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DaimlerChrysler Answers SCO - It's Moot, Novell Waived, Now Pay Our Lawyers |
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Wednesday, April 28 2004 @ 08:54 PM EDT
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Here is DaimlerChrysler's Answer to SCO's Complaint. This too was filed on April 15. Note the ten affirmative defenses. The rest of the text will be available soon, but I didn't want you to have to wait. It's pretty intriguing. First, they indicate this dispute is moot, in Number 8. They've provided a "proper" certification, whatever that is. I doubt SCO, unless it has decided to run screaming back to Mommy and away from this case, will agree with DC as to what is a "proper" certification. The reason I doubt it is what they say in Number 6 ("Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement."). Further, consistently throughout the document, they state that to the extent SCO's allegations characterize the License, they deny the allegations. I also don't think they see eye-to-eye because they list so many reasons they don't think SCO even has the right to sue them, including a surprising one: Novell, once again, has stepped up to the plate and told SCO to waive any issues over the license with DC.
On second thought, that isn't so surprising about Novell. They have come through every time so far. In addition, DC says there was no breach in the first place and SCO wasn't a party to the license it signed anyhow, another indication they have probably been noticing some broken links in the chain, so to speak. Once again, we have Mark Thorndyke and family to thank for getting this for us. I hope you can read the PDF, as it is faint. If not, we will have a clear plain text soon. Most of it is the usual "Defendant is without knowledge or information sufficient to form a belief" language you always see in Answers to Complaints, but here are the affirmative defenses, the meat of their position, and the final Wherefore clause, where they ask the Court to make SCO pay DC's lawyers:
1. Failure to State a Claim. The Complaint fails to state a claim against DCC upon which relief can be granted.
2. Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or acquiescence.
3. Lack of Capacity to Sue. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack the capacity to sue.
4. Lack of Standing. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack standing to sue. Plaintiff also lacks standing to sue because the terms of Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its right to enforce the License Agreement upon Novell's request, which, upon information and belief, Novell has expressly requested Plaintiff to do.
5. Lack of Case or Controversy. Plaintiff's action for a declaratory judgment fails for lack of a case or controversy because DCC did not breach the License Agreement.
6. Lack of Breach/Cure of Alleged Breach. Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement. Nothing set forth herein shall be construed as an admission by DCC that it has failed to comply with any duty under the License Agreement.
7. Mitigation of Damages. The damages sought by Plaintiff are not recoverable because Plaintiff has failed to mitigate its damages.
8. Plaintiff's Claims are Moot. The claims asserted in the Complaint are moot because DCC has provided Plaintiff with a proper certification under the License Agreement.
9. Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in the Complaint by its contract with Novell, Inc.
10. Reservaton of Right. DCC reserves the right, upon a completion of its discovery and investigation or otherwise, to assert such additional defenses as may be appropriate.
WHEREFORE, Defendant Daimler Chrysler Corporation respectfully requests that the Court dismiss Plaintiff's Complaint with prejudice, award DCC its costs and attorney's fees as may be permitted by law, and grant such other relief as may be appropriate. BayStar has let it leak that part of what they don't like about SCO's choices is the two lawsuits against AutoZone and DaimlerChrysler:
"Reportedly, BayStar was unhappy with the filing of the suits against DaimlerChrysler and AutoZone and wants changes in SCO's management team to include more people with intellectual property and legal experience. Others are interpreting the move by an insider like BayStar as a general vote of no confidence in SCO's ability to prevail or gain significant advantage in its legal disputes. In any event, recent actions by BayStar will probably put the brakes on SCO initiating new litigation, at least for the moment." If it looks like a waste of money to BayStar, it tells you plenty. More to come as soon as I can get it done.
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Authored by: PJ on Wednesday, April 28 2004 @ 09:26 PM EDT |
Corrections here, please. Thanks. [ Reply to This | # ]
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Authored by: bsm2003 on Wednesday, April 28 2004 @ 09:33 PM EDT |
Links [ Reply to This | # ]
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Authored by: peragrin on Wednesday, April 28 2004 @ 09:40 PM EDT |
File false lawsuit with company A,
File false lawsuit with company B
File false lawsuit with company C
Get sued by company D
blame lawsuits B,C,D on company A
blame lawsuits A,C,D on company B
blame lawsuits A,B,D on company C
blame lawsuits A,B,C on company D
Confuse the issue by stretching the truth in public, delay
each lawsuit by blaming the other lawsuits. Watch stock
rise. Finding enemy of all the above companies to fork
over some cash to keep this tied up for a long time.
