The Answer says none of SCO’s legal rights have been violated, so SCO isn't entitled to *any* relief on its claims. And interestingly, AutoZone "denies that this Court has jurisdiction over SCO’s claims related to UNIX System V and UnixWare" -- no doubt we'll be hearing more about this -- and "denies that this District is the most convenient forum as no relevant witnesses or documents are located in this District." So, I gather they are still interested in leaving Las Vegas and having the case heard elsewhere, like where AutoZone and all their witnesses are located.
And significantly, "AutoZone denies that Santa Cruz purchased the UNIX technology from Novell, Inc. or that SCO acquired this technology from Santa Cruz." So SCO will have to prove all that in this court of law, because AutoZone is directly challenging the chain of ownership. As for files like CompX and DecompX that AutoZone had, AutoZone doesn't know if it is true that SCO owns any proprietary code in them. Let SCO prove that too. In any case, even if they did, AutoZone’s alleged use of any such code "is lawful use based on agreements and licenses with third-parties."
Here's the PACER entry:
There are more files at issue, and if this motion succeeds, they will be the heart of the matter.
The second basis for the motion to dismiss in part is based on
SCO's claim that AutoZone infringed SCO's alleged copyrights in Mexico, not just in the US. But Autozone points out that the US Copyright Act doesn't apply to Mexico, with an exception that doesn't apply for the damages, actual or statutory, that SCO is claiming, so that claim about Mexico should also be dismissed, AutoZone says:
Bottom line? SCO will have to prove that it owns what it claims was infringed, and remember this judge already ruled that the parties must proceed on the basis of the Utah District Court's ruling in August of 2007. Now that the appeals court has ruled that parts of that decision should instead be decided by a jury, it raises the question, what happens now? I gather AutoZone expects to start from scratch, and make SCO prove everything it claims, which it so far has been unable to do anywhere, with very little hope of gaining financially even in SCO's best-case scenario.
By the way, just to show you how appeals work, I'd like to show you another case, where the 9th Circuit Court of Appeals overturned a lower court's decision, sent matters back to a trial, and the final decision was exactly what the first court had ruled anyway. The point is, just because a case is remanded doesn't at all indicate that the outcome will be the least bit different. Here's a description of the case, from IBM's annual report for 2008:
See? That's how litigation is. You have to stand back a little and look at the general flow of the river, not every little twist and turn and bend in it.
James J. Pisanelli, Esq., Bar No. 4027
Nikki L. Wilmer, Esq., Bar No. 6562
BROWNSTEIN HYATT FARBER SCHRECK, LLP
[address]
[phone]
[fax]
[email addresses]
David J. Stewart, Esq.
Georgia Bar No. 681149
ALSTON & BIRD LLP
[address]
[phone]
[email address]
Attorneys for Defendant AutoZone, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.
Plaintiff,
v.
AUTOZONE, INC.
Defendants
______________________________________ |
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Case No. 2:04-cv-0237-RCJ-GWF
DEFENDANT AUTOZONE, INC.'S
ANSWER TO PLAINTIFF'S FIRST
AMENDED COMPLAINT
(JURY DEMAND) |
Defendant AutoZone, Inc. ("AutoZone"), for its Answer and
Affirmative Defenses to the First Amended Complaint of Plaintiff
The SCO Group, Inc. ("SCO"), responds as follows:
I. NATURE OF THIS ACTION
1. AutoZone admits that it uses one or more versions of the
Linux operating system. AutoZone denies each and every remaining
allegation contained in Paragraph 1.
2. AutoZone denies the allegations contained in Paragraph 2.
(1)
3. AutoZone admits that SCO purports to bring claims under the
Copyright Act and contract law but denies that any of SCO's legal
rights have been violated or that SCO is entitled to any relief on
its claims. AutoZone denies each and every remaining allegation
contained in Paragraph 3.
II. PARTIES, JURISDICTION AND VENUE
4. AutoZone admits the allegations contained in Paragraph 4.
5. AutoZone admits the allegations contained in Paragraph 5.
6. AutoZone denies that this Court has jurisdiction over SCO's
claims related to UNIX System V and UnixWare. AutoZone is without
knowledge or information sufficient to form a belief as to whether
this Court has subject matter jurisdiction over SCO's claims as
alleged in Paragraph 6, and the same is therefore denied.
