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SCO's Report on Discovery in AutoZone, as text |
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Thursday, June 09 2005 @ 03:47 AM EDT
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Here's SCO's Report of Plaintiff The SCO Group, Inc. Regarding Discovery Pursuant to the Order of the Court Dated August 6, 2004 [PDF], as text, thanks to Steve Martin. We have earlier commented on this Report. Remember that this is the document that AutoZone says it will respond to, claiming that it contains "material misstatements." If you read all SCO's exhibits, the depositions and letters from AutoZone, which you will find in the earlier article, I think you may agree.
**************************************************
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
THE SCO GROUP, INC.,
a Delaware corporation.
Plaintiff,
v.
AUTOZONE, INC.,
a Nevada corporation,
Defendant.
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Case No. CV-S-04-0237-RCJ-LRL
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REPORT OF PLAINTIFF THE SCO GROUP, INC. REGARDING DISCOVERY
PURSUANT TO THE ORDER OF THE COURT DATED AUGUST 6, 2004
Stanley W. Parry, Esq.
Nevada Bar No. 1417
CURRAN & PARRY
[address]
[phone]
David S. Stone, Esq. (Adm. Pro Hac Vice)
Robert A. Magnanini, Esq. (Adm. Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff The SCO Group, Inc.
1
INTRODUCTION
Plaintiff, The SCO Group, Inc. ("SCO") submits this report regarding discovery pursuant
to the Court's August 6, 2004 Order, as amended, granting SCO limited discovery to determine
whether or not it is necessary to move for preliminary injunctive relief against Defendant
AutoZone, Inc. ("AutoZone"). In light of the many extensions of discovery that have been
requested from the Court, the recent written submission of AutoZone and the substantial time
which has elapsed since the entry of the Court's Order, SCO believes it is necessary and
appropriate to submit this formal report to the Court regarding the current status of this action.
Contrary to public statements by AutoZone in open court and an Internet posting of
AutoZone's former Senior Technology Advisor to the effect that no SCO libraries were copied
during AutoZone's migration to Linux, the limited discovery ordered by this Court has
uncovered extensive copying (over 110,000 copies) of what SCO believes to be programs
containing SCO proprietary OpenServer code. However, after the copying of these programs
was revealed in discovery, AutoZone has sworn that it has voluntarily removed all such
programs from its Linux servers or certified that such programs have been recompiled without
such code and SCO has confirmed such removal.(1) Accordingly, SCO has elected not to file for
preliminary injunctive relief at this time.
SCO reserves its right to conduct additional discovery and to seek injunctive relief, if
appropriate, and to pursue claims for damages for the copying that has occurred once the Court
lifts the stay in this matter. Given that this initial discovery phase concluded only approximately
two weeks ago, SCO continues to evaluate the data and information provided by AutoZone in
discovery to determine whether it is necessary and appropriate to file a motion for relief from the
2
stay for the purpose of allowing SCO to pursue copyright infringement and related claims based
solely on AutoZone's migration to Linux which are not implicated or involved in the matters
encaptioned; The SCO Group, Inc. v. International Business Machines Corporation, Case No.
2:03CV0294 DAK (D. Utah); The SCO Group, Inc. v. Novell, Inc., Case No. 2:04CV00139 (D. Utah)
or; Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del.)
PROCEDURAL AND FACTUAL BACKGROUND
SCO instituted this action against AutoZone on March 3, 2004 when it filed a Complaint
alleging, among other things, that AutoZone has infringed SCO's copyrights by "using, copying,
modifying, and/or distributing parts of the copyrighted materials, or derivative works based on
the copyrighted materials in connection with its implementation of one or more versions of the
Linux operating system inconsistent with SCO's exclusive rights under the Copyright Act." (See
Complaint ¶ 21). In essence, SCO alleged that, when AutoZone migrated its 3500 store
computers and other computers located in its headquarters from SCO's proprietary OpenServer
UNIX-based operating system to the Linux open source operating system, it violated the
copyright laws by using SCO's proprietary OpenServer materials to facilitate this migration
process and by copying or modifying SCO's proprietary OpenServer materials during the
migration. In addition to this allegation, SCO also alleged that the version of Red Hat Linux
which AutoZone was using contained SCO proprietary OpenServer materials for which
AutoZone did not have a license. (See Complaint ¶ 1).
On April 23, 2004, AutoZone filed a motion to stay this action or, in the alternative, for a
more definite statement, and a motion to transfer venue from this Court to the United States
District Court for the Western District of Tennessee. In its motion papers and at oral argument,
AutoZone aggressively asserted that SCO had "no cause of action against AutoZone" and further
that discovery into AutoZone's alleged infringement "ultimately will not be fruitful." (See July
3
12, 2004 Oral Argument Tr. 13:21-22, 27:22-28:1).(2) The Court denied AutoZone's motion for a
more definite statement and to transfer venue and granted AutoZone's motion to stay, in part, in
light of ongoing related proceedings in the United States District Court for the District of Utah
and the United States District Court for the District of Delaware which also involve SCO. (See
August 6, 2004 Order).
