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SCO v. DaimlerChrysler: Complaint and Answer Chart
Friday, April 30 2004 @ 01:06 PM EDT

Here is a handy chart grouch has made for Groklaw, showing the complaint against DaimlerChrysler on the left and their Answer on the right, so you can easily see what their answers refer to. Enjoy.

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,
a Delaware corporation,

Defendant.

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

Civil Action No. 04-056587-CKB

Honorable Rae Lee Chabot

COMPLAINT AND JURY DEMAND

Case No. 04-056587-CK

ANSWER AND AFFIRMATIVE DEFENSES OF
DEFENDANT DAIMLERCHRYSLER CORPORATION

NOW COMES Plaintiff, The SCO Group, Inc. (“SCO”) by and through its attorneys, Seyburn, Kahn, Ginn, Bess & Serlin, P.C., and Boies, Schiller & Flexner LLP, and for its Complaint against Defendant DaimlerChrysler Corporation (“DC”) alleges as follows:

Defendant DaimlerChrysler Corporation ("DCC"), through its counsel, Dykema Gossett PLLC, for its Answer and Affirmative Defenses to the Complaint ("Complaint") of Plaintiff The SCO Group, Inc. ("Plaintiff") states as follows:

Introduction

INTRODUCTION

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 require licensees to certify their compliance with those restrictions. Like all provisions in the license, these reporting and monitoring provisions exist only because they have been agreed to by the licensee.

1. DCC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 1 of the Complaint.

2. SCO has requested that DC provide the contractually required certification that DC is 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 agreed parameters of permitted use established by the license.

2. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of paragaraph 2 of the Complaint. DCC denies the allegations contained in the second sentence of paragraph 2 of the Complaint.

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.

3. DCC denies the allegations of paragraph 3 of the Complaint, except that it admits that it is the successor in interest to Chrysler Motors Corporation for an agreement designated SOFT-01341 between AT&T Information Systems and Chrysler Motors Corporation.

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 violate the license’s certification requirement’s in this way unless DC was also violating the license’s limits on permitted use of UNIX technology, precluding DC from certifying compliance.

4. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first and second sentences of paragraph 4 of the Complaint. DCC denies the allegations contained in the third sentence of paragraph 4 of the Complaint.

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 remedy.

5. DCC denies the allegations contained in paragraph 5 of the Complaint.

Parties, Jurisdiction and Venue

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.

6. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 6 of the Complaint.

7. Defendant DC is a Delaware corporation with its principal place of business in the County of Oakland, State of Michigan.

7. DCC admits that it 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 amount in controversy exceeds the sum of Twenty-Five Thousand ($25,000.00) Dollars and/or is otherwise within the equitable jurisdiction of this Court.

8. Paragraph 8 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations contained in paragraph 8 of the Complaint.

9. Venue is properly situated in Oakland County, Michigan because DC has a place of business in Oakland County.

9. Paragraph 9 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations contained in paragraph 9 of the Complaint.

Background Facts

Background Facts

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 control” system for the different software programs that run on a computer.

10. DCC admits that UNIX is a computer software operating system. DCC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 10 of the Complaint.

11. In the business-computing environment for the Fortune 1000 and other large corporations (often called the “enterprise computing market”), UNIX is widely used.

11. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Complaint.

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 began to license UNIX as a commercial product for use in enterprise applications by other large companies.

12. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Complaint.

13. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T, and 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.

13. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 13 of the Complaint.

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.

14. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 14 of the Complaint.

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.

15. Paragraph 15 of the Complaint states legal conclusions to which no answer is required To the extent an answer may be required, DCC denies the allegations contained in paragraph 15 of the Complaint.

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.

16. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 of the Complaint.

17. Linux is a computer software operating system that, in material respects, is a variant 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.

17. DCC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 17 of the Complaint.

FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)

FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)


18. Plaintiff incorporates and re-alleges paragraphs 1 - 17 above.

18. DCC incorporates its responses to the preceding paragraphs as if set forth fully herein.

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 “A.”

19. Paragraph 19 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 19 of the Complaint and further states that the AT&T Information Systems, Inc. Software Agreement, Agreement No. SOFT-01341, entered into by Chrysler Motors Corporation and AT&T Information Systems, Inc. (the "License Agreement") speaks for itself. To the extent that paragraph 19 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

20. With respect to the scope of rights granted for use of the System V source code under Section 2.01 of the DC Software Agreement, Defendant received the following rights in UNIX:

[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 Licensee’s 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.)

20. Paragraph 20 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 20 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 20 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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 . . . .

21. Paragraph 21 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 21 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 21 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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.

22. Paragraph 22 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 22 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 22 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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.

23. Paragraph 23 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 23 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 23 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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.)

24. Paragraph 24 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 24 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 24 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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 a monitoring mechanism that prevents and deters violations of the Software Agreement.

25. Paragraph 25 of the Complaint states legal conclusions to which no answer is required. To the extent an answer may be required, DCC denies the allegations set forth in paragraph 25 of the Complaint and further states that the License Agreement speaks for itself. To the extent that paragraph 25 contains allegations which purport to characterize the contents of the License Agreement, DCC denies them.

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 provisions 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 that 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”).

26. DCC denies the allegations set forth in paragraph 26 of the Complaint and states that the letter dated December 18, 2003 alleged in paragraph 26 of the Complaint (the "SCO Letter") speaks for itself. To the extent that paragraph 26 contains allegations which purport to characterize the contents of the SCO Letter, DCC denies them.

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 the Software Agreement to provide such a certification.

27. DCC denies the allegations contained in paragraph 27 of the Complaint.

28. On information and belief, DC’s refusal to certify that it is not violating the DC 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 operating system.

28. DCC denies the allegations contained in paragraph 28 of the Complaint.

29. It would be irrational and contrary to DC’s self-interest for it to continue to withhold the requested certification and thereby violate the Software Agreement’s reporting requirements if DC were not also violating the Software Agreement’s non-reporting, core substantive requirements.

29. DCC denies the allegations contained in paragraph 29 of the Complaint.

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 Agreement;

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 compliance;

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.

Jury Demand

SCO demands trial by jury on all issues so triable.

WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice, award DCC its costs and attorney's fees as may be permitted by law, and grant such other relief as may be appropriate.

 

AFFIRMATIVE DEFENSES

Defendant DaimlerChrysler Corporation ("DCC"), through its counsel, Dykema Gossett PLLC, for its Affirmative Defenses to the Complaint ("Complaint") of Plaintiff The SCO Group, Inc. states as follows:

    1 Failure to State a Claim. The Complaint fails to state a claim against DCC upon which relief can be granted.

    2 Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or acquiescence.

    3 Lack of Capacity to Sue. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack the capacity to sue.

    4 Lack of Standing. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack standing to sue. Plaintiff also lacks standing to sue because the terms of Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its right to enforce the License Agreement upon Novell's request, which, upon information and belief, Novell has expressly requested Plaintiff to do.

    5 Lack of Case or Controversy. Plaintiff's action for declaratory judgment fails for lack of a case or controversy because DCC did not breach the License Agreement.

    6 Lack of Breach/Cure of Alleged Breach. Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement. Nothing set forth herein shall be construed as an admission by DCC that it has failed to comply with any duty under the License Agreement.

    7 Mitigation of Damages. The damages sought by Plaintiff are not recoverable because Plaintiff has failed to mitigate its damages.

    8 Plaintiff's Claims are Moot. The claims asserted in the Complaint are moot because DCC has provided Plaintiff with a proper certification under the License Agreement.

    9 Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in the Complaint by its contract with Novell, Inc.

    10 Reservation of Right. DCC reserves the right, upon completion of its discovery and investigation or otherwise, to assert such additional defenses as may be appropriate.

WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice, award DCC its costs and attorney's fees as may be permitted by law, and grant such other relief as may be appropriate.


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