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Red Hat's Motion for Reconsideration - as text |
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Wednesday, April 21 2004 @ 02:02 AM EDT
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Here is Red Hat's Motion for Reconsideration as text, plus their proposed order, giving the judge two alternatives.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RED HAT, INC.,
Plaintiff,
vs.
THE SCO GROUP, INC. (formerly Caldera
International, Inc.)
Defendant.
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Civil Action No.:03-772-SLR
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MOTION FOR RECONSIDERATION
Red Hat, Inc. respectfully moves pursuant to Local Rule 7.1.5 for reconsideration the
Court's Order dated April 6, 2004 staying this case.
In summary form, the grounds for this motion are as follows:
1) The Court did not have the benefit of briefing on the issue of a stay before
it when the Court stayed this case sua sponte, and in fact a stay based on the prior pending Utah
action would be inappropriate under the facts and caselaw for many reasons; and
2) Red Hat will suffer manifest injustice from a stay, since SCO apparently
intends to continue to harass and threaten suit against Red Hat's customers in other jurisdictions,
while Red Hat's declaratory judgment suit here, which was intended to prevent this precise harm
to it and its customers, is forced to languish.
The above grounds are fully set forth in Red Hat's Memorandum, filed herewith.
WHEREFORE, Red Hat respectfully requests the Court to grant the within Motion. A
form of Order is attached hereto.
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(signature)
Josy W. Ingersoll (#1088)
Adam W. Poff (#3990)
YOUNG CONAWAY STARGATT
& TAYLOR, LLP
[address]
[phone]
Attorneys for Red Hat, Inc.
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OF COUNSEL:
William F. Lee
Mark G. Matuschak
Michelle D. Miller
Donald R. Steinberg
HALE AND DORR LLP
[address]
[phone]
[fax]
Dated: April 20, 2004
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RED HAT, INC.,
Plaintiff,
vs.
THE SCO GROUP, INC. (formerly Caldera
International, Inc.)
Defendant.
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Civil Action No.:03-772 (SLR)
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ORDER
The Court having considered the motion of Red Hat for Reconsideration of the
Court's Order dated April 6, 2004 (the "Motion"), and having considered the parties' arguments
thereon, it IS HEREBY ORDERED this ________ day of ________, 2004 that:
The Motion is granted and:
A. The Order of the Court dated April 6, 2004 is hereby vacated, the stay is
lifted and the parties are directed to confer and to submit to the Court a proposed Scheduling
Order by ________________ 2004.
Alternatively,
B. The Court's April 6, 2004 Order is hereby modified, as follows: SCO is
enjoined from threatening to initiate suit or initiating any lawsuit against Red Hat or any of Red
Hat's customers based on alleged infringement of SCO's copyrights through the use of LINUX,
for the period during which this case is stayed.
_______________________
U.S.D.J.
CERTIFICATE OF SERVICE
I, Josy W. Ingersoll, Esquire, hereby certify that copies of the foregoing document
were caused to be served on April 20, 2004 upon the following counsel of record:
BY HAND DELIVERY
Jack B. Blumenfeld, Esquire
Morris, Nichols, Arsht & Tunnell
[address]
BY FEDERAL EXPRESS
Mark J. Heise, Esquire
Boies, Schiller & Flexner, L.L.P.
[address]
______(signature)_________
Josy W. Ingersoll
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Authored by: PJ on Wednesday, April 21 2004 @ 02:13 AM EDT |
Please put corrections in this thread. Thanks. [ Reply to This | # ]
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Authored by: RedBarchetta on Wednesday, April 21 2004 @ 02:32 AM EDT |
I've stated before that I think the judge knows something we don't know - that
the hammer is about to fall soon. On SCO.
I have a difficult time
believing that the judge made the initial decision to stay the case because she
was "trying to clear her docket." There's some relevance to her ruling, and I
suspect we'll find out this Friday.
"Copyrights on software are
very similar to brands on cattle" - Darl McBride interview, SkyRadio.[ Reply to This | # ]
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Authored by: mobrien_12 on Wednesday, April 21 2004 @ 02:56 AM EDT |
In plain English it seems that they are saying to the judge "You want to
make us wait for years before even starting our case. Ok, but tell SCO to stop
threatening our customers in the meantime."
