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

Adam Kessel adam@bostoncoop.net
Mon Aug 4 12:10:14 PDT 2003

On Mon, Aug 04, 2003 at 12:54:20PM -0600, Jonathan Corbet wrote:
> > It was probably a request for a declaratory judgment, not summary
> > judgment.
> Szulik said "summary judgement" in the conference.  Of course, he's not a
> lawyer either.

I've looked at the complaint, and it is a request for declaratory
judgment. (thanks for posting the complaint!)

On Mon, Aug 04, 2003 at 06:56:59PM +0000, M. Drew Streib wrote:
> Declaratory judgements are hard to get, though, as the full burden of proof
> lies with the party seeking judgement. 

I believe you're confusing the standard for declaratory judgment with
that for a preliminary injunction, or alternatively for final injunctive

For a preliminary injunction, you do need to demonstrate a likelihood of
eventual success on the merits (as well as a number of other things).
This is not a requirement for declaratory judgment or a permanent
injunction.  In either of these latter cases, the court is actually
ruling on the merits.  It is just as if a full lawsuit has been brought
and decided.

I don't expect the SCO v. IBM litigation should actually bar or delay any
of Red Hat's claims.  There are often, e.g., many patent infringement
suits pending simultaneously in several different courts.  Although in
some sense you might say they all concern the same "issue," this would
only be grounds for consolidating the actions, not delaying them. In
certain special cases, a federal court will abstain from hearing a case
while a state court case is pending with the same parties, but that is
not the situation here.

There are even cases where a patent holder has been found to not have an
enforceable patent, where the patent holder continues to sue subsequent
infringers.  (complicated questions of issue and claim preclusion

In any case, in my experience, declaratory judgments are not necessarily
any more difficult to get than judgments in a traditionally brought suit.
There are threshold judiciability questions (e.g., is the matter ripe for
determination or would it be better to wait until the declaratory
judgment defendant actually sues the plaintiff?) but beyond that the
standard of proof should not differ.  

Adam Kessel

> 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
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