Not trying to resolve the conflict outside of court
Posted Nov 21, 2003 1:11 UTC (Fri) by giraffedata
In reply to: SCO update
Parent article: SCO update
An American generally has access to courts without first having to resolve his conflict another way.
There are some specific places where the law requires you to do something like write a demand letter first.
And a case gets dismissed if the plaintif fails to show that there is actually a controversy. So in some cases you have to ask for something and be told no in order to prove there's a controversy. But in other cases, it's quite obvious there's a controversy without such extra action.
In this case, probably the theory that comes closest to saying SCO doesn't have a right to collect from IBM for lack of trying to resolve the conflict another way is this: A plaintiff has a duty to mitigate damages. You can't just watch your building burn and then make the guy who started the fire pay for a whole new building. So if SCO could have stopped the value of UNIX from being obliterated by writing to lkml or something, then that would reduce the amount it can collect from IBM for distributing UNIX source code to the world.
But I don't think any jury would believe that SCO could in any way have pulled back enough code from the wild to materially affect UNIX's competitive position. So there's no reason for SCO to try.
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