What happens when some one says enough?
Abort, Retry, or Bail?
The above headline from MS anti-trust trial.
---
I thought once I was found but it was only a dream.[ Reply to This | # ]
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- Abort, Retry, or Bail? - Authored by: wepprop on Wednesday, April 28 2004 @ 09:59 PM EDT
- Abort, Retry, or Bail? - Authored by: savage on Wednesday, April 28 2004 @ 10:05 PM EDT
- Abort, Retry, or Bail? - Authored by: charlie Turner on Wednesday, April 28 2004 @ 10:21 PM EDT
- A dram is better than a damn* - Authored by: jog on Wednesday, April 28 2004 @ 10:54 PM EDT
- Abort, Retry, or Bail? - Authored by: darkonc on Thursday, April 29 2004 @ 01:12 PM EDT
- Abort, Retry, or Bail? - Authored by: Anonymous on Thursday, April 29 2004 @ 04:43 PM EDT
- Abort, Retry, or Bail? - Authored by: stevem on Wednesday, April 28 2004 @ 10:28 PM EDT
- Am I seeing a trend here??? - Authored by: gareth on Thursday, April 29 2004 @ 11:58 AM EDT
- Am I seeing a trend here??? - Authored by: Anonymous on Thursday, April 29 2004 @ 03:02 PM EDT
- Baystar and Gambling - Authored by: Anonymous on Thursday, April 29 2004 @ 04:27 PM EDT
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Authored by: martimus on Wednesday, April 28 2004 @ 09:57 PM EDT |
I am continually amazed at the clarity of TSCOG's opposition lawyer's
documents. With the facts that we (the Groklaw community) have been able to
see, hear, transcribe and carry forward to the world at large, I find it very
hard
to believe that TSCOG has any chance whatsoever of success. The directness
of DaimlerChrysler's answer seems to say it all with finality. I guess we'll
see. [ Reply to This | # ]
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Authored by: Khym Chanur on Wednesday, April 28 2004 @ 10:01 PM EDT |
One of the things that SCO asks for is for DC to certify that they are "...
not running any binary code that was compiled from any version of Linux that
contains any copyrighted application binary interface code... ". The fact
that there's nothing in the contract that would let SCO (or whoever holds the
contract) ask DC about their Linux deployment is covered by affirmative defenses
#5 and #6, right?
Also, it would seem to me that another defense would be
"How can we know if there's any infringing ABI code in the Linux kernel?
We can't say if there's any infringing code in the kernels we're running until a
court decides what's infringing and what isn't." However, I don't see anything
like that in any of the defenses. Is it there? If it isn't there, but were
added later, would it take the form of a request for a stay pending the
AutoZone/RedHat/Novell cases? --- Give a man a match, and he'll be warm
for a minute, but set him on fire, and he'll be warm for the rest of his life. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 28 2004 @ 10:11 PM EDT |
I realize that since we all hate SCO, we think it's great every time Novell
undermines their efforts by purporting to waive SCO's rights to enforce the UNIX
license with every party that SCO enters into a hostile relationship with (e.g.,
IBM, SGI, now DCC, who else?)
But do you think that Novell might get a bad reputation among companies that are
considering making a similar deal to what the old SCO made with Novell? Like
purchasing some rights to some assets, or whatever. I mean, I don't know why the
old SCO would have agreed that Novell can order them to waive their rights in
any particular case (and new SCO will say they didn't), but the fact that Novell
is actually doing it over and over appears to directly undermine the value of
whatever it is old SCO purchased from them.
