decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
AutoZone's Motion to Stay or for a More Definitive Statement - as text
Monday, April 26 2004 @ 07:09 PM EDT

Here is AutoZone's MOTION TO STAY OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT as text. The complete PDF is now available here, thanks to rakaz and Frank Sorenson.

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

James J. Pisanelli, Esq.
Nevada Bar No. 4027
Nikki L. Wilmer, Esq.
Nevada Bar No. 6562
SCHRECK BRIGNONE
[address, phone]

Michael P. Kenny, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address, phone]

Attorneys for Defendant AutoZone, Inc.

_______________________________________

THE SCO GROUP, INC.,
a Delaware Corporation,

Plaintiff,

v.

AUTOZONE, INC.,
a Nevada Corporation,

Defendant.

________________________________________

DEFENDANT AUTOZONE, INC.'S MOTION TO STAY OR, IN THE
ALTERNATIVE, FOR A MORE DEFINITE STATEMENT

Civil Action File No.
CV-S-04-0237-RCJ-LRL

____________________________________

Defendant AutoZone, Inc. ("AutoZone") moves this Court for an Order staying all proceedings or, in the alternative, directing Plaintiff The SCO Group, Inc. ("SCO") to amend its Complaint to provide a more definite statement. The grounds in support of AutoZone's Motion are set forth in detail in the attached Memorandum of Law. 1

This 23rd day of April, 2004.

SCHRECK BRIGNONE

By: _____[signature]_________
James J. Pisanelli, Esq. #4027
Nikki L. Wilmer, Esq. #6562
[address]

and

Michael P. Kenny, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address]


1 . As the record in this matter reflects, AutoZone has filed concurrently with the present Motion a Motion to Transfer Venue. AutoZone respectfully requests the Court to initially consider AutoZone's Motion to Transfer Venue and then, if the Court deems it appropriate, consider the present Motion. In the event the Court grants AutoZone's Motion to Transfer Venue, the Court may defer the present Motion to the United States District Court for the Western District of Tennessee.


MEMORANDUM OF LAW

Plaintiff The SCO Group, Inc. ("SCO") alleges in its Complaint that Defendant AutoZone, Inc. ("AutoZone") has infringed copyrights that SCO purports to own in a computer operating system known as UNIX through AutoZone's use of a competing operating system known as Linux. To prevail on its claim, SCO must establish two elements: (1) that it owns valid and enforceable copyrights in UNIX; and (2) that the Linux operating system infringes those rights.

Both of these elements are already at issue in three prior filed federal court lawsuits. Whether SCO owns copyrights in the UNIX operating system is the sole issue in an action SCO filed against Novell, Inc. ("Novell") in Utah last January. Whether Linux infringes any copyrights SCO purports to own in UNIX is a central issue in a lawsuit SCO filed against IBM in Utah last year, and it is the central issue to be decided in a declaratory judgment action that Linux distributor Red Hat, Inc. ("Red Hat") filed against SCO in Delaware last August.

The resolution of each of these prior filed actions will significantly clarify, if not resolve, SCO's claims against AutoZone. Staying SCO's claims will thereby avoid duplicative litigation and save the parties and the court significant time and expense that may ultimately prove to be unnecessary. Recognizing the same, Judge Robinson, to whom Red Hat's case was assigned in Delaware, recently stayed that case sua sponte pending resolution of the IBM case. Red Hat v. SCO, Mem. Order (attached to Appendix of Exhibits to Motion to Stay or, in the Alternative, for a More Definite Statement ("Appendix") as Ex. A), at 4. In reaching this conclusion, she wrote: "It is a waste of judicial resources to have two district courts resolving the same issue, especially when the first filed suit in Utah [i.e., IBM] involves the primary parties to the dispute." Id. at 5. Judge Robinson's conclusion applies with even greater force in the present case because AutoZone operates Red Hat Linux. AutoZone therefore submits that this case should be stayed pending resolution of the Red Hat litigation.

In the event this Court determines that the case should move forward on a parallel track with the prior filed cases, AutoZone requests, in the alternative, that the Court order SCO to amend its Complaint to provide AutoZone with a more definite statement of SCO's claim. SCO's Complaint broadly alleges that AutoZone's distribution and copying of Linux infringes SCO's alleged rights in UNIX; however, it is impossible to tell from the face of the Complaint how AutoZone's actions infringe any rights in UNIX or what portions of Linux or UNIX are at issue. Without a more definite statement of the factual basis for SCO's claims, AutoZone cannot legitimately evaluate or answer the claims. AutoZone also cannot determine whether affirmative defenses are available that, if submitted to the Court in the form of Rule 12 or Rule 56 motions, could dispose of the litigation before the need to engage in costly and time consuming discovery. For these reasons and the reasons set forth more fully below, AutoZone respectfully requests that the Court grant this Motion.

FACTUAL BACKGROUND

A. UNIX and Linux Operating Systems

1. UNIX

"UNIX" is a name used to identify a number of related computer operating systems that meet a publicized UNIX standard. See SCO v. IBM, Counterclaim-Plaintiff IBM's Second Am Counterclaims Against SCO (attached to Appendix as Ex. B) 8. Bell Laboratories, then the research arm of AT&T, created the first version of UNIX. See SCO v. IBM, Compl. (attached to Appendix as Ex. C) 8; Unix Sys. Labs., Inc. v. Berkeley Software Design, Inc., No. 92-I667, 1993 WL 414724, at *1 (D.N.J. Mar. 3, 1993). Over the years, AT&T licensed various versions of the UNIX operating system to third parties, including a proprietary version AT&T created that is known as UNIX System V. See Appendix Ex. C 8-9. Today, UNIX operating systems are some of the most prominent operating systems for servers used by Fortune 500 companies and other large enterprises in the United States. In 1993, AT&T assigned its copyrights in UNIX to Novell. As discussed in further detail below, Novell transferred certain rights related to the UNIX operating system to SCO in 1995.

2. Linux

"Linux" is the name given to a computer operating system that stems from the collaborative development of thousands of computer programmers worldwide. Conceived in 1991 by Linus Torvalds, then a graduate student at the University of Helsinki, the idea behind Linux was to create a robust computer operating system that would be available free of charge for anyone to use, change and further distribute.

Using the Internet to facilitate contributions and collaboration, the first version of the "Linux kernel" -- the core of the operating system -- was released in 1994. Red Hat released the first commercial distribution of Linux later that same year. In the years that followed, programmers from around the world contributed to the continued development and improvement of the Linux kernel, resulting in the release of Linux kernel versions 2.4 in 2001 and 2.6 in 2003.

