is acting like a big bully doesn't mean that they actually have the resources to back that up.

In the long run, it's not who is right, it's who looks good in the end....

I strongly suspect that what RedHat is worried about is looking good now. It's quite possible, even likely, that SCO's FUD is making some of RedHat's customers worry about their legal position, and if that's true than RedHat really has to do something about it. A willingness to launch a lawsuit to protect their customers' interests is exactly the kind of thing that will reassure those customers.

Re:good faith discussions

[rekkanoryo]

In this case, countersuing looks better to the consumer than simply allowing SCO's original claims to go largely uncontested in the court of public opinion. It might cost cash, but so does advertising. And in this case, both expenses accomplish largely the same purpose. It's not about winning or losing, it's about making sure SCO can't make Linux look bad.

Yes, exactly. And the more Linux vendors that jump on board with this initiative, the more foolish and stupid SCO will look. And when that happens, SCO will be no more.

Re:good faith discussions

[whovian]

What if linux users who are drinking the beer suddenly stopped and started buying distributions from the companies of their respective distributions (where applicable), regardless of whether they actually open up the box? That could translate into helping linux companies with more cash to fight SCO and its likes.

Shooting from the hip this makes sense, but I can also imagine some twisted nasty consequences -- such as it would more easily give Microsoft some ammo to say "See, we told you so. Linux *is* a threat to our business so we're not a monopoly."

Re:good faith discussions

[bahamat]

The suit is basically a slandar suit. RH is suing for injunctive action. Basically, asking the courts to order SCO to disclose any evidence they have, or to STFU.

SCO will have to prove in court that they have a right to make the claims they are making. When SUSE did this in Germany SCO backed down. Red Hat is making a similar move here.

There are only a few possible outcomes:
1. SCO shuts up, IBM trial goes on with out SCO's media parade.
2. SCO reveals their evidence
A. They have none, destroying the IBM suit and putting an end to all of this
B. They do have some but it's libelous, destroying the IBM suit and putting an end to all of this
C. They do have some, RedHat looks bad, IBM looks bad, Linux looks bad. SCO becomes blabbermouths in Germany again. Linus has a chance to remove offending code and we can all get on with our lives.

Nothing but good can come out of this move.

What they mean...

[sprouty76]

Red Hat's "decision to file legal action does not seem conducive to the long-term survivability of Linux"

Red Hat's decision to file legal action does not seem conducive to the long-term survivability of SCO.

Chilling

[MAXOMENOS]

"His final statement-- that Red Hat's "decision to file legal action does not seem conducive to the long-term survivability of Linux--" is chilling in light of the business strategy that SCO has adopted in its sales of UnixWare licenses to actual and potential users of the Linux kernel."

Whatever. If SCO proves their claims, then it won't be long before the Linux community re-writes those parts that IBM contributed and makes the Linux kernel "UNIX-free."

You'll pardon me if I'm not frightened.

SCO's double standards

[twisty]

I don't seem to remember SCO giving IBM much of a chance for "good faith discussions"

More importantly, how can they expect "good faith discussions" from Red Hat, when they used the vehicle of their IBM press to first alledge violation on Red Hat's part?

SCO still has not formally charged someone with copyright violation... Their only (related) suit on record is a "contract breach" with IBM. That makes great grounds for libel and fraud, considering they continue to distribute Linux code over FTP months after proclaiming this a crime against themselves!

Questions for Conf Call

[isn't my name]

Reporters might want to consider this list of questions for the conference call today:

Note: Brazenly ripped off from a post on the SCOX Yahoo discussion board:


1. When you said there are thousands of files of "your" (ie SCO's) Intellectual Property in Linux, were you referring to IBM's copyrighted and patented code?

2. Isn't that a very liberal and deceptive use of the word "your"?

3. Were you intentionally trying to mislead investors, Linux users, and the general public by referring to it as "your" IP before your case with IBM even goes to trial?

4. Are you concerned that your deceptive use of the words "your" and "our(s)" will lead to class action lawsuits by investors?

5. Don't the clauses in ammendment X saying that IBM owns all work produced by IBM and that those works are not subject to the other restrictions in Ammendment X mean that IBM can donate its patented, copyrighted code to Linux?

6. If you and other SCO execs feel you have such a strong case, why have there been no executives cashing in options and holding them?

