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SCO v. DaimlerChrysler: Complaint and Answer Chart |
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Friday, April 30 2004 @ 01:06 PM EDT
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Here is a handy chart grouch has made for Groklaw, showing the complaint against DaimlerChrysler on the left and their Answer on the right, so you can easily see what their answers refer to. Enjoy.
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
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THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
vs.
DAIMLERCHRYSLER CORPORATION,
a Delaware corporation,
Defendant.
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THE SCO GROUP, INC.,
Plaintiff,
vs.
DAIMLERCHRYSLER CORPORATION,
Defendant.
Civil Action No. 04-056587-CKB
Honorable Rae Lee Chabot
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COMPLAINT AND JURY DEMAND
Case No. 04-056587-CK
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ANSWER AND AFFIRMATIVE DEFENSES OF
DEFENDANT DAIMLERCHRYSLER CORPORATION
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NOW COMES Plaintiff, The SCO Group, Inc. (“SCO”) by and through its
attorneys, Seyburn, Kahn, Ginn, Bess & Serlin, P.C., and Boies,
Schiller & Flexner LLP, and for its Complaint against Defendant
DaimlerChrysler Corporation (“DC”) alleges as follows:
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Defendant DaimlerChrysler Corporation ("DCC"), through its counsel,
Dykema Gossett
PLLC, for its Answer and Affirmative Defenses to the Complaint
("Complaint") of Plaintiff The
SCO Group, Inc. ("Plaintiff") states as follows:
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Introduction
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INTRODUCTION
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1. SCO is the exclusive licensor of software licenses for the UNIX
operating system. These software licenses are agreements that restrict
the permitted use of the UNIX operating system. To help insure
compliance with the restrictions on such permitted use, the licenses
include a monitoring and reporting mechanism designed to detect (and
thus deter) violations of those agreed limits. Specifically, the
licenses require licensees to certify their compliance with those
restrictions. Like all provisions in the license, these reporting and
monitoring provisions exist only because they have been agreed to by
the licensee.
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1.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the remaining allegations contained in paragraph 1 of the
Complaint.
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2. SCO has requested that DC provide the contractually required
certification that DC is complying with the terms of its UNIX
technology license. SCO has thus asked DC to certify--as contractually
it must-- that its use of UNIX technology is within the agreed
parameters of permitted use established by the license.
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2.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in the first sentence of paragaraph
2 of the Complaint. DCC
denies the allegations contained in the second sentence of paragraph 2
of the Complaint.
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3. DC agreed to and accepted the terms of its UNIX license. DC has
received very substantial benefits as a result of entering that license
and DC has never challenged the validity of that license.
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3.
DCC denies the allegations of paragraph 3 of the Complaint, except that
it admits
that it is the successor in interest to Chrysler Motors Corporation for
an agreement designated
SOFT-01341 between AT&T Information Systems and Chrysler Motors
Corporation.
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4. Nevertheless, DC has refused to provide the contractually
required certification of compliance that SCO requested. DC has in fact
refused even to respond to SCO’s request. It would be irrational and
contrary to DC’s self-interest for DC to violate the license’s
certification requirement’s in this way unless DC was also violating
the license’s limits on permitted use of UNIX technology, precluding DC
from certifying compliance.
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4.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in the first and second sentences of
paragraph 4 of the
Complaint. DCC denies the allegations contained in the third sentence
of paragraph 4 of the
Complaint.
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5. By refusing to provide the certification that the license
requires as a means of enabling SCO to monitor compliance with, and
thus protect, the rights that DC agreed to respect, DC has compelled
SCO to institute this litigation to secure a judicial remedy.
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5.
DCC denies the allegations contained in paragraph 5 of the Complaint.
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Parties, Jurisdiction and Venue
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Parties, Jurisdiction and Venue
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6. Plaintiff SCO is a Delaware corporation with its principal place
of business in the County of Utah, State of Utah.
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6.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 6 of the Complaint.
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7. Defendant DC is a Delaware corporation with its principal place
of business in the County of Oakland, State of Michigan.
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7.
DCC admits that it is a Delaware corporation with its principal place
of business
in the County of Oakland, State of Michigan.
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8. This Court has subject matter jurisdiction over SCO’s Complaint
because the amount in controversy exceeds the sum of Twenty-Five
Thousand ($25,000.00) Dollars and/or is otherwise within the equitable
jurisdiction of this Court.