It doesn't matter if SCO is the worst scum and deserves this entirely. From a
business perspective, Novell is destroying the value of what they sold SCO,
almost like backstabbing. I just wonder if other business will think poorly of
this when contemplating a deal with Novell. Anyway, it could come back to bite
them.[ Reply to This | # ]
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- Novell getting bad reputation? - Authored by: eric76 on Wednesday, April 28 2004 @ 10:15 PM EDT
- Novell getting bad reputation? - Authored by: Anonymous on Wednesday, April 28 2004 @ 10:19 PM EDT
- Novell getting bad reputation? - Authored by: eamacnaghten on Wednesday, April 28 2004 @ 10:21 PM EDT
- Novell is giving *NIX a bad reputation - Authored by: Clay on Wednesday, April 28 2004 @ 10:22 PM EDT
- Novell getting bad reputation? - Authored by: math geezer on Wednesday, April 28 2004 @ 10:25 PM EDT
- Novell getting bad reputation? - Authored by: Anonymous on Wednesday, April 28 2004 @ 10:26 PM EDT
- Novell getting bad reputation? - Authored by: Anonymous on Wednesday, April 28 2004 @ 10:28 PM EDT
- Novell getting bad reputation? - Authored by: PJ on Wednesday, April 28 2004 @ 10:29 PM EDT
- Novell getting bad reputation? - Authored by: Pensacola Tiger on Wednesday, April 28 2004 @ 10:39 PM EDT
- Novell getting bad reputation? - Authored by: brenda banks on Wednesday, April 28 2004 @ 10:40 PM EDT
- Novell getting bad reputation? - Authored by: fxbushman on Wednesday, April 28 2004 @ 10:44 PM EDT
- Novell getting bad reputation? - Authored by: math geezer on Wednesday, April 28 2004 @ 10:45 PM EDT
- Read the APA... - Authored by: Anonymous on Wednesday, April 28 2004 @ 10:50 PM EDT
- Read the APA... - Authored by: Anonymous on Thursday, April 29 2004 @ 01:59 AM EDT
- Read the APA... - Authored by: Anonymous on Thursday, April 29 2004 @ 08:29 AM EDT
- Novell creating reputation! - Authored by: AllParadox on Wednesday, April 28 2004 @ 10:51 PM EDT
- TROLL Warning - Authored by: The Mad Hatter r on Wednesday, April 28 2004 @ 10:51 PM EDT
- Novell getting bad reputation? - Authored by: charlie Turner on Wednesday, April 28 2004 @ 11:03 PM EDT
- SCO Just An Errand Boy - Authored by: dmscvc123 on Wednesday, April 28 2004 @ 11:11 PM EDT
- Novell is helping their reputation. - Authored by: LarryVance on Wednesday, April 28 2004 @ 11:12 PM EDT
- Novell getting bad reputation? - Authored by: blacklight on Thursday, April 29 2004 @ 12:07 AM EDT
- Novell racking up goodwill points - Authored by: grouch on Thursday, April 29 2004 @ 01:27 AM EDT
- Your last paragraph doesn't even match SCO's argument - Authored by: Anonymous on Thursday, April 29 2004 @ 02:04 AM EDT
- Do you think badly of Novell? If not, why should anyone else? - Authored by: Anonymous on Thursday, April 29 2004 @ 03:46 AM EDT
- Novell - rock solid business ethics - Authored by: Anonymous on Thursday, April 29 2004 @ 06:16 AM EDT
- Novell getting bad reputation? - Authored by: greybeard on Thursday, April 29 2004 @ 10:03 AM EDT
- What?!? - Authored by: Anonymous on Thursday, April 29 2004 @ 12:31 PM EDT
- Anonymous Author of Parent - You getting the idea yet? - Authored by: TerryC on Thursday, April 29 2004 @ 12:56 PM EDT
- I think not... Novell is in the software business...-nfaw - Authored by: Anonymous on Thursday, April 29 2004 @ 04:39 PM EDT
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Authored by: Glenn on Wednesday, April 28 2004 @ 10:32 PM EDT |
Does anyone have DC's Memorandum of Law in Support of its motion to dismiss?
I would really like to hear (er read) what they have to say on this subject.
Glenn[ Reply to This | # ]
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Authored by: stevem on Wednesday, April 28 2004 @ 10:36 PM EDT |
Pardon my very imperfect understanding of the USA; but isn't it a given that the
Motoring Lobby in the US is very large and powerful? With lots of the
appropriate Congresspersons in their pocket?
And isn't DCC part of that? One of the most successful US motoring companies???
Aren't SCO taking on a dreadful risk by possibly suffering some sort of
political backlash at the highest levels of goverment?
Not that SCO's action have to make sense of course...
It just seems to me, that SCO are (stupidly) broadening the fight beyond the
purely legal and possibly heading into the dangerous waters of politics.