In response to SCO's claim that it had a reasonable basis to believe that it may be
irreparably harmed if AutoZone continued to use SCO proprietary materials during the pendency
of the stay, the Court ordered that the parties should conduct limited discovery to permit SCO to
determine whether or not it was appropriate for SCO to move for a preliminary injunction at this
time. (See July 12, 2004 Oral Argument Tr. 22:12-19, 24:9-10, 25:8-12). While the Court did
not explicitly limit discovery, the Court indicated it did not wish SCO to impinge upon copyright
issues which were implicated in the matters encaptioned: The SCO Group, Inc. v. International
Business Machines Corporation, Case No. 2:03CV0294 DAK (D. Utah); The SCO Group, Inc. v.
Novell, Inc., Case No. 2:04CV00139 (D. Utah) or; Red Hat, Inc. v. The SCO Group, Inc., Case
No. 03-772-SLR (D. Del.), but, rather, to focus on the issue of AutoZone's migration to Linux
and its possible use of SCO licensed materials in connection with that migration. (See, e.g., July
12, 2004 Oral Argument Tr. 22:3-14; September 9, 2004 Oral Argument Tr. 5:1-6:1).
However, shortly after the Court entered its August 6, 2004 Order providing for such
discovery, AutoZone again attempted to prevent such discovery from occurring by filing a
"Emergency Motion to Stay All Remaining Proceedings Related To The Issue Of Preliminary
4
Injunctive Relief" claiming SCO's intent to pursue discovery — and thereby determine whether or
not AutoZone was indeed infringing its OpenServer code — was "nothing more than a fishing
expedition." (See Defendant AutoZone, Inc.'s Memorandum of Law in Support of its
Emergency Motion to Stay p. 1). Previously, Jim Greer, one of AutoZone's Senior Technology
Advisors, and one of the primary AutoZone developers in charge of the migration had posted a
statement on the Internet denying categorically that AutoZone had copied any SCO files or code
during the migration process. (See Deposition of James Greer Tr. 20:22-21:3, 84:20-85:24,
151:24-153:22; Ex. D to Decl. of David S. Stone). Defendant alluded to this public posting to
justify its emergency motion for a stay. (See September 9, 2004 Oral Argument Tr. 6:7-10).(3)
At oral argument on September 9, 2004, in response to a query from the Court as to why
SCO should not be allowed to take the limited expedited discovery previously ordered by the
Court, Counsel for AutoZone represented to the Court that SCO had not shown why AutoZone
couldn't have "written around those libraries" and "didn't need them" (i.e. copyrighted SCO
OpenServer libraries). (See September 9, 2004 Oral Argument Tr. 6:7-17). Therefore,
AutoZone claimed, the Court should not allow SCO to conduct discovery into the alleged
copyright infringement. (See September 9, 2004 Oral Argument Tr. 6:7-10). In rejecting
AutoZone's arguments and denying its emergency motion to stay, the Court made clear that the
purpose of the limited discovery was to permit SCO to get access to the code and other materials
in AutoZone's possession to determine whether infringement had occurred and whether or not
irreparable harm existed. (See September 9, 2004 Oral Argument Tr. 9:15-16, 10:1-4). SCO's
counsel advised the Court and AutoZone at that oral argument that it intended to report to the
Court at the end of discovery on its findings and whether or not it intended to file for a
preliminary injunction motion. (See September 9, 2004 Oral Argument Tr. 14:17-22).
5
DISCOVERY FINDINGS
The Court-Ordered limited discovery related to AutoZone's migration from OpenServer
to Linux and its possible use of SCO licensed materials in connection with that migration
(including depositions of Mr. Greer, the author of the Internet posting, and Bob Celmer, a senior
AutoZone Information Technology Officer) has now been completed after several extensions by
consent of the parties of the original discovery period ordered by the Court. The reason for these
extensions was the substantial amount of material uncovered by SCO in discovery which
demonstrated that, contrary to AutoZone's denials and public statements that it "wrote around
the SCO libraries," (See September 9, 2004 Oral Argument Tr. 6:7-10) in fact, AutoZone
made a substantial number of copies of files containing SCO's proprietary code during the migration
process.
Initially, AutoZone claimed in response to SCO's Interrogatories and Requests for
Admissions that it had copied only a "few minor programs ... onto [AutoZone's] Linux image"
and further, that two such programs had not been used "since 2003." (See Defendant AutoZone,
Inc.'s Responses to Plaintiff's First Set of Interrogatories, Response No. 3; Ex. F to Decl. of
David S. Stone). However, AutoZone later admitted that the copying was far more expansive.