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8.
Paragraph 8 of the Complaint states legal conclusions to which no
answer is
required. To the extent an answer may be required, DCC denies the
allegations contained in
paragraph 8 of the Complaint.
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9. Venue is properly situated in Oakland County, Michigan because DC
has a place of business in Oakland County.
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9.
Paragraph 9 of the Complaint states legal conclusions to which no
answer is
required. To the extent an answer may be required, DCC denies the
allegations contained in
paragraph 9 of the Complaint.
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Background Facts
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Background Facts
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10. UNIX is a computer software operating system. Operating systems
serve as the link between computer hardware and the various software
programs (known as applications) that run on the computer. Operating
systems allow multiple software programs to run at the same time and
generally function as a “traffic control” system for the different
software programs that run on a computer.
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10.
DCC admits that UNIX is a computer software operating system. DCC is
without
knowledge or information sufficient to form a belief as to the truth of
the remaining allegations
contained in paragraph 10 of the Complaint.
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11. In the business-computing environment for the Fortune 1000 and
other large corporations (often called the “enterprise computing
market”), UNIX is widely used.
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11.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 11 of the Complaint.
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12. The UNIX operating system was originally developed by AT&T
Bell Laboratories (“AT&T”). After successful in-house use of the
UNIX software, AT&T began to license UNIX as a commercial product
for use in enterprise applications by other large companies.
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12.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 12 of the Complaint.
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13. Over the years, AT&T Technologies, Inc., a wholly owned
subsidiary of AT&T, and its related companies, licensed UNIX for
widespread enterprise use. Pursuant to a license with AT&T, various
companies, including International Business Machines, Hewlett-Packard,
Inc., Sun Microsystems, Inc., Silicon Graphics, Inc., and Sequent
Computer Systems, became some of the principal United States-based UNIX
vendors, among many others.
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13.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 13 of the Complaint.
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14. These license agreements place restrictions on the valuable
intellectual property developed by AT&T, which allow UNIX to be
available for use by others while, at the same time, protecting
AT&T’s (and its successor’s) rights.
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14.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 14 of the Complaint.
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15. Through a series of corporate acquisitions, SCO presently owns
all right, title and interest in and to UNIX and UnixWare operating
system source code, software and sublicensing agreements, together with
copyrights, additional licensing rights in and to UNIX and UnixWare,
and claims against all parties breaching such agreements.
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15.
Paragraph 15 of the Complaint states legal conclusions to which no
answer is
required To the extent an answer may be required, DCC denies the
allegations contained in
paragraph 15 of the Complaint.
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16. During the past few years a competing, and free, operating
system known as Linux has been transformed from a non-commercial
operating system into a powerful general enterprise operating system.
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16.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 16 of the Complaint.
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17. Linux is a computer software operating system that, in material
respects, is a variant or clone of UNIX System V. According to leaders
within the Linux community, Linux is not just a “clone,” but is
intended to displace UNIX System V.
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17.
DCC is without knowledge or information sufficient to form a belief as
to the
truth of the allegations contained in paragraph 17 of the Complaint.
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FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)
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FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)
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18. Plaintiff incorporates and re-alleges paragraphs 1 - 17 above.
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18.
DCC incorporates its responses to the preceding paragraphs as if set
forth fully
herein.
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19. SCO is the successor to AT&T under that certain Software
Agreement originally executed by and between AT&T and Chrysler
Motors Corporation designated as SOFT-01341 (the “DC Software
Agreement” or the “Agreement”). The DC Software Agreement specifies the
terms and conditions for use of authorized distributions of UNIX System
V source code, including modifications and derivative works based
thereon, by Defendant. The DC Software Agreement is attached hereto as
Exhibit “A.”
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19.
Paragraph 19 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 19 of the Complaint and further states that the AT&T
Information Systems, Inc.
Software Agreement, Agreement No. SOFT-01341, entered into by Chrysler
Motors Corporation
and AT&T Information Systems, Inc. (the "License Agreement") speaks
for itself. To the extent
that paragraph 19 contains allegations which purport to characterize
the contents of the License
Agreement, DCC denies them.