- SteveM
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Authored by: wepprop on Wednesday, April 28 2004 @ 10:42 PM EDT |
The only remotely rational explanation I can see for SCOX fo file the DCC and AZ
suits in the first place was to generate some "buzz to keep their share
price inflated. If that were so, it follows that once any such suit is actually
filed SCOX should immediately turn around and try to stay or delay any actual
proceedings in order to avoid a possibly embarrassing and stock deflating
ruling.
So, I'm wondering where they will try to fit their DCC suit into the giant
Escher-like SCOX litigation 'Stay Ring'?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 28 2004 @ 11:03 PM EDT |
Could someone explain the difference between "Lack of capcity to sue"
and "Lack of standing to sue"?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 28 2004 @ 11:46 PM EDT |
DC's response to SCOG's suit reminds me of a brickwall. Simple, comprehensive,
to the point, no way around or through.
IBM's responses seem more eloquent
and subtle in comparison. Mighty fine reading either way. [ Reply to This | # ]
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Authored by: moogy on Wednesday, April 28 2004 @ 11:55 PM EDT |
You can not demand that a company certify information about
anything except the product that you provided.
SCOG could have demanded that DC certify that they did not take
SCOG's code (product) and combine the code with Linux code.
But SCOG did not demand that. They demanded that DC certify
that the Linux they are using contains no (unidenttified) IP code
SCOG claims they own.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
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Authored by: mikeca on Thursday, April 29 2004 @ 02:05 AM EDT |
I suspect that Baystar is upset that SCO picked two huge companies that are more
than willing to fight their cases in court.
Darl’s plan is to sue big, well-known companies and then make lots of noise in
the press to try to scare other companies into signing licenses.
Baystar would rather have seen SCO sue some small, weak company. After filing
the suit, SCO could offer to settle out of court for an undisclosed amount
(almost nothing), which they would probably jump at just to get rid of SCO.
Then SCO could use the publicity from that settlement to build credibility.
[ Reply to This | # ]
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Authored by: Rudisaurus on Thursday, April 29 2004 @ 02:29 AM EDT |
If it looks like a waste of money to BayStar, it tells you
plenty.
Not really, PJ. After all, they invested in TSG in the
first place![ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 29 2004 @ 05:08 PM EDT |
I would expect any response from DaimlerChrysler to include serious talks with
IBM and Novell prior to action.
They do millions of dollars in business with both Novell and IBM every year.
There are some seriously big contracts between these companies. What kind of
companies do you think IBM has been selling Linux on the 390 mainframes too?
There's heavy pressure internally at DaimlerChrysler to reduce the cost of IT, I
wouldn't expect them to let SCO raise costs....
SCO should have learned from all the IP litigation going on and thrown stones at
people with small pockets first to get their precedents, but then I haven't seen
their ace legal team do very much... I mean you have Chris Sontag filing
responses--where's the megamillion dollar legal staff that's supposed to do this
work?
We don't see IBM exec's talking for them. They have lawyers and the lawyers are
doing their job. Where's the SCO big time legal team?[ Reply to This | # ]
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Authored by: GLJason on Thursday, April 29 2004 @ 10:33 PM EDT |
In fact, all the contracts (that I've read) specifically state that if any of
this information becomes public knowledge due to no action of the licensee, the
licensee is no longer obligated by the requirements of the contract with respect
to that information. See section 7.05(a) of the DCC software agreement
(attachment to the suit). SCO loves to quote this section in their letters and
litigation, but they never copy the last part (see the attached letter to
DCC to seem them quote all but this):
If information relating to a
SOFTWARE PRODUCT subject to this Agreement at any time becomes available without
restriction to the general public by acts not attributatble to LICENSEE, its
contractors or employees of either, LICENSEE'S obligations under this section
shall not apply to such information after such time.
IBM, DCC,
and others may be obligated to keep concepts and methods in confidence, but that
obligation ends when the information is made available to the public through no
action of the licensee. For instance, BSD has been public for over 10 years. Any
information in BSD about the concepts and methods related to Unix is already
public and even if you did license code from AT&T, you would no longer have
to keep that information confidential.
Say you were a big corporation and
you developed a journaling file system for your version of UNIX that is based on
Unix licensed from AT&T. Since the interfaces and concepts relating to Unix
file systems are public knowledge due to the University of Berkley releasing
BSD, you are no longer obligated to keep them in confidence and can release your
file system driver for use in another operating system under any license you see
fit.
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