Red Hat filed suit against the SCO group back at the beginning of August.
At that time, SCO's
was nothing if not aggressive:
Be advised that our response will likely include counterclaims for
copyright infringement and conspiracy. I must say that your
decision to file legal action does not seem conducive to the
long-term survivability of Linux.
That response was filed on September 15; thanks to Groklaw, the text
of SCO's response is now available online. It reads rather differently
than Darl McBride's preview had suggested. Rather than escalate the fight
with counterclaims and conspiracy charges, SCO is now trying to make the whole
thing go away.
The core of SCO's argument is that it has never actually threatened to sue
Red Hat, so Red Hat cannot ask for relief. There is nothing to be relieved
There are no allegations that SCO has contacted Red Hat and
informed it that its product violates SCO's copyrights. Nor has SCO
done so. There are no allegations that SCO has conveyed to Red Hat
either expressly or implicitly that it intends to sue Red Hat to
enforce its copyrights. Nor has SCO done so. There are no
allegations that SCO has sued any other entity for infringement. -
Nor has SCO done so.
If you go back to SCO's response to the suit, the company quotes a letter
At the time of your letter, we had expected the possibility of a
global resolution of SCO's intellectual property claims against all
Linux-related companies that would have likely included Red Hat. This
effort has apparently stalled, through no fault of SCO.
SCO's Linux license
FAQ contains this statement:
All distributions of Linux 2.4 and later versions of the kernel
contain major infringments, regardless of whether Linux is being
used in a commercial or non-commercial environment.
Since Red Hat is unarguably a "Linux-related company," the first statement
above could certainly be read to imply the existence of intellectual
property claims against it. Since Red Hat's products include 2.4 and later
kernels, the second statement is a clear claim that Red Hat's products
contain "major infringements." But now SCO is trying to say that such
claims do not exist.
This quote is also worth noting:
Red Hat, however, has never had any license from SCO providing
access to SCO's trade secrets or other confidential information
and, to SCO's knowledge, has not stolen or otherwise
misappropriated any of SCO's trade secrets or confidential
information. Therefore, unlike companies that have contractual
obligations to SCO, Red Hat has no legal or factual basis for
apprehension of suit by SCO with respect to trade secrets or
confidential information it has licensed from SCO, and its claims
in Count II can be summarily dismissed.
So, if you work with Linux, and you have never signed a contract with SCO,
you should have little to worry about. SCO states here that it has never
claimed that Red Hat Linux (at least) infringes upon its copyrights, and
SCO states explicitly that Red Hat cannot have stolen its trade secrets.
If nothing else, SCO's statements serve as another warning against signing
contracts with that company.
SCO goes on to say that, even if Red Hat could prove that it is right to be
worried about being sued, the court still should not hear the case.
The previously filed SCO v. IBM Case addresses most, if not all, of
the issues of copyright infringement and misappropriation. If these
issues are decided against SCO in that case, then Red Hat's lawsuit
One wonders how the IBM case can handle "most, if not all, of the issues of
copyright infringement" when, as stated earlier in SCO's response, "There
are no allegations that SCO has sued any other entity for infringement.
Nor has SCO done so."
The IBM case is a breach of contract case which has nothing to do with
copyright infringement. One presumes that
the judge in the Red Hat case will notice that.
SCO claims that the rest of Red Hat's complaints (mostly variations on
violations of fair trade laws) should be dismissed because SCO's behavior
is a simple exercise of its first amendment ("freedom of speech") rights.
SCO's Public Statements fall outside the scope of the Lanham Act
and related state law claims and are protected under the First
Amendment to the U.S. Constitution. The Public Statements also
address or relate to pending or potential litigation and are
privileged under the common law doctrine of litigation immunity.
According to SCO, even its "Linux license" is actually speech related to
ongoing litigation, and thus protected. A footnote in SCO's filing makes
the interesting additional claim that "SCO has never asserted in any
statement that individual, non-corporate users of Linux may be liable to
SCO, or otherwise would need to purchase a right to-use-license."
The filing finishes out with this fun little argument:
Indeed, SCO's Public Statements are also part of a wider debate in
the technology and music industries about the scope of intellectual
property protection in a digital age. As open source software
development becomes prevalent and digital music can be downloaded
for free, many people are simply ignoring copyright and patent
laws. Many public commentators recognize this disintegration of
property rights as a danger to our economic system. In a small way,
SCO's Public Statements are part of this debate. This is an
additional factor that weighs in favor of holding SCO's Public
Statements as fully-protected speech, not subject to the Lanham Act
or associated state law claims. It would pervert the First
Amendment to allow the Lanham Act to chill broad debate about the
relative merits, and problems, with open source software.
Free software developers are, in other words, the moral equivalent of those
who distribute copyrighted music over the net. And it is SCO's right to
be "part of this debate" by making its claims against Linux.
The conclusion that comes from a thorough reading of SCO's response is
clear: SCO does not want this fight, and is doing what it can to make it go
away. This is not a surprising position; a company which has picked an
intellectual property fight with IBM has little need or desire for other
legal distractions. SCO's move for dismissal looks weak, however,
especially when one considers that it has contradicted many of its own
claims in public statements elsewhere. The Red Hat suit is not good news
for SCO, and it is unlikely to be shrugged off so easily.
SCO is also weakening any case it might have against any other
Linux-related company. After going to such lengths to state that Red Hat
has nothing to fear from SCO, and that the IBM case covers everything, SCO
will will have to find some truly compelling "new evidence" before it can
turn around and file another Linux-related lawsuit. As SCO backs away from
its increasingly indefensible claims of direct infringement, all it really
has left is a contract dispute with IBM. It is not surprising that SCO
wants to free itself of the Red Hat suit and concentrate on its one, big
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