Lehman Says You Are Addressing the Wrong Party, Sir - Exh. D to Red Hat's Motion to Supplement

Tuesday, February 17 2004 @ 11:13 PM EST

Contributed by: PJ

Here's Exhibit D to Red Hat's Motion to Supplement, Lehman Brothers' attorney's reply to SCO's threatening letters. Lehman Brothers, clearly, rejects SCO's invitation to be sued, as well as SCO's legal theory that it has the right to sue end users at all. Take it up with Red Hat, Lehman suggests, and if you must contact us again, direct it to the attorneys only. They expect no need for further contact. Icy. Clear. There is no rollover. Thank you, Lehman Brothers.

I gather Lehman Brothers understands the GPL better than SCO does, not that that's hard to do. SCO has been trying to tell the world that the no warranty provision in the GPL is the same as no indemnification for IP claims. It's not the same thing at all. It's saying if there is a problem with the code, sorry, but you got it for free. Microsoft's EULAs say very similar things. That's a clause that is in the GPL because individual coders are really not in a financial position to provide tech support. But the no warranty clause does not intend to say that if there is an IP issue, the end user is the one to be sued. Only SCO thinks that way, and here Lehman says to them, Sorry, we are just the end user. You've made a mistake looking to us for relief of any kind. I'm just the guy that bought that book in Barnes & Nobles Eben Moglen talked about, and you're barging into my living room accusing me of infringement for reading the book I paid for. If there is any copyright infringement, talk to the infringer.

Red Hat, in turn, on receipt of the letters, ran to the judge to spread them before her and ask her now for justice, telling her that it's up to them to respond, their customer is in danger of being sued, and their response is to ask for her protective intervention, first in denying SCO's Motion to Dismiss, and ultimately for a declaratory judgment that SCO is all wet. That's not legalese. But it's what they mean. Hopefully, the judge won't wait so long the damage becomes irreversible.



****************************************

LEHMAN BROTHERS
Dauna Williams
Associate General Counsel and Vice President
Technology Intellectual Property
Corporate Law

30 January 2003

VIA FACSIMILE and OVERNIGHT COURIER

Mr. Ryan E. Tibbetts [sic]
General Counsel

Mr. Gregory Petit
Regional Director, Intellectual Property Licensing
SCO
[address, fax]

Gentlemen:

SCO's letters of December 19, 2003 and January 16, 2004 to Mr. Richard Fuld and of January 16, 2004 to Mr. Jonathan Beyman (all attached) have been forwarded to me for reply.

The issues you raised concerning use of Linux software have been directed to our vendor, Red Hat Inc., for response. Understandably, they are the appropriate recipient and are better positioned than we to respond to your issues and concerns.

Please direct any further correspondence on the subject to Red Hat. To the limited extent you must communicate with Lehman Brothers in the future (admittedly unlikely, given our request herein), please direct any such communications directly to my attention.

Very truly yours,


_______________
Dauna Williams
Associate General Counsel and Vice President

Enclosures

LEHMAN BROTHERS INC.
[address, phone, fax]


______________________________


I, John W. Shaw, Esquire, hereby certify that copies of the foregoing document were caused to be served on February 11, 2004, upon the following counsel of record:

BY HAND DELIVERY

Jack B. Blumenfeld, Esquire
Morris, Nichols, Arsht & Tunnell
[address]

BY FEDERAL EXPRESS

Mark J. Heise, Esquire
Boies, Schiller & Flexner, LLP
[address]


_____________________
John W. Shaw

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