Indeed, discovery later revealed that during the migration process and subsequent to the process,
AutoZone created over 110,000 copies(4) of OpenServer files
in the COFF format(5) onto its various
Linux servers located in its headquarters and its 3500 stores in the United States and Mexico, the
vast majority of which, based on SCO's review of the files produced in discovery, contain SCO
6
proprietary code. (See, e.g. November 24, 2004 Letter from David J. Stewart to David S. Stone;
Ex. B to Decl. of David S. Stone; March 4, 2005 Letter from Douglas L. Bridges to David S. Stone
and enclosures thereto; Ex. E to Decl. of David S. Stone). Discovery further revealed that
virtually all of these files were "statically linked" during the "compiling" process to SCO
proprietary libraries or portions thereof. (See, e.g., Deposition of Bob Celmer Tr. 20:25-23:23;
Ex. A to Decl. of David S. Stone; March 4, 2005 Letter from Douglas L. Bridges to David S.
Stone and enclosures thereto; Ex. E to Decl. of David S. Stone).
Furthermore, it is not surprising that such copying occurred since SCO's discovery also
revealed that the AutoZone migration process was carried out in an ad hoc manner by developers
who had worked with and were familiar with SCO's proprietary OpenServer code and materials
with no formal controls in place to protect those materials. (See, e.g., Deposition of James Greer
Tr. 36:18-37:17; Ex. D to Decl. of David S. Stone; Deposition of Bob Celmer Tr. 16:13-18:9,
146:17-148:13; Ex. A to Decl. of David S. Stone). For example, at his deposition, Mr. Greer
admitted that, contrary to the implication of his Internet posting, no formal protections had been
put in place at AutoZone to protect SCO's proprietary software and that he never examined the
binaries (or underlying source code) on AutoZone's Linux servers after the migration to
determine if the included any SCO code. (See Deposition of James Greer Tr. 71:24-72:6, 88:25-89:8;
Ex. D to Decl. of David S. Stone). Furthermore, neither Mr. Greer nor Mr. Celmer
consulted copyright counsel or any counsel prior to or during the porting process nor did they
have knowledge that anyone had consulted AutoZone's licenses with SCO to determine if
AutoZone's planned migration procedures were permitted by the relevant licenses. (See, e.g.,
Deposition of Bob Celmer Tr. 16:13-17:3, 17:22-18-9; Ex. A to Decl. of David S. Stone;
Deposition of James Greer Tr. 69:9-12, 77:7-15; Ex. D to Decl. of David S. Stone). Indeed, Mr.
Celmer testified that he and others responsible for implementing the migration were not focused
7
on protecting SCO's OpenServer copyright materials and were, instead, focused on the most
efficient way to modify the binaries AutoZone created to work on OpenServer so that they would
run on Linux. (See Deposition of Bob Celmer Tr. 37:13-38:18; Ex. A to Decl. of David S. Stone).
SCO's discovery to date has now confirmed that AutoZone engaged in the following
activities which SCO has reason to believe violated AutoZone's licenses and the federal
copyright laws:
1. AutoZone developers copied 1,681 separate COFF files onto 387 AutoZone store
machines located throughout the United States. (See November 24, 2004 Letter from David J.
Stewart to David S. Stone; Ex. B to Decl. of David S. Stone).
2. AutoZone developers copied 28 COFF files consisting of sort files and help utilities
and other miscellaneous files onto all 3500 of its machines located in AutoZone's stores located
in the United States and Mexico. (See, e.g., Deposition of Bob Celmer Tr. 76:8-80:12, 114:11-19;
Ex. A to Decl. of David S. Stone; November 24, 2004 Letter from David J. Steward to David S.
Stone; Ex. B to Decl. of David S. Stone).
3. AutoZone copied two COFF files "Compx" and "Decompx" which were programs that
it had licensed from a third party which contained proprietary SCO code onto all 3500 of its
machines located in the United States and Mexico and has been using those files since at least
January 2000 until AutoZone deleted them during the Court-ordered discovery process. (See,
e.g., November 24, 2004 Letter from David. J. Stewart to David S. Stone; Ex. B to Decl. of David S.
Stone). When AutoZone deleted Compx and Decompx from its Linux servers, the replenishment
system used by AutoZone to replace inventory from its warehouses failed on approximately 650
of AutoZone's store machines as a result. (See, e.g., November 24, 2004 Letter from David J.
8
Stewart to David S. Stone; Ex. B to Decl. of David S. Stone; Deposition of Bob Celmer Tr.
36;20-37:3; Ex. A to Decl. of David S. Stone).
