Red Hat has filed a lawsuit against The SCO Group to
show that its technologies do not infringe on SCO's intellectual
property, and to hold SCO accountable for "unfair and deceptive
actions".
The lawsuit is, apparently, timed to coincide with this
week's LinuxWorld conference in San Francisco.
The court action is intended to bring facts into the open as a
consequence of SCO filing a $1bn lawsuit against IBM in March,
alleging that IBM breached a Unix licensing agreement and stole
trade secrets.
"For the past two months, we have listened to innuendo and
rumour and unfounded claims that have been launched against our
customers, in face-to-face meetings with investment analysts [and]
in face-to-face meetings with other industry analysts, regarding
the unfounded claims associated with Linux and the Linux industry,"
said Red Hat chairman and chief executive officer Matthew
Szulik.
"In a recent conference call, Red Hat was mentioned specifically
by name and threats were launched on behalf of the SCO organisation
against the entire Linux industry," Szulik added. "We've been
patient. We've listened. But when our customers, the whole
open-source community and our investors are now threatened with
these unfounded claims and innuendo and rumour, it's time to
act."
Red Hat sought without success to work with SCO management to
resolve the issue and brought the lawsuit to settle the matter
quickly. In its court filings, the Linux supplier claimed that SCO
failed to respond to a 18 July request to explain the basis of its
claims, "except to make a telephone call seeking to have Red Hat
pay for an unneeded Unix licence", Red Hat alleged.
SCO reiterated its claim that Linux is an unauthorised
derivative of Unix and denied that it was attempting to spread
fear, uncertainty and doubt to end users.
"We're confident of our claims, and we're happy to address any
of the allegations that are found in this lawsuit," said SCO
spokesman Blake Stowell.
Stowell disputed Red Hat's version of events, saying SCO CEO
Darl McBride left the telephone conversation with Szulik thinking
he had an agreement to meet and conduct further discussions.
The seven-count complaint asks for a declaratory judgment that
no Linux version sold, used or distributed by Red Hat, or used by
Red Hat's customers, infringes SCO's intellectual property rights.
It also seeks a declaratory judgment that Red Hat's use and sale of
Linux and its use by the company's customers does not
misappropriate SCO trade secrets.
Other counts allege false advertising in SCO's comments about
Linux, deceptive trade practices that are causing "irreparable
harm" to Red Hat, unfair competition, interference with prospective
business opportunities, trade libel and disparagement of Red Hat's
products, services and business practices.
Red Hat is seeking a permanent injunction restraining SCO from
acting to cause confusion or make purchasers, business partners and
investors believe Red Hat's products violate SCO's intellectual
property rights or trade secrets. It also seeks actual damages from
SCO's actions in an amount to be established at trial.
Although Red Hat has been unable to quantify the impact of SCO's
statements, Szulik claimed customers had delayed purchases.
Red Hat has also established the Open Source Now Fund, which
will cover legal expenses associated with infringement claims
against companies and developers of open-source software.
The fund covers open-source software generally and not just the
Linux operating system, said Red Hat, which pledged $1m to the
fund.
However, the fund will not be available to customers. As a
matter of policy, Red Hat does not indemnify its customers for
legal challenges concerning its software.
Red Hat's lawsuit was precipitated by SCO's decision to move the
focus of its complaints from IBM to Linux developers and users,
said Sageza Group analyst Charles King.
"Claiming that Linus Torvalds might be personally responsible
for some of this, you're starting to get into an area where you're
impacting the livelihood and the business of companies like Red Hat
and SuSE," he added.
This broadening of its claims may expose SCO to a class action
lawsuit on behalf of Linux developers, said open-source advocate
Bruce Perens.
"There are tens of thousands of us. We are a viable class for a
class action suit," he said, adding that he would consider the
rights to the original source code an appropriate damage settlement
in such a suit.
"I really like the final irony of SCO having to give up its
copyrights, and I think I might pursue it," he added.
Szulik acknowledged to reporters that he takes SCO's challenges
personally.
"For me as the CEO of the Linux leader not to take this
personally, I would be lying to you if I told you I didn't," he
said.
Stephen Lawson and Robert McMillan write for IDG News
Service