RH Template for further action? And anyone seen Rico? (Re: [linux-elitists] [SCO] Red Hat strikes back)

Karsten M. Self kmself@ix.netcom.com
Tue Aug 5 02:15:06 PDT 2003

on Mon, Aug 04, 2003 at 11:57:53AM -0600, Jonathan Corbet (corbet-elite@lwn.net) wrote:
> Somebody has finally taken the offensive in the U.S.
>   http://www.businesswire.com/cgi-bin/f_headline.cgi?bw.080403/232165483&ticker=RHAT
> Listening to the conference over the phone has been an exercise in
> pain...  I was sort of able to pick out that RH is pissed ("our
> customers have been threatened") and the complaints filed include
> unfair competition and "trade libel." 

I'm 21 of 27 pages through transcribing this.  Will post when done.

I'm also plannin on being at LWE Tuesday, including likely the party.
Need to figure out my return commute strategy....

Some thoughts as far as I've gone:

  - RH is making claims, among others, based on 22 USC § 1125 (a)(1),
    which does _not_ require that abuse of a trademark be claimed by
    owner of the mark (subsequent subsections of 1125 do have this

  - Paragraphs 50, 52, 53, and 61 of RH's claim list both Red Hat and
    other "Linux software developers" and "companies like Red Hat", and
    "vendors supplying [LINUX software]".  For anyone who's provided
    someone with a copy of Tom's Root Boot, LNX-BBC, Knoppix, or a free
    download or archive of Linux, sounds like you're a potential party
    to the Caldera/SCO complaint.

While portions of RH's claim are specific to Red Hat, the general form
of the document, and the broad scope of parties who have a legitimate
and specifically enumerated threat from Caldera/SCO, the filing offers a
template other parties might use to file their own claims for
declaratory judgment and injunctive relief against Caldera/SCO.  Note
that most of Red Hat's claims would require filing in Federal court.

There's already been suggestions to file complaints with the SEC for
illegal stock manipulation on the part of Caldera/SCO.    I strongly
advise all to determine if they have cause to file such a complaint and
if so, to do so.

The other legal angle I've been looking at is RICO.  Take a look at 18
USC 1961:


Suggest drawing up a sheet of paper with two columns.  

In column one, list the activities listed under RICO statutes which
appear to be violated by Caldera/SCO.  Possible sections inlcude: 659,
664, 1341, 1343, 1344, 1951, 1952, 1957, 2314, 2315, 2318, 2319, and

In column two, the members of the conspiracy.  Clearly, Caldera/SCO.
Red Hat's filing names the Canopy Group.  Vultus was aquired in an
inflated-value stock swap, with Canopy debt retired.  IBM has accused
Microsoft of being behind manipulations, and there has been an
interesting synchronicity of press releases by Caldera/SCO and marketing
by Sun (full page spreads in the WSJ and SJMN).  At least one PR firm
listing Caldera/SCO as a client was actively promoting early positive
press on Caldera/SCO's suit.  Several analysts, notably Gartner, and
columnists, have sung Caldera/SCO's tune repeatedly.

Question:  sufficient material for a formal complaint?


Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
   Geek for hire:  http://kmself.home.netcom.com/resume.html
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