7. AutoZone admits the allegations contained in Paragraph 7.
8. AutoZone admits the allegations contained in Paragraph 8,
however, AutoZone denies that this District is the most convenient
forum as no relevant witnesses or documents are located in this
District.
II. FACTUAL BACKGROUND
9. AutoZone admits the allegations contained in Paragraph 9.
10. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 10, and the same are therefore denied.
11. AutoZone admits that the UNIX operating system was developed
at least in part by AT&T Bell Laboratories and that AT&T at
least in part developed updated versions of the UNIX operating
system. AutoZone denies each and every remaining allegation
contained in Paragraph 11.
12. AutoZone admits that AT&T licensed UNIX to third
parties. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the remaining allegations
contained in Paragraph 12, and the same are therefore denied.
13. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 13 and the same are therefore denied.
(2)
14. AutoZone admits that Novell acquired certain rights from
AT&T related to the UNIX operating system, including certain
copyrights. AutoZone denies each and every remaining allegation
contained in Paragraph 14.
15. AutoZone denies the allegations contained in Paragraph
15.
16. AutoZone admits that the Federal District Court for the
District of Utah ruled on summary judgment on August 10, 2007 in
the Novell v. SCO litigation. AutoZone states that the court's
order speaks for itself; however, contrary to SCO's allegation, the
Court ruled that SCO does NOT own rights to UNIX. AutoZone further
admits that SCO appealed the district court's decision to the
United States Court of Appeals for the Tenth Circuit and also
admits that oral arguments were held on that appeal on May 6, 2009.
AutoZone denies each and every remaining allegation contained in
Paragraph 16.
17. AutoZone admits the allegations contained in Paragraph
17.
18. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 18 and the same are therefore denied.
19. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 19 and the same are therefore denied.
20. AutoZone admits that it has used and copied Linux in certain
of its business operations. AutoZone further admits that it
continues to use and copy Linux in connection with its business
operations. AutoZone denies each and every remaining allegation
contained in Paragraph 20.
21. AutoZone denies that Santa Cruz purchased the UNIX
technology from Novell, Inc. or that SCO acquired this technology
from Santa Cruz. AutoZone is without knowledge or information
sufficient to form a belief as to the truth of the remainder of the
allegations contained in Paragraph 21, and the same are therefore
denied.
22. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 22 and the same are therefore denied.
(3)
23. AutoZone admits that Santa Cruz and AutoZone entered into an
Authorized Industry Reseller Agreement on May 14, 1990. AutoZone
responds that the language of the AIRA speaks for itself.
24. AutoZone responds that the language of the AIRA speaks for
itself, but AutoZone denies the allegations contained in the first
sentence of Paragraph 24.
25. AutoZone admits the allegations contained in Paragraph
25.
26. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 26 and the same are therefore denied.
27. AutoZone responds that the language of the CSLA speaks for
itself.
28. AutoZone responds that the language of the CLSA speaks for
itself, but AutoZone denies the allegations contained in the second
sentence of Paragraph 28.
29. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 29, and the same are therefore denied.
30. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in the
first sentence of Paragraph 30, and the same are therefore denied.
AutoZone denies each and every remaining allegation contained in
Paragraph 30.
31. AutoZone admits that on August 6, 2004, this Court allowed
the parties to take limited expedited discovery. AutoZone further
admits that certain SCO compiled programs were discovered on
AutoZone's servers during discovery. AutoZone admits that once
discovered, these programs were deleted and/or replaced with Linux
compiled versions of the files. AutoZone denies each and every
remaining allegation contained in Paragraph 31.
32. AutoZone admits that its 30(b)(6) representative provided
the testimony cited in Paragraph 32, and responds that such
testimony speaks for itself. AutoZone denies each and every
remaining allegation contained in Paragraph 32.
33. AutoZone denies that it violated SCO's alleged contract and
copyright rights as set forth in Paragraph 33.