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20. With respect to the scope of rights granted for use of the
System V source code under Section 2.01 of the DC Software Agreement,
Defendant received the following rights in UNIX:
[A] personal, nontransferable
and nonexclusive right to use in the United States each
Software Product identified in the one or more Supplements hereto, solely
for Licensee’s own internal business purposes
and solely on or in conjunction with Designated CPUs for such Software
Product. Such right to use includes the right to modify
such Software Product and to prepare derivative works
based on such Software Product, provided that any such
modification or derivative work that contains any part of a Software
Product subject to this Agreement is treated hereunder the
same as such Software Product. (Emphasis
added.)
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20.
Paragraph 20 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 20 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 20 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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21. Defendant agreed in §2.06 of the DC Software Agreement to
the following restrictions on use of the
Software Product (including System V source code, derivative works and
methods based thereon):
No right is granted by this Agreement for the use of
Software Products directly for others, or for any use of
Software Products by others . . . .
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21.
Paragraph 21 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 21 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 21 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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22. Defendant agreed in §7.09 of the DC Software Agreement to
the following restrictions on transfer of
the Software Product, including resulting modifications or derivative
works of UNIX System V:
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software Product in
whole or in part.
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22.
Paragraph 22 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 22 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 22 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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23. Defendant agreed under §7.05(a) of the DC Software
Agreement to the following restrictions on confidentiality
of the Software Product:
Licensee agrees that it shall hold all parts of the
Software Products subject to this Agreement in confidence
for [SCO]. Licensee further agrees that it shall not make
any disclosure of any or all
of such Software Products (including methods or concepts
utilized therein) to anyone, except to employees of
Licensee to whom such disclosure is necessary to the use for which
rights are granted hereunder. Licensee shall appropriately notify each
employee to whom any such disclosure is made that such disclosure is
made in confidence and shall be kept in confidence by such employee.
23.
Paragraph 23 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 23 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 23 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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24. Consistent with these restrictions, in § 2.05, Defendant
also agreed to account to SCO on an annual basis regarding its use of
System V software licensed pursuant to the Software Agreement.
Specifically, § 2.05 provides as follows:
On [SCO’s] request, but not more frequently than annually,
Licensee shall furnish to [SCO] a statement, certified by an authorized
representative of Licensee, listing the location, type and serial
number of all Designated CPUs hereunder and stating that the use by
Licensee of Software Products subject to this Agreement has been
reviewed and that each such Software Product is being used solely on
such Designated CPUs (or temporarily on back-up CPUs) for such Software
Products in full compliance with the provisions
of this Agreement. (Emphasis added.)
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24.
Paragraph 24 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 24 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 24 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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25. Section 2.05 of the Software Agreement is designed to insure
compliance by DC “with the provisions of this Agreement,” and
to do so by supplying a monitoring mechanism that prevents and deters
violations of the Software Agreement.
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25.
Paragraph 25 of the Complaint states legal conclusions to which no
answer is required.
To the extent an answer may be required, DCC denies the allegations set
forth in
paragraph 25 of the Complaint and further states that the License
Agreement speaks for itself.
To the extent that paragraph 25 contains allegations which purport to
characterize the contents of
the License Agreement, DCC denies them.
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26. By letter dated December 18, 2003, SCO requested that DC provide
the writing required under § 2.05 certifying that DC was “in full
compliance with the provisions of [the Software Agreement].” Although
DC should have been in a position to produce such a compliance
certification on shorter notice, SCO’s letter requested that the
required certification be provided within 30 days of receipt of that
letter. (The SCO December 18, 2003, letter is attached hereto as
Exhibit “B”).
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26.
DCC denies the allegations set forth in paragraph 26 of the Complaint
and states
that the letter dated December 18, 2003 alleged in paragraph 26 of the
Complaint (the "SCO
Letter") speaks for itself. To the extent that paragraph 26 contains
allegations which purport to
characterize the contents of the SCO Letter, DCC denies them.
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27. DC has refused to comply with its obligations under § 2.05
of the Software Agreement. Specifically, DC has refused even to respond
to SCO’s request for the contractually required compliance
certification within 30 days, or at any time since. DC has thereby
refused to state that it is not now violating its obligations under the
Software Agreement, and DC has refused to state that it has not in the
past been violating its obligations under the Software Agreement. DC
has refused to provide such a certification even though it is also one
of DC’s express obligations under the Software Agreement to provide
such a certification.
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27.
DCC denies the allegations contained in paragraph 27 of the Complaint.
