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| SCO's Statement of Basis for Claim for Preliminary Injunctive Relief & Nature of Relief - as text |
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Friday, September 03 2004 @ 11:09 PM EDT
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Here is SCO's Statement of Basis for Claim for Preliminary Injunctive Relief and Nature of Relief as text. Obviously, the most interesting part of it is the footnote, in which SCO again puts forth its theory of what constitutes "copying". More with the structure, sequence, and blah blah blah. No matter how you look at it, their claims just keep getting smaller and smaller, unless you view this all as an attempt to expand what copyright law covers, which, personally, I do. Nothing they are complaining about here seems to have anything to do with anything "inside" Linux.
So, when do we get to the part of their claims where they prove problems in the Linux development process? They've been saying it for over a year now, but where is the problem they think they have identified? The clock is ticking. IBM, they now say, is just a contract claim. And AutoZone is about shared libraries when migrating from Unix to Linux. So, as far as Linux the kernel is concerned, where's the beef?
****************************************************
Stanley W. Parry, Esq.
State Bar No. 1417
Glenn M. Machado, Esq.
State Bar No. 7802
CURRAN & PARRY
[address, phone]
David S. Stone, Esq. (Admitted Pro Hac Vice)
Robert A. Magnanini, Esq. (Admitted Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone]
Attorneys for Plaintiff
The SCO Group, Inc.
_________________________
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
__________________________
THE SCO GROUP, INC.,
a Delaware corporation.
Plaintiff,
v.
AUTOZONE, INC.,
a Nevada corporation,
Defendant.
__________________________
STATEMENT OF BASIS FOR CLAIM FOR PRELIMINARY
INJUNCTIVE RELIEF AND NATURE OF RELIEF
Civil Action File No.
CV-S-04-0237-RCJ-LRL
_________________________
Pursuant to the Court's Order dated August 6, 2004, the Plaintiff, SCO Group, Inc. ("SCO") hereby serves upon Defendant AutoZone, Inc. ("AutoZone") its Statement of Basis for Claim for Preliminary Injunctive Relief and Nature of Relief as follows:
1. In its August 6, 2004 Order, the Court stayed all discovery on SCO's claims in the above-referenced matter with the limited exception of discovery concerning AutoZone's migration from a Unix Operating System to a Linux Operating System. The Court has permitted SCO to conduct limited discovery on this issue in order to determine whether or not to file a motion for preliminary injunctive relief.
Migration from Unix to Linux
2. SCO is informed and believes that AutoZone may have infringed SCO's copyrights in various SCO Software Products including, without limitation, SCO's OpenServer version of Unix. SCO is informed and believes that AutoZone's servers and other hardware were migrated from SCO's Software Products to the Linux Operating System. Santa Cruz Operations ("old SCO"), a predecessor in interest to SCO, provided consulting services on-site to AutoZone between 1998 and 2000 and became familiar with the hardware and software utilized by AutoZone in its business. Based upon SCO's employees' knowledge of the AutoZone System, SCO is informed and believes that AutoZone "copied" certain copyrighted material contained in SCO's Software including, without limitation, SCO's shared libraries during its transition to Linux. At least one of the versions of OpenServer utilized by AutoZone operates using static shared libraries. In order to cause Linux to function effectively with legacy applications previously designed for OpenServer Software, SCO believes that it is reasonably likely that AutoZone copied SCO's copyrighted material during the migration process in violation of its contracts with SCO and in violation of Federal Copyright laws. Specifically, SCO is informed and believes that AutoZone has infringed the following SCO copyrights pertaining to code used in or with Open Server versions 5.0.2, 5.0.4, and 5.0.5: TX 5 750-268, TX 5 763-235, TX 2 611-860 and TX 2 605-292.
SCO is further informed and believes that it is reasonably likely that AutoZone has also improperly used and/or copied the following additional copyrighted code and manuals during and after the migration process:
(a) Dynamic shared libraries;
(b) Dynamic linking code;
(c) Kernel optimization features;
(d) Documentation pertaining to the above including, without limitation, manual pages. This list is not exhaustive and SCO reserves the right to supplement it in accordance with the rules once SCO has had an opportunity to conduct discovery.
Potential Injunctive Relief
3. Under applicable law in this Circuit, any use of copyrighted materials i.e., source code and manuals, in a way that is inconsistent with exclusive rights of the copyright owner protected under 17 U.S.C.A. ¶106, constitutes a prima facie copyright infringement. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991F.2d 511, 519 (9th Cir. 1993). Furthermore, irreparable harm is presumed and it is not a defense that the defendant could have paid a royalty. See Cadence Design Systems, Inc. v. Avant! Corp., 125 F.3d 824, 827 (9th Cir. 1997) ("It is well settled that availability of money damages does not rebut the presumption of irreparable harm in a copyright case.")
4. Pursuant to the Court's Order, SCO intends to conduct limited discovery into the above issues in order to determine whether or not, under the circumstances, an application for a Preliminary Injunction is warranted.
5. In the event SCO determines Preliminary Relief is warranted, SCO will seek a Preliminary Injunction enjoining AutoZone from using any of the copyrighted materials identified in its motion pending final resolution of this action.
Dated: August 30, 2004
Stanley W. Parry, Esq.
State Bar No. 1417
Glenn M. Machado, Esq.