There's a difference between ordinary free speech and threatening someone. SCO
would like it if they could threaten people forever without showing any proof.
Get their magic IP licence money.
RedHat wants this settled once and for all.
Unless the judge accepts this motion, she is giving SCO a licence to threaten
and harass and bully RedHat's customers (without showing proof) for years.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 04:15 AM EDT |
If SCO runs out of money, and therefore cannot continue with it's lawsuits, wont
they loose by default?
Mark[ Reply to This | # ]
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Authored by: cricketjeff on Wednesday, April 21 2004 @ 05:43 AM EDT |
Is being reported as old news on The Register , so
I assume it has been reported here and I missed it, however as the story
mentions the docs
will remain on the website until the 26th I thought I'd check that someone
has made a nice safe copy somewhere... [ Reply to This | # ]
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- Mirroring the docs - Authored by: Anonymous on Wednesday, April 21 2004 @ 08:10 AM EDT
- Yep - Authored by: Anonymous on Wednesday, April 21 2004 @ 01:19 PM EDT
- wget - Authored by: Anonymous on Wednesday, April 21 2004 @ 02:06 PM EDT
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Authored by: blacklight on Wednesday, April 21 2004 @ 06:03 AM EDT |
'Alternatively,
B. The Court's April 6, 2004 Order is hereby modified, as follows: SCO is
enjoined from threatening to initiate suit or initiating any lawsuit against Red
Hat or any of Red Hat's customers based on alleged infringement of SCO's
copyrights through the use of LINUX, for the period during which this case is
stayed."
SCOG could not possibly have an objection to RH's proposed alternative court
order B, since SCOG has been strenously claiming all along that it wasn't
threatening either RH or RH's customers. However, I do expect SCOG to rise to
the occasion and to object with an argumentation that is an assault on both
logic and good sense.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 07:03 AM EDT |
Dear Red Hat and fellow LINUX users,
Red Hat needs to act for all LINUX users and not just the ones that buy Red Hat.
However, when you think of it, maybe, when they are acting for Red Hat users,
as the Kernel is the same for Red Hat AND for the other distros, that Red Hat
is, in reality, acting for all LINUX users, or all distros. Is a ruling for
Red Hat is also a ruling for the other distros? If not, then why not? No?
Anyway,
Users need for this SCO License threat to stop. And SCO saying it's just for
commercial users is a pile of crock because the kernel is a kernel and if a
business is seen as infringing, well an individual or school is too... so how
can SCO discriminate against one infringer and let the others go free from harm.
Well they really only consider their attack against commercial users as phase
one. Note that they have their foot partially in phase two by looking to charge
TiVO users a fee too (TiVO users are not commercial users)! What is the
definition of a commercial user... anyone? In some cases is using LINUX to
write e-mails, or post to pro-LINUX sites, is that marketing of LINUX for one's
own user a commercial use of sorts?
SO - again what is SCO up to by saying only commercial users need to pay them
for infringing? It's double talk.
FOR NOW, and up to the point where any, if any, infringing code is identified,
proven to be SCO's OWN CODE, and then replaced.... then, up to the time as well
where all LINUX users are able to have enough time to migrate to any needed, if
needed, kernel that replaces, any, if any, infringing code... until ALL these
installs are given enough time to be upgraded (in order to satisfy any, if any,
court ruling that shows that SCO owns anything, if anything, at all)... WELL,
RED HAT needs to ask the judge to make SCO stop all their Licensing, and
infringement lawysuits against all innocent 3rd party users (commercial or
non-commercial), TODAY.
FOR the sake of commercial and non-commercial users of the LINUX kernel there
needs to be someone who is going to ask a judge to stop SCO's license threats
against innocent 3rd party users, ASAP! Why IBM, RED HAT or Novell have not
done this yet is because they are looking at things from their own point(s) of
view (legally)! Profit motivated Tunnel vision that focuses on their OWN
interests vs those of the LINUX community? You do the math - and ask WHY or WHY
NOT?
Best regards,
Signed: Fellow commercial and non-commercialLINUX user, as it could be anyone of
us that writes is thinking this!
PS - Red Hat - are Fedora Core X users considered RED HAT USERS per your request
to the judge?
[ Reply to This | # ]
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Authored by: gvc on Wednesday, April 21 2004 @ 07:31 AM EDT |
I think Red Hat states their case too weakly by saying that SCO only recently
introduced copyright claims agains IBM.
As I read SCO's most recent complaint against IBM, the copyright claim is as
follows:
- SCO revoked IBM's licence to distribute AIX
- IBM continued to distribute AIX
- this continued distribution of AIX without licence
violates SCO's copyright
This argument only peripherally involves Linux (as a cause of the first line of
the syllogism). It is not a claim that Linux violates SCO's copyright.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 07:58 AM EDT |
Other than the joy of seeing SCO's directors go to jail, what is the best
outcome for the open source community?
1 - Linux totally clear of any possible copyright issues?
2 - GPL validated?
3 - Public education / FUD eradication?
I almost wonder if all the publicity has done more good than harm. Many people
have worried that Linux deployments have been delayed by all the FUD. I wonder
if some deployments have been speeded up because all this stuff has kept Linux
in the public eye?
What have I missed?
[ Reply to This | # ]
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Authored by: bete noire on Wednesday, April 21 2004 @ 08:05 AM EDT |
Looks like a win for the GPL in the court of law (Germany).
http://www.there
gister.co.uk/2004/04/21/licence_germany/ (The Register) [ Reply to This | # ]
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Authored by: stephenry on Wednesday, April 21 2004 @ 08:58 AM EDT |
From the Yahoo message board:
http://biz.yahoo.com/prnews/040421/law070_1.html
The SCO Group Names Bert Young as Chief Financial Officer
Wednesday April 21, 8:07 am ET
SCO Adds to Executive Team and Creates New Department to Oversee Corporate
Development
LINDON, Utah, April 21 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq:
SCOX - News), the owner of the UNIX® operating system and a leading provider of
UNIX-based solutions, today announced the expansion of its executive team with
the appointment of Bert Young as Chief Financial Officer. Young brings to SCO a
seasoned background in executive-level management responsibilities from a
variety of information technology companies including worldwide finance,
operations, mergers and acquisitions expertise.
Previous to SCO, Young was the Vice President and Chief Financial Officer for
LANDesk Software, where he was accountable for all financial management and
reporting to company stockholders. He has also served as CFO for several other
companies including Talk2 Technology, Inc. and Whittman-Hart. He was also the
CIO for Chicago-based Waste Management, Inc.
"We look forward to Bert's contributions in helping drive additional
efficiencies in our company operations," said Darl McBride, President and
CEO, The SCO Group, Inc. "His years of experience in all facets of
worldwide operations will enhance our current management team."
In addition to the appointment of Young, the company announced that Bob Bench
will assume the responsibilities of acting Vice President of Corporate
Development. Bench has been the company's CFO for the past three and one half
years and will focus on external growth opportunities and industry partnerships.
As the company fills this position on a permanent basis, Bench plans to retire
from SCO later this year. "These changes in senior management
responsibilities will allow significant focus on efficient internal operations,
development of our current product lines, and the addition of technologies and
products through acquisition and partnering," said McBride.
Forward-Looking Statements
This press release contains forward looking statements related to SCO's belief
that the appointment of Bert Young will enhance its management team, SCO's
anticipation that Mr. Young will contribute in helping SCO drive additional
efficiencies in its operations and SCO's belief that the changes in senior
management responsibilities will allow significant focus on efficient internal
operations, development of its current product lines and the addition of
technologies and products through acquisition and partnering. SCO wishes to
advise readers that a number of important factors could cause actual results to
differ materially from those anticipated in such forward-looking statements.
These and other factors that could cause actual results to differ materially
from those anticipated are discussed in more detail in SCO's filings with the
Securities and Exchange Commission.
