Thanks to JeR, we have the complaint in the SCO v. DaimlerChrysler case. Original is here as PDF.
Update: Exhibit A [PDF], the agreement between AT&T and DaimlerChrysler is now here as text. Exhibit B [PDF], SCO's December 19, 2003 "Dear UNIX Licensee" letter, is here as text.
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
THE SCO GROUP, INC.,
a Delaware corporation,
a Delaware corporation,
COMPLAINT AND JURY DEMAND
Case No. 04- -CK
BARRY M. ROSENBAUM (P26487)
Attorney for Plaintiff
NOW COMES Plaintiff, The SCO Group, Inc. (“SCO”) by and through its
attorneys, Seyburn, Kahn, Ginn, Bess & Serlin, P.C., and Boies, Schiller &
and for its Complaint against Defendant DaimlerChrysler Corporation (“DC”)
1. SCO is the exclusive licensor of software licenses for the UNIX operating system.
These software licenses are agreements that restrict the permitted use of the UNIX
operating system. To help insure compliance with the restrictions on such permitted
use, the licenses include a monitoring and reporting mechanism designed to detect
(and thus deter) violations of those agreed limits. Specifically, the licenses
licensees to certify their compliance with those restrictions. Like all provisions in
license, these reporting and monitoring provisions exist only because they have been
agreed to by the licensee.
2. SCO has requested that DC provide the contractually required certification that DC
complying with the terms of its UNIX technology license. SCO has thus asked DC to
certify--as contractually it must-- that its use of UNIX technology is within the
parameters of permitted use established by the license.
3. DC agreed to and accepted the terms of its UNIX license. DC has received very
substantial benefits as a result of entering that license and DC has never challenged
the validity of that license.
4. Nevertheless, DC has refused to provide the contractually required certification of
compliance that SCO requested. DC has in fact refused even to respond to SCO’s
request. It would be irrational and contrary to DC’s self-interest for DC to
license’s certification requirement’s in this way unless DC was also
license’s limits on permitted use of UNIX technology, precluding DC from
5. By refusing to provide the certification that the license requires as a means of
enabling SCO to monitor compliance with, and thus protect, the rights that DC agreed
to respect, DC has compelled SCO to institute this litigation to secure a judicial
Parties, Jurisdiction and Venue
6. Plaintiff SCO is a Delaware corporation with its principal place of business in the
County of Utah, State of Utah.
7. Defendant DC is a Delaware corporation with its principal place of business in the
County of Oakland, State of Michigan.
8. This Court has subject matter jurisdiction over SCO’s Complaint because the
in controversy exceeds the sum of Twenty-Five Thousand ($25,000.00) Dollars
and/or is otherwise within the equitable jurisdiction of this Court.
9. Venue is properly situated in Oakland County, Michigan because DC has a place of
business in Oakland County.
10. UNIX is a computer software operating system. Operating systems serve as the link
between computer hardware and the various software programs (known as
applications) that run on the computer. Operating systems allow multiple software
programs to run at the same time and generally function as a “traffic
for the different software programs that run on a computer.
11. In the business-computing environment for the Fortune 1000 and other large
corporations (often called the “enterprise computing market”), UNIX is
12. The UNIX operating system was originally developed by AT&T Bell Laboratories
(“AT&T”). After successful in-house use of the UNIX software, AT&T
license UNIX as a commercial product for use in enterprise applications by other
13. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T,
its related companies, licensed UNIX for widespread enterprise use. Pursuant to a
license with AT&T, various companies, including International Business Machines,
Hewlett-Packard, Inc., Sun Microsystems, Inc., Silicon Graphics, Inc., and Sequent
Computer Systems, became some of the principal United States-based UNIX vendors,
among many others.
14. These license agreements place restrictions on the valuable intellectual property
developed by AT&T, which allow UNIX to be available for use by others while, at
the same time, protecting AT&T’s (and its successor’s) rights.
15. Through a series of corporate acquisitions, SCO presently owns all right, title and
interest in and to UNIX and UnixWare operating system source code, software and
sublicensing agreements, together with copyrights, additional licensing rights in and
to UNIX and UnixWare, and claims against all parties breaching such agreements.
16. During the past few years a competing, and free, operating system known as Linux
has been transformed from a non-commercial operating system into a powerful
general enterprise operating system.
17. Linux is a computer software operating system that, in material respects, is a
or clone of UNIX System V. According to leaders within the Linux community,
Linux is not just a “clone,” but is intended to displace UNIX System V.
FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)
18. Plaintiff incorporates and re-alleges paragraphs 1 - 17 above.
19. SCO is the successor to AT&T under that certain Software Agreement originally
executed by and between AT&T and Chrysler Motors Corporation designated as
SOFT-01341 (the “DC Software Agreement” or the “Agreement”).
The DC Software
Agreement specifies the terms and conditions for use of authorized distributions of
UNIX System V source code, including modifications and derivative works based
thereon, by Defendant. The DC Software Agreement is attached hereto as Exhibit
20. With respect to the scope of rights granted for use of the System V source code
Section 2.01 of the DC Software Agreement, Defendant received the following rights
[A] personal, nontransferable and nonexclusive right to use
in the United States each Software Product identified in
the one or more Supplements hereto, solely for
own internal business purposes and solely on or in
conjunction with Designated CPUs for such Software
Product. Such right to use includes the right to modify such
Software Product and to prepare derivative works based on
such Software Product, provided that any such modification
or derivative work that contains any part of a Software
Product subject to this Agreement is treated hereunder the
same as such Software Product. (Emphasis added.)
21. Defendant agreed in §2.06 of the DC Software Agreement to the following
restrictions on use of the Software Product (including System
V source code,
derivative works and methods based thereon):
No right is granted by this Agreement for the use of
Software Products directly for others, or for any use of
Software Products by others . . . .
22. Defendant agreed in §7.09 of the DC Software Agreement to the following
restrictions on transfer of the Software Product, including
resulting modifications or
derivative works of UNIX System V:
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software
Product in whole or in part.
23. Defendant agreed under §7.05(a) of the DC Software Agreement to the following
restrictions on confidentiality of the Software Product:
Licensee agrees that it shall hold all parts of the Software
Products subject to this Agreement in confidence for
[SCO]. Licensee further agrees that it shall not make any
disclosure of any or all of such Software Products
(including methods or concepts utilized therein) to
anyone, except to employees of Licensee to whom such
disclosure is necessary to the use for which rights are
granted hereunder. Licensee shall appropriately notify each
employee to whom any such disclosure is made that such
disclosure is made in confidence and shall be kept in
confidence by such employee.
24. Consistent with these restrictions, in § 2.05, Defendant also agreed to
account to SCO
on an annual basis regarding its use of System V software licensed pursuant to the
Software Agreement. Specifically, § 2.05 provides as follows:
On [SCO’s] request, but not more frequently than annually,
Licensee shall furnish to [SCO] a statement, certified by an
authorized representative of Licensee, listing the location,
type and serial number of all Designated CPUs hereunder
and stating that the use by Licensee of Software Products
subject to this Agreement has been reviewed and that each
such Software Product is being used solely on such
Designated CPUs (or temporarily on back-up CPUs) for
such Software Products in full compliance with the
provisions of this Agreement. (Emphasis added.)
25. Section 2.05 of the Software Agreement is designed to insure compliance by DC
“with the provisions of this Agreement,” and to do so by supplying
mechanism that prevents and deters violations of the Software Agreement.
26. By letter dated December 18, 2003, SCO requested that DC provide the writing
required under § 2.05 certifying that DC was “in full compliance with the
of [the Software Agreement].” Although DC should have been in a position to
produce such a compliance certification on shorter notice, SCO’s letter requested
the required certification be provided within 30 days of receipt of that letter. (The
SCO December 18, 2003, letter is attached hereto as Exhibit “B”).
27. DC has refused to comply with its obligations under § 2.05 of the Software
Agreement. Specifically, DC has refused even to respond to SCO’s request for the
contractually required compliance certification within 30 days, or at any time since.
DC has thereby refused to state that it is not now violating its obligations under the
Software Agreement, and DC has refused to state that it has not in the past been
violating its obligations under the Software Agreement. DC has refused to provide
such a certification even though it is also one of DC’s express obligations under
Software Agreement to provide such a certification.
28. On information and belief, DC’s refusal to certify that it is not violating
Software Agreement is also based, in part, on DC’s use of UNIX technology, in
violation of the DC Software Agreement, in migrating its installed base to the Linux
29. It would be irrational and contrary to DC’s self-interest for it to continue
the requested certification and thereby violate the Software Agreement’s
requirements if DC were not also violating the Software Agreement’s
core substantive requirements.
Prayer for Relief
Plaintiff respectfully requests that the Court:
Enter an order that DC has violated § 2.05 of the Software Agreement by refusing
to provide the certification of compliance with the “provisions” of that
Enter an order declaring that DC has not complied with, and instead has violated,
the provisions of the Software Agreement with which § 2.05 required DC to certify
Enter an order permanently enjoining DC from further violations of the DC
Software Agreement; and
Issue a mandatory injunction requiring DC to remedy the effects of its past
violations of the DC Software Agreement; and
Award damages in an amount to be determined at trial; and
Enter judgment in favor of Plaintiff together with costs, attorneys’ fees and any
such other or different relief that the Court may deem to be equitable and just.
SCO demands trial by jury on all issues so triable.
SEYBURN, KAHN, GINN,
BESS AND SERLIN, P.C.
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
Stephen N. Zack, Esq.
Mark J. Heise, Esq..9
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
Boies, Schiller & Flexner LLP
Co-Counsel for Plaintiff
Dated: March 3, 2004