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28. On information and belief, DC’s refusal to certify that it is
not violating the DC Software Agreement is also based, in part, on DC’s
use of UNIX technology, in violation of the DC Software Agreement, in
migrating its installed base to the Linux operating system.
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28.
DCC denies the allegations contained in paragraph 28 of the Complaint.
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29. It would be irrational and contrary to DC’s self-interest for it
to continue to withhold the requested certification and thereby violate
the Software Agreement’s reporting requirements if DC were not also
violating the Software Agreement’s non-reporting, core substantive
requirements.
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29.
DCC denies the allegations contained in paragraph 29 of the Complaint.
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Prayer for Relief
Plaintiff respectfully requests that the Court:
Enter an order that DC has violated § 2.05 of the Software
Agreement by refusing to provide the certification of compliance with
the “provisions” of that Agreement;
Enter an order declaring that DC has not complied with, and instead
has violated, the provisions of the Software Agreement with which
§ 2.05 required DC to certify compliance;
Enter an order permanently enjoining DC from further violations of
the DC Software Agreement; and
Issue a mandatory injunction requiring DC to remedy the effects of
its past violations of the DC Software Agreement; and
Award damages in an amount to be determined at trial; and
Enter judgment in favor of Plaintiff together with costs, attorneys’
fees and any such other or different relief that the Court may deem to
be equitable and just.
Jury Demand
SCO demands trial by jury on all issues so triable.
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WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests
that this
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.
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AFFIRMATIVE DEFENSES
Defendant DaimlerChrysler Corporation ("DCC"), through its counsel,
Dykema Gossett
PLLC, for its Affirmative Defenses to the Complaint ("Complaint") of
Plaintiff The SCO Group,
Inc. states as follows:
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
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
Reservation of Right. DCC reserves the right, upon
completion of its discovery
and investigation or otherwise, to assert such additional defenses as
may be appropriate.
WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests
that this
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.
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Authored by: Darkside on Friday, April 30 2004 @ 01:11 PM EDT |
N/T [ Reply to This | # ]
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Authored by: Darkside on Friday, April 30 2004 @ 01:12 PM EDT |
N/T [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 01:32 PM EDT |
Can anyone explain to a non-legal-person how SCO thinks they could get around
this statement?
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.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 01:33 PM EDT |
Pretty straighforward. Hard to say how Autozone will proceed, but it looks like
DC could be a big loss for SCO. "Dismissed with prejudice" won't be a fun
headline for the folks in Lindon to read - and with the way the Baystar
investment is going, it's doubtful Darl will be on a soapbax when/if the DC case
is thrown out. His hot air was one reason Baystar pulled out.
So if it's
dismissed with prejudice, expect to hear a conspicuous silence from Lindon .... [ Reply to This | # ]
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Authored by: rc on Friday, April 30 2004 @ 01:34 PM EDT |
When TSG says stuff in 15 and 19-26 that seem to be illogical conclusions, why
does DCC not say they are full of it? Or is this:
Paragraph 24 of
the Complaint states legal conclusions to which no answer is required. To the
extent an answer may be required, DCC denies the allegations set forth in
paragraph 24 of the Complaint and further states that the License Agreement
speaks for itself. To the extent that paragraph 24 contains allegations which
purport to characterize the contents of the License Agreement, DCC denies
them.
mean 'they are idiots' in legalspeak?
rc
[ Reply to This | # ]
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Authored by: iceworm on Friday, April 30 2004 @ 01:37 PM EDT |
we gain clairity. Thank you so very much for producing
this chart. I struggled through the pdf, and, other than a
good laugh now and then, I did not have a feeling of
satisfaction afterwards.
Is this the sort of thing a judge's clerk does? (no answer
required)
<humor>If the USDA were to inspect SCO`s sliced balogna,
it would be listed as a low grade lunch meat unfit for
human consumption.</humor> [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 01:40 PM EDT |
Proof-
"10. DCC admits that UNIX is a computer software operating system."
Got them right were they want them....[ Reply to This | # ]
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Authored by: cab15625 on Friday, April 30 2004 @ 01:46 PM EDT |
1. SCO is the exclusive licensor of software licenses for the UNIX operating
system.
