SCO Weekly News [LWN.net]

Let us start off this week's SCO update with some quotes:

SCO has since backed off the billing plan, but the company is still serious about enforcing its copyrights, said Chris Sontag, senior vice president in charge of SCO's legal efforts. He said lawsuits targeting Linux users will be filed within 90 days, with initial suits targeting 1,500 companies that have significant Linux systems.

-- ZDNet, November 18, 2003.

If someone says they want to see a court ruling before they pay, we'll say, "Fine, you're the lucky winner. We'll take you first.' I'd be surprised if we make it to the end of the year without filing a lawsuit.

-- Darl McBride, November 24, 2003

So we have basically said within the next few weeks, by February 18th we are going to be in the courtroom with an end user to go through the copyright-related problems that we are having from an infringement standpoint.

-- Darl McBride, February 2, 2004

There are many more quotes available on this theme, but certainly the idea is clear by now. Like so many other bits of SCO bluster, the threats of suits against end users have not been followed up by any sort of action. Yet.

Whether such a suit will eventually come remains an open question, however. SCO is currently fighting IBM, Red Hat, and Novell in three separate cases, and none of the three appear to be going particularly well. At some point SCO's management should be forced to conclude that the company simply does not have the resources to open any more legal fronts. Dividing SCO's scarce cash and (possibly not so scarce) lawyers among even more courtrooms would not appear to be a wise strategy.

On the other hand, few people have accused SCO of acting wisely in recent times. The company is due to post a quarterly earnings report that, by all estimates, will be dismal. SCO stock is well below the peak values it hit in September and October. The mainstream media is beginning to wake up, and its coverage is increasingly hostile. SCO's only hope for continued existence would appear to be to somehow shake money out of some easily-cowed Linux users, but those users are proving to have rather more backbone than SCO may have anticipated. The SCO Group may yet decide that its best interests lie in even more litigation.

One view into how the shakedown effort is proceeding can be found in Red Hat's motion to supplement its filings in its suit against SCO. That case is (still!) waiting for the judge to come to a conclusion on SCO's motion to dismiss the case, which was filed in September. Since then, a few things have happened which have made it increasingly clear that SCO does, indeed, intend to go after Red Hat and its customers. Red Hat's motion is an attempt to bring SCO's more recent actions to the judge's attention.

One of the things Red Hat is pointing out is a letter sent by SCO to Lehman Brothers Holdings. It is a variant on the standard SCO shakedown letter; the point here is that Lehman Brothers is a Red Hat customer. Happily, Lehman Brothers saw no point in giving in to SCO; its response is short and clear, and is best paraphrased as "go bug Red Hat."

Part of the problem for SCO is that Novell's claims on the Unix copyrights make it easy for prospective SCO victims to ignore the letters. If SCO can't put forward a clear claim to the Unix copyrights, it will have a hard time collecting from anybody regardless of the validity of its statements about the provenance of Linux. For that reason, the company was compelled to file suit against Novell, in hopes of clearing that obstruction.

Unfortunately for SCO, Novell has filed a compelling motion to dismiss the suit. Essentially, says Novell, the SCO suit is missing two things that are required in "slander of title" suits: proof that the defendant's statements are false, and a demonstration that actual damages have been suffered. As Novell points out, SCO's demand that the court force Novell to transfer the copyrights proves that Novell's claims are true; SCO's suit contradicts itself. See Groklaw for a far more detailed discussion of Novell's motion.

Meanwhile, as of this writing, the Utah court still has not issued any rulings regarding the motions to compel in the IBM case. There is no way to know what this delay means until the court speaks. Chances are it will be something interesting, however.

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SCO Weekly News

Posted Feb 20, 2004 5:32 UTC (Fri) by Duncan (guest, #6647) [Link]

> Can anyone comment on whether or not the users
> of Linux have the basis to sue or counter-sue SCO?

Most definitely, IANAL here, but three observations from my following of
the case..

1) Currently, it would seem end users don't have much, since even the Red
Hat case is being held up while the judge decides whether they have grounds
to sue, allowing the case to continue, that despite all the evidence that RH
and RH users were indeed rather directly in SCO's sights. Given how
directly RH is involved, end users, with the possible exception of anyone
who's directly been a recepient of one of the SCO threat letters, wouldn't
seem to have much to go on.

However, that leads us to:

2) Current status would apparently change if SCO actually DID start sending
out general end-user threat letters. A number of Linux developers and others
with copyrights licenced under the GPL that SCO appears to be violating,
have threatened legal action if that were to occur, and that has been named
as one of the reasons SCO may not have chosen to follow thru on its promises
of sending out the general-scope demand/threat letters, but has limited them
to a far smaller scope -- generally that of users which already have some sort
of contractual relationship with SCO. It would seem that SCO's current
actions of talking it up to the press and anyone that will listen, while not
actually following up in the legal arena, falls under general freedom of
expression rules, at least here in the US, and is thus not legally actionable,
again, the thing holding up the Red Hat suit.

Note, however, that even in that case, developers would have a FAR stronger
legal case than ordinary end users. Basically, direct written end-user threats
on the part of SCO would move everybody's legal interest up one notch. The
RH case would then have solid evidence upon which it should be able to
proceed. Developers would then be in RH's current position, roughly, with a
fairly strong case but still some question of legal standing. And end users
would be in developer's current position, a case that could be argued, but
doubtful legal standing, except possibly in the fairly limited area of defensive
proactive action. Even there, however, most courts wouldn't advance the
case, pending resolution of cases further up the chain.

However, that "here in the US" reference from two paragraphs up, points to:

3) The above observations are limited to the US legal scene. As the German
"put up or shutup" case, preventing SCO from making the wild claims there
that they have in the US, and the Australian CyberKnights case under similar
circumstances now developing, have demonstrated, "victim's rights" have a
stronger weight relative to "free expression" in many areas outside the US. In
these areas, as the developing Australian CyberKnights case is starting to
demonstrate, end users might have current standing.

That's how I see current status re end user and developer rights, anyway,
based on my following of the situation to date, again, just as an interested
Linux user and hobbyist developer myself, with no specific legal training, only
the ability to read reports of developments as presented in the press
(including groklaw and lwn), and common sense.

Duncan

Lehman Brothers: It's Red Hat's problem

Posted Feb 21, 2004 23:28 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I sure don't understand Lehman Brothers' position. It sounds like when someone is in possession of a stolen bicycle and the owner demands it back and he says, "Hey, I paid for this. Talk to the thief." (For those who don't know, that is an entirely invalid defense under US law).

I'm not a copyright lawyer, but it seems to me that you similarly cannot download a bootleg Metallica song and view it with impunity, directing Metallica's lawyers to the guy you downloaded it from.

And of course Lehman Brothers didn't just get a copy of Linux from Red Hat. It presumably made lots of copies itself. Which requires permission from the copyright owners, not the person who made the copy you used as a master.

Any indemnity owed Lehman Brothers by Red Hat is equally irrelevant to SCO.