4. AutoZone's machine load computer was found to contain a program entitled d-expand.x that was compiled under SCO's proprietary OpenServer operating system. (See, e.g.,
Deposition of Bob Celmer Tr. 96:23-100:11; Ex. A to Decl. of David S. Stone; November 24, 2004
Letter from David J. Stewart to David S. Stone; Ex. B to Decl. of David S. Stone).
5. Based upon SCO's review of materials and data produced by AutoZone in discovery,
AutoZone copied over 4,500 programs that were compiled to run on OpenServer onto
AutoZone's "Spirit Server" which was used to store AutoZone's source code located in
AutoZone's headquarters. (See March 4, 2005 Letter from Douglas L. Bridges to David S. Stone
enclosing an image of the Spirit Server bates-stamped AZ00473-AZ00475; Ex. E to Decl. of
David S. Stone). The vast majority of these programs contain some portion of SCO's proprietary
static libraries. Id. AutoZone has admitted to copying at least 1,130 programs compiled to run
on OpenServer onto Spirit. (See November 24, 2004 Letter from David J. Stewart to David S.
Stone; Ex. B to Decl. of David S. Stone).
6. In addition, as a result of a script written by SCO's technical consultant, AutoZone
discovered an additional 15 SCO-Elf and Xenix files which were also compiled to work on SCO
proprietary operating systems (earlier versions of OpenServer that were licensed by AutoZone)
which AutoZone admits "likely also exist on all 3500 AutoZone store servers." (See January 11,
2005 E-Mail from David J. Stewart to David S. Stone; Ex. C to Decl. of David S. Stone).
7. SCO's review of materials and data produced by AutoZone in discovery reveals that
AutoZone copied approximately 370 programs onto its Linux development machine known as
"Wrangler." (See March 4, 2005 Letter form Douglas L. Bridges to David S. Stone enclosing an
image of the Wrangler Server bates-stamped AZ00480-AZ00483; Ex. E to Decl. of David S.
9
Stone). The majority of these programs appear to contain some portion of SCO's proprietary
static libraries. Id.
8. AutoZone developers copied numerous SCO files the precise number of which has
not been disclosed in discovery, onto AutoZone's "Vision" server which was used in part by
AutoZone to compare the output of programs that it was porting from OpenServer to the Linux
operating system to ensure that the output was identical. (See Deposition of Bob Celmer Tr.
118:1-13, 139:11-140:11; Ex. A to Decl. of David S. Stone).
CONCLUSION
In conclusion, as a result of the discovery ordered by this Court, and contrary to the
representations by AutoZone to this Court in its motion papers and even in AutoZone's
preliminary responses to SCO's initial discovery requests, SCO has now established that during
its migration process to Linux, and subsequent to that process, AutoZone copied and otherwise
used substantial amounts of SCO proprietary code during the migration process from SCO's
proprietary OpenServer operating system software to Red Hat Linux. Discovery has shown that
AutoZone made over 110,000 copies of programs, binaries and/or files created to be used with
SCO's proprietary OpenServer operating system, the vast majority of which contained SCO
proprietary code, and placed those files on its machines running the Linux operating system.
Accordingly, this Court was well warranted in ordering the limited discovery requested.
Although the limited discovery thus far conducted has not established precisely how many of
these "copied" files were being used by AutoZone and at which stores, such discovery
conclusively shows that some of these files clearly were being used by AutoZone in its business
up until they were disclosed in discovery in this case. As a result of this Court's Order,
AutoZone and SCO were able to identify the files in question and ensure that they were deleted
or recompiled so that no further future use of those files on any AutoZone Linux servers would
10
occur. Based upon the foregoing, although SCO reserves all of its rights to pursue damages
against AutoZone for the extensive copying and alleged copyright or related violations that have
occurred, based on AutoZone's sworn representations that it has removed and is not currently
using programs or files containing SCO proprietary materials in any of its Linux operating
system servers and will not do so in the future, SCO does not believe preliminary injunctive
relief is necessary at this time. SCO has reason to believe that AutoZone may also be violating
SCO's copyrights and other intellectual property rights as a result of its use of the Linux
operating system itself. However, it is SCO's understanding that the Court has stayed discovery
and other proceedings relating to these issues pending further order of the Court and/or the
resolution of the SCO v. IBM and/or Red Hat v. SCO matters which implicate these issues.
Accordingly, SCO reserves its right to pursue appropriate remedies for these alleged violations
once the Court has lifted the stay on these proceedings.
Respectfully submitted,
(signature)
Stanley W. Parry, Esq.
Nevada Bar No. 1417
CURRAN & PARRY
[address]
[phone]
David S. Stone (Adm. Pro Hac Vice)
Robert A. Magnanini, Esq. (Adm. Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff The SCO Group, Inc.