Linux is referred to as "open source" software because Linux users are provided not only the object code for the software, but also the source code. Source code is programming code that a programmer experienced in the language in which the program is written can read and change. Object code is source code that has been translated into a series of 1s and 0s that can be read by a computer but not by humans. Unix Sys. Labs., 1993 WL 414724, at *2. The owners of most proprietary operating systems (such as Microsoft Windows), do not provide their users with access to the source code. Accordingly, if a user wants to make a change to the functionality of the software, the user must pay the owner to make the change, or live without it. Linux licensees, on the other hand, are permitted to modify and enhance the source code.

Over the past several years, Linux has become a viable alternative to UNIX based operating systems. Because of the vast difference in pricing between UNIX and Linux and the competitive functionality of the systems, a substantial number of companies are now switching from UNIX to Linux. These companies include AutoZone, which, as discussed below, switched its domestic in-store servers from UNIX to Linux in 2002.

B. Current Litigation Involving UNIX and Linux

Linux's widespread displacement of UNIX has led to the filing of a number of lawsuits that are relevant to this Court's consideration of SCO's claims against AutoZone. These lawsuits are addressed in turn below.

1. SCO Group, Inc. v. Novell, Inc., No. 2:04CV00139 (D. Utah filed Jan. 20, 2004)

On September 19, 1995, Novell entered into an Asset Purchase Agreement (the "APA") with a predecessor of SCO. SCO v. Novell, Compl. (attached to Appendix as Ex. D) 1. Pursuant to the APA, SCO alleges that Novell assigned to SCO certain UNIX copyrights. Id. 1, 17. Novell contends that it specifically excluded from the scope of this transfer any of its copyrights in UNIX. SCO v. Novell, Mem. in Supp. of Mot. to Dismiss (attached to Appendix as Ex. E), at 2.

On October 16, 1996, Novell and SCO executed an amendment to the APA (the "Amendment"). Id. SCO has publicly stated that the Amendment transferred to SCO's predecessor all of Novell's copyrights in the UNIX code. Appendix Ex. D 1, 17. Novell has publicly challenged SCO's assertions and has stated that it still owns the copyrights in the UNIX code that it owned when the APA and the Amendment were executed. See Appendix Ex. E.

On January 20, 2004, SCO filed a slander of title action against Novell in state court in Utah. Appendix Ex. D 1. Novell removed the case to federal court and then filed a motion to dismiss SCO's claims on the grounds, inter alia, that neither the APA nor the Amendment transferred any copyrights in the UNIX source code to SCO. SCO v. Novell, Notice of Removal (attached to Appendix as Ex. F); Appendix Ex. E at 4-10. SCO has filed a motion to remand the case to state court and has opposed Novell's motion to dismiss. SCO v. Novell, Mot. to Remand (attached to Appendix as Ex. G); Pl.'s Memo. in Opp'n to Def.'s Mot. to Dismiss (attached to Appendix as Ex. H). The motions are scheduled for oral argument on May 11, 2004. SCO v. Novell, Am. Notice of Hearing (attached to Appendix as Ex. I), at 1.

2. SCO Group, Inc. v. Int'l Bus. Mach. Inc., No. 2:03CV294 (D. Utah, filed Mar. 25, 2003)

SCO filed suit against IBM in state court in Utah on March 6, 2003, and IBM removed the case to federal court on March 23, 2003. SCO's original claims were for, inter alia, misappropriation of trade secrets SCO purported to own in certain UNIX source code and breach of contract based on alleged violations of IBM's licenses with AT&T for the UNIX System V source code. Appendix Ex. C. According to SCO, which claims to be the successor in interest to AT&T's rights under the licenses, IBM breached the licenses by improperly contributing rights SCO claims to own in UNIX System V source code to Linux.

SCO did not identify in its Complaint either the UNIX or the Linux code allegedly at issue, so IBM served SCO with discovery requests in June 2003 aimed at eliciting this information. See SCO v. IBM. Order Granting Intern'l Bus. Mach.'s Mots. to Compel Disc. and Reqs. to Prod. of Docs. (entered December 12, 2003) (attached to Appendix as Ex. K). SCO failed to fully identify the code in response to IBM's requests. Id at 2. Accordingly, IBM filed two motions to compel SCO to identify the code. Id. at 1. The court granted IBM's motions in an Order dated December 12, 2003. Id. As part of its Order, the court ordered SCO to provide IBM with an identification of "the source code(s) that SCO is claiming form the basis of their [sic] action against IBM." Id at 2. The court also scheduled a hearing on February 6, 2004, to evaluate the sufficiency of SCO's responses. Id at 3.

SCO served IBM with additional documents and information prior to the hearing, but IBM disputed that SCO had produced everything the court ordered it to produce. SCO v. IBM, Order Re. SCO's Mot. to Compel Disc. and IBM's Mot. to Compel Disc. (entered March 3, 2004) (attached to Appendix as Ex. L), at 2. Two days before the hearing, SCO dropped its trade secrets claims, but maintained its claims that IBM had contributed code to Linux in violation of the UNIX System V source code licenses for which SCO claims to be the successor in interest and added a claim for copyright infringement. See SCO v. IBM, Second Am. Compl. (attached to Appendix as Ex. J). In an Order dated March 3, 2004, the Court found that SCO had not complied in full with the court's December 12 Order and ordered SCO "[t]o fully comply within 45 days of the entry of this order with Court's previous order dated December 12, 2003. Appendix Ex. L at 2. 2

On March 29, 2004, IBM filed a Second Amended Counterclaim in which IBM requests a declaration from the court that "IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." Appendix Ex. B 173. SCO's claims of copyright ownership in the UNIX System V operating system and its allegations that one or more versions of Linux infringe those rights are therefore now directly at issue in IBM.

3. Red Hat, Inc. v. SCO Group, Inc., No. I:03CV772 (D. Del. Filed Aug. 4, 2003)

Red Hat is the country's best-known independent distributor of Linux software. On August 4, 2003, Red Hat sued SCO in the United States District Court for the District of Delaware seeking a declaratory judgment that SCO's purported UNIX copyrights are unenforceable and that Red Hat's use or distribution of Linux does not infringe any purported UNIX copyrights owned by SCO. Red Hat v. SCO, Comp]. (attached to Appendix as Ex. M) 71 - 74.

SCO moved to dismiss Red Hat's claims on ripeness grounds. Red Hat v. SCO, Opening Br. in Supp. of its Mot. to Dismiss (attached to Appendix as Ex. N), at 1. In support of its motion, SCO contended that "[t]he previously filed SCO v. IBM Case addresses most, if not all, of the issues of copyright infringement and misappropriation." Id. at 15. SCO therefore argued: "[i]f these issues are decided against SCO in that case, then Red Hat's lawsuit becomes unnecessary." Id.