Sorry if this got hashed out before, but this is my first
time trying to read this carefully. Isn't it true that SCO doesn't own "UNIX"
but only has (alledged) rights to the SysV implimentation? Can a error like
this (either through inocent mistake, or blattant malicous lying) have a
negative impact on the case for the plaintif?
It just bugs me that this
is one of the two big name games these guys are playing (the other one being
oldSCO ==/!= newSCO silliness) and noone in the media ever seems to call them on
it, esp. the guys who really do own the exclusive rights to license UNIX, the
Open Group.
grrrrrrrrrrrrr.[ Reply to This | # ]
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Authored by: martimus on Friday, April 30 2004 @ 01:47 PM EDT |
I saw this table in one of the other threads, and I must say it is really
helpful in sorting out the complaint and answer. This is exactly the
power of many hands and eyeballs typing treatises and looking at TSCOG.
Thanks
and well done. [ Reply to This | # ]
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Authored by: icebarron on Friday, April 30 2004 @ 01:57 PM EDT |
Witness the death of a lawsuit and the credibility of the leaches... [ Reply to This | # ]
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Authored by: webster on Friday, April 30 2004 @ 02:04 PM EDT |
This was asked under last article but no answer yet.
If 1) DC usage of Sys V was last 7 years ago, and 2)If the certification
requirement attends usage, why doesn't DC claim that any possible SCO claims
violate the statute of limitations in Michigan which is _ [?] years for a
contract or license violation? [It couldn't possibly be more than 3 or 5
years.]
---
webster[ Reply to This | # ]
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Authored by: inode_buddha on Friday, April 30 2004 @ 02:07 PM EDT |
Thank you for the clarity - the logic of the legal stuff tends to make my head
explode rather quickly. Which is yet another reason why I'd *much* rather be
reading code or doing a bash script. So, thank you.
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 02:42 PM EDT |
Given the emptiness of the charges, one wonders how SCO picks out its targets.
Might they be selecting them for their prominence and for the likely effect on
clueless investors?[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 02:58 PM EDT |
IANAL, hence I would appreciate, your thoughts on the following extracts from
the AT&T-IS and Chrysler Motors Corporation:
§2.01 last sentence ... AT&T-IS claims no ownership interest in any portion
of such a modification or derivative work that is not part of a SOFTWARE
PRODUCT.
My questions here are: If Chrysler modified or created a derived work would
they 'own' it, and would they be free to use it as they wished, and could they
free of restriction contribute it to anyone or any OS?
§7.08 Neither this Agreement nor any rights hereunder, in whole or in part,
shall be assignable or otherwise transferable by LICENCEE and any purported
assignment or transfer shall be null and void.
My question here are: Since, as a general rule in US courts, a 'contract' must
be read in its entirity, and since there is no clause with respect to change in
ownership and/or succession, what exactly is the status of a merger of equals
(Chrysler and Daimler Benz) and the continuance of this Software Agreement
(should Chrysler still have been using the UNIX System V Rel 3.0 software)?
Again I am not a lawyer, but my reading of the attached Schedule to this
Agreement, only shows one-off up-front fees, with the ability to add users,
sub-licencees, etc. at a fee that may be increased by AT&T-IS upon 90 days
notice. So am I right in believing that since Chrysler didn't use the software
since 1997 (being 7 years that they allude to in the letters) they were not
obilged to send any fees on an annual basis to anyone, probably for more than 7
years.
This leads me to wonder whether the 95% of all licence fees that have to be sent
to Novell may well add up to a big round ZERO. Especially as more any more of
SCO's purported users change to other 'supported' OS's.
Poll: Is it time I created an account with Groklaw? Yes/No/Maybe/In 17 years'
time[ Reply to This | # ]
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Authored by: aslagle on Friday, April 30 2004 @ 03:13 PM EDT |
is making me think of SCO's legal team like this (with apologies to MP):
I .... never wanted to be a village idiot. I always wanted to be...
a SCO Lawyer!
Leaping from lawsuit to lawsuit, as we wade through the source code from mighty
IBM AIX! With my best Darl by my side! The IP! The copyright! The mighty patent!
We'd sue....sue....Sue!
Oh, I'm a SCO Lawyer, and I'm OK! I sleep all night and I sue all day!
IBM: He's a SCO Lawyer, and he's OK! He sleeps all night and he sues all day!
I file pleadings, I eat my lunch, I say the GPL ain't free!
On Wednesdays I go fishing, and look for infringing IP!