-
Answering the allegations of Paragraph 33(a), AutoZone admits
that in October 2004, upon searching its AutoZone store servers,
1,681 COFF files
(4)
were found on 387 machines. AutoZone denies each and every
remaining allegation contained in Paragraph 33(a) and further
denies SCO's legal rights have been violated or that SCO is
entitled to any relief on its claim.
-
Answering the allegations of Paragraph 33(b), AutoZone admits
the allegations in Paragraph 33(b) but denies SCO's legal rights
have been violated or that SCO is entitled to any relief on its
claim.
-
Answering the allegations of Paragraph 33(c), AutoZone admits
that it used Compx and Decompx on certain machines in its stores.
Because AutoZone does not have the source code for these
third-party programs, it is without knowledge or information as to
the truth of the allegation that these programs contained
proprietary SCO code and this allegation is therefore denied.
AutoZone further admits that it deleted the Compx and Decompx files
in October 2004. AutoZone admits that upon deletion, the
replenishment system, a program used by AutoZone store servers to
order and receive new inventory from distribution centers, failed
in 650 of its stores. AutoZone denies each and every remaining
allegation contained in Paragraph 33(c) and further denies SCO's
legal rights have been violated or that SCO is entitled to any
relief on its claim.
-
Answering the allegations of Paragraph 33(d), AutoZone admits
that its machine load computer had a program on it called dexpand.x
that was compiled under OpenServer. AutoZone denies each and every
remaining allegation contained in Paragraph 33(d) and further
denies SCO's legal rights have been violated or that SCO is
entitled to any relief on its claim.
-
Answering the allegations of Paragraph 33(e), AutoZone admits
that 1,130 SCO compiled programs were loaded onto its Spirit
Server. AutoZone denies each and every remaining allegation
contained in Paragraph 33(e) and further denies SCO's legal rights
have been violated or that SCO is entitled to any relief on its
claim.
(5)
-
Answering the allegations of Paragraph 33(f), AutoZone admits
that fifteen SCO Extensible Linking Format and Xenix files were
identified on AutoZone's store load machine. AutoZone further
admits that its counsel stated that "these files likely also exist
on all 3,500 AutoZone store servers." AutoZone denies each and
every remaining allegation contained in Paragraph 33(f) and further
denies SCO's legal rights have been violated or that SCO is
entitled to any relief on its claim.
-
Answering the allegations of Paragraph 33(g), AutoZone admits
that it has a Linux development machine known as "Wrangler."
AutoZone is without knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraph
33(g) and the same are therefore denied. AutoZone further denies
SCO's legal rights have been violated or that SCO is entitled to
any relief on its claim.
-
Answering the allegations of Paragraph 33(h), AutoZone admits
that it utilized a machine called Vision to test certain of its
programs during its migration to Linux. AutoZone denies each and
every remaining allegation contained in Paragraph 33(h). AutoZone
further denies SCO's legal rights have been violated or that SCO is
entitled to any relief on its claim.
34. AutoZone admits that certain persons involved in the Linux
migration did not directly consult copyright counsel or review
licenses when making the transition to Linux, nor were they
obligated to do so. AutoZone denies each and every remaining
allegation contained in Paragraph 34.
35. AutoZone denies the allegations contained in Paragraph
35.
36. AutoZone denies the allegations contained in Paragraph
36.
37. AutoZone denies the allegations contained in Paragraph
37.
38. AutoZone denies the allegations contained in Paragraph
38.
39. AutoZone denies the allegations contained in Paragraph
39.
40. AutoZone denies the allegations contained in Paragraph
40
(6)
FIRST CAUSE OF ACTION
41. AutoZone repeats and realleges its answers to Paragraph 1
-40 as though fully set forth herein.
42. AutoZone denies the allegations contained in Paragraph
42.
43. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 43 and the same are therefore denied.
44. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 44 and the same are therefore denied.
45. AutoZone denies the allegations contained in Paragraph
45
46. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 46 and the same are therefore denied.
47. AutoZone states that Paragraph 47 contains purported
statements of law, and, as such, neither an admission or denial is
required as to these statements.
48. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 48 and the same are therefore denied.
49. AutoZone denies the allegations contained in Paragraph
49.
