INTAC_Internet_Access_Web_Hosting Linux for Windows Users MozillaQuest MQ Logo
MozillaQuest the on-line computer magazine
October 17, 2003

TotalShells.com

EPIX Internet Services
MozillaQuest Magazine Front Page button

Internet & Web browsers button

custom Netscape & Mozilla themes & skins button

Digital Photography

Graphics

IRC - Internet Relay Chat - Chat button

Linux buttonLinux for Windows Users

Mozilla button

Multimedia

Netscape button
network articles

tutorial - help - how to button

Web Page Design

Web Tools

Windows button
..

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) -- Page 3

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:

Conclusions

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.


<--Back to Page 2

Document Downloads

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.

Please feel free to use, copy in part or in whole, and redistribute these files -- provided that you attribute the source as MozillaQuest.com and provide a link to this article.

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.

<---- Back to Page 2

Resources

Thomas C. Carey

Federal Rules of Civil Procedure (F.R.C.P.), Rule 12. Defenses and objections

Books

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

Merriam-Webster's Dictionary of Law via FindLaw

FindLaw

Omnipage Pro 12 Office


Related MozillaQuest Articles


SCO-Caldera v IBM:


SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

About the "Hey SCO, sue me" Petition


Caldera OpenLinux 3.1.1 Available

Caldera OpenLinux Workstation 3.1 -- A First Look


UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


Linux Makes a Great Gift

Don't Forget the Books

LinuxWorld in New York City -- 21-24 January 2003


Other Interesting MozillaQuest Articles




Copyright 2000-2003 -- MozillaQuest -- Brodheadsville, Pa..USA -- All Rights Reserved
Recent Articles

Young People Are The Future of Linux - Linux and Open-Source Software in Schools and Colleges

CNN SUCKS!

Gaël Duval Tells Why Mandrake Linux Is Better Than MS Windows

Gaël Duval and Mike Angelo Discuss The HP-Mandrake Computer

HP to Ship Desktops with Mandrake 9.1 Linux Pre-Installed - Good News for Mandrake Linux and Fans

Mozilla 1.4 Browser-Suite -- AKA Netscape 7.1

Gaël Duval and Mike Angelo Discuss Mandrake Business Products and Finances

SuSE Linux Desktop Available

About the Hey SCO, sue me Petition

Mandrake Linux 9.1 Retail Packs

Linux for Windows Users -- Linux Networking for Windows and Desktop People -- Mandrake 9.1 and LinNeighborhood

Gaël Duval and Mike Angelo Discuss the New AMD64 OS --

Mandrake Linux Corporate Server 2.1 for AMD Opteron

SuSE Linux Enterprise Server 8 for AMD64 Released

Major Morphing in Mozilla Project Organization and Objectives Proposed

Red Hat Linux 9 Distribution Released

Mandrake Linux 9.1 Released

SCO-Caldera v IBM:

  • Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?

Mandrake 9.1-RC1

Netscape 7.02 Browser-Suite

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

Mozilla 1.0 updated!

Don't Forget the Books

Linux Makes a Great Gift

Christmas Season Holidays & Computer Suggestions 2002

Netscape 7.01 Browser-Suite

Mozilla 1.2.1 Browser-Suite Released

Buggy Mozilla 1.2 Recalled

Mandrake Linux 9.0, Desktop Magic You Can Use: A First Look

Linux for Windows Users:

Using LinNeighborhood to Create a Network Neighborhood for Linux

SuSE Linux 8.1

Zero Tolerance for Privacy and Security Bugs

Mozilla and Netscape JavaScript Bugs Compromise Privacy and Security

Red Hat Linux 8.0 Is LSB Certified

Mandrake 9.0 is LSB Certified

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

UnitedLinux: A Standard or a Distribution?

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

Holger Dyroff, Gaël Duval, Mark de Visser and Mike Angelo Discuss LSB, UnitedLinux, and the Linux Market

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

Netscape Communicator 4.8

Red Hat Calls for Beta Feedback

MandrakeSoft Calls for Beta Testers

Scott McNeil Discusses LSB

New Mozilla Roadmap Kills Mozilla 1.0.x

MandrakeSoft Says Yes to LSB but No to Netscape and UnitedLinux

Mozilla 1.0 Browser-Suite's E-Mail & News Quick Look

Mozilla 1.0 Browser Quick Look

Tabbed-Browsing Coming to KDE's Konqueror Browser

Mozilla 1.0 Browser-Suite Performance -- Speed, Stability, and Memory Hogging

Mozilla 1.0 is Officially Out!

Some Mozilla 1.0 Browser-Suite Annoyances, Bugs, And Issues

Mozilla 1.0 Not Ready for Prime Time -- Close but No Cigar and No Brass Ring!

Turmoil in MozillaLand:

Mozilla 1.0 Browser Sneak Release

AbiWord 1.0.1 Quick Look - MS Word Clone for Linux, MS Windows, & More

KDE 3.0 Released

MozillaQuest Magazine 2001 Editor's Choice Hardware Picks

Getting Started with Wireless Network Technology

Part III: Adding Wireless to a Linux-Based Laptop or Notebook

Is Mozilla Actually AOL-Netscape's Mozilla?

Bugzilla 2.16 - 2.14.1

Year 2001 in Review -- Mozilla and Netscape Browsers

Free Software for Your New Computer -- Or Any Computer

Linux Gifts for Christmas, Holiday, and All Occasions