IBM: He files pleadings, he eats his lunch, he says the GPL ain't free!
IBM: On Wednesdays he goes fishing, and looks for infringing IP!
Oh, I'm a SCO Lawyer, and I'm OK! I sleep all night and I sue all day!
IBM: He's a SCO Lawyer, and he's OK! He sleeps all night and he sues all day!
I file pleadings, I pump and dump, I take my claims too far.
I take all SCO's money, and hang around the Bar!
IBM: He files pleadings, he pumps and dumps, he takes his claims too far.
IBM: He takes all SCO's money, and hangs around the Bar!
Oh, I'm a SCO Lawyer, and I'm OK! I sleep all night and I sue all day!
IBM: He's a SCO Lawyer, and he's OK! He sleeps all night and he sues all day!
I file pleadings, I know nothing, about real patent law!
I wish I'd been a CEO, just like my dear Darl!
IBM:
IBM: He wishes he'd been a CEO, just like my ....??????
Judge Kimball: STOP THAT! ... STOP THAT! ... STOP THAT, It's silly![ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 03:15 PM EDT |
Happened to look just now at historical closing prices for SCO. You can start
looking for 52-week lows in mid-May, unless, of course, some adverse court
ruling (I'm not waiting up nights) drops the price more quickly before then.
SCO hasn't been below $6 since Friday, May 16, 2003, at $4.75. It closed at
$6.80 on Monday, May 19, 2003. It's currenly in the mid $6.30's.
Who's buying the bubbly?
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Authored by: KentWA on Friday, April 30 2004 @ 03:33 PM EDT |
I see only 2 courses of action for SCO. Quietly drop the suit and hope all the
hubbub goes away (But then Groklaw will not let that go by unnoticed) or pull
the usual "We did not mean what we said in our original filing, we mean
what is in our amended filing, which we will file within days. No later than one
week".
They can not afford a dismissal, they will need to pull some magic rabbit out of
the hat or try to just make the story go away. My vote is they will smoke a
little crack and dream up some new theory to ammend the DC case.
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Authored by: Anonymous on Friday, April 30 2004 @ 03:47 PM EDT |
Ok, just a thought-
If DCC hasn't used UNIX under this contract for upto seven years, have they been
making payments for it or not?
If IBM has a perpetual contract (ignore SCO's rant otherwise), have they been
making payments annually, or just every few years?
Sun just made that huge payment for 'additional' rights. Does that mean that
they haven't been paying annually on the rights they already had?
So, if the big Users/Redistributors weren't making payments, just how was SCO
making any money to begin with? And, if I gleaned correctly, it doesn't sound
like SCO was making any payments to Novell (you know, that 95% kickback), they
really couldn't have been raking in that much to begin with, or they were
holding out on Novell.
I am very confused!
Educate me with your informed replies.[ Reply to This | # ]
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Authored by: MikeA on Friday, April 30 2004 @ 05:02 PM EDT |
...in ANY of the cases. Tried to find the info in the Timeline links, but no
luck.
I seem to remember a May 11th date for the Novell case, but I could be wrong.
---
Change is merely the opportunity for improvement.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 05:05 PM EDT |
Assume that SCO has a million lines of code for which they have produced
evidence that they are the copyright holders. Assume that their case depends on
proving that these million lines of code have been copied into Linux. Assume
that the case is being tried by jury.
Presumably, unless a lot of people are wasting their time on this site, the
offending million lines have not been copied directly but have been cunningly
concealed in modified form.
Would the jury be given a printed copy of the million lines of code (actually 2
million as they would need both copies to compare)? Would the plaintive call
"expert witnesses" (is that the right word in US?) to say that this
line here is a copy of that line there if you substitute this jumble of letters
for that jumble of letters? Would the plaintive then call a witness to say that
the lines only look the same because the programming language syntax requires
the words: main, void, and the punctuation marks? Would they continue in this
way all the way through?
It seems to me that if copyright infringement can be proved, then the amount of
damages would be related to the amount of infringing code; so it would not be
sufficient to take some specimen file and just look at that.
Would someone explain how the US legal system goes about dealing with a case
like this. Would it be left entirely to the jury to decide if copyright has been
infringed or would the judge make some ruling as to exactly what constitutes an
infringement?
I am not an American and I suppose reading Perry Mason does not provide a proper
understanding of the US legal system.