50. AutoZone admits that it implemented one or more versions of
the Linux operating system. AutoZone denies each and every
remaining allegation contained in Paragraph 50.
51. AutoZone denies the allegations contained in Paragraph
51.
52. AutoZone denies the allegations contained in Paragraph
52.
53. AutoZone admits that it does not own any copyright to the
Copyrighted Materials. AutoZone is uncertain as to what the phrase
"as part of a Linux implementation" means and as such AutoZone is
without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in Paragraph 53 and the same
are therefore denied. AutoZone denies each and every remaining
allegation contained in Paragraph 53.
(7)
54. AutoZone denies the allegations contained in Paragraph
54.
55. AutoZone denies the allegations contained in Paragraph
55.
56. AutoZone denies the allegations contained in Paragraph
56.
SECOND CAUSE OF ACTION
57. AutoZone repeats and realleges its answers to Paragraph 1-56
as though fully set forth herein.
58. AutoZone denies the allegations contained in Paragraph
58.
59. AutoZone denies the allegations contained in Paragraph
59.
60. AutoZone denies the allegations contained in Paragraph 60.
Except as expressly admitted, AutoZone denies each and every
allegation contained in SCO's First Amended Complaint.
AFFIRMATIVE DEFENSES
FIRST DEFENSE
SCO has failed to state a claim upon which relief can be
granted.
SECOND DEFENSE
SCO's claims are barred, in whole or in part, by the doctrine of
laches.
THIRD DEFENSE
SCO's claims are barred, in whole or in part, by the doctrine of
collateral estoppel.
FOURTH DEFENSE
SCO's claims are barred because one or more of the copyright
registrations upon which it relies are invalid.
(8)
FIFTH DEFENSE
AutoZone's alleged use of the Copyrighted Material is lawful use
based on agreements and licenses with third-parties.
DATED this 31st day of August, 2009.
/s/ Nikki L. Wilmer
James J. Pisanelli
Nevada Bar. No. 4027
Nikki L. Wilmer
Nevada Bar. No. 6562
BROWNSTEIN HYATT FARBER SCHRECK, LLP
[address]
[phone]
[email addresses]
David J. Stewart
Georgia Bar No. 681149
ALSTON & BIRD LLP
[address]
[phone]
[email addresses]
Attorneys for Defendant AutoZone, Inc.
(9)
CERTIFICATE OF SERVICE
I am employed by the law firm of Brownstein Hyatt Farber
Schreck, LLP in Clark County. I am over the age of 18 and not a
party to this action. My business address is [address].
On the August 31, 2009, I served the document(s), described as:
DEFENDANT AUTOZONE, INC'S ANSWER TO PLAINTIFF'S FIRST AMENDED
COMPLAINT (JURY DEMAND)
 |
by placing the original a true copy thereof enclosed in a sealed envelope
addressed as follows: |
 a. |
ECF System (You must attach the "Notice of Electronic
Filing", or list all persons and addresses and attach additional
paper if necessary) |
| b. |
BY U.S. MAIL. I deposited such envelope in the mail at
Las Vegas, Nevada. The envelope(s) were mailed with postage thereon
fully prepaid.
I am readily familiar with Brownstein Hyatt Farber Schreck, LLP.
practice of collection and processing correspondence for mailing.
Under that practice, documents are deposited with the U.S. Postal
Service on the same day which is stated in the proof of service,
with postage fully prepaid at Las Vegas, Nevada in the ordinary
course of business. I am aware that on motion of party served,
service is presumed invalid if the postal cancellation date or
postage meter date is more than one day after the date stated in
this proof of service. |
| c. |
BY PERSONAL SERVICE. |
| d. |
BY DIRECT EMAIL |
| e. |
BY FACSIMILE TRANSMISSION |
I declare under penalty of perjury that the foregoing is true
and correct.
Date: August 31, 2009
/s/ Carol E. Jorvig
An employee of Brownstein Hyatt Farber Shreck, LLP
(10)
Stanley W. Parry
Ballard Spahr Andrews & Ingersoll, LLP
[email]
Stephen N Zack
Boies, Schiller & Flexner, LLP
[email]
Richard J. Pocker
Boies Schiller & Flexner, LLP
[email]
(11)