State Bar No. 7802
CURRAN & PARRY
[address, phone]
_____[signature]________
David S. Stone, Esq. (Admitted Pro Hac Vice)
Robert A. Magnanini, Esq. (Admitted Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone]
1 The term "copying" as used herein includes verbatim copying of code or man pages, and copying where the resulting product is substantially similar to the original considering structure, sequence and organization, and other non-literal elements of the code. In addition to copying, SCO's rights may be violated by preparation of derivative works based on the original, gaining beneficial use of the copyrighted materials through interfaces or other means supplied by third parties, or any other act which interferes with the exclusive rights of the copyright owner protected under 17 U.S.C. ¶106.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
__________________________
THE SCO GROUP, INC.,
a Delaware corporation.
Plaintiff,
v.
AUTOZONE, INC.,
a Nevada corporation,
Defendant.
Case Number:
CV-S-04-0237-RCJ-(LRL)
_______________________
RECEIPT OF COPY
___[signature Kimberly Peels/JJP]___
James J. Pisanelli, Esq.
State Bar No. 4027
Nikki L. Wilmer
SCHRECK BRIGNONE
[address]
Attorneys for Autozone, Inc.
Douglas Bridges, Esq.
ALSTON & BIRD, LLP
[address]
Attorneys for Autozone, Inc.
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| Authored by: Anonymous on Saturday, September 04 2004 @ 03:40 AM EDT |
| n/t [ Reply to This | # ]
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- Corrections - Authored by: Anonymous on Saturday, September 04 2004 @ 05:42 AM EDT
- Corrections - Authored by: PJ on Saturday, September 04 2004 @ 07:13 PM EDT
- Corrections - Authored by: Anonymous on Sunday, September 05 2004 @ 07:42 AM EDT
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| Authored by: Anonymous on Saturday, September 04 2004 @ 03:40 AM EDT |
| This text is meaningless. [ Reply to This | # ]
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- OT Here Please - Authored by: Anonymous on Saturday, September 04 2004 @ 04:41 AM EDT
- Judge doesn't read Groklaw - Authored by: yorkshireman on Saturday, September 04 2004 @ 04:58 AM EDT
- OT Important: Migration to FOSS, a proof of concept report (PJ look) - Authored by: Anonymous on Saturday, September 04 2004 @ 05:59 AM EDT
- OT Here Please - Authored by: Anonymous on Saturday, September 04 2004 @ 08:48 AM EDT
- BBC on Sender ID and JibJab - Authored by: Dormouse on Saturday, September 04 2004 @ 11:12 AM EDT
- Baystar starts selling - Authored by: mko on Saturday, September 04 2004 @ 11:29 AM EDT
- OT Here Please - Authored by: Sunny Penguin on Saturday, September 04 2004 @ 12:22 PM EDT
- Short script to fix broken html - Authored by: Anonymous on Saturday, September 04 2004 @ 05:58 PM EDT
- Mozilla uasage is 14.9% - Authored by: Dan M on Saturday, September 04 2004 @ 08:41 PM EDT
- MPAA file DCMA Takedown - Authored by: SmyTTor on Saturday, September 04 2004 @ 09:32 PM EDT
- Is LDS funding this? - Authored by: Anonymous on Sunday, September 05 2004 @ 11:55 AM EDT
- Copyright Office acts. - Authored by: Anonymous on Sunday, September 05 2004 @ 12:23 PM EDT
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| Authored by: Anonymous on Saturday, September 04 2004 @ 03:41 AM EDT |
<A HREF="http://www.address.com/page.htm">Clickable
link</A>
Copy n paste for clickable links...[ Reply to This | # ]
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| Authored by: kawabago on Saturday, September 04 2004 @ 03:44 AM EDT |
They admitted it was a pump and dump job to prompt a buyout of the company.
When that didn't work they were stuck looking like fools or going ahead with the
ridiculus plan. Now they look like ridiculus fools![ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 03:47 AM EDT |
I had a job that was very polictical in nature, and it taught me some very
valuable lessons.
The biggest lesson is to keep your mouth shut. Don't offer anything more than
is being asked, and don't offer anything unless asked directly, don't say
anything you wouldn't want to repeat on TV, and if you say something, assume
someone heard.
SCO really needs to learn these lessons. This sounds like an attempt to rewrite
history and sweep what's been done under the rug. Hate to tell you SCO, but I,
along with many other loud and obnoxious OSS'ers will be there to pull the rug
up and expose the dirt your trying to hide.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 04:14 AM EDT |
SCO is further informed and believes that it is reasonably likely that
AutoZone has also improperly used and/or copied the following additional
copyrighted code and manuals during and after the migration process:
Did they give prove for above statement? Or is this is silly question
?
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 04:26 AM EDT |
Santa Cruz Operations ("old SCO"), a predecessor in interest to
SCO, provided consulting services on-site to AutoZone between 1998 and 2000 and
became familiar with the hardware and software utilized by AutoZone in its
business.
Reads to me like "old SCO" may have helped them transition to
Linux. One would think that if the vendor's consulting services recommend
copying certain libraries of the vendor, then the solution is an approved
solution of the vendor and therefore could be considered to have modified the
original agreement. Of course I don't know that these consulting services were
provided for migration purposes, but the timeframe sounds about right. No large
company would roll out a system from 1998-2000 and then roll out significant
changes to that system so soon, so I must assume Linux was in use when old SCO
did their work. Of course this is all speculation from someone who works in IT,
and it's late, but... [ Reply to This | # ]
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| Authored by: Manfred Spraul on Saturday, September 04 2004 @ 04:39 AM EDT |
If I understand Statement correctly SCO claims that Autozone at least at one
point in the past tried to convert from OpenServer to Linux by using iBCS kernel
module (open source) and the SCO user space libraries (copyright SCO). The
statement does not claim that this is still the case.
Do you agree with that interpretation?
And now a legal question:
Is it actually possible to get a Preliminary Injunction against events that are
not ongoing?[ Reply to This | # ]
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| Authored by: RedBarchetta on Saturday, September 04 2004 @ 04:48 AM EDT |
Migration from Unix to Linux
2. SCO is informed and
believes that AutoZone may have infringed SCO's
copyrights
Since when did "a little birdy told me" become a
valid source of evidence?
Sheesh.
---
Collaborative
efforts synergise. [ Reply to This | # ]
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| Authored by: nola on Saturday, September 04 2004 @ 05:34 AM EDT |
Interesting on several counts.
1. document says " The Court has permitted SCO to conduct limited
discovery on this issue in order to determine whether or not to file a
motion for preliminary injunctive relief." The "whether or not"
part is a
fine line, as the judge (according to the transcript) seemed to be stricter
than that.
2. document then says " Santa Cruz Operations ("old SCO"), a
predecessor
in interest to SCO, provided consulting services on-site to AutoZone
between 1998 and 2000 and became familiar with the hardware and
software utilized by AutoZone in its business." All the consulting
contracts I've ever seen contain contain non-disclosure-agreement
language which would tend to restrict any information gained by "old
SCO" employees about AZ's systems.
3. document then continues " Based upon SCO's employees' knowledge of
the AutoZone System, SCO is informed and believes that ..." without
suggesting any way at all whereby SCO employees, as opposed to "old
SCO" employees, might have become aware of this information. [ Reply to This | # ]
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| Authored by: sproggit on Saturday, September 04 2004 @ 06:15 AM EDT |
Team,
This latest submission from SCO is interesting for a couple of
reasons. I'd like to float an idea here and let you pick it apart.
SCO
are asserting that they believe that Autozone has taken copyright material, and
quote the following as (non-specific) examples:-
SCO is further
informed and believes that it is reasonably likely that AutoZone has also
improperly used and/or copied the following additional copyrighted code and
manuals during and after the migration process:-
- (a) Dynamic shared
libraries;
- (b) Dynamic linking code;
- (c) Kernel optimization
features;
- (d) Documentation pertaining to the above including, without
limitation, manual pages.
Let's imagine, just for the
sake of this theory, that they are going to have a hard time proving the first
of these two points. Let's argue that they are there to pad this out and make it
look convincing, because they have to sell this to the court, and, well, your
Honour, Autozone might be using some of this...
Skipping the
first two points, we're left with kernel optimization features and with
Documentation pertaining to SCO "IP".
Now, SCO tried earlier in the IBM
trial to use a variety of code level objects, such as Header files, error code
numbers and the like, to claim that Linux contained proprietary Unix code. They
tried and failed. This, to me, looks like another attempt. Are they arguing that
if, for example, the Autozone application[s] required [please excuse my
non-technical ignorance] a certain value for kernel semaphores, and if Autozone
copied that setting when porting their application to Linux, that Autozone have
in some way infringed SCO IP?
Furthermore, the SCO complaint says
improperly used and not just copied. So, suppose SCO were to try and
argue that use of one of their manuals to port a product off their
Operating System represents a violation of their Copyrights? Obviously, there is
nothing to stop them try and make the case, but I'm curious to know, in the case
of a written manual, how [and if] copyright law could be extended to include
"proper use".
In short, could SCO argue that their customers are
permitted to read their books, but not use them to help migrate away from SCO
products?
Just a theory, of course. Simple truth is that SCO's arguments
seem to be getting weaker by the day.
[ Reply to This | # ]
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| Authored by: Paul Shirley on Saturday, September 04 2004 @ 06:18 AM EDT |
| in the footnote gaining beneficial use of the copyrighted materials through
interfaces or other means supplied by third parties
Apparently in SCOG's
world infringement by Red Hat would allow them to sue an end-user. Was RH's
contribution a work-for-hire or are they inventing yet more new copyright law? [ Reply to This | # ]
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| Authored by: jacks4u on Saturday, September 04 2004 @ 06:45 AM EDT |
IANAL, but it seems to me, if old SCO knew of the migration, and here it even
implies that they helped, then wouldn't that prety much remove any infringement
case that new SCO may have?
The time for action, I think, was then (during the migration, or slightly
after), if there was a case for infringement.
Is not new SCO bound by old SCO's actions and contractual arrangements? SCO
seems to want the best of it's predacessors property, without being encumbered
by those predacessor's actions (or inactions).
Just some thoughts to debate and ponder
jacks4u[ Reply to This | # ]
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| Authored by: blacklight on Saturday, September 04 2004 @ 06:51 AM EDT |
"SCO is further informed and believes that it is reasonably likely that
AutoZone has also improperly used and/or copied the following additional
copyrighted code and manuals during and after the migration process:-
(a) Dynamic shared libraries;
(b) Dynamic linking code;
(c) Kernel optimization features;
(d) Documentation pertaining to the above including, without limitation, manual
pages."
SCOG is further informed by whom? The best I can get is unnamed Old SCO
employees who were allegedly involved in the migration. SCOG has a track record
of supporting its motions with declarations of individuals who are incompetent
to declare what they declared. And now, we have a motion with no supporting
declarations.
On a side note, I can identify a SCOG pleading from any other pleading by
looking for the phrases "without limitation" and "including, but
not limited to" - SCOG is the only party that uses them.
[ Reply to This | # ]
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| Authored by: xtifr on Saturday, September 04 2004 @ 06:55 AM EDT |
Normally TSG seems to want to pretend that they are, and always have been,
oldSCO. Witness a twenty-fifth anniversary celebration by a company that's only
a decade old. But here they actually acknowledge the existance of oldSCO as a
separate entity. And that's so completely out of character for them
that it really made me wonder. And I think, maybe, I've figured it
out.