Dated this 27th day of May, 2005
11
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While SCO requested that AutoZone produce original source code for binaries running on its Linux system,
AutoZone objected and refused to do so on various grounds including undue burden. (See AutoZone's Response to
SCO's First Request For Production of Documents Request Response No. 2; Ex. F to Decl. of David S. Stone).
Accordingly, the conclusions set forth in this report are based upon review of the programs in binary form and
related documents and data produced by AutoZone.
(Back to the main text)
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SCO has submitted what it believes to be the most relevant sections of pertinent documents referenced in this
report as Exhibits to the Declaration of David S. Stone which has been submitted herewith. However, given the
relatively voluminous nature of the record and the fact that SCO has elected not to file for a preliminary injunction
at this time, SCO has not submitted every document from discovery which is referenced in this report. However,
SCO has prepared a comprehensive appendix which contains the entire record of the discovery which has been
conducted and will, of course, provide portions of such appendix or the entire appendix to the Court and AutoZone's
Counsel should either desire to review them. Defendant AutoZone has copies of all of the underlying documents
and, indeed, is the author of many of them.
(Back to the main text)
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In his deposition, Mr. Greer, contrary to his well-publicized Internet post, admitted that AutoZone had copied
certain files in its migration process to Red Hat Linux which AutoZone later admitted were statically linked to SCO
libraries. (See Deposition of James Greer Tr. 124:21-126:10; Ex. D to Decl. of David S. Stone).
(Back to the main text)
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The total number of copies referenced takes into account that some files were copied onto every one of
AutoZone's 3500 servers throughout the United States and Mexico. (See, e.g. Deposition of Bob Celmer Tr. 67:7-21,
68:16; 80:1-9; Ex. A to Decl. of David Stone).
(Back to the main text)
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As AutoZone has admitted, COFF files "are executable files in a format that is normally used only on SCO
OpenServer computers." (See November 24, 2004 Letter from David J. Stewart to David S. Stone; Ex. B to Decl. of David S. Stone). Because COFF files are created to work with SCO's OpenServer, they generally contain portions
of SCO proprietary code including static libraries to allow them to run efficiently (See Deposition of Bob Celmer
Tr. 20:25-23:23, 29:25, 54:7-14, 57:1-12; 57:21-25; Ex. A to Decl. of David S. Stone).
(Back to the main text)
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Authored by: fudisbad on Thursday, June 09 2005 @ 04:11 AM EDT |
For current events, legal filings, 3rd amended complaints and Caldera®
collapses.
Please make links clickable.
Example: <a href="http://example.com">Click here</a>
---
See my bio for copyright details re: this post.
Darl McBride, show your evidence![ Reply to This | # ]
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Authored by: sappha58 on Thursday, June 09 2005 @ 04:20 AM EDT |
...so PJ can find them.
(This is for those who don't see the anonymous thread.)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 04:52 AM EDT |
I can't believe they are saying this with a straight face.
Autozone should have handled removal in a way that they could sue SCO for the
costs involved. There is no sane legal argument for this crap of SCOs.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 05:11 AM EDT |
Are they actually claiming that if you compile a file on one operating system
and run it on another you are violating the copyright of the first system? If
that is the case I guess there are billions of embeded devices out in there in
the world which have issues.[ Reply to This | # ]
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- No, they are not - Authored by: Anonymous on Thursday, June 09 2005 @ 06:29 AM EDT
- No, they are not - Authored by: MathFox on Thursday, June 09 2005 @ 07:27 AM EDT
- No, they are not - Authored by: Anonymous on Thursday, June 09 2005 @ 08:23 AM EDT
- No, they are not- Hmmm... - Authored by: Anonymous on Thursday, June 09 2005 @ 08:23 AM EDT
- Hey, no problem, buddy - Authored by: Anonymous on Thursday, June 09 2005 @ 10:57 AM EDT
- oo u r so 133t - Authored by: Anonymous on Thursday, June 09 2005 @ 12:38 PM EDT
- oo u r so 133t - Authored by: Weeble on Thursday, June 09 2005 @ 01:04 PM EDT
- oo u r so 133t - Authored by: anwaya on Thursday, June 09 2005 @ 03:03 PM EDT
- oo u r so 133t - Authored by: Anonymous on Thursday, June 09 2005 @ 03:08 PM EDT
- Um - Authored by: WhiteFang on Thursday, June 09 2005 @ 05:16 PM EDT
- Um - Authored by: Anonymous on Friday, June 10 2005 @ 12:05 AM EDT
- Um - Authored by: urzumph on Friday, June 10 2005 @ 01:00 AM EDT
- Then, they are wrong. - Authored by: Ian Al on Friday, June 10 2005 @ 05:20 AM EDT
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Authored by: Anonymous on Thursday, June 09 2005 @ 05:37 AM EDT |
they generally contain portions of SCO proprietary code including static
libraries to allow them to run efficiently
I had not considered this
before. What this says to me, is that if I had a program that I wrote, and then
I compiled it on OpenServer, and subsequently copied the binary to another
machine, then by SCO's argument I have stolen their code.