7. Assuming for the moment that IBM has violated your trade secrets, accourding to established IP law, wouldn't that simply mean that IBM was liable to you for damages, but that the 'secrets' are now out of the bag and there is no legal way to encumber Linux because of that?

8. Given the filing date on your copyright, isn't SCO enjoined from seeking statutory damages or fees and limited only to the much harder to prove actual damages in any copyright legal action against Linux?

9. How does SCO, a Unix company, expect to make use of Vultus, a web services company whose product works only in Internet Explorer for deployment on IIS servers as a slower than Java replacement for Java?

10. Sontag has publicly stated that JFS, RCU, and NUMA are copyrighted by IBM but that SCO has "control rights" over that code. Is that type of contract legal? Has the validity of such a contract ever been tested in court?

Compliments of martin_lvnv -

11. When was the last time you checked on the number of resellers and developers? Don't you think it might be time to update those figures?

Some choice quotes . . .

[Badgerman]

A few things that stood out for me:

SCO has not been trying to spread fear, uncertainty and doubt to end users.

I love the way this is phrased. It sounds like it's the first they've heard of the term FUD. They're literally adressing every word of the acronym.

We have been educating end users on the risks of running an operating system that is an unauthorized derivative of UNIX.

The risk is that SCO will sue you, of course.

Linux includes source code that is a verbatim copy of UNIX and carries with it no warranty or indemnification. SCO's claims are true and we look forward to proving them in court.

"Yep, the claims are true. Really true. See how true they are. And we'll show this truth at a later date. If we need to."

And no warranty and indemnification . . .

In any such meeting, we will provide example after example of infringement of our intellectual property found in Linux. Of course, any such demonstration must be pursuant to an acceptable confidentiality agreement and must be intended to further good faith discussions about resolving the differences between us.

"So, we'll provide a ton of examples, then control how you can discuss them. Trust us. You have to sign the agreement of course before we provide them"

If you seek information for the purpose of informal discovery intended to benefit IBM in the pending litigation, or for the purpose of devising your own litigation plans against SCO related to Linux, we must respectfully decline your request.

This makes me wonder what kind of NDA would be required to see the code anyway. It sounds like "we can show you this stuff if it never gets involved in a lawsuit, but we can sue the bejesus out of you anytime."

To my surprise, I just discovered that your company filed legal action against The SCO Group earlier today.

A Linux company suing SCO. Will surprises never cease.

Be advised that our response will likely include counterclaims for copyright infringement and conspiracy.

"We're going to try and turn this lawsuit into a new revenue stream for us."

I must say that your decision to file legal action does not seem conducive to the long-term survivability of Linux.

Pure threat. Red Hat isn't the only Linux out there. This sounds like A) A general threat and B) more of a "bring it on" attitude towards Linux in general - posturing.

I don't think much has changed. This is the usual mix of threat and PR work.

My two cents.

Prelim Injunction doesn't take long

[Anonymous Coward]

But Redhat is trying to win an Injunction, which doesn't cost much and doesn't take long.

If Redhat loses in its attempt, THEN you are talking about a longer lawsuit and then you are also more likely to see, as IIRC Bruce Perens was recently quoted as stating, the cases betwixt SCO, IBM and Redhat settling.

This prediction of settlement I thought was one of this week's weirdest twists, and it hasn't been much commented upon. Are the issues so murky that Bruce thinks obtaining an injunction v. SCO is unlikely, and so like in the majority of cases which result in long, drawn-out court battles, all sides would then be more likely to settle and end the bleeding?

Linux in good faith

[Teahouse]

This portion of the correspondence (where Red Hat explains it's intentions) is the cusp of the thing:

"Claims of infringement could require us to seek to obtain licenses from third parties in order to continue offering our products, to reengineer our products, or to discontinue the sale of our products in the event reengineering could not be accomplished on a timely basis."

So Red Hat requested to know what parts are infringement. The purpose is to either pay a fee to use, rewrite the stuff to eliminate infringement, or stop selling the stuff if they can't get it fixed quickly. They gave SCO 30 days to provide them with the kernel code, then decided to sue them since they were dragging their heels. This is smart. Red Hat depends on Linux (duh). They want to get this resolved. By stating clearly that they will simply rewrite the code in question, SCO balked and delayed. Red Hat's managers seem to have a good grip on how a business is run, and SCO just realized that once Red Hat makes a compliant kernel, the rest of the community will follow, and SCO will have no suit. This is the real reason they are hiding the code till trial. They won't have a case if it comes out sooner.