You see, OpenServer libraries don't just work all by themselves on
Linux. You also need compatibility libraries to make the OpenServer libraries
think they're running on OpenServer. These compatibility libraries could
only have come from oldSCO or TSG! If there's only one SCO, then SCO
sold AZ software explicitly to do what SCO is now suing them for
doing! Holy Entrapment, Batman! So, suddenly, TSG needs for oldSCO to
exist, so they have someone to blame for the compatibility libraries!
Of
course, this is all moot, since AZ is reportedly not using any of these
libraries, but it might be worth working out some of the implications of all
this, in case there are other companies out there who are using compatibility
libraries as part of their migration to Linux (highly likely). So, any
thoughts? What if it was oldSCO that provided the compatibility libraries, back
when they still owned OpenServer? What if it was Caldera that provided the
compatibility libraries back then? Are there other plausible scenarios, and
what are their implications? It's past my bedtime, or I'd speculate further
myself. ---
Do not meddle in the affairs of Wizards, for it makes them
soggy and hard to light. [ Reply to This | # ]
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| Authored by: micheal on Saturday, September 04 2004 @ 07:27 AM EDT |
IANAL
AZ's use and copying of the SCO libraries (at least with OpenServer) was allowed
by contract. Whether AZ used these libraries imprperly (in the migration to
Linux) is, therefore, a contract issue, not a copyright issue.
---
LeRoy -
What a wonderful day.[ Reply to This | # ]
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| Authored by: spuluka on Saturday, September 04 2004 @ 07:36 AM EDT |
This section of the SCO document contradicts what I've seen previously on
Groklaw. Could someone analysis the cases on both sides of the issue here?
What is the standard for this court?
"Furthermore, irreparable harm is presumed and it is not a defense that the
defendant could have paid a royalty. See Cadence Design Systems, Inc. v. Avant!
Corp., 125 F.3d 824, 827 (9th Cir. 1997) ("It is well settled that
availability of money damages does not rebut the presumption of irreparable harm
in a copyright case.")"
---
Steve Puluka
Pittsburgh, PA[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 08:47 AM EDT |
Forgive me I only have 20+ years experience.
(a) Dynamic shared libraries;
Dynamic libraries are Windows, shared libraries are Unix. They perform the
same function except Unix is better implemented.
(b) Dynamic linking code;
When you link you link to stub libraries that the run time linker replaces with
the real links to the code. Your 'code' is not linked per se. This is really
meaningless.
(c) Kernel optimization features;
Is this the one in a brief case in Germany. As outlined previously on groklaw
it is not a trivial thing to take code and integrate it into an existing
infrastructure. This is not something a user would undertake.
(d) Documentation pertaining to the above including, without limitation, manual
pages.
They cannot claim copyright on someone using a valid manual that was provided
with the original software. If there was copying above the fair dealing line
where is the 'smoking gun'. If they are talking man pages then a lot of them
are actually BSD derived.[ Reply to This | # ]
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| Authored by: QTlurker on Saturday, September 04 2004 @ 08:55 AM EDT |
"SCO is further informed and believes that it is reasonably likely that
AutoZone has also improperly used and/or copied the following additional
copyrighted code and manuals during and after the migration process:
<snip>
(d) Documentation pertaining to the above including, without limitation,
manual pages."
Scary. SCO may be saying any one of three things:
1) AZ engineers weren't allowed to read the SCO manpages side by side with the
Linux manpages to help the migration, or
2) AZ engineers made unauthorized extra copies on the office copier, or
3) AZ engineers printed hardcopy of manpages?
To a S/W engineer, all three of these things are reasonable activities during a
migration.
However, 1) is a scary thought control claim, but 2) or 3) could be easy BIG
wins for BSF -- just like in the DC case.
[ Reply to This | # ]
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| Authored by: Latesigner on Saturday, September 04 2004 @ 09:43 AM EDT |
You know, they're just stupid enough to do this. But wouldn't it endanger every
company held copyright as well as Linux ?
As for the way science itself works, they'd be endangering that as well.
This attempt is going to fail but I'm betting another group of fools and
criminals will try it again and we should be ready for them.[ Reply to This | # ]
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| Authored by: dmscvc123 on Saturday, September 04 2004 @ 10:03 AM EDT |
For the sake of argument let's say that everything SCO says about AZ is true.
Wouldn't SCO be barred from suing because SCO's predecessor either overtly or
tacitly approved of what AZ was doing years ago...if they had a problem,
shouldn't action have been taken four or five years ago?[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 10:09 AM EDT |
I have posted before and wish to remind everyone, that AutoZone still has
licenses to USE SCOG's operating systems and the old SCO licenses I have seen
allow use of all or PART of the operating system. They do preclude copying
disassembling or reverse engineering.
If Autozone used a part of the OpenServer system and never exceeded the number
of licenses they have authorized from SCOG, they may perfectly legally have used
OpenServer binaries in their Linux Installation.
It is more likely that they did not do that, but even under SCOG's weird
version, AutoZone is at least somewhat covered.
--
rsteinmetz70112[ Reply to This | # ]
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| Authored by: skidrash on Saturday, September 04 2004 @ 11:02 AM EDT |
<sigh>
The beef's in Blepp's briefcase (must be getting pretty ripe by now ...)
Oh, no, wait, it's in Lindon, available for viewing under NDA, especially to
clueless analysts who're going to hype SCOG's case.
Unless you ask hard questions, like Claybrook's "is this directly from Unix
SysV, put into Linux by IBM?". The man on the scene says no, Blake Stowell
calls later at your hotel & says "we have proof against IBM but we
showed you none of it".