The Court recently denied SCO's motion to dismiss. Appendix Ex. A at 1. However, in apparent agreement with SCO's admission that the IBM case involves substantially similar issues, the Court sua sponte stayed the Red Hat case pending resolution of IBM. [3] Id. at 4.

C. SCO's Claims Against AutoZone

1. AutoZone's Business and Computer Systems

AutoZone is the nation's leading retailer of automotive parts and accessories, operating approximately 3,300 stores nationwide. AutoZone has servers in its corporate headquarters in Memphis and in each of its retail store locations.

AutoZone formerly used SCO's proprietary "OpenServer" version of UNIX as the operating system for its servers. In 2001, SCO told AutoZone that it would no longer be offering support for its OpenServer product. AutoZone was therefore forced to switch to a new operating system, either one offered by SCO (UnixWare) or an alternative system. 4 AutoZone elected to switch to Linux. AutoZone completed the transition of its domestic in-store servers to Linux in the second half of 2002.

2. SCO's Complaint Against AutoZone

Throughout most of 2003 and early 2004, SCO issued open threats to the Linux end user community that it would be supplementing its lawsuit against IBM with a lawsuit against an end user -- presumably in hopes that such threats would coerce Linux users into signing unnecessary license agreements with SCO. See Appendix Ex. M 42. Based upon publicly available information, SCO's threats do not appear to have generated any meaningful licensing activity. SCO thus carried through on its threat and filed the present action against AutoZone.

Broadly described, SCO's Complaint asserts that AutoZone's internal use, distribution, and copying of the Linux operating system infringes copyrights that SCO purports to own in the UNIX operating system. However, the precise nature of SCO's copyright claims cannot be ascertained with any reasonable degree of certainty from the allegations of the Complaint itself.

ARGUMENT AND CITATION OF AUTHORITIES

A. The Court Should Stay this Case Pending Resolution of Previously Filed Actions

This Court possesses the inherent discretion to stay this case. Clinton v. Jones, 520 U.S. 681, 706 (1997) ("The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket."). As this Court has previously explained, "[e]very court has the inherent power to stay causes on its docket with a view to avoiding duplicative litigation, inconsistent results, and waste of time and effort by itself, the litigants and counsel." Stern v. United States, 563 F. Supp. 484, 489 (D. Nev. 1983).

The Ninth Circuit recognizes that a district court's discretion to stay proceedings has particular application where another action is pending that addresses specific issues raised in the current action.

[A] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule . . . does not require that the issues in such proceedings are necessarily controlling of the action before the court.

Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979)). The interests to consider in the determination of whether to stay the proceedings under such circumstances include:

[T]he possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.

Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972); see also Cohen v. Carreon, 94 F. Supp. 2d 1112, 1115 (D. Or. 2000) (quoting CMAX Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).

Here, consideration of the relevant issues demonstrates that the Court should stay the present case pending resolution of the Novell, IBM and Red Hat cases because those cases will address, and may resolve, the seminal elements of SCO's copyright infringement claim against AutoZone. 5

1. The Court Should Stay this Case Pending Resolution of SCO v. Novell

The first element necessary to establish a claim for copyright infringement is ownership of a valid copyright. Miracle Blade, LLC v. Ebrunds Commerce Group, LLC, 207 F. Supp. 2d 1136, 1148-49 (D. Nev. 2002); see also Unix Sys. Labs., 1993 WL 414724, at *12 ("In order to prevail [on claims of copyright infringement], Plaintiff must prove that it has a valid copyright in the UNIX [source] code."); Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). In the analogous context of patent infringement litigation, federal courts have recognized that a stay of proceedings is appropriate when issues of the ownership or validity of a patent are at issue in a previously filed, pending action. 6 For example, in Gen-Probe, Inc. v. Amoco Corp., CNS sued Gen-Probe claiming ownership rights in certain Gen-Probe patents. 926 F. Supp. 948, 951 (S.D. Cal. 1996). Subsequently, Gen-Probe sued Amoco, CNS, and the Regents of the University of California for allegedly infringing, or inducing the infringement of, the same patents purportedly owned by Gen-Probe that were the subject of the previously filed CNS/Gen-Probe case. Id.

In the later case, Amoco filed a motion to stay the proceedings pending the resolution of the CNS/Gen-Probe case because the issue of ownership asserted in the previous case was an essential element of Gen-Probe's claim against Amoco. ld. at 963. Amoco argued that "if CNS were to succeed in its claims against Gen-Probe, Gen-Probe would be deprived of any ownership interest in the patents in suit, and would lack standing to complain even of Amoco's current acts of infringement." Id. After citing the factors in Filtrol, 467 F.2d at 244, governing whether to grant a stay, the district court agreed with Amoco and stayed the case until the conclusion of the CNS/Gen-Probe litigation and the resolution of whether Gen-Probe owned the patents at issue in the infringement claim. Gen-Probe, 926 F. Supp. at 963-64.

The same situation exists in the present case. As set forth above, the UNIX copyrights that are the subject of SCO's claims against AutoZone are squarely at issue in SCO's lawsuit against Novell. 7 If Novell succeeds in establishing that SCO has no ownership interest in the UNIX copyrights, SCO would lack standing to assert any claims of copyright infringement against AutoZone related to the UNIX copyrights. See id. Allowing the Novell case to mature to judgment before the same issue is considered in this case will save this Court and the parties substantial time, money and effort, and will reduce the risk of inconsistent judgments. Stern, 563 F. Supp. at 489; Filtrol, 467 F.2d at 244.

Stay of SCO's lawsuit against AutoZone pending resolution of the Novell litigation would cause no prejudice to SCO because SCO already has full opportunity to litigate the ownership issue in Novell -- a case SCO filed for the very purpose of resolving this issue. SCO's claims against AutoZone are therefore properly stayed pending resolution of the Novell case.

2. The Court Should Stay this Case Pending Resolution of SCO v. IBM and Red Hat v. SCO

The second element necessary to establish a claim for copyright infringement is infringement of the copyright "by invasion of one of the exclusive ownership rights." Miracle Blade, 207 F. Supp. 2d at 1148-49; see also Johnson Controls, 886 F.2d at 1175. In the present case, SCO alleges that AutoZone has infringed SCO's copyrights in connection with AutoZone's implementation of "one or more versions of the Linux operating system." Comp]. 21. As set forth above, the issue of whether Linux infringes copyrights SCO purports to own in UNIX is already directly at issue in both the IBM and Red Hat cases. Accordingly, it would be "a waste of judicial resources" for this Court to consider SCO's claims while the IBM and Red Hat cases are pending. Appendix Ex. A at 5. AutoZone therefore submits that this Court should stay the present action pending resolution of the IBM and Red Hat cases.

B. In the Alternative, the Court Should Direct SCO to Amend its Complaint to Provide AutoZone with a More Definite Statement of SCO's Claims

Federal Rule of Civil Procedure 8(a) requires each pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Rule 8 "requires that a complaint must give the opposing party `fair notice of what the plaintiff's claim is and the grounds upon which it rests."' Underwood v. Archer Mgmt. Servs., Inc., 857 F. Supp. 96, 97 (D.D.C. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). "If the complaint is `too general,' then it will not provide fair notice to the defendant." Davis v. Olin, 886 F. Supp. 804, 808 (D. Kan. 1995).

To state a claim for copyright infringement, a plaintiff must plead ownership of a valid copyright and infringement of that copyright by the defendant. See Miracle Blade, 207 F. Supp. 2d at 1148-49; see also Johnson Controls, 886 F.2d at 1175. Therefore, a plaintiff must allege the copyright at issue and the acts of alleged infringement to plead a claim for copyright infringement.

Prior to filing an answer, a defendant can move for a more definite statement of the claim if the complaint fails to specify the allegations in a manner that provides sufficient notice of the plaintiff's claims. Fed. R. Civ. P. 12(e). In copyright cases involving computer programs, a plaintiff must plead more than simply the name of the infringing program or system. See Shepard's McGraw-Hill, Inc. v. Legalsoft Corp., 769 F. Supp. 1161, 1162 (D. Colo. 1991) (granting motion for more definite statement regarding complaint that identified only the name of allegedly infringing software program).

In the present case, SCO has done little more in its Complaint than claim that it owns the copyright in UNIX and broadly plead that unidentified sections of Linux infringe those rights in unidentified ways. SCO has failed to provide even a modicum of information that would allow AutoZone to determine which of the myriad "Copyright Materials" identified in the Complaint have been infringed and how they might have been infringed.

SCO begins its Complaint by listing copyright registrations it purports to own for thirty reference manuals, programmer's guides, and other written documentation related to UNIX. Compl. 15. The Complaint therefore appears to be headed in the direction of alleging that AutoZone has somehow infringed these written materials. However, after listing the materials, SCO does not specifically mention the materials again in the Complaint. Moreover, based upon the allegations of the first paragraph of the Complaint, SCO's claims appear to be about the infringement of computer code and not reference manuals. Compl. 1 ("Defendant uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its proprietary UNIX System V operating system technology"). Why these written materials are referenced at all is a mystery that cannot be unraveled from reviewing the allegations of the Complaint itself. AutoZone is entitled to an identification of whether SCO is alleging that AutoZone has infringed the copyrights in these materials, and, if so, how. 8

After discussing the foregoing printed materials, SCO's Complaint changes course and begins discussion of copyrights SCO purports to own in the source code, or the structure, sequence and organization of the source code, for "many categories of UNIX System V functionality." CompI. 17-19. SCO alleges that Linux infringes all or parts of this code or organization of code, but SCO does not say where or how. Compl. 20. The closest SCO comes to addressing these issues is in Paragraph 19, in which SCO states that the UNIX code at issue relates to functionality in UNIX that includes -- but is not limited to -- the following areas:

System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules.

Compl. 19.

Although this list of functionality appears at first glance to provide valuable information regarding the basis for SCO's claims, closer review reveals that this information does nothing to apprise AutoZone of the nature or basis of SCO's claims. For the sake of brevity, AutoZone will not attempt to address each of these areas of functionality herein. AutoZone will address only SCO's references to the System V static and dynamic libraries, which serve as useful examples of AutoZone's point.

Static and dynamic shared libraries are repositories of software functions and routines that can be used by application developers to perform common tasks. See SCO v. IBM, Am. Compl. (attached to Appendix as Ex. 0) at 44-45. Functions provided by shared libraries range from simple tasks, such as converting a letter from lower case to upper case, to more complex tasks such as opening a new window inside UNIX's graphical user interface. Id. UNIX System V's shared libraries include code that accomplishes these tasks as well as thousands of additional tasks. SCO cannot legitimately claim copyright protection in the code that accomplishes all of these functions because much of this code is plainly not copyrightable. For example, the code in UNIX shared libraries that converts a letter from lower case to upper case is simple code whose expression is dictated entirely by function. Such code is not copyrightable as a matter of law. 17 U.S.C. 102(b); Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 704-05 (2d Cir. 1992) ("[W]e conclude that those elements of a computer program that are necessarily incidental to its function are similarly unprotectable.") Thus, SCO's broad references to the functionality of UNIX's shared libraries does nothing to reasonably apprise AutoZone of the copyrights SCO claims to own in UNIX.

SCO's reference to Linux Versions 2.4 and 2.6 in the next paragraph of its Complaint adds even greater uncertainty regarding the nature and basis of SCO's claims related to static and dynamic shared libraries. Version numbers 2.4 and 2.6 refer to particular versions of the Linux kernel, the core software that is central to the overall Linux operating system. Most of the functionality contained within the UNIX shared libraries is not included in these versions of the Linux kernel. For example, code that opens a window inside UNIX's graphical user interface is not part of either of the Linux kernels SCO references in its Complaint. Since most of the functionality of the UNIX shared libraries is not included in (and cannot be performed by) these versions of the Linux kernel, the code for these functions could not have been infringed by the Linux kernel. SCO's references to UNIX's shared libraries therefore adds greater confusion, not greater clarity, regarding the nature and basis of SCO's claims of copyright protection and infringement.

There is no reason for SCO to have been so obtuse in its pleading, unless SCO is intentionally trying to avoid identifying the nature and basis of its purported claims. The Linux code is freely available to anyone to examine, and SCO has been in possession of the code for years. Indeed, SCO was a distributor and developer of Linux code until after it filed its lawsuit against IBM last year. SCO therefore has substantial familiarity with, and can readily identify, the lines, files, or organization of Linux code that it claims infringes UNIX, and SCO can likewise readily identify the corresponding lines, files, or organization of UNIX that SCO claims to be infringed.

With such identification, AutoZone can research and determine whether the identified materials are the subject of SCO's UNIX copyrights, were copied from UNIX, or were properly and independently developed by the open source software community. Such identification is further imperative at this stage of the proceedings because it enables AutoZone to determine the applicability of specific affirmative defenses, including laches, fair use, abandonment, equitable estoppel, and whether any of SCO's claims are subject to dismissal or judgment under Rules 12 or 56. Conversely, without such identification, AutoZone will be in the untenable position of having to guess which of the millions of lines of code, are subject of SCO's claims. Rule 8 does not require the defendants in federal court lititgation to engage in such guessing games. See Davis, 886 F. Supp. at 808.

In other circumstances, AutoZone might elect to respond to SCO's Complaint as best AutoZone could without clarification of SCO's claims in confidence that it could later ascertain this information from SCO in discovery. However, SCO's "hide-the-eight-ball" tactics in the IBM case leave AutoZone with little realistic belief that SCO will voluntarily identify the basis for its claims without this Court's intervention. SCO filed its Complaint against IBM more than a year ago; yet, at least as of April 18, 2004, SCO still had not provided IBM with any reasonable identification of its claims.

If this case moves forward prior to the conclusion of the Novell, IBM and Red Hat cases, AutoZone submits that it should not have to face the same ambiguities regarding the nature of SCO's claims that IBM has had to face. If SCO wishes to be a plaintiff, it should provide AutoZone with a clear, direct explanation of each of its infringement claims so that AutoZone can frame proper responsive pleadings.

CONCLUSION

For the foregoing reasons, AutoZone requests that the Court stay this case pending the resolution of the Novell, IBM and Red Hat cases or, in the alternative, direct SCO to amend its Complaint to provide a more definite statement of its claims.

This 23rd day of April, 2004.

SCHRECK BRIGNONE

BY: _____[signature]______
James J. Pisanelli, Esq. #4027
Nikki L. Wilmer, Esq. #6562
[address]

and

Michael P. Kenny, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address]

Attorneys for Defendant
AutoZone, Inc.



2 The 45 day time period for SCO to comply with the court's order expired on April 19, 2004. AutoZone does not know what, if any, additional documents or information SCO produced to IBM. However, if SCO's production mirrored its prior productions, IBM still does not have an identification from SCO of the specific lines of UNIX System V code that SCO claims to be at issue in that case.

3 On April 20, 2004, Red Hat moved the Court to reconsider its decision to stay the case. Whether Red Hat's motion is granted or not is inconsequential as it relates the present case. For the reasons set forth below, the key issues in Red Hat are the same as the key issues in this case. Accordingly, this case should be stayed even if the Red Hat case moves forward. This case should also be stayed pending resolution of the IBM and Novell cases.

4 SCO apparently changed its mind later because, according to its website, it is continuing to sell the OpenServer product. See http://www.thescogroup.com/products/openserver507/.

5 Under the doctrine of defensive collateral estoppel, SCO will be estopped from litigating against AutoZone issues that were decided against SCO in the previously filed cases. However, because AutoZone is not a party to the previously filed cases, AutoZone may challenge issues decided in SCO's favor in the other cases. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found. , 402 U.S. 313 (1971) (setting forth rule that once a patent has been declared invalid via judicial inquiry, collateral estoppel prevents the patentee from further litigation involving the patent against other defendants, unless the patentee can demonstrate that it did not have a full and fair chance to litigate the validity of its patent in the earlier case).

6 The analysis regarding patents is equally applicable to copyrights because the plaintiff must establish ownership or validity in both patent infringement and copyright infringement cases. See Miracle Blade, 207 F. Supp. 2d at 1148-49; Viskase Corp. v. Am. Nat'l Can Co., 261 F.3d 1316, 1323 (Fed. Cir. 2001) ("[A]n invalid claim can not be infringed."); Ryobi N. Am., Inc. v. Emerson Elec. Co., 22 F. Supp. 2d 1025, 1027 (E.D. Mo. 1998) ("A patent can only be infringed if it is valid.").

7 The issue of SCO's ownership of the UNIX copyrights is also being contested in Red Hat v. SCO and SCO v. IBM. See Appendix Ex. M 71 - 74; Appendix Ex. B 173.

8 SCO defines these written materials as part of the "Copyrighted Materials" that includes various versions of the UNIX code. Compl. 15. SCO broadly alleges that "parts or all of the Copyrighted Material has been copied or otherwise improperly used as the basis for creation of derivative work software code...." Id. 20. It is impossible to tell from the Complaint whether SCO is alleging that AutoZone has made physical copies of some or all of the thirty written manuals and other materials, whether SCO is alleging that the written materials were used by some third party as the inspiration for the creation of Linux, or whether SCO is alleging some other infringement of these materials. If SCO is alleging that AutoZone has made physical copies of the written materials, SCO's Complaint is indefinite because it does not allege which written materials AutoZone has allegedly copied. If SCO is alleging that the written materials served as the inspiration for Linux, SCO's claims would be subject to dismissal under the Copyright Act because the copying of ideas is not actionable under the Copyright Act. 17 U.S.C. 102(b).


CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the within and foregoing DEFENDANT AUTOZONE, INC.'S MOTION TO STAY OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT upon all counsel of record by depositing copies of the same in the United States mail with adequate postage affixed thereon, or hand-delivered, addressed as follows:

Stanley W. Parry, Esq.
Glenn M. Machado, Esq.
CURRAN & PARRY
[address]
(Hand-delivered)

Stephen N. Zack, Esq.
Mark J. Heise, Esq.
BOIES, SCHILLER & FLEXNER, LLP
[address]
(Via United States Mail )

This 23rd day of April, 2004

_______[signature]_________
An employee of SCHRECK BRIGNONE


  


AutoZone's Motion to Stay or for a More Definitive Statement - as text | 216 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Monday, April 26 2004 @ 07:15 PM EDT
Pleasr report typos and corrections here.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: Anonymous on Monday, April 26 2004 @ 07:17 PM EDT
However, SCO's "hide-the-eight-ball" tactics in the IBM case leave AutoZone with little realistic belief that SCO will voluntarily identify the basis for its claims without this Court's intervention.

I get the impression that attorneys are keeping less and less reserve in describing SCO's behaviour... Even in documents such as these!

Emile

[ Reply to This | # ]

URL/URIs and OT Stuff here
Authored by: Anonymous on Monday, April 26 2004 @ 07:19 PM EDT
URL/URIs and OT Stuff here

[ Reply to This | # ]

Seems like a good argument
Authored by: Anonymous on Monday, April 26 2004 @ 07:21 PM EDT
With all the litigation that SCO is embroiled in, based upon it's claims, I
can't see why the Court *wouldn't* wait to let the dust settle a little bit. I
hope this motion gets granted. And, if the motion is granted, I also expect to
see DaimlerChrysler file an almost identical motion with whatever court SCO
brought suit against them in.

