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October 17, 2003

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Tom Carey and Mike Angelo Discuss SCO's Motion to Dismiss Red Hat's Lawsuit

SCO Asks Court to Throw Out Red Hat Complaint Against SCO

By Mike Angelo -- 17 October 2003 (C) - Page1

Article Index

The full 34-page SCO Opening Brief in Support of its Motion to Dismiss text, a 27-KB download, and SCO's Request For Judicial Notice In Support Of The SCO Group, Inc.'s Motion To Dismiss For Lack Of Subject Matter Jurisdiction And For Failure To State A Claim text are available from the Resources Section on Page 3 of this article.

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!

SCO Has Not Found Its Code in Kernell.Org Linux Kernel or in GNU/Linux OS -- Conectiva, Mandrake, and SuSE Say No SCO in Their Code

Kernel.Org and GNU/Linux Developers Have Clean Code Safeguards -- Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

Novell Says SCO Does Not Own Unix IP -- SCO Says it Does -- Novel Enters the SCO IP Fray with No Proof and More FUD

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

SCO +1, Novell -1 in SCO v Novell Unix-IP Feud -- Novell loses big round in Unix IP fray with SCO-Caldera

Is IBM's Irrevocable Unix License Revocable?

IBM Seeks Money Damages and Injunctions Against SCO-Caldera - IBM Answers SCO's Amended Complaint and Adds a Counterclaim to Boot

Get full IBM to SCO Answer and Counterclaim text -- 22-KB download

IBM Ups SCO Lawsuit Ante to Include Copyright and Patent Infringement - Counterclaim Adds Linux Copyright Issues to the Fray


SCO-Caldera & the GNU/Linux Community:

On 25 September 2003, SCO took the Raleigh-Durham bull by the horns and asked the United States District Court for Delaware to throw out Red Hat's Complaint against SCO. Simply put, SCO's Motion to Dismiss taken under Federal Rule of Civil Procedure 12 (b) (6) says that even if Red Hat can prove all the facts it alleges in its lawsuit Complaint against SCO, Red Hat falls flat on its face and is a loser.

However, as legal analyst Tom Carey notes in our discussion further on in this article, the core issues center on whether there is SCO-owned and copyrighted code in the basic GNU/Linux operating system and the Red Hat Linux distributions. So, it's likely the Delaware U.S. District Court will take jurisdiction of these issues and not dismiss Red Hat's lawsuit. Moreover, because some of the issues in the Red Hat v SCO matter are similar to some of the issues in the SCO v IBM lawsuit, the two cases might be consolidated and heard as one lawsuit.

Red Hat's Complaint Against SCO

Red Hat filed its Lawsuit against SCO on 4 August 2003. In its SCO lawsuit, Red Hat seeks to have the United States District Court for the District of Delaware declare that Red Hat has not infringed on any SCO copyrights and that Red Hat has not misappropriated any SCO trade secrets. Red Hat also seeks money damage awards from SCO for false advertising, deceptive trade practices, unfair competition, interference with business, and trade libel. The seven counts of Red Hat's lawsuit Complaint against SCO are set forth in Schedule 1, below.

Schedule 1. The Seven Counts of Red Hat's Lawsuit Complaint Against SCO

COUNT I (For Declaratory Judgment of Noninfringement [sic] of Copyrights, 28 U.S.C. § 2201)

COUNT II (For Declaratory Judgment of No Misappropriation of Trade Secrets, 28 U.S.C. § 2201)

COUNT III (False Advertising in Violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a))

COUNT IV (Deceptive Trade Practices in Violation of 6 Del. C. § 2532)

COUNT V (Unfair Competition)

COUNT VI (Tortious [sic] Interference with Prospective Business Opportunities)

COUNT VII (Trade Libel And Disparagement)

(Complaint, Red Hat v SCO, #03-372, U.S. District Court, District of Delaware, 4 August 2003.)

SCO's Motion to Dismiss

SCO's Motion To Dismiss on its face is very simple and merely says:

    "Defendant, The SCO Group, Inc., hereby moves pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), for an order dismissing this action in its entirety. The grounds for this Motion are fully set forth in The SCO Group, Inc.'s Opening Brief in Support of its Motion to Dismiss and the Declaration of Mark J. Heise, filed contemporaneously herewith." (Motion to Dismiss, Red Hat v SCO, #03-372, U.S. District Court, District of Delaware, 15 September 2003.)