Oh, no, wait, if you can't come and see it, Chris Sontag can come and present it
to you (A la George Weiss).
[ Reply to This | # ]
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| Authored by: JamesKatt on Saturday, September 04 2004 @ 11:08 AM EDT |
> Blah blah
> SCO is further informed and believes that it is reasonably likely....
> Blah blah
I hope the judge realizes that SCO wants a fishing expedition based on
speculation because it has no facts to back its complaint. SCO's wording
indicates such speculation. They do not specify WHO gave them the
information to cause them to believe what they speculate.
---
I ANAL[ Reply to This | # ]
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| Authored by: elrond_2003 on Saturday, September 04 2004 @ 11:15 AM EDT |
TX-5-750-268 : UNIX system V release 3.2/386.
TX 5 763-235 - returns no results
TX-2-611-860 : Unix system V : release 3.2 : system administrator's reference
manual.
TX-2-605-292 :UNIX system V, release 3.2 : programmer's reference manual.
So they are back to asserting that they own the ATT copyrights. The counter
motion should be good, I would expect AZO to assert that TSG must prove that
they own the copyrights and reference SCO v Novell. Should stop the PI motion
in its tracks.
---
free as in speech.[ Reply to This | # ]
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| Authored by: AdamBaker on Saturday, September 04 2004 @ 12:11 PM EDT |
If they are relying on evidence gathered by SCO employees around 2000, does the
doctrine of laches not catch them out. IIRC they have got 3 years to file suit
from when they first discover infringment so if they claim they became aware of
potential infringment in 2000 or earlier they are too late.
Add to that the fact that AZ can say we weren't using the libraries but even if
we were we had OpenServer licenses for the machines (assuming they were
decommissioning OpenServer machines as they migrated) and I can imagine words
like frivolous being bandied about.[ Reply to This | # ]
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| Authored by: sef on Saturday, September 04 2004 @ 01:08 PM EDT |
blech.
I am, once again, left with the question of how anyone can get
away with
abusing the legal system for so long with absolutely no
repercussions.
That isn't a rhetorical question, by the way. [ Reply to This | # ]
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| Authored by: rand on Saturday, September 04 2004 @ 02:00 PM EDT |
from the online UnixWare 7.1.3 Man pages
(http://uw713doc.sco.com/en/man/html.1M/COPYRIGHT.html)
©1983-2003
The SCO Group, Inc. All rights reserved.
©1984-1990 AT&T.
This
publication is protected under copyright laws and international
treaties.
©1992-1994 AT&T Global Information Solutions Company;
©1987-1989 Computer Associates, Inc.; ©1987 Convergent Technologies, Inc.; ©1989
Digital Equipment Corporation; ©1987-1989 Hewlett-Packard Company; ©1994-1996
Netscape Communications Corporation; ©1993-1994 Platinum Technologies; ©1988
Massachusetts Institute of Technology; ©1985-1989 Metagraphics Software
Corporation; ©1980-1989 Microsoft Corporation; ©1989 Open Software Foundation,
Inc.; ©1993-1994 Programmed Logic Corporation; ©1994-1997 Sun Microsystems,
Inc.; ©1988 UNIX Systems Laboratories, Inc.; ©1997 VERITAS Software
Corporation.
from the online Open Server Man Pages
(http://docsrv.sco.com:507/en/man/html.ADM/COPYRIGHT.html)
©1983-2003 Caldera International, Inc. All rights reserved.
This
publication is protected under copyright laws and international treaties.
©
1976-2001 The Santa Cruz Operation, Inc.; © 1989-1994 Acer Incorporated; ©
1989-1994 Acer America Corporation; © 1990-1994 Adaptec, Inc.; © 1993 Advanced
Micro Devices, Inc.; © 1990 Altos Computer Systems; © 1992-1994 American Power
Conversion, Inc.; © 1988 Archive Corporation; © 1990 ATI Technologies, Inc.; ©
1976-1992 AT&T; © 1992-1994 AT&T Global Information Solutions Company; ©
1993 Berkeley Network Software Consortium; © 1985-1986 Bigelow & Holmes; ©
1988-1991 Carnegie Mellon University; © 1989-1990 Cipher Data Products, Inc.; ©
1985-1992 Compaq Computer Corporation; © 1987-1994 Computer Associates, Inc.; ©
1986-1987 Convergent Technologies, Inc.; © 1990-1993 Cornell University; ©
1985-1994 Corollary, Inc.; © 1990-1994 Distributed Processing Technology; © 1991
D.L.S. Associates; © 1990 Free Software Foundation, Inc.; © 1989-1991 Future
Domain Corporation; © 1994 Isogon Corporation; © 1991 Hewlett-Packard Company; ©
1994 IBM Corporation; © 1990-1993 Intel Corporation; © 1989 Irwin Magnetic
Systems, Inc.; © 1988-1991 JSB Computer Systems Ltd.; © 1989-1994 Dirk Koeppen
EDV-Beratungs-GmbH; © 1989-1991 Massachusetts Institute of Technology; ©
1985-1992 Metagraphics Software Corporation; © 1980-1994 Microsoft Corporation;
© 1984-1989 Mouse Systems Corporation; © 1989 Multi-Tech Systems, Inc.; © 1991
National Semiconductor Corporation; © 1990 NEC Technologies, Inc.; © 1989-1992
Novell, Inc.; © 1989 Ing. C. Olivetti & C. SpA; © 1989-1992 Open Software
Foundation, Inc.; © 1988-1994 Platinum Technology, Inc.; © 1993-1994 Programmed
Logic Corporation; © 1989 Racal InterLan, Inc.; © 1990-1992 RSA Data Security,
Inc.; © 1987-1994 Secureware, Inc.; © 1990 Siemens Nixdorf Informationssysteme
AG; © 1991-1992 Silicon Graphics, Inc.; © 1987-1991 SMNP Research, Inc.; ©
1987-1994 Standard Microsystems Corporation; © 1984-1994 Sun Microsystems, Inc.;
© 1987 Tandy Corporation; © 1992-1994 3COM Corporation; © 1987 United States
Army; © 1979-1993 Regents of the University of California; © 1993 Board of
Trustees of the University of Illinois; © 1989-1991 University of Maryland; ©
1986 University of Toronto; © 1988 Wyse Technology; © 1992-1993 Xware; ©
1983-1992 Eric P. Allman; © 1987-1989 Jeffery D. Case and Kenneth W. Key; © 1985
Andrew Cherenson; © 1989 Mark H. Colburn; © 1993 Michael A. Cooper; © 1982 Pavel
Curtis; © 1987 Owen DeLong; © 1989-1993 Frank Kardel; © 1993 Carlos Leandro and
Rui Salgueiro; © 1986-1988 Larry McVoy; © 1992 David L. Mills; © 1992 Ranier
Pruy; © 1986-1988 Larry Wall; © 1992 Q. Frank Xia. All rights
reserved.
