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AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Thursday, June 16 2005 @ 08:59 PM EDT

AutoZone's promised reply [PDF] to SCO's Report Regarding Discovery is now here. SCO announced in its Report that it would not seek a preliminary injunction against AutoZone, but it also helped itself to an opportunity to smear AutoZone and witnesses for AutoZone. AutoZone then announced it would reply to the Report and correct what it called SCO's "material misstatements". It does so in this filing. It's an emotion-filled response. You can feel the moral indignation. In the conclusion it says this:

In this case, despite nine months of discovery, SCO is unable to establish that code found on AutoZone's computers infringes any code in which SCO can legitimately claim to own any rights it could assert against AutoZone.

AutoZone answers everything point by point, some in the filing, some in exhibits attached. AutoZone says "no reason exists for SCO to have submitted discovery to the Court at this time or to have filed a lengthy brief that argues the merits of its claims." AutoZone also accuses SCO of "convenient and artful omissions", omitting "certain facts necesssary to understand the proper factual and legal significance of the facts discovered," and calls many statements in the SCO Report "overreaching."

SCO's Report was unnecessary, AutoZone says, but it feels compelled to reply:

AutoZone is reluctant to respond to SCO's unnecessary filing. Nevertheless, because the SCO Report contains numerous material misstatements of the record and attempts to improperly impugn AutoZone's reputation to the Court, AutoZone is compelled to file this Response to correct the record. . . .

Nothing in the August 6 Order or any subsequent orders of the Court requested or envisioned that SCO would file a document with the Court that reported on what SCO discovered during the expedited discovery process if SCO elected not to move for a preliminary injunction (which SCO has elected not to do), and nothing in the Court's orders requested or anticipated that SCO would file deposition transcripts and other discovery with the Court if SCO elected not to so move. Indeed, SCO's filing of such materials violates the provision in Local rule 26-8 that '[u]nless otherwise ordered by the court, written discovery, including responses thereto, and deposition transcripts, shall not be filed with the court."

So, SCO did it again, just like in the SCO v. IBM October 2004 hearing, when it attempted to read aloud privileged IBM email and then referred to them repeatedly in a later filing.

When AutoZone gets to know SCO better, I think they'll discern that SCO's target audience isn't inside the courtroom, but that is just my opinion. I think they take advantage of the fact that you can't be sued for statements made in litigation to badmouth their victims via their legal filings. The court system isn't supposed to be used like that, I don't believe.

AutoZone tells the court it has been candid and truthful with both the Court and with SCO, that what little SCO actually found was volunteered by AutoZone, how any copying was small in amount and inadvertently done at worst, that AutoZone decided to switch to Linux when SCO announced in 1999 that it would no longer support the OpenServer system (SCO claims IBM talked them into it -- see Exhibit E, page 3, below), and then it says this:

By virtue of its purchase of a license for a software developer's kit from SCO, AutoZone is licensed to develop programs, compile them under OpenServer and copy the resulting programs on computers running any operating system.

Then AutoZone mentions this:

Even assuming for the purposes of argument that any of the SCO code is subject to copyright protection, there is no evidence in the record that SCO owns the copyright and this is also the subject of significant dispute. There is also the very real possibility that the code is in the public domain.

They promise to examine both of those issues, among others, "extensively" if the stay is ever lifted and there are any issues not resolved in the prior SCO litigations, which it doubts will ever happen, and it says both issues are "fatal to SCO's claims". Despite SCO's strong and broad assertions, "there is significant dispute as to the nature and extent of SCO's ownership rights" and "substantial reason to believe that the libraries may not be subject to protection under US copyright laws on functionality or other grounds."

Its developers believed it had "properly migrated all of AutoZone's applications to Linux by recompiling the applications under Linux," so all statements made to the court by AutoZone were truthful when made. AutoZone defends Jim Greer's veracity and says:

For reasons that AutoZone fails to understand, SCO perceived the need in its Report to level unfounded attacks on Mr. Greer's veracity -- a third party with no interest in this litigation.