This would seem to
mean that (again, in the world according to sco) binaries of open source
projects for OpenServer can not be copied from computer to computer, because
they now contain sco's copyrighted code.
Of course, I am probably missing
something pretty vital. I don't know much about OpenServer. I'm assuming this is
about files linked during the compile process, and not the way I remember oldSCO
used to embed drivers into its kernel for booting. I think it's been 8 or 9
years since I last looked at oldSCO's Unix. [ Reply to This | # ]
|
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Authored by: Anonymous on Thursday, June 09 2005 @ 05:47 AM EDT |
"what SCO believes to be programs containing SCO proprietary
OpenServer code"
SCO are free to believe anything that they like. It's when
they state their beliefs as fact that we have a problem. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 06:42 AM EDT |
Statically linking with a library is clearly making a copy of it, for which you
need a license. Copying the resultant binary - containing SCO's copyrighted
content - is another duplication, requiring another license.
Exactly the same argument - and the same protection in law - applies to GPLed
libraries. You need a license to duplicate a GPLed library, which you get by
(among other things) GPLing the content that you're linking it to.
SCO do have a point here, and we can't argue one rule for GNU/GPL and another
for SCO. Autozone do need to be able to show that they were licensed to link
statically with SCO libraries on a SCO OS (which they probably were) AND that
they were licensed to duplicate the resultant binary on a non-SCO OS, which may
- *may* - be a different issue.
In this case, it all comes down to what Autozone's contract (and the licenses
contained) says, but SCO might be in with a swinging chance in this case.[ Reply to This | # ]
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Authored by: Stephen on Thursday, June 09 2005 @ 07:31 AM EDT |
SCO's report contains some confusing references to COFF-format binaries, as
if the very format of a file indicates a license violation for the code within.
It reminds me of the early days of MS-DOS when someone (perhaps Microsoft?)
tried to claim a copyright interest in all binaries produced with their
development tools because of a few bytes of standard file format generated by
the linker. They backed down eventually, though I'm not sure if it was because
of legal or economic pressure. Anybody recall more about this story? If it
went to court, it could be a useful (or at least interesting) precedent for this
case.
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Authored by: dyfet on Thursday, June 09 2005 @ 07:44 AM EDT |
Historically, at one time there was only "static linking", whereby system
libraries and third party libraries were physically linked into and present in
the final executable code. Dynamic linking was available all the way back
with SCO/Microsoft Xenix, as well as the later OpenServer, although it had a
bizzare and relativily inflexible dynamic linking scheme which was only later
fixed with the aquisition of UnixWare and elf. Hence dynamic linking was
available throughout the history of SCO Unix.
It is also true many older
Unix products were built, and often commercially
sold and otherwise
distributed, that were statically linked. While this practice
is well codified
in free unix licensing, which (like BSD) either have a libc under
a BSD
license, or GNU (glibc) which uses the Lesser GPL, I do not offhand
know what
terms if any are seperately or explicitly defined, for example, in
SCO's
particular libc.
I also recall a couple of years ago somebody from Microsoft
tried to
retroactivily claim that any code ever produced using visual studio
(that hence
uses Microsoft runtime libraries) could not be used on
"non-genuine"
microsoft operating systems and was roundly laughed at in the
trade press. I
never heard anything more about this since then, either.
So what were the terms of SCO libc? I suspect that SCO is being
disingenues
in stating the ones of SCO openserver itself (SCO, disingenous!).
Clearly there
were plenty of commercial products statically linked made by
companies,
some of whom must have at least looked into the question at the
time. SCO
can state whatever terms it now chooses for NEW users of SCO libc
(are there
any...??) but certainly cannot change them retroactivily.
Of
course, nothing with SCO is simple. Of course SCO says nothing that is
relevant to problems with GNU/Linux. SCO is the poster child for why ideally
one should never buy or use commercial proprietary software, however.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 08:08 AM EDT |
So if, taking this example of AZ statically compiling code on OpenServer, then
running the resultant executable on a different operating system is illegal
copying of code, does that mean that all those Windoes apps that are running
under Wine are in violation of "stealing" MS code?[ Reply to This | # ]
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Authored by: ak on Thursday, June 09 2005 @ 08:33 AM EDT |
From the SCO website: "Binary Compatibility
Modules and Runtime Library Packages":
"Here are a couple of cases where
you may need to install an additional package to enable your development system
of choice.