Also note that, as Dr. Stupid pointed out, SCO Group
doesn't claim the copyrights of their own "predecessors in interest", which they
should if they REALLy own those copyrights.
Maybe a reference to the SPECIFIC
copyrighted work they think is being infringed may be in order, ya
think?
---
Eat a toad for breakfast -- it makes the rest of the day seem
so much easier (Chinese (I'm told) proverb) (IANAL and so forth and so on) [ Reply to This | # ]
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| Authored by: jim Reiter on Saturday, September 04 2004 @ 03:13 PM EDT |
Given all the lying and misrepresentation we have seen coming from the
TSG/Caldera camp how do we know that TSG really owns the patents and copyrights
it listed?
I think that TSG should be required to provide proof of ownership of each patent
or copyright they (TSG) claims has been infringed.
These copyrights and patents should also be checked to see that they (copyrights
and patents) have not been released to the GPL by Old SCO/New SCO/Caldera/TSG or
anybody else authorized to do so.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 03:30 PM EDT |
Seems to me that if 1) newSCO's predecessor in interest actually helped in the
migration and 2) knew that the libraries were being used (if in fact they were)
and 3) did not complain that 4) newSCO is estopped from suing for anything. Am
I missing something?
Don Andrews (dwandre)[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 04:00 PM EDT |
Is TSG arguing that merely looking at UNIX manuals when porting from
some UNIX flavor to Linux is violating the copyright on those manuals?
Is TSG arguing that, after an application program has been linked to some
UNIX libraries, that TSG owns that program?
Is TSG arguing that any POSIX compliant program violates TSG's copyrights
in UNIX?
This might be TSG's biggest scam so far. Linux is clean of infringing code.
So, TSG must be claiming that modern software infringes their copyright,
under patent like protection. Only Sun and Microsoft are allowed to legally
write software under TSG's multi-million dollar licenses. Now, the American
software industry is doomed and the American economy will wither. Or,
McBride goes to jail.
This is scary. I hope the judge understands this case and TSG's claims.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 05:01 PM EDT |
I believe the (very valid) previous comments are not the points SCO is attacking
on. In the footnote, SCO claims:
"The term "copying" as used herein includes verbatim copying of
code or man pages, and copying where the resulting product is substantially
similar to the original considering structure, sequence and organization, and
other non-literal elements of the code."
Now, first, if you COPY something, the resulting product is EXACTLY THE SAME as
the original, so in no case can it ever be only "substantially similar to
the original". Their idea of "copying" (which, I believe, is why
they put quotes around it) is the copying of ideas. I think they're going back
to the header files again. Because the Linux errno.h file is
"substantially similar" to SCO's own file, they're once again claiming
that it is infringing their purported copyright. Also, how can you copy
"non-literal elements of the code"? How can you copy something that
isn't there?!?
Moving on to the next sentence of the footnote:
"In addition to copying, SCO's rights may be violated by preparation of
derivative works based on the original, gaining beneficial use of the
copyrighted materials through interfaces or other means supplied by third
parties, or any other act which interferes with the exclusive rights of the
copyright owner protected under 17 U.S.C. ¶106."
My understanding has been that copyright protects you from people COPYING your
materials (in this case, SCO's code and manuals). But now SCO is claiming that
copyright includes how you use the copyrighted materials? This is just
laughable. Let's take the literal meaning of SCO's wording. They claim that
copyright infringement takes place by "gaining beneficial use of the
copyrighted materials through interfaces or other means supplied by third
parties". That means that anyone who uses the code, in any way (even the
way intended and licensed in the contract), is guilty of copyright infringement.
After all, the software requires computer hardware in order to "gain
beneficial use", and that hardware is "supplied by third
parties". So the only people who do not violate SCO's purported copyrights
are those who license the software, but don't actually use the software (other
than, maybe, to level a desk).
But hey, I guess once you start re-interpreting the Court's orders, you might as
well go all out and start re-interpreting the laws as well.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 06:11 PM EDT |
Cant/will AZ declare/certify they dont use SCO software?
in a similar fashion as with Daimler-Chrysler suit?
SCOG's list of improper IP is very vague, is it not?
(a) Dynamic shared libraries;
(b) Dynamic linking code;
(c) Kernel optimization features;
(d) Documentation pertaining to the above including, without limitation, manual
pages.
Should SCOG be more specific? Exactly what...
since they "seem" to have insider knowledge from some unknown source?