[ Reply to This | # ]

Earlier Article By PJ On USL V. BSD
Authored by: dmscvc123 on Monday, April 26 2004 @ 07:28 PM EDT
http://www.groklaw.net/article.php?story=20031128153414688&mode=print

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: Anonymous on Monday, April 26 2004 @ 07:34 PM EDT
This has to be the most clear plain speaking document I've seen during this
whole saga

Well done Autozone.

[ Reply to This | # ]

SCO (M$) versus the world.
Authored by: Anonymous on Monday, April 26 2004 @ 07:35 PM EDT
Autozone are really trying to make this hard for Boies etc.
That's a lot to read (digest and answer). I haven't tried.
Who's next to put the boot in??

It seems to me that most companies are trying to disown SCO.

M$
S2
EV1
CA
Baystar
Autozone

Maybe Canopy would like to get in before RBC.

Brian S.

[ Reply to This | # ]

Who's On First
Authored by: Anonymous on Monday, April 26 2004 @ 07:38 PM EDT

As discussed in further detail below, Novell transferred certain rights related to the UNIX operating system to SCO in 1995.

It seems AutoZone has succumbed to TSG's name-changing sleight of hand. Novell did not sell anything to the "current" SCO in 1995.

[ Reply to This | # ]

Gotta love it!
Authored by: Anonymous on Monday, April 26 2004 @ 07:42 PM EDT
Bless 'em, they cite precedent in Unix Sys. Labs. without even mentioning that it's the same stuff, different day. Of course, it's a fine and dandy precedent in its own right (after all, this is the Ninth Circuit) but still ...

Marvellous way to call the Court's attention to the prior case without coming out and making an issue of it.

[ Reply to This | # ]

Meat of the issue....
Authored by: kberrien on Monday, April 26 2004 @ 07:44 PM EDT
For anyone not very well versed with the story so far, the section regarding ordering SCO to provide actually details on their claims is an excellent description of the problem with SCO's actual complaints without substance, infringement without infringement.

It's exactly the points that Laura Didiot doesn't get, or is being paid not to recognize. Darn, wish my job was to ignore things that are important.....

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: Pop69 on Monday, April 26 2004 @ 07:46 PM EDT
"There is no reason for SCO to have been so obtuse in its pleading, unless
SCO is intentionally trying to avoid identifying the nature and basis of its
purported claims. The Linux code is freely available to anyone to examine, and
SCO has been in possession of the code for years. Indeed, SCO was a distributor
and developer of Linux code until after it filed its lawsuit against IBM last
year. SCO therefore has substantial familiarity with, and can readily identify,
the lines, files, or organizations of Linux code that it claims infringes UNIX,
and SCO can likewise readily identify the corresponding lines, files, or
organization of UNIX that SCO claims to be infringed."

Very interesting section. I would expect SCO to pray for a stay rather than have
to actually come up with some sort of answer to this point.

[ Reply to This | # ]

I see one mistake...
Authored by: Arker on Monday, April 26 2004 @ 07:47 PM EDT
They call the SCO Group a 'successor' of the Santa Cruz Operation, rather than
'alleged succesor' as the Nazgul have been doing. Not that it's likely to be
important to the case, but it is a slipup to concede a falsehood in these
documents, no?

Otherwise seems to be quite well written. Hope the judge agrees.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: bsm2003 on Monday, April 26 2004 @ 07:58 PM EDT
I would think they gave notice to the judge that if it is not stayed then pending scox answer to this that they want the judge to throw it out because they are being unjustly sued

Federal Rule of Civil Procedure 8(a) requires each pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Rule 8 "requires that a complaint must give the opposing party `fair notice of what the plaintiff's claim is and the grounds upon which it rests."' Underwood v. Archer Mgmt. Servs., Inc., 857 F. Supp. 96, 97 (D.D.C. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). "If the complaint is `too general,' then it will not provide fair notice to the defendant." Davis v. Olin, 886 F. Supp. 804, 808 (D. Kan. 1995).

If they dont provide the backing then they have no case and are bringing friviolus claims so maybe the are looking for judicial Sanctions IAABL (I am a backseat Lawyer) Like a back seat Driver.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: brian on Monday, April 26 2004 @ 08:20 PM EDT
"AutoZone is the nation's leading retailer of automotive
parts and accessories, operating approximately 3,300
stores nationwide."

Is it just me or are all the court filings by companies
always this grandiose...SCO describes themselves as "The
nation's leading UNIX vendor" and I bet Diamler/Chrysler
will be "the nation's leading automobile manufacturer"....

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: Anonymous on Monday, April 26 2004 @ 08:29 PM EDT
I'm laughing.
AutoZone all but put a neon sign over SCO with the words " These guys are
scam artists" in bright red.

[ Reply to This | # ]

Tone of the document
Authored by: Anonymous on Monday, April 26 2004 @ 08:33 PM EDT
Many years ago I took a course in business writing that included a good deal
about "tone". The general idea was that you could convey a lot by the
tone, without actually saying it.

My reading of this doc's tone suggests the lawyers may know the judge's attitude
to time-wasting suits such as SCOG's. This may further suggest that they expect
SCOG to get slapped sooner rather than later.

The actual request(s) on the other hand look pretty straight forward:- move it,
delay it, or tell SCOG to get serious.

[ Reply to This | # ]

Oh, Dear God, Please let SCO file a case...
Authored by: Jude on Monday, April 26 2004 @ 08:41 PM EDT
...in Galveston Texas, and let the case be heard by Justice Samuel B. Kent.
I can only imagine how Judge Kent would rule on some of SCO's pleadings.
Get a load of his work:

Link 1

Link 2

[ Reply to This | # ]

I'm sorry...
Authored by: Anonymous on Monday, April 26 2004 @ 08:57 PM EDT

... but I can't read any more of the AutoZone motion. Their description of the case being made by SCO has my sides hurting from laughing. Not sure if it's because of their explanation of the case (i.e., the absurdness of the SCO accusations and the lack of backing evidence) or their plain ``talk'' way of presenting their side of the story to the court. I rather suspect the latter. After seeing too much of the dense legalese that SCO enjoys putting in front of the judge it's just too much for me being able to actually understand what they're saying on the first reading. Let's hope this is a trend that'll last. I will eventually get over the giddyness.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: PM on Monday, April 26 2004 @ 09:25 PM EDT
"Based upon publicly available information, SCO's threats do not appear to
have generated any meaningful licensing activity. SCO thus carried through on
its threat and filed the present action against AutoZone."

"meaningful" I like it!

A while back some lawyer was trying to tell everyone that the uptake of licenses
so far (ie the 'meaningless' ones)would set a precedent in any action against
the likes of Autozone.