I can tell them why I think SCO did it, apart from their usual pattern of being mean as snakes. They did it because Mr. Greer posted on Groklaw, and they like to attack Groklaw any chance they get, either directly or through their minions, to raise doubts about its accuracy and reliability. They have a fixation. AutoZone continues:

In footnote 3 of its Report, SCO insinuates that Mr. Greer misrepresented the facts in a pre-litigation Internet post when he stated that AutoZone had not copied SCO libraries in AutoZone's migration to Linux and that Mr. Greer recanted those alleged misrepresentations in his deposition. . . . What the record in fact reflects is that Mr. Greer testified that AutoZone's objective was to recompile all AutoZone programs under Linux such that none of the programs would include any SCO libraries when the migration was completed. . . . When Mr. Greer made his Internet post, it was his understanding that this objective had been met. Mr. Greer only later discovered, as a result of AutoZone's investigations in this case, that some pre-migration OpenServer compiled programs had been copied errantly to the store server image. Significantly, all of this copying occurred after Mr. Greer [left] AutoZone's employ. Accordingly Mr. Greer would have had no way of knowing about the errant copying when he made his Internet post. Mr. Greer's Internet post was therefore wholly truthful to the best of his knowledge and information at the time made and SCO's ad hominem attacks on Mr. Greer's veracity are utterly unfounded.

So, I understand this to mean that the migration to Linux was, in fact, done properly, without copying any SCO code, during Mr. Greer's term at AutoZone. He left before it was completed, and any mistaken copying happened thereafter. In in-depth digging, Autozone found a number of old Xenix files they didn't need and weren't using that had been copied by mistake, evidently later. There were a limited number of programs errantly copied to its store server image that were old OpenServer compiled programs, just a handful, and "AutoZone has licenses to use virtually every one of those files." They were surprised to find 127 programs existing on their store servers, out of thousands of programs on a typical store server, that were compiled under OpenServer, but "only two appear to have been used on any of AutoZone's servers at any time since the migration process was completed: Compx and Decompx." So obviously, since they had never been used, the rest were copied by mistake. And looking at the programs compiled on OpenServer, AutoZone's initial analysis is that only about 20 OpenServer libraries were included in the programs. AutoZone, in addition to the developer kit license, also purchased end user licenses from SCO to use SCO compiled code on more than 2900 computers. "These licenses cover the vast majority of the copies of which SCO complains in the SCO Report to the Court."

SCO claimed that AutoZone hampered discovery by refusing to produce relevant source code, but AutoZone says that's not true either, and it attaches a letter as Exhibit B, showing that on October 27, 2004, more than 7 months ago, they did produce all source code that it had in its possession for all AutoZone programs on its store servers.

AutoZone on page 8 says this:

Thus, given that SCO's claims that AutoZone has copied "proprietary" SCO code are unsupported by any evidence in the record and are further the subject of significant legal and factual questions, to waive the conclusory wand of copyright infringement over the results of limited discovery as SCO has done in its Report is wholly inappropriate.

We've broken the large PDF into segments, so it isn't so hard for those of you on dialup. AutoZone believed that SCO omitted pages from Jim Greer's deposition, and they attached what they viewed as the missing pieces. That is one of the separated exhibits, Exhibit D. And then the final PDF on our list is a compilation of the Jim Greer deposition excerpts, both the parts SCO filed and those that AutoZone filed, so it makes a bit more understandable. But be aware that this final PDF is not a court filing in that form; it's a Groklaw creation, just for convenience:


  


AutoZone Replies to SCO's Report Re Discovery -- With Feeling | 337 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Authored by: Stumbles on Thursday, June 16 2005 @ 09:11 PM EDT
Just more of the same from SCO. I cannot recall any company behaving
so badly in public and court view. Well, except for Microsoft when they
tried to submit fake video evidence.

---
You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

Corrections here
Authored by: Sauja on Thursday, June 16 2005 @ 09:17 PM EDT
impugn = impung ???

emply = employ.

[ Reply to This | # ]

off-topic here
Authored by: xtifr on Thursday, June 16 2005 @ 09:36 PM EDT
As usual, make links clickable if necessary. (Example shown when creating new
post.)

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

Why, why, why would anyone (SCO?) with difficult legal problems choose The Media for judge/jury?
Authored by: Anonymous on Thursday, June 16 2005 @ 09:37 PM EDT
RMN wasn't the first to find out that judges don't get their opinions from the
morning paper; he likely won't be the last.

Why? What's the advantage? What's the motive?

[ Reply to This | # ]

AutoZone had a software developer's kit
Authored by: xtifr on Thursday, June 16 2005 @ 09:49 PM EDT
This answers one big question I had about the situation. On page 5, AZ states,
"By virtue of its purchase of a license for a software developer's kit from
SCO, AutoZone is licensed to develop programs, compile them under OpenServer and
copy the resulting programs on computers running any operating system."