If oldSCO helped in the transition (not a migration, since AZ is probably never
going to use their products again..), then everything was used with their
consent, correct?
So, shouldnt AZ just have to declare they dont use SCOGs products anymore, and
the rest, is as previously described, a fishing expedition?
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 06:23 PM EDT |
SCO has been maintaining that it is going to bring copyright violations against
linux end users - but what has this got to do with linux?
This is like making a declaration like I'm going to sue end users of microsoft
and then sue some of them because they comitted murder or something like that
(who happen to be MS users)
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| Authored by: MadScientist on Saturday, September 04 2004 @ 07:07 PM EDT |
"SCO is informed"
By whom? Is thier testimonty credible? On what basis do they make these
statements?
++++++++++++++++++++
"Based upon SCO's employees"
Deliberate play on the ambiguity here of "SCO". This point *must* be
clarified. Are newSCO refering to oldSCO who might know something - and who are
almsot certainly under a non disclosure agreement (NDA) or newSCO's who might
not know anything anyway. If oldSCO employees were under a NDA and still talked
to someone in newSCO I suspect these persons are for the high jump.
Its no wonder newSCO does not have affidavits (yet) from them. I would not want
AZ pursing me *personally* for an NDA breech.
Admittedly we dont know that oldSCO employees were under an NDA - its just very
likely they were working under an NDA. Nor do we know the terms of the NDA - it
just likely that the NDA (if it existed) would allow AZ to persue the persons
concerned as indivuals. However Im sure AZ's lawyers can find this out. If this
is correct I think SCO might have a problem producing credible affidavits to
support their assertions.
+++++++++++++++++++++++++++
"SCO believes that it is reasonably likely"
The factual basis for this statement is?
To recall PJ's comment - You need *facts* in a court of law. "Reasonably
likely"will not get anyone an injunction - which I suggested a while ago
might be the judge's intent here: to flush out at least some facts from SCO.
++++++++++
"SCO is further informed and believes that it is reasonably likely"
Reasonably likely again. Informed by whom? This really sounds like a "to
the best of my present knowledge and belief" statements - "this might
be wrong but dont blame me if it is." The basis for this belief is? -
reading the man pages?
++++++++++++++
"any use of copyrighted materials i.e., source code and manuals, in a way
that is inconsistent with exclusive rights of the copyright owner protected
under 17 U.S.C.A. ¶106, constitutes a prima facie copyright infringement."
This is a piece of legal nonsense.
AZ took a contract out with SCO to use the code and manuals in such a way that
would have *otherwise* infringed SCO's exclusive copyrights. If AZ did not have
this contract then they would be infringing.
SCO appears here to be ignoring the fact that AZ had a contract in the first
place. Curious that.
Nor have SCO here or indded at anytime spelled out what infriging use was made.
Were the code used on too many machines? Were the manuals photocopied? And if so
which parts?
Reading the manuals will not infringe copyrights. You ahve to make copies of the
work to infringe. And these copies must be made outside the licence/contract you
have with the copyright holder. No contract/licence -> automatic
infringement.
SCO dont bother to look that AZ did have a contract to use a lot of SCO code and
UNIX code (which SCO almost certainly dont own) and the SCO manuals which they
certainly do own. SCO just seem to assume the contracts did not exist and AZ
gave SCO money just because AZ thought SCO were nice guys. Hmm.
SCO have to show copying of thier copyrighted materials outside the existing
contract to even get off the starting block. Just claiming that something
*might* have happened is just an excuse for a fishing trip - an explicitly
excluded use of the discovery process.
++++++++++++++++++++++
You have to read the footnotes *very* carefully in SCO filings. SCO do tend to
put the meat of thier point in the footnotes.
"copying where the resulting product is substantially similar to the
original considering structure, sequence and organization, and other non-literal
elements of the code."
Deliberate confusion here. Sequence and organisation cant be copyrighted per se.
They can be in the case of a factual compilation eg telephone books, law cases
but that is not applicable here.
German law is much cleared on this poitn wherein it recognises a seperate
catagory for compilations of factual works so these can be dealt with
seperately. This attempt by SCO at confusing the issues would never arise under
German law.
Other non literal elements of the code: We are back to the
abstraction-filtration-comparison test of Prof Davies.
Im sure the Germans/Austrians/Swiss have a humongous single word for this test.
Anyone know? We do have posters here from all these countries.
SCO seem to have flunked that test in the IBM case pretty badly. Whats the
betting SCO dont do any better here?[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 04 2004 @ 08:19 PM EDT |
the dongle is the hardware tie-in for restricting the CPU the software runs
on...[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 05 2004 @ 08:52 AM EDT |
Why does SCOG not file any affidavits from these "knowlegable
employees" and "informed sources"?
Why did AutoZone file an Emergeny Motion?
Let me speculate that SCOG has served some far reaching and highly intrusive
discovery demands on AutoZone, something on the order of what they are trying to
get from IBM.
Something like;
"Provide the names, contact information and bank accounts of all employees
who ever worked on your Linux applications, including but not limited to every
clerk in every store who ever used these applications, and the exact line number
and file they used."
"Provide every piece of paper, including toilet paper, of every executive
ever to say the word Linux."
"Provide all of your computers so we can verify that you don't have and of
our IP, as we define it, on them."
--
rsteinmetz70112
on the road.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 05 2004 @ 12:39 PM EDT |
I know a lot of legal vocabulary has an entirely different
meaning than normal usage vocabulary as found in major
dictionaries so I am not surprised when sentences have
different meaning than what one would normally expect.
Given that what I am not aware of is legal grammar
different from normal grammar? Do lawyers randomly
change the tense of sentence in order to be confusion or to
obfuscate?
Consider TSCOG statements "SCO is informed and ....".
How can in normal English can SCO become "is informed"
since the very process of informing them of an action is a
one time event.
"The house is painted red" implies that the house was
painted red in the past, is currently painted red, and will
continue to be painted red in the future.
Now consider the meaning of "SCO is informed". This
implies that SCO was informed of this even in the past, the
information flow has been continuous up through the
present, that a present in the present the information flow is
continuing, and that the information will continue indefinitely
into the future. Not likely.
Now consider the meaning of " SCO has been informed".
This implies that at some undefined point in the past that
an information flow was initiated that transmitted certain
information to SCO and that this information flow
terminated in the past. It does not preclude that there is
another information information flow in progress at the
present time or that they there could be other information
flows in the future but the statement does not say that.
The reason for asking the question is the relation of the
starting and stopping of actions and information flows in
the past, present, and future are usually learned in
grammar school in any decent school system and by high
school these concepts should be well entranced in
anyones intellectual skill set. But! Here we have individuals
who hot only have graduated from grammar school, high
school, four years of college and legal graduate school
where words and sentences are used as weapons
sounding like grammar school drop outs.
[ Reply to This | # ]
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| Authored by: samsamiam on Sunday, September 05 2004 @ 04:14 PM EDT |
| The following are excerpts from an August 2000 SEC filing by Santa Cruz; “The
Agreement and Plan of Reorganization” August 2000 SEC filing by Caldera; and
“Third Amendment to the Agreement and Plan of Reorganization” February 2001 SEC
filing by Caldera.
“SCO” = Santa Cruz
“new SCO - Tarantella
“Newco
= New Caldera
Santa Cruz – August 2000 “Document 1”
7.
What will be the assets of the new SCO after this transaction takes
place?
The Santa Cruz Operation, Inc. will be made up of the Tarantella
Product Division and its assets, the SCO OpenServer intellectual
property and its future revenue stream, and the assets of our
investment holdings (Caldera, Rainmaker,LinuxMall, etc.). The headquarters will
be in Santa Cruz, CA and there will be
approximately 230 employees worldwide.
8. What happens to the SCO branding and logo?
Caldera is acquiring
the SCO brand and logo, although SCO will retain usage
rights.
Caldera – August 2000 “Document 2”
1.4 Contribution and Transfer of Contributed Stock
and
Contributed Assets.
(b) Excluded
Assets.
(i) Excluded Assets. SCO is not selling and Caldera
shall not acquire from SCO any of the following assets or any interest therein
(collectively, the "Excluded Assets"):
(A) any assets related solely to the
SCO Retained Business;
(B) any cash and cash equivalents and any accounts
receivable (the "Cash Equivalents") of the Contributing Companies and the
Contributed Companies;
(C) those assets set forth on Exhibit
1.4(b).
Caldera – February 2001 “Document
2”
5.Section 1.4(b)(i) is hereby amended by adding the
following sentence to the end of such
section:
Notwithstanding Sections 1.4(b)(i)(A)-(C),
Newco's continued use of certain Excluded Assets as part of
UnixWare and OpenServer, and sale of certain unbundled and bundled products
including certain Excluded Assets, is set forth in Exhibit
1.4(b)(i).
It is the word "use".
This amendment would appear uneccessary if all these IP assets were acquired by
Caldera.
[ Reply to This | # ]
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| Authored by: AdultSupervision on Monday, September 06 2004 @ 10:01 AM EDT |
My understanding/interpretation of this follows. IANAL. I am accepting the
exact literal truth of the statement.
This is the basis for their claim for
a Preliminary Injunction.
why they should get a PI
This is the Nature
of Relief. the harm that will stop if the PI is granted.
Statements
with waffle-words left out. Statements like "TSG is informed..." are shown as:
"TSG has heard allegations..." Statements like "TSG believes..." or "it is
likely that..." are omitted entirely, as are statements of fact that are not
relevant to an actual offense (Example: "Openserver uses static shared
libraries")
TSG says "This is true." "Here is evidence" of something that
actually occurred:
1.a The Court stayed discovery on Aug 6,2004.
1.b
Court permitted TSG to conduct discovery in order to determine whether to file
for a PI.
(The judge actually said "If you don't have the right to a
preliminary injunction, you shouldn't proceed with discovery at all.")
2.a
TSG has heard allegations that AZ may have infringed, may have switched
to Linux.
2.b TSG has heard allegations that AZ infringed these specific
versions of Open Server:x,y,z.
2.c TSG has heard allegations that AZ
infringed these specific things:a..d.
2.d This is not all that TSG has
heard.
2.footnotea: "copying" as used here doesn't mean what it does in
plain English or in the Law. (that is, no reference to dictionary or exact legal
code or case law).
2.footnoteb: Creating derivative works can also be
infringement.
3.a Copyright infringement is against the law.
3.b
Irreparable harm is assumed.
4.a TSG intends to conduct discovery to
determine whether to ask for a PI.
5.a If TSG decides, TSG will ask for a
PI.
Facts here: TSG has heard a bunch. The stay happened on Aug 6. The
judge allowed a fishing trip.
three facts: One is true (the date), one is
wrong ("The judge permitted..."), one is suspect ("TSG has heard a bunch" - we
haven't seen who told them what and why it's admissable).
As far as plain
talk and honesty goes, not a bad day for TSG (compared to their history).
I
don't see here anything about why they should get a PI, nor what harm will be
relieved if they get it. I don't see that AZ has done anything. I don't see
anything that explains what the PI should order AZ to stop doing.
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