About SCO
The SCO Group (NASDAQ: SCOX - News) helps millions of customers in more than 82
countries to grow their businesses everyday. Headquartered in Lindon, Utah, SCO
has a worldwide network of more than 11,000 resellers and 4,000 developers. SCO
Global Services provides reliable localized support and services to partners and
customers. For more information on SCO products and services, visit
http://www.sco.com.
SCO, and the associated SCO logo are trademarks or registered trademarks of The
SCO Group, Inc. in the U.S. and other countries. UNIX is a registered trademark
of The Open Group.
Source: The SCO Group, Inc.[ Reply to This | # ]
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Authored by: Chaosd on Wednesday, April 21 2004 @ 09:15 AM EDT |
2:00AM EST!
Please take a break PJ. You do enough work (and take enough flack) for not
enough credit already - please don't make yourself ill in the process. Freedom
takes many forms, and one of them is the freedom to dream - use it.
---
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There are no stupid questions[ Reply to This | # ]
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Authored by: darkonc on Wednesday, April 21 2004 @ 09:46 AM EDT |
I've split up the memorandum into it's constituant
pages
... The *.txt files are created with gocr, which isn't quite the best
OCR software.
If people want to fix up the text on a given page, and submit it to me, I can collate it
and submit the final to PJ (assuming someone else doesn't do it first).
Post
here to indicate that you're working on a page/pages. --- Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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Authored by: arch_dude on Wednesday, April 21 2004 @ 10:21 AM EDT |
Here is Redhat's proposed wording:
"B. The Court's April 6, 2004 Order is hereby modified, as follows: SCO is
enjoined from threatening to initiate suit or initiating any lawsuit against Red
Hat or any of Red Hat's customers based on alleged infringement of SCO's
copyrights through the use of LINUX, for the period during which this case is
stayed."
This would have the effect of quashing suits like the AutoZone and
Daimler-Crysler suits in addition to "pure" anti-Linux suits. The
graveman of the Diamler-Crysler suit is that D-C violated their UNIX contract
with SCOG by using Linux. The Graveman of the AutoZSone suit is that AutoZOne
violated their UnixWare contract with SCOG by using UnixWare libraries in Linux.
Each suit also incudes much weaker claims against the defendant as a generic
Linux user, but SCOG has only sued defendants with whom SCOG has a contractual
relationship.
I hope the Judge goes for it, because SCOG tries very, very hard to make the
public think htat these suits relate to general Linux users who have not
relatinship with SCOG. However, any actual injunction should technically only
constrain SCOG from claims that there is SCOG IP in Linux.
Of course such an injunction would have some poetic justice: it would make it
clear that SCOG only sues its own customers. The judge could even make it
explicit. "SCOG will remain free to sue any party with which SCOG has an
explicit contract, but only under the terms of that contract."[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 10:30 AM EDT |
The Register reports in
http://www.theregist
er.co.uk/2004/04/20/ms_history/
that exhibits related to the Minnesota cases
wil go offline
soon: "[...] and Hennepin County District Court tells us: "The
trial exhibits will remain on the website until Monday, April 26,
2004.""
The site where they are (for a while) is
http://ww
w.courts.state.mn.us/districts/fourth/MicrosoftTrial/
Sounds like
something Groklaw or Tuxrocks might archive, if
it is legally possible (is it?).
They might come handy in
some later MS-related controversy... Too bad they all
seem
to be TIFFs, making searches difficult.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 10:48 AM EDT |
I read that Bob Bench, SCO's CFO is going to retire and Robert Young has been
named Acting CFO. What does this possibly mean?
Wondering in Virginia[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 10:55 AM EDT |
one more little stone sliding down the mountain:
lp2p.com, check out
the motivations behind
this effort. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 02:53 PM EDT |
Don't count on this motion being considered any time soon. So far it is pretty
obvious that the court has plenty of excuses for not addressing RH's complaint
in a timely manner.
My bet: you won't hear a word on this motion for months, if ever. Any appeal to
get things moving again will likely bias things against RH and make the court
less inclined to act.
Too bad RH paid good money to have its case heard. There is a lesson here about
how our justice system works, or, more accurately, how it doesn't work when
courts have better things to do. [ Reply to This | # ]
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