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Authored by: Anonymous on Friday, April 30 2004 @ 05:13 PM EDT |
From what I have read it seems that DaimlerChrysler (DC) has not used SCO's
System V or Unixware in the past 7 years.
1.) Does anyone know which OSs (presumably plural) DC uses? (Just curious.)
2.) This begs the other question... Doesn't SCO know who its customers are?
If DC hasn't used UNIX for 7 years, I presume it has not asked for technical
assistance nor paid royalties, nor asked for updates, nor posed related queries
in this time. Since normal companies keep files current for (more-or-less) 5
years, this account should have stale dated...
I hesitate to express my opinion of SCO's ability to run a business,... but
frogs have more awareness of their surroundings when they hibernate in the mud
at the bottom of the pond.
---------------------------------
nfaw = Night Flyer at Work
My Clan Motto: Veritas Vincit: Truth Conquers[ Reply to This | # ]
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Authored by: overshoot on Friday, April 30 2004 @ 05:43 PM EDT |
The point is that this is not a theoretical. If Chrysler or DaimlerChrysler
had notified AT&T or one of AT&T's successors to the contract, that the
agreement was terminated, then AT&T (or SCOG) would have no rights to
request certification. However, as far as we can tell from the documents
provided, Chrysler and/or DaimlerChrysler did not take that step and do not
claim to have taken that step. The agreement was still in force, DC just stopped
using the software.
You miss my point. This was so long ago that DCC
might well have flushed their files of all records -- including their records of
having closed out the contract. They don't claim to have done so because they
have lost the institutional memory of the event.
You say that they didn't,
but absent some rule that records be kept at least that long you can't prove
that they didn't and neither can SCOX. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 06:11 PM EDT |
It seems to me that the fact that DCC has not used Unix for 7 years is not a
mistake on SCO's part, but plays exactly into their hand.
Based on paragraphs 15-17, their whole case is based on the fantasy that Linux
is a derivative work and, therefore, they own it. I think their legal strategy
here is that since they own Linux, then, by the contract, DCC is compelled to
report their use of it. In Darl and company's minds the 7 years is a legal red
herring since DCC's use of Linux is covered by the original contract. They're
looking for a favorable decision on a contract dispute that as a byproduct
establishes their ownership of Linux, which is what they are really after.
They might see this as a safe case since, if they win, in their eyes they get
the ownership issue settled in their favor. But if they lose they can write it
off as strictly a contract dispute and still pretend they own Linux.
I'm not saying that there is even a shred of reality to that strategy. But, if
they go down that path it seems that it probably won't get dismissed. Rather,
this could be the deciding battle for the whole war.[ Reply to This | # ]
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Authored by: YMHEE_BCEX on Friday, April 30 2004 @ 06:13 PM EDT |
I am trying to understand (without sarcasm, althouth it's hard) - what exactly
SCO is accusing DCC of. That it didn't reply to its letter? and Chrysler says
that it didn't have to? On the surface, I don't see anything about Linux.
And
if I look into the letter contents, SCO asks Chrysler to assert that they didn't
contribute to Linux? The letter doesn't deal with DCC using Linux; or
even using licensed code AND Linux together. That is, if DCC took those infamous
libraries and put them into Linux - as long as they are using them in-house -
it's all OK. Right?
Or SCO really hopes to prove that Chrysler (or AutoZone,
for that matter) contributed code to Open Source?.. Again, I am not being
sarcastic - but the conclusions I come to sound ridiculous. Can someone explain
the law to the common geek? [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 07:17 PM EDT |
Is he now persona non grata for good reason? [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 30 2004 @ 10:49 PM EDT |
First explain to the jury who TSG is...shell company part of Canopy & major
Linux developer who after four acquisitions owns something to do with
ATT UNIX. But TSG owns NO trademarks, trade secrets, patents, or copy-
rights in ATT UNIX code. TSG owns copyrights on the ATT UNIX documenta-
tion.
Second explain to the jury what UNIX is...UNIX is a brand that Open Group
uses to certify many current operating systems. Find out how many today!
TSG intends to lie and confuse everyone. In the IBM case, TSG claims they
are not Caldera! TSG always states they own UNIX in their PR, but this is
obviously impossible for numerous reasons. TSG changes their story all the
time, so it is time to nail them down.[ Reply to This | # ]
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