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The AutoZone Hearing - AutoZone Wins a Stay
Tuesday, July 13 2004 @ 07:11 PM EDT

I have had an opportunity to listen to audio of the AutoZone hearing. The court offers copies for sale from their web site, by the way. Here is what I got from listening to the hearing. The big news is that AutoZone won the stay they asked for. IBM goes first. There was no ruling on whether to transfer the whole thing to Tennessee or Utah. The stay made that moot at this time.

The attorney for AutoZone told the judge that the motion they really cared about was the Motion to Stay. The judge has granted an indefinite stay, with 90-day status reports, just like Red Hat's judge. The reports are to be timed so that reports go to Red Hat first, because the judge expressed that the IBM and Red Hat cases should go ahead of AutoZone.

He has given SCO 30 days to convince him that they qualify for a preliminary injunction based on irreparable harm. They can do limited discovery, limited to facts pertinent to a preliminary injunction only, not, they were told, a fishing expedition, and they were told that if they know they can't qualify for a preliminary injunction, they shouldn't do any discovery at all.

He doesn't know SCO as well as we do, huh? Of course they will do discovery. You can almost hear them drooling on the audio.

Here is what happened in a bit more detail:

1. Judge Jones had prepared, and he asked questions from both sides to try to get a clearer picture of what all the cases involve. He had read the briefs and he knew about the Novell issues about copyright and the IBM lawsuit. He pronounced Linux Lye-Nux. He started by saying that the issues of ownership are pending in the Novell-SCO case, and the issues of conflict are pending in the IBM-SCO case. SCO tried to alter his view, trying to show that IBM and AutoZone are distinguishable (somebody tell Judge Kimball, please) but that was basically the way he sees it, and he felt IBM and Red Hat should go first.

2. The motion to transfer to Tennessee was not decided, at this time. The stay made that moot. I didn't hear anything that seemed to preclude it from being raised again in the future, if and when the stay is lifted, if it ever is. I don't know if it would be, though, because he seemed inclined to send it to Utah, if anywhere. Of course, you could end up in worse hands than Judge Kimball's.

3. SCO clarified what it is they think AutoZone did wrong, saying this case is an illustrative case to show people who were their customers the issues that they face in migrating to Linux and how they could violate SCO's copyrights in such a migration, if they use SCO's static shared libraries. It's illustrative, all right. It illustrates that using UNIX is hazardous to your company's health. That is what they think AutoZone did. He mentioned that OpenServer uses static shared libraries. AutoZone licensed OpenServer from SCO. Linux uses dynamic libraries. To migrate to Linux and still use your old OpenServer apps requires, SCO thinks, their static shared libraries. That is their beef. They have it in their heads that AutoZone copied their static shared libraries to be able to use their old OpenServer apps on Red Hat Linux. AutoZone said they don't have any evidence of that or even a good faith basis for such a claim. SCO said that their claims against AutoZone don't necessarily have anything to do with what is "inside" Linux.

Yoo hoo, media. You got suckered once again by SCO, didn't you? They told you all about Linux and pirates and uncontrolled management and copyright infringement, and now in AutoZone in the courtroom they say it is really just about end users moving from UNIX to Linux and copying their static libraries to run their applications, nothing that is inside Linux. And IBM is now just a contract case if you listen to SCO in the courtroom in Utah, not at all about copyright infringement with respect to IBM's Linux activities. Does that match what they told you for a year? Think, please, about all those stories you wrote, and how you must look now in the eyes of everyone reading about the story SCO is telling the judge. It's a cautionary tale. Linux has proven to be pure as newly fallen snow. Before acid rain existed. Just pure, pure, pure. No doubt you will write stories all about that now.

4. As a limited exception to the stay, he granted (without SCO previously asking for it) a 30-day period during which there will be allowed limited discovery, one round, meaning not the kind you would do for trial, but discovery related strictly to preparing a factual basis for a preliminary injunction. The judge told SCO that if they don't qualify for a preliminary injunction, they shouldn't do any discovery at all.

What he means is that SCO can try to present to the court reasons for its assertion that a stay would cause them irreparable harm. They have 30 days to do that. Then AutoZone gets 30 to answer. That will be a stretch, proving irreparable harm, considering this is only about allegedly lost license fees. I've never heard of that qualifying as irreparable harm, because you can always get money at the end of the trial. SCO has to show something that they can't be made whole from, if it isn't brought to a stop this exact minute. AutoZone tried to point that out, but the judge said, my order is my order. He felt 30 days for brief discovery and consideration of the preliminary injunction was no big deal. SCO will also have to show that they are likely to win on the merits, to win a preliminary injunction. That seems impossible, considering that the man who did the migration for AutoZone has already stated publicly that he didn't use their stinking libraries. The parties are to consult together and come up with a decision on how many depositions will be permitted each side, and both he and the magistrate judge are available to the parties for consultation by telephone on such matters. I believe he'll live to regret that part of the ruling.

5. SCO tried to get the judge to force AutoZone to file an answer to their complaint, but the judge said that the case was stayed. Period. So they don't have to.

6. SCO's attorney made a funny argument when talking about their Most Holy IP. He said that source code is the crown jewels. Without source code, he said, you can't write applications. You can't do much that matters. Hmm. Too true. Yet, they want the world to accept Linux as binary-only. What does that tell you? SCO expressed that IBM isn't likely to win its summary judgment, because they didn't argue that there are no undisputed facts. AutoZone pointed out that if IBM wins on August 4, SCO will have no cause of action against AutoZone. AutoZone is to draw up the order.

If you'd like to know a little more about Judge Robert C Jones, here is a picture and a little bit about him. He is new as this kind of judge. He was appointed by President Bush and was confirmed back in December. Here's his resume. He was a bankruptcy judge before that. He must know something about computers, because he was chosen to co-chair the Nevada Bankruptcy Court's implementation of their Case Management Electronic Case Files ("CM/ ECF") program. "Beginning in January 2005, electronic filing in the Bankruptcy Court will be mandatory for all practitioners who annually file two (2) or more papers with the Court." Here are a few cases he has handled or participated in.

Do you realize that three Republican judges are deciding the SCO cases? There are no Democrats in this picture. Kimball was sponsored by Hatch Sr. and I believe I read Judge Robinson is also a Republican. And now Jones. Groklaw is neutral as to politics, but, hey, what are the odds?


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