Every software developer's kit I've ever seen (a list that includes the SCO
XENIX SDK) comes with a license to redistribute the included libraries freely as
part of your compiled application. That's sort of the point! An SDK that
didn't come with such permission would be effectively useless!

I could imagine someone creating an SDK that only allowed the resulting binaries
to be used on the vendor's specific platform, but I've never heard of nor seen
such a thing. Even Microsoft hasn't gotten quite that draconian yet! (Though I
hate to give them ideas.)

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

The funniest part...
Authored by: xtifr on Thursday, June 16 2005 @ 09:57 PM EDT
I think there are numerous candidates for the "funniest part", but one
that particularly tickled me was the discussion of the binaries stored on the
server "Vision", which turns out to still be running OpenServer!

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

So once again...
Authored by: Anonymous on Thursday, June 16 2005 @ 10:04 PM EDT
So once again SCO's outrage and indignation turns out to be omission, deceit,
and retoric.
No consequence equals no reason to stop.

---
Are you a bagel or a mous?

[ Reply to This | # ]

You can't be sued for...
Authored by: Anonymous on Thursday, June 16 2005 @ 10:23 PM EDT
I'm confused by the, " you can't be sued for statements made in litigation
to badmouth their victims via their legal filings" part. Didn't SCO say the
same stuff during their conference call? Since potential investors/analysts for
Autozone may listen to a CC for a company sueing Autozone, isn't that
actionable?

[ Reply to This | # ]

AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Authored by: Anonymous on Thursday, June 16 2005 @ 10:32 PM EDT
I realize they can say what they want in court filings, but do they break that
veil if they reference that filing in their conference call? I know they thought
about this since Darl did not quote or go into any detail during the call.

[ Reply to This | # ]

Cancer
Authored by: Anonymous on Thursday, June 16 2005 @ 10:43 PM EDT
When is this cancer of a company going to get excised from the courtroom?

I'm no lawyer, but it seems to me either the judges are dense or SCO's legal
team knows how to work the system beyond the judge's abilities to stop them.

What good are professional rules of conduct if one side routinely ignores them?

When is this farce of a company going to be put to sleep?

[ Reply to This | # ]

Page 14-15 - A new business model for SCO!
Authored by: Anonymous on Thursday, June 16 2005 @ 10:47 PM EDT
Let's see if I understand this right.

1. You (or AutoZone) buy a copy of OpenServer

2. You (or AutoZone) install and use OpenServer on a machine

3. If that machine (still running OpenServer) turns out to contain any
OpenServer files, then, according to SCO, it's a copyright violation!


Doesn't that suggest a new business model to Darl?

Why don't SCO just sue everybody who ever bought OpenServer (or UnixWare) for a
copyright violation by simply using that software exactly as intended.

Advantage to SCO:

(a) They don't need to prove any of that messy stuff about Linux somehow
infringing a SCO copyright.

(b) They don't have to identify all specific lines of code - the answer really
is "all of them"

</SIGH>

Quatermass
IANAL IMHOetc








[ Reply to This | # ]

Do you mean "Kicked in the Face" feeling?
Authored by: cmarcum on Thursday, June 16 2005 @ 10:52 PM EDT
They should have known the reply would trump the "omissions" in their
"findings". Must be more "pump-n-dump" stock action.

"Though [the people] may acquiesce, they cannot approve what they do not
understand."--Thomas Jefferson

---
Carl

[ Reply to This | # ]

RedHat?
Authored by: rsteinmetz70112 on Thursday, June 16 2005 @ 11:01 PM EDT
<speculation>
Does anyone but me think RedHat may be assisting/funding this defense?

It seems to fall kinda within their indemnification and they have already sues
SCOG over their assertions. Could they be behind this aggressive response?

I suspect SCOG would long ago have accepted a sealed settlement below defense
costs go get a "win".
<speculation>

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

question for the lawyers - could SCO change the precident?
Authored by: Anonymous on Thursday, June 16 2005 @ 11:50 PM EDT
question for any lawyers out there:

the precident set now about "you can't be sued for statements made in
litigation" as quoted.

is it at all possible that the whole SCO debacle could change this?

That in some way outright malicious statements (intentionally made) in court
filings could be the target of litigation?

I'm just curious if they're digging themselves a deeper hole than anyone
realizes...