[ Reply to This | # ]

It may sound nutty
Authored by: Anonymous on Monday, April 26 2004 @ 09:33 PM EDT
But would it not be a spectacle of a sight to see them
embroiled in Red Hat's suit as well as AutoZone while IBM
case moves forward?

They would most likely argue to the judge that they are
overwhelmed at the moment but it could be equally argued
that it was their own creation. The judge could rule then
to proceed with the burden of multiple litigations in tow.

Let the proverbial straw back the camel's back both
financially and mentally.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: odysseus on Monday, April 26 2004 @ 09:44 PM EDT
Come on, PJ, 'fess up, you wrote this for them didn't
you??? It's got your wonderful sense of humour all over
it :-))) Just kidding...

Seriously but, it's obvious that AutoZone have been widely
consulting with RH, IBM, Novell, OSDL and the rest of the
community, not to mention reading Groklaw. It's probably
the neatest. most succint summary of the current status
quo I've read so far, and will be a great place to point
other interested parties to as an introduction.

John.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: Anonymous on Monday, April 26 2004 @ 11:20 PM EDT
The SCOG may or may not oppose the motion for change of venue, although they
probably will oppose. It seems to want to inflict as much inconvenience on
everyone as possible. however, if I were a gambling man, I would bet that the
SCOG will not oppose the motion for a stay. B.S. will just spin it as a SCOG win
in that Autozone did not go for a dismissal or summary judgement or the such.

Glenn

[ Reply to This | # ]

So they're lawyers, not penguins
Authored by: grouch on Monday, April 26 2004 @ 11:27 PM EDT
"Red Hat released the first commercial distribution of Linux later that
same year."

They didn't get that quite right. Slackware was the first commercial
distribution. (Yggdrasil preceded it, but was not commercial). Red Hat came
after Slackware, and began the version number race.


---
Can you trust your computer?
http://www.gnu.org/philosophy/can-you-trust.html

[ Reply to This | # ]

written by 2 different people?
Authored by: Anonymous on Monday, April 26 2004 @ 11:50 PM EDT
The motion feels like it was written by two different people. One person, is
all practical and says, "Let's just put the lawsuit on hold until the
RedHat and IBM lawsuit is done." The other argument is completely
unrelated and it just points out what a bunch idiots SCO is.

It seems like only the motion to stay is needed. But the other argument was as
funny as can be. Perhaps the lawyers were afraid that if the motion to stay was
granted they would never get another chance to file a motion insulting SCO, so
they included it in this one. :)

[ Reply to This | # ]

Autozone and RedHat
Authored by: penfold on Monday, April 26 2004 @ 11:53 PM EDT
I love this! Delaware has put the RH vs SCO in an indefinate holding pattern.
Despite that court being buried under a heavy load and not making much progress
any way, it seemed to me like that was exactly what SCO wanted.

Then Red Hat files a motion that very tactfully tries to get the court to lift
the stay and get things moving again. Now, before SCO has responded to that, but
certainly were drafting up some responses to keep the suit grounded, Autozone
has requested a stay based on the same grounds that the court cited to stay the
Red Hat case.

Now, how much do you want to bet that whatever SCO says to keep the RH case
down, Autozone will use as well? And whatever SCO says to keep the Autozone case
going, RH will use?

Furthermore, they can now use each other as support for their case. Autozone is
a RH Customer and RH is fighting for their good name and protecting their
business. RH asked the court to put a stop on any action like this months before
SCO even annouced they were going to sue end users.

Finally, the part I liked the most was Autozone telling the court that RH is
trying to get the stay lifted. But their reasons for lifting the stay do not
apply to the Autozone case.

SCO should not have even filed against Autozone until the Red Hat case is
resolved one way or the other. It doesn't take an MIT analyst to know that you
fight one battle at a time.

The icing on the cake was pointing out all of the ongoing litigation, SCO's
vagueness and obtuseness in it's other filings, and generally highlighting all
of SCO's antics for the past 13+ months.

I remember PJ describing lawsuits as a chess game back when the motions starting
flying in the RH case. I think this filing gives RH another queen on their
board, and also strengthens the center of the AutoZone case.

---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence!

[ Reply to This | # ]

OT Why the lower level of rant from darl
Authored by: colnago on Tuesday, April 27 2004 @ 12:41 AM EDT
I just realised that it was letters from baystar that has been keeping darl's
mouth shut lately(~1 month?), not any judicia order.

[ Reply to This | # ]

HUH - SCO wants Autozone case to determine copyright infringment?
Authored by: jpr on Tuesday, April 27 2004 @ 01:18 AM EDT
A new filing by SCO is asking the court to stay or bifurcate claims 9 and 10 of
IBM's amended counterclaims (declaratory judgement of non-infringement) saying
essentially that the issue should be decided in the Autozone case (Nevada
court). Meanwhile, Autozone is saying that their case should be stayed pending
resolution of IBM and Red Hat cases. ??????? I'm confused (and amused).

Access to filing available on tuxrocks, document 142.

http://sco.tuxrocks.com/

Someone who knows html can please post a link.

[ Reply to This | # ]

OT - Microsoft schools deal
Authored by: PM on Tuesday, April 27 2004 @ 03:23 AM EDT
See this article . The New Zealand Government has no doubt screwed down Microsoft as much as possible on this three year deal to supply software to schools, but the advantage to Microsoft is that the schools bear no incremental cost for using Microsoft products. This means that there is little incentive for schools to use Linux and GPL software.

A lovely little gem from the article:
Microsoft is still engaged in seven anti-monopoly cases after this month settling one with the state of Minnesota, taken on behalf of customers overcharged for software. A sniff of software dumping in far off New Zealand could lead to subpoenas for people to explain their actions to any one of these trials. It's not far-fetched - some Microsoft NZ executives were unable to travel to the United States during the Microsoft-Netscape trial because of incorrect rumours that Microsoft here gave away Internet Explorer free in corporate Windows deals to keep out Netscape.

[ Reply to This | # ]

Latest: SCO seeks to delay copyright claims from IBM
Authored by: Anonymous on Tuesday, April 27 2004 @ 03:49 AM EDT
Latest docs on Tuxrocks.

Will Redhat or SCO be advising their judge?

Seems SCO believe Judge Kimball will sort it all in the Novell case.

Yeah right?!

[ Reply to This | # ]

AutoZone's Boo-Boo?
Authored by: Anonymous on Tuesday, April 27 2004 @ 04:27 AM EDT
it seems to me AZ has asked for two things. in order of preference...

1) A Stay.
2) More information to defend itself properly.

Wouldnt it have been better to just ask for 2? And mention that if the substance
of the case then turns out to be similar to other ongoing litigation (which it
obviosly would), then AZ would reserve the right to 'then' ask for a stay.

