After Red Hat files its response and/or brief in reply to SCO's Motion to Dismiss, the U.S. Court for the District of Delaware will decide whether to dismiss Red Hat's Complaint. It could dismiss the entire Complaint, or it could dismiss just some of the Counts of the Complaint. The Court also could deny SCO's Motion to Dismiss altogether. Or, as Tom Carey notes, the Court might allow Red Hat to file an amended complaint that addresses the issues raised by SCO in its Motion to Dismiss.
Both Red Hat's Complaint and SCO's Motion to Dismiss raise lots of issues -- perhaps lots of smoke and mirrors too. However, as Tom Carey notes in our discussion, the real issue here is whether there is SCO-owned code in the kernel.org Linux kernel and/or the GNU/Linux operating system.
If SCO can prove to the Court, that there is SCO-owned and copyrighted code in the GNU/Linux operating system and/or Red Hat's Linux distribution(s), then all of Red Hat's claims fall flat. On the other hand, if Red Hat can convince the Court that there is no SCO-owned and copyrighted code in the GNU/Linux operating system and/or Red Hat's Linux distribution(s), then Red Hat likely will prevail in its declaratory judgment and injunctive relief claims -- and possibly get some money from SCO for damages.
Interestingly, SCO's Motion to Dismiss does not get to the factual merits of any of these issues. It merely asks the Court to find that even if everything that Red Hat claims is true, Red Hat's Complaint lacks merit and the Court summarily should throw out Red Hat's lawsuit.
There could be an interesting complication to that, however. Under Federal Rule of Civil Procedure (F.R.C.P.) 12 (b), if either side introduces matters outside the pleading and are not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Under this provision of F.R.C.P 12(b), if the Delaware District Court grants SCO's request for judicial notice discussed above, that could throw SCO's Motion to Dismiss into the summary judgment arena.
The standards of review for a motion for summary judgment are different from those of a motion to dismiss. However, since the posture of this lawsuit now is that of entertaining a FRCP Rule 12 (b) (6) motion to dismiss, we will consider a FRCP Rule 56 motion for summary judgment beyond the scope of today's article and not further discuss summary judgment issues at this time.
If you would like to read more of SCO's Opening Brief in Support of its Motion to Dismiss you may download our 103-KB text-based copy of it. It is an OCR (optical character recognition) conversion from the original copy of SCO's Opening Brief in Support of its Motion to Dismiss filed with the Delaware District Court. Our text-based file has been packaged as a 27-KB Gzip file for efficient downloading.
Likewise, if you would like to read more of 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, you may download our 19-KB text-based copy of it. It is an OCR (optical character recognition) conversion from the original copy of SCO's judicial notice request filed with the Delaware District Court. Our text-based file has been packaged as a 5-KB Gzip file for efficient downloading.
Some surplussage has been removed. There are some typos. These OCR conversions were made for our own use so we did not take the time to mess with formatting them. MozillaQuest Magazine is providing the OCR rendition of SCO's Opening Brief in Support of its Motion to Dismiss and its judicial notice request, as is, for the convenience of our readers who might want to read them. If you want exact copies of the pleadings then you should seek TIF or PDF copies of the original documents. Otherwise, these should be close. The TIF and PDF versions of SCO's Brief waste about 1-MB of bandwidth and hard drive space.
It took time to proof the OCR and then to go through the text documents and correct some of the graphic to text spelling and formatting errors. So, this constitutes derivative work and as such these derivative works are copyrighted.
The OCR was made from PDF versions of SCO's Brief and SCO's request for judicial notice using Omnipage Pro 12 Office (formally from Caere and now a ScanSoft product) on a MS Windows machine powered by a 700-MHz AMD Duron CPU. OminPage Pro is one of the best, if not the best, OCR program that I have tried.
Excerpt of Federal Rules of Civil Procedure (F.R.C.P.)
Rule 12. Defenses and objections.
(b) How presented. Every defense, in law or fact, to claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join an indispensable party. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion or by further pleading after the denial of such motion or objection. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Federal Rules of Civil Procedure (F.R.C.P.), Rule 12. Defenses and objections
Much of the SCO v IBM, Red Hat v SCO, and the in general SCO v Linux controversy involves the underlying architecture of the GNU/Linux operating system and Linux kernel structure plus Linux and Unix source code. Perhaps you would like to have a better understanding of some of this stuff so that you can have a better understanding of what all the SCO v Linux feud is all about.
If you already are generally familiar with Linux at an intermediate or advanced level and would like to know more about the underlying architecture of the GNU/Linux operating system and Linux kernel structure, you might want to check Linux Kernel Development, Understanding the Linux Kernel, 2nd Edition, and The Linux Process Manager: The internals of scheduling, interrupts and signals.
If you are not generally familiar with Linux and would like to know more about the underlying architecture of the GNU/Linux operating system and Linux kernel structure, you might want to start with Red Hat Linux 9 Bible, Red Hat Linux 9 Professional Secrets, or Red Hat Linux 9 Unleashed. These books are for intermediate to advanced readers.
Linux Kernel Development, Robert Love, ISBN: 0672325128, Sams. Price: $45.
Red Hat Linux 9 Bible, Christopher Negus, Wiley, ISBN: 0-7645-3938-8, $50
Red Hat Linux 9 Professional Secrets, Naba Barkakati, Wiley, ISBN: 0-7645-4133-1, $50
Red Hat Linux 9 Unleashed, Bill Ball and Hoyt Duff, Sams, ISBN: 0672325888, $50
Understanding the Linux Kernel, 2nd Edition, Daniel P. Bovet and Marco Cesati, O'Reilly, ISBN: 0-596-00213-0, $50
The Linux Process Manager: The internals of scheduling, interrupts and signals, By John O'Gorman, Wiley, ISBN: 0-470-84771-9, $35
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