[ Reply to This | # ]

2900 vs. 3500
Authored by: rsteinmetz70112 on Friday, June 17 2005 @ 12:13 AM EDT
AZ asserts they have licenses for 2900+ OpenServer servers. SCOG asserts that
files were copied on to 3500+- machines.

Does this 500 discrepancy form the basis of a settlement?

Or is it the proof of SCOG material misstatements?

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

SCO apparently is above the law
Authored by: Anonymous on Friday, June 17 2005 @ 12:21 AM EDT

No Rule 11 penalties.

No penalty for deliberately misstating the record.

No penalty for claiming to own property they don't own.

No penalty for lying in public statements.

No penalty for abuse of process (reading sealed documents in public).

The rules of procedure and the statutes apparently don't apply to SCO.

[ Reply to This | # ]

"Ad hoc" - something IBM should be reading
Authored by: Anonymous on Friday, June 17 2005 @ 12:30 AM EDT
One other thing you may have missed from the footnotes

SCO claims in their report to the AZ court, that AZ migration was done "ad
hoc" without regard to SCO's IP.

This is seemingly contradicted by SCO's own sworn interrogatory response in the
IBM case, where they say the migration was done with "precision" etc
etc.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Authored by: GLJason on Friday, June 17 2005 @ 12:36 AM EDT
I think they'll discern that SCO's target audience isn't inside the courtroom, but that is just my opinion. I think they take advantage of the fact that you can't be sued for statements made in litigation to badmouth their victims via their legal filings.
This is interesting. Maybe this litigation could set a precedent. I think this blanket protection may not be applicable for two reasons:
  1. There was no reason for SCO to file their "Report Regarding Discovery"
  2. SCO has made it public
First, Autozone shows that SCO should never have filed the report. I quote, "Indeed, SCO's filing of such materials violates the provision in Local rule 26-8 that '[u]nless otherwise ordered by the court, written discovery, including responses thereto, and deposition transcripts, shall not be filed with the court." So by filing their "Report", SCO has violated the court's rules.

Second, since there was no legal purpose for the filing, the only viable motive must have been to make the information public. SCO has posted their filing on their website, and has made a reference to it in their conference call. They also know every filing is posted on Groklaw and viewed by the public. Since there was no legal reason for the filing, they must have done it just to make a case in the court of public opinion.

[ Reply to This | # ]

AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Authored by: Anonymous on Friday, June 17 2005 @ 12:52 AM EDT
Our company just tossed out 6 SCO boxes. Management didn't care for the cost or
the usefulness out of the boxes. SCO is pretty much a bad name around the
office even among the management.

Got to thank Darl, et al, for not only making the geeks of the world hate SCO
but even the likes of typical business managers.

[ Reply to This | # ]

Transcription to text
Authored by: Anonymous on Friday, June 17 2005 @ 02:17 AM EDT
I'm transcribing pages 1-5.

[ Reply to This | # ]

Code digging
Authored by: Anonymous on Friday, June 17 2005 @ 03:18 AM EDT
When SCO fails litigation, maybe they can go run
a business to sell second-hand code...

[ Reply to This | # ]

  • Code digging - Authored by: Anonymous on Friday, June 17 2005 @ 08:56 AM EDT
    • Code digging - Authored by: Anonymous on Saturday, June 18 2005 @ 03:10 PM EDT
Abuse of the process
Authored by: cricketjeff on Friday, June 17 2005 @ 05:08 AM EDT
Why is this abuse of process not treated as a contempt of court, for such it
clearly is within a lay meaning of that phrase. If it is also legally a contempt
there are presumably very severe penalties available for all those involved,
lawyers witnesses and litigants. Certainly in other jurisdictions such penlties
would not be limited to slaps on the wrist and small fines but would include
loss of liberty and bar on future actions and even employment.
If the courts are not prepared to stand up for their wn rules, why should the
rest of us trust them to enforce ours?

[ Reply to This | # ]

Very enjoyable
Authored by: avdp on Friday, June 17 2005 @ 08:17 AM EDT
The Autozone memo was very enjoyable reading. Very well written, I would say
even better than IBM's filings. They did more than just correct the facts,
they took a few stabs at SCO that if this memo had any legal significance (i.e.
a brief for a motion or something) would have been quite effective I suspect.

[ Reply to This | # ]

  • Seconded - Authored by: Anonymous on Friday, June 17 2005 @ 09:44 AM EDT
Our system administrators find it an amusing policy to name machines after cars
Authored by: Frankie on Friday, June 17 2005 @ 09:17 AM EDT
Jeep, Wrangler... (Page 24 of Pdf). Bet their new servers will be called after
some Mercedes Models!

[ Reply to This | # ]

Stockholders should be getting more upset everyday
Authored by: Anonymous on Friday, June 17 2005 @ 09:51 AM EDT
Anyone here own SCOX stock? It would seem to me that any stockholder who is keeping track of the various lawsuits would be getting pretty upset by now.

I can imagine feeling good when one thought the IBM case might result in a buyout, regardless of the validity of the suit. However, that sure looks like a longshot at this point and now SCO's performance in the other cases keeps bring up some serious problems (you know, accusing companies of copyright infringement when they haven't infringed, and basing the accusation on copyrights they may not own, etc.).

At this point, if I were a significant stockholder not involved in these cases, I'd be talking to my own set of lawyers and preparing a suit against the people who started this whole mess.

[ Reply to This | # ]

Money Spent at AutoZone
Authored by: KBellve on Friday, June 17 2005 @ 10:40 AM EDT

I spent nearly $150 within the last two weeks at Autozone at the following two
stores:

Lincoln Street
Worcester, MA 01605

W Broadway
Gardner, MA 01440

[ Reply to This | # ]

Suggestion for 2 Possible AutoZone counterclaims
Authored by: Anonymous on Friday, June 17 2005 @ 12:04 PM EDT
First, according to AutoZone, SCO is trying to deprive AutoZone of the benefits
of using the OpenServer development kit.... because according to SCO, AutoZone
is not allowed to distribute their own compiled COFF files to either Linux or
OpenServer (see page 14-15 of the PDF) machines, despite the OpenServer
development kit license allows unlimited distribution of compiled files... and
AutoZone paid for and signed a contract to get these rights.

So COUNTERCLAIM #1 = BREACH OF THE OPENSERVER DEVELOPMENT KIT LICENSE/CONTRACT
BY SCO


Second, according to AutoZone, SCO is trying to deprive AutoZone of the benefits
of the OpenServer product itself... because according to SCO, AutoZone is not
allowed to use OpenServer files on OpenServer itself (see page 14-15 of the PDF)
nor allowed to use OpenServer files on other machines (despite the license
allowing them to use parts of the OS and make archival copies).... and AutoZone
paid for and signed a contract to get these rights.

So COUNTERCLAIM #2 = BREACH OF THE OPENSERVER OPERATING SYSTEM CONTRACT BY SCO


Thoughts?

Quatermass
IANAL IMHOetc

[ Reply to This | # ]

AutoZone Replies to SCO's Report Re Discovery -- With Feeling
Authored by: fredex on Friday, June 17 2005 @ 04:45 PM EDT
In replies to this article, as well as numerous other places, posters have
expressed frustration with the legal system in letting this farce drag on for so
long. The common response (or one of them), and it is one that makes sense, is
that the judge wishes to make sure he's allowed the plaintiff to fully state
their case and to make it clear that he has fully considered their
"evidence. Not making it crystal clear simply encourages appeals.

IANAL and I do not work in the court system. However, it seems to be a hallmark
of the professional in any field that once his work is done, it doesn't have to
go back and get re-done by someone else, or be deemed so shoddy that it's thrown
back in his lap.

If a case goes to appeal it could get thrown back into the orignal court with
instructions to re-consider, an occurrence that would not look good on anyone's
resume. The appeal wastes lots of time for other judges and court employees that
could be spent on other (hopefully) more productive things.

if it loses on appeal it might get appealed yet again to a still higher court,
wasting still more time in the judicial system.

So, in keeping with Harry Truman's "The Buck Stops Here" placard that
he kept on his desk, an honest and reputable judge would want to make sure that
his decision is so clearly the correct one that the case either is refused
appeal, or at least the appeals court will see that he did all his work
diligently and that his decision was correct.

Unfortunately this leaves us all hanging, wishing the judge could see as clearly
as WE do that this case is all a load of HOGWASH and would just use an A-bomb on
the plaintiff. I suspect the Honorable judge Kimball sees how ridiculous the
case is and is honestly trying to make sure that the buck DOES stop right there
in his courtroom. All we need is patience (something which I, along with many of
you, find myself lacking! :^)

[ Reply to This | # ]

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