"In order for either Java applications or for UDK-built
applications to run on OpenServer 5, the appropriate Binary Compatibility Module
(package OSRcompat) must be installed on the OpenServer system. The Binary
Compatibility Module is free and you may redistribute it with your
application. The latest version of the Binary Compatibility Module for
OpenServer 5 is available from the UnixWare 7 media kit and also from the SCO
download site.
"In order for some UDK-built applications to run on older
UnixWare 7 systems, the UDK runtime libraries must be installed on the UnixWare
7 system. These libraries are free and you may redistribute them with your
application. The libraries are available from the UnixWare 7 media kit.
[ Reply to This | # ]
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Authored by: Steve Martin on Thursday, June 09 2005 @ 09:27 AM EDT |
Isn't it funny how things come back around? TSG's original position was that
people were committing copyright infringement by using TSG's libraries on Linux
systems in an unauthorized manner. Now, through all the shenanigans, the
filings, the PR, the hearings, the analysis, the conference calls, the SEC
filings, the articles, the storms, and the tempests in teacups, we're back to
that.
Sheesh.
--- "When I say something, I put my name next
to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: brain1 on Thursday, June 09 2005 @ 09:37 AM EDT |
"...SCO also alleged that the version of Red Hat Linux which AutoZone was
using contained SCO proprietary OpenServer materials for which AutoZone did not
have a license"
Hmmm. Once again, where is the proof of the infringing code? What file and line
number? What evidence do they have of infringement? *SHOW US THE CODE*
If Autozone bought a SCOSource license would that have made everything peachy?
SCO: 99% ego, 1% brains.
-dh
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Authored by: Anonymous on Thursday, June 09 2005 @ 10:23 AM EDT |
Please, everyone, bear in mind that contracts and terms of use for software
almost always specify what you can do with the executables. This is not a
general copyright matter, and you can't speculate about what is REASONABLE;
you've got to look at the terms.
When I compile an executable (static libs or not), my first questions are:
- can I distribute it at all?
- Do I have to pay a royalty for every copy?
This stuff is routinely spelled out.
I'd love to read about the terms regarding executables of Autozone's contracts
and licensing with SCO.
Several people have been asking (above) about this issue with regard to MSC. MSC
has generally been very permissive about developers' executables, they WANT
people to write windows programs.
To minimize support issues, MSC might be very restrictive about what you can do
with MS WORD. CHeck your license.
- precision blogger
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Authored by: Anonymous on Thursday, June 09 2005 @ 10:54 AM EDT |
Eo COFF binaries work under Red Hat?
I'm thinking they don't.
Not that it would matter in the issue of whether
or not they were copied or how the license reads.
But it might support the idea that AZ just restored
junk from a backup tape without thinking.
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Authored by: DaveJakeman on Thursday, June 09 2005 @ 11:07 AM EDT |
Any programmer has seen copyright notices displayed prominently in source code
files. You often need to scroll past one to find the bit of code you need to
modify.
But when you build a program under SCO Unix, where is the copyright notice?
From the looks of this (ignoring any possible refutation from AutoZone that we
know to be in the works) AutoZone were not aware that copying was taking place.
It seems there are even technical people commenting on this blog unaware that
static linking against a SCO library would copy code into an executable file,
rather than just set up a link to the code that is used at run-time.
So where is the copyright notice displayed when the program is built? Is the
reason they don't know about this, because no copyright notice was displayed?
Even if there was a copyright notice somewhere else (like under the shrink
wrap), did the programmer knowingly and maliciously copy the code in question,
or was it done surreptitiously on his behalf by the software that did the build?
Was the programmer even aware that copying was taking place as he built his
program?
As far as AutoZone were concerned, the copying took place when the programs were
copied from SCO Unix to Linux. This, they were aware of. But what were they
copying? They were copying programs built from AutoZone source code. They
could have been unaware that SCO had stuffed bits of SCO code into those
AutoZone programs.
AutoZone had already decided to migrate to Linux and were either saving some
time in their build, or this came about accidentally. SCO were going to lose
AutoZone's business either way (or had already lost it). Given that it only
needed a rebuild under Linux to fix it, how much of a problem was this, really?
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Thursday, June 09 2005 @ 12:27 PM EDT |
It occurs to me that other x86 Unixes could run SCO binaries, after all at one
time SCO was the most widely used x86 Unix with the most packaged applications.
It would make sense for other vendors to try to tap those applications.
If that could be demonstrated and if SCO never objected could that be used as a
defense?
Interactive Unix for example, or Unixware when Novell owned it or Dell's Unix.
I don't know the answer I'm simply suggesting that it might be useful.
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 12:32 PM EDT |
I wonder what effect this nonsense will have on all other users of SCO products.
Or, even more so -- on non-open source compiled code?