This would have had the benefit of another court ordering SCO to respond with
detail of the infringement, which in turn would have helped the other cases,
which then would have help AZ indirectly if/when their case comes up?

Just an observation from a Non-Lawyer, UK resident.


Paul, UK.

[ Reply to This | # ]

AutoZone's Motion to Stay or for a More Definitive Statement - as text
Authored by: john hrdo on Tuesday, April 27 2004 @ 05:24 AM EDT
Once upon time, AutoZone was using SCO OpenServer, source
code included. In 2001, support was going to be discontinued
so they decided to migrate to a Linux based system
replicating functionality they previously had with SCO.

A priori, disregarding the fact that big-time parasites are
involved, Autozone is exposed to some suspicion: they had
SCO source, they knew the old functionality had to survive,
they customized Linux accordingly. They now deny any
wrongdoing and that's OK to me.

But what's going on actually? AutoZone is accused of using a
SCO library without licence and of incorporating some SCO
source into their own Linux implementation. They are arguing
in defense as if the claims were that Linux contains SCO
code.

This is indeed what SCO says in public. And they also say so
in court papers, especially for the Autozone case. But their
claim here is that AutoZone's Linux-based operating system
is infringing on their copyrights. To put it in a simple
formula: it's not about Linux, it's about Autozone.

In Delaware, an overworked (says PJ) judge took 7-8 months
to rule on preliminary skirmishes and proclaimed that the
IBM case would clarify whether Linux contains SCO code. It
will not, of course, but waiting for it comes in handy if
you are overworked. AutoZone lawyers gratefully refer to
this judge and gloss over RedHat's objections in a footnote.

With such friends ...

[ Reply to This | # ]

This should stop the user lawsuits...
Authored by: MikeA on Tuesday, April 27 2004 @ 07:31 AM EDT
This AutoZone filing should really put a stop to the madness - by requesting a stay pending the outcome of the other trials, it seems almost impossible for SCO to file another lawsuit against an end user without it clearly being a waste of judicial time. DaimlerChrysler should do the same thing. They can't go after end-users until AFTER they prove their claims. This means no more well-timed press releases from SCO that they have filed suit against another "infringer" and their whole licensing scheme goes further down the toilet.

Not that they were making a whole lot of money with the licensing scam, but it should be funny to see next quarter when they have to post a big fat ZERO under ScoSource Income. When you combine that with BayStar demanding their money back, (i.e. - no future venture capital from other investors) then what income will SCO have? They cannot feed the monster on Unix support revenue alone, especially when BayStar is demanding that they give up on that "waste of resources".

So now we reach an interesting point where the clock is ticking on SCO's war chest - it is only a matter of time before the money runs out, though at the current burn rate I would estimate 3 months. If the powers that be really want the case to be fought in court, someone is going to have to cough up more money. BayStar & RBC seem unlikely to throw more money into the fire, and MS is probably gun-shy about getting implicated again.

This leads me to again request that PJ or someone supply us with a definitive answer as to what happens to the IBM case if SCO goes bankrupt. I have read many different postings about this, but everyone seems to have a different answer. Since the resolution of the IBM case will have a profound effect on the future of Linux and the FUD campaign, I think it is an important issue to discuss. The likelihood that SCO will go bankrupt before the counterclaims are addressed is, in my opinion, pretty high.

No more public FUD statements. No more end-user lawsuits. No more SCOSource revenue. No more venture capital.

BTW after reading the complaint against AutoZone, I have immediately destroyed all my copies of the Linux reference manuals to avoid being sued by SCO.

:)

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

Question...
Authored by: Anonymous on Tuesday, April 27 2004 @ 09:28 AM EDT
I apologize if this is answered in a prior entry.

If Red Hat prevails in having the case move forward, does this hurt AutoZone?
The reason I ask is AutoZone seems to devote quite a bit of time to discussing
the fact that the judge stayed the Red Hat case sua sponte...

Thanks,
34-20

[ Reply to This | # ]

AZ has not intention of winning this motion...
Authored by: anesq on Tuesday, April 27 2004 @ 03:04 PM EDT
...at least the motion for definite statement part:

In other circumstances, AutoZone might elect to respond to SCO's Complaint as best AutoZone could without clarification of SCO's claims in confidence that it could later ascertain this information from SCO in discovery. However, SCO's "hide-the-eight-ball" tactics in the IBM case leave AutoZone with little realistic belief that SCO will voluntarily identify the basis for its claims without this Court's intervention.

They are simply putting the court on notice of SCO shenannigans.

It's easy to get caught up in the idea that SCO isn't following the pleading requirements here, but it really has, and AZ admitted as such in the above paragraph. The pleading standard in Federal court is absurdly low. To allege copyright infringement, you have to allege a) you own a copyrighted work and b) the defendant infringed it. You do not have to say how, when, where or why. Patent pleadings are similar. Check out IBM's patent counter claims in their case. Each claim boils down to IBM owns a patent and SCO infringes it. There are no other details.

No, what AZ is hoping for is the following ruling from the bench from the judge:

"I'm not going to require any additional pleading. However, I'm going to take notice of the discovery issues in the other cases, and SCO should be aware that it will not survive summary judgement if code is not identified with particularity in discovery. So I will give SCO a choice: I can stay this proceding, or SCO can expect to produce documentation of its alleged infringement immediately, as there appears no reason for delay."

[ Reply to This | # ]

Unfortunate obtuseness
Authored by: Anonymous on Tuesday, April 27 2004 @ 05:11 PM EDT
It's too bad that AutoZone went off track replying to SCO's complaint about
shared libraries. Obviously SCO is referring to the mechanism that makes SysV
shared libraries work (dynamic linking and so on), but AutoZone replies as
though SCO meant some set of the shared libraries themselves. From a technical
viewpoint, that's such an unreasonable interpretation that it makes them look a
bit stupid, or perhaps deliberately obtuse. No need for that.

[ Reply to This | # ]

TSG's complaint involves TSG's copyrights; the rest is very obtuse
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:15 AM EDT
My bet is that AZ read the copyrighted UNIX manuals before and during
their port from SCO UNIX to Linux. TSG's bet is that AZ did this, and they
can find a witness. These are the only copyrights TSG owns in the clear.

In Darl's dreamland this means that TSG has a legal case against AZ. If that
fails, maybe AZ looked at the UNIX source. If that fails, maybe TSG can
amend their claims.

In Darl's world there has to be something he can win by hook or crook. We
know TSG is trying every angle and changing their story regularly. We know
they are reading Groklaw.

This looks like all the other TSG suits. Expect a long fishing expedition by
TSG.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )