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: