Here is SCO's Statement of Basis for Claim for Preliminary Injunctive Relief and Nature of Relief, found on page 86 of what we are jokingly calling "The Collected Works of SCO v. Autozone".
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 Oder dated August 6, 2004, the Plaintiff, SCVO 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 expedited 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 static 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 exhautive 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 inconsistant 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.,
991 F.2d.511, 519 (9th
Cir. 1993). Furthermore, irreparable harm is presumed and it is not a
defence 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 Oder, 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.
Satate 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.
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