Anywone care to guess?[ Reply to This | # ]
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Authored by: kberrien on Thursday, June 09 2005 @ 01:48 PM EDT |
SCO's conclusions being bogus or not, just the fact that this is in a court
document brings up a very important point.
If Autozone had access to open source software from the get go (and perhaps
partially why the moved that way), they wouldn't be dealing with this mess right
now would they.
Thanks to SCO for making this realistically apparent.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 03:35 PM EDT |
And a few more lost ISVs.
If you follow SCO's argument about requiring licenses for all machines that run
software that has at some point been built on a SCO server, then it is suddenly
the ISV, who now must check if their customers are compliant with SCO's latest
interpretation of their licenses.
It apears to me that the Autozone case is something that can only backfire at
SCO. It's a lose-lose.
If against all odds they turn out to be right in their outlandish claims, they
will shortly lose all their customers and partners, who would have no interest
in being associated with such a racketeering outfit. Which means no more cash
flow from their legacy Unix stuff.
Their existing customers are probably for the most part in a wait and see mode.
It is cheaper for them to just keep running the SCO code. But it they see it as
a real risk that SCO will abuse them (more), they will put in significant
resources to get ported off SCO as fast as possible.
[ Reply to This | # ]
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Authored by: Nick_UK on Thursday, June 09 2005 @ 04:18 PM EDT |
I started a new thread here, as I couldn't find the
question I raise.
So, if AZ did unwittingly move SCO built binaries to
a.n.other OS, and unless aware of the fact (even though
they are not being used), does law support the 'ignorance
is not an excuse' clause?
I mean, this could be a can of worms...
Nick
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Authored by: Anonymous on Thursday, June 09 2005 @ 06:00 PM EDT |
Can SCOX show that they own the "IP" (of whatever flavor) they claim
AZ has
misused? SCOX (nee Caldera) is not SCO (aka the Santa Cruz
Operation), and no
sale/transfer agreement for SCOX's preciousss IP has ever
been
filed in any
court AFAIK.
IMHO, there is enough confusion over the ownership of most
elements of *nix
code, that SCOX must first show they actually own the
applicable code before
pursuing any claims.
OTOH, in the IBM case SCO
still hasn't shown any credible proof of owning
anything except a corporate
megalomania complex, so maybe I'm being
unrealistic?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 06:10 PM EDT |
4. AutoZone's machine load computer was found to contain a program entitled
d-expand.x that was compiled under SCO's proprietary OpenServer operating
system. (See, e.g., Deposition of Bob Celmer Tr. 96:23-100:11; Ex. A to Decl. of
David S. Stone; November 24, 2004 Letter from David J. Stewart to David S.
Stone; Ex. B to Decl. of David S. Stone).
WTF!! SCO claiming ownership of anything compiled on SCO operating systems?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 09 2005 @ 07:22 PM EDT |
Look carefully at footnote 5
SCO doesn't appear to claim *anywhere* in their report that the COFF files
identified were compiled on OpenServer, just that most COFF files in general
usually are.
It would be entirely consistent with SCO's report, that AutoZone's COFF files
may not have been compiled on OpenServer, but some other system.
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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Authored by: zjimward on Thursday, June 09 2005 @ 07:47 PM EDT |
Is there any way to know what the 110,000 copies were in this claim? Were they
really libraries that were copied or were these just program object files that
were copied to Linux where some one used objcopy on them? As far as I understand
SCO wants us to believe that their libraries were copied to Linux, not programs
that Autozone created under SCO and copied to Linux. If I were to write code
under SCO and compile it I would have a object (COFF) file. I would then copy
that to Linux and use objcopy to hopefully translate it so I could run it under
Linux. I'm curious as to what this list of 110,000 libraries that were
supposedly copied.[ Reply to This | # ]
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Authored by: Hop on Friday, June 10 2005 @ 09:30 AM EDT |
While you can argue the details all you want, SCO did not think they had enough
to file for preliminary injunctive relief. If SCO could have, they would have
done it. Everything else they said is just smoke and mirrors.[ Reply to This | # ]
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Authored by: Anonymous on Friday, June 10 2005 @ 04:23 PM EDT |
Maybe they were just looking for the TLA 'SCO.' I can find that several
hundered times on this page alone. Once again, either show us the bytes or BITE
ME![ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 12 2005 @ 04:35 PM EDT |
Just in case you did not know, the licenses are on every SCO cdrom that I have
found. They do not seem to be on the 5.25" floppies for Xenix.
I have not had the opportunity to look on the 3.5" Sys 4.3.X versions.
(anyone got them handy, or at least a machine to look at?)
Do we know what version AZ was using? Xenix, SCO Unix (Sys5 v4.3), OpenServer
5.xx, UnixWare 7.xx, or ???
So: Who knows was compx and decompx are?[ Reply to This | # ]
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