The meat of SCO's Motion to Dismiss Red Hat's Complaint is in SCO's Opening Brief In Support Of Its Motion To Dismiss and other related papers filed along with the Motion to Dismiss. The essence of SCO's argument that Red Hat's Complaint should be dismissed is that the United States District Court lacks jurisdiction to hear Red Hat's Complaint because:

    (a) there is no pre-requisite, actual, justiciable matter between Red Hat and SCO that is in controversy and

    (b) all the other stuff, the claims that SCO has been asserting that there is SCO-owned code in Linux and that IBM misappropriated SCO trade secrets, etc., is protected by the U.S. Constitution's First Amendment -- Freedom of Speech.

Please see Schedule 2, below.

    Schedule 2. Outline of The Meat of SCO's Brief In Support Of Its Motion To Dismiss

    I. This Court Lacks Subject Matter Jurisdiction Under The Declaratory Judgment Act

    A. Red Hat Cannot Establish an "Actual Controversy" as Required by 28 U.S.C. § 2201

    1. Counts I and II must be dismissed because Red Hat cannot establish a "reasonable apprehension" that SCO will sue it for copyright infringement or misappropriation

    B. Even if the Court Determines Subject Matter Jurisdiction Exists, the Court should Exercise its Discretion and Decline to Consider the Case

    II. Red Hat's Claims Fall Outside The Scope Of The Lanham Act And Related State Law Claims And Are Barred By The First Amendment

    A. The Public Statement (sic) are (sic) Fully Protected Speech Under the First Amendment

    1. Nature of The Speech

    2. Governmental Interests Served by Regulating the Speech in Question

    (SCO Group, Inc.'s Opening Brief in Support of its Motion to Dismiss, Red Hat v SCO, #03-372, U.S. District Court, District of Delaware, 15 September 2003. Download link on page 3.)

In effect, SCO so far has not denied any of the fact-based allegations set forth in Red Hat's Complaint -- sort of. SCO merely asserts in its Brief in Support of its Motion to Dismiss that the U.S. District Court for Delaware does not have jurisdiction to hear the first two counts of the lawsuit and that the First Amendment of the United States Constitution serves as a bar to pursuing the remaining counts.

Also, please keep in mind that a legal brief is not a court pleading. That means that a brief cannot be used to put matters of fact before a court -- that are not already before the court via pleadings (such as a complaint or answer to a complaint), sworn affidavits, sworn testimony, and so forth. Thus, so far in the Red Hat v SCO lawsuit, SCO has not in the formal, legal sense disputed any of the facts alleged in Red Hat's Complaint -- sort of.

The reason for the aforementioned sort ofs is that one of the papers SCO filed along with its Motion to Dismiss is its Request For Judicial Notice In Support Of The SCO Group, Inc.'s Motion To Dismiss For Lack Of Subject Matter Jurisdiction And For Failure To State A Claim (emphasis added). In this request for judicial notice, SCO asks the Court to take several documents including the Amended Complaint in its SCO v IBM lawsuit, several computer magazine articles including our interview with SCO VP Chris Sontag, and some other documents as factual matter properly before the Court.

If the Delaware District Court grants SCO's judicial notice request, then SCO in effect will have pretty much in the formal, legal sense denied Red Hat's claims that Red Hat Linux does not infringe on SCO-owned Unix code copyrights. More about that in the Conclusions section on Page 3. There is a download link for SCO's judicial notice request on page 3.

Declaratory Judgment Issues

In it's Opening Brief In Support Of Its Motion To Dismiss, SCO claims that SCO never has threatened to sue Red Hat or otherwise bring SCO IP enforcement measures to bear on Red Hat. SCO thusly claims there is no actual controversy between it and Red Hat and therefore there is no jurisdictional basis for the District Court to hear Red Hat's declaratory judgment claims.

    Red Hat cannot satisfy its burden of establishing an "actual controversy" as required by the Declaratory Judgment Act. Specifically, Red Hat cannot identify any express or implied threats to enforce SCO's intellectual property rights against Red Hat. In fact, SCO has never threatened to sue Red Hat. Based on its wholesale failure to establish "reasonable apprehension" of being sued, Red Hat fails to meet the core jurisdictional requirement for an action under the Declaratory Judgment Act. Red Hat's legal action does nothing more than seek general guidance for the marketplace as to the legal rights SCO has with respect to Linux software. This is an impermissible use of the Declaratory Judgment Act. (SCO Group, Inc.'s Opening Brief in Support of its Motion to Dismiss, Red Hat v SCO, #03-372, U.S. District Court, District of Delaware, 15 September 2003. Download link on page 3.)

  • See Jurisdictional issues on Page 2 ----->

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