[linux-elitists] [SCO] Red Hat strikes back

M. Drew Streib dtype@dtype.org
Mon Aug 4 11:56:59 PDT 2003


On Mon, Aug 04, 2003 at 02:47:03PM -0400, Adam Kessel wrote:
> Declaratory judgment, on the other hand, is a device used to clarify
> legal rights.  Declaratory judgment is particularly well suited for cases
> such as this, where one party's actions might have a chilling effect on
> another party's future conduct, and the other party wants an answer now
> about their legal rights, rather than after they've done the future
> conduct.  

Declaratory judgements are hard to get, though, as the full burden of proof
lies with the party seeking judgement. There are several hurdles to clear,
including evidence that your _current_ business is being damaged by
these conditions, that you are likely to be sued at some point for
what you are doing (I believe this is a prereq. Only 75% sure though.),
and that you are likely to win in court if it comes to a case.

Best of luck to Red Hat, though, as declaraaory judgements are really for
exactly their current situation.

IANAL, TINLA. In my non-legal opinion, since there is current litigation
with SCO/IBM, I think a declaratory judgement is unlikely until there
is an outcome of the current case. Otherwise it will be tough for Red Hat
to prove that they are the likely winners of a court battle. Assuming
IBM prevails, a judgement would be much easier to get, albeit not as
necessary.

-drew

-- 
M. Drew Streib <dtype@dtype.org>
Independent Rambler, Software/Standards/Freedom/Law -- http://dtype.org/
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