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SCO's Proposed Amended Complaint Against AutoZone, as text - Updated - Chart
Sunday, July 05 2009 @ 01:31 PM EDT

As I mentioned earlier, SCO is asking the court [PDF] to let it amend its complaint against AutoZone, which is probably the only way it can go forward unless the appellate court rules in SCO's favor -- and then a jury does too, down the road apiece. We have the motion and the proposed amended complaint as text now.

A normal litigant would just fold up shop and call it quits, now that Novell has been ruled the owner of the copyrights that SCO was suing AutoZone about. Not SCO. It is addicted to litigation, I guess, or someone is making them do it.

Like the Devil.

Just kidding around. I don't know why they do what they do. But whatever the reason, now that the judge has told them to get a move on with this case and wrap it up as opposed to waiting until the appeal in Novell is over, rather than admit they had no case, they would like to morph the complaint to be about contract breach and more about OpenServer.

Is that not totally the SCO you've come to know?

They presumably own whatever they developed in OpenServer on top of the code its predecessor-in-interest licensed from AT&T, so they'd like to sue about *that* now, while keeping a placeholder where the old claims are, in case they hit the jackpot on appeal in the Novell case.

If you think about it, though, that's just another way of admitting SCO had no case originally against AutoZone. SCO's justification is that they allegedly found evidence in discovery in 2004 that they'd like to use now:

Based on the evidence it discovered in 2004, SCO seeks leave to file a First Amended Complaint to (1) expand the scope of the copyright claim to include infringement of OpenServer and related copyrights, and (2) add a single claim for breach of the agreements under which AutoZone licensed OpenServer and related materials from SCO's predecessor-in-interest.
I love that touch, "based on the evidence it discovered in 2004"... hahahaha. "Based on losing in Utah in 2007 and 2008" would be more like it, methinks. And "expand the scope of the copyright claim" is funny too. SCO's copyright claim got reeeeally small -- as in poof, it's gone -- thanks to Novell's victory, as it was ruled that the copyrights SCO was suing AutoZone about didn't pass to SCO under the 1995 SCO-Novell deal.

When it comes to litigation, SCO's claims are always as big as the sky at the starting gate. At the end, they suddenly get small or disappear altogether, which is what I expect will happen in this case too. When SCO raised these allegations in 2005, AutoZone responded in a letter to the judge [text]:

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.
I gather SCO deep down agrees, so it would like to alter the allegations. AutoZone also said it has licenses that allow them to do what they did, and more:
SCO notes on Page 9 of the SCO Report that discovery revealed that OpenServer compiled programs were on AutoZone's server named "Spirit."' In deposition testimony, Mr. Celmer stated that AutoZone initially ran the Spirit server on the OpenServer operating system under license from SCO until the server experienced a hardware failure. (Celmer Deposition 100:12 -102:19.) When AutoZone restored the server after the failure, per Mr. Celmer's testimony, it decided to load the Linux operating system on the server. (Id.) Significantly" AutoZone had at that time and continues to have a license from SCO to use OpenServer on the Spirit machine through the more than 2900 end user licenses AutoZone has obtained from SCO.

Moreover, software AutoZone reloaded onto the Spirit server was intended to be a copy of the original software that was on the original Spirit machine. Thus, even if AutoZone had not been licensed to load the programs on the machine, AutoZone has the legal right to create a copy of a program for archival purposes. 17 U.S.C. 117(a)(2). Because any OpenServer compiled program loaded onto the new Spirit server would likely not be able to run on that server (since it was now running the Linux operating system), the only possible reason for keeping programs compiled to run on OpenServer on the Spirit server was for archival purposes. Thus, AutoZone both had a license to copy the programs onto the Spirit server and a legal right to do so for archival purposes, even without the benefit of the license.

SCO holds the door open to going after AutoZone again in the future if the timing works out in the appeal. If they get remanded back to Utah for a jury trial, no doubt we'll be favored with SCO arguments that they believe they'll prevail in that trial and any later appeal if they don't, so there should be a stay on the AutoZone litigation. In the meantime, SCO is saying now not that it is the owner of the copyrights but that "on information and belief" it thinks it is the owner:
42. Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the "Copyrighted Materials"). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials.

43. SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials:

It owns "certain" copyrights. And the list of its copyright registrations is interesting, compared to the original list, a bunch of drivers and manuals, and then in the code department it claims these:

44. SCO also obtained and owns registrations for other Copyrighted Materials, including without limitation registrations for the following software code:

TITLE REGISTRATION NO.
UNIX system V: release 3.0 TX-5-750-270
UNIX system V: release 3.1 TX-5-750-269
UNIX system V: release 3.2 TX-5-750-271
UNIX system V release 3.2/386 TX-5-750-268
UNIX system V: release 4.0 TX-5-776-217
UNIX System V: release 4.1 TX-5-762-234
UNIX system V, release 4.1ES TX-5-705-356
UNIX System V: release 4.2 TX-5-762-235
UNIX System V: release 4.2MP TX-5-972-097
UnixWare 7.1.3 TX-5-787-679
SCO OpenServer: release 5.0.5 TX-6-008-305

Here's the original list in the earlier complaint:

17. Registrations in the Copyrighted Materials have also been obtained by SCO and its registrations in the following additional registrations of software code:
UNIXWARE 7.1.3 TX 5-787-679
UNIX SYSTEM V RELEASE 3.0 TX 5-750-270
UNIX SYSTEM V RELEASE 3.1 TX 5-750-269
UNIX SYSTEM V RELEASE 3.2 TX 5-750-271
UNIX SYSTEM V RELEASE 4.0 TX 5-776-217
UNIX SYSTEM V RELEASE 4.1ES TX 5-705-356
UNIX SYSTEM V RELEASE 4.2 TX 5-762-235
UNIX SYSTEM V RELEASE 4.1 TX 5-762-234
UNIX SYSTEM V RELEASE 3.2 TX 5-750-268

They are so tiring, are they not? I think they sue not because anyone violated their rights, but because they just want money and/or to use the courts as an anticompetitive weapon against Linux, and by hook or by crook they aim to use litigation to get what they want. That's my interpretation of a case as weird as this one. AutoZone is not guilty of what they originally sued them over if SCO isn't the owner of the copyrights on the original list, so they just change what they are suing them over. I believe that speaks to motive.

This is the same judge who earlier gave SCO limited discovery it hadn't even asked for. But if you read the transcript of the latest hearing on September 22nd, 2008, where he decided to lift the stay, it reads more like he would like to get the case off his docket and recognizes that Novell won. When SCO argued to keep the stay in place until the appeal was decided, he ruled that the case should go forward based on the findings in the Novell case, not waiting for any appeals. Note how the SCO lawyer pretends that Novell lost most of its claims, when in reality Novell decided before trial not to pursue some aspects of the case.

If the judge grants SCO's new motion to amend, it's a low blow to AutoZone, which will have to spend money on more discovery about the new claims, but dealing with SCO is like trying to eradicate cockroaches, and they won't be exactly surprised. The judge may feel he has no choice but to let them amend. The system isn't set up for gamers of the system. There isn't a legal system in the world that is set up to be both fair to legitimate plaintiffs and also 100% solid against gamers of the system. Not that I know of anyway, and that's how I view this case, a gaming of the system. SCO originally wanted AutoZone to be the poster child to warn against switching from UNIX to Linux, using their shared libraries. But then they found out that no one needs those shared libraries to switch over, and besides SCO doesn't own the copyrights anyhow. So what to do? Call it a contract violation instead, and talk about COFF. Blech. Read the AutoZone response letter, and you'll see why I say blech.

So, here's the motion asking to amend the complaint as text, followed by the proposed amended complaint. If someone could do a chart, in the Groklaw manner, to compare it with the original complaint, that would be hilarious. Also useful. If no one has time, I'll do it, but I have another project I'm working on too, so if you can, please volunteer. And here's AutoZone's answer to the original complaint, in case you weren't paying attention last February. If the new complaint is allowed, then they will answer the new one. Mo' money spent on bogo lawsuits. It's a crying shame.

Update: I just remembered something, a footnote in an earlier AutoZone filing. Here it is, in AutoZone's Motion to Stay:

5 Under the doctrine of defensive collateral estoppel, SCO will be estopped from litigating against AutoZone issues that were decided against SCO in the previously filed cases. However, because AutoZone is not a party to the previously filed cases, AutoZone may challenge issues decided in SCO's favor in the other cases. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found. , 402 U.S. 313 (1971) (setting forth rule that once a patent has been declared invalid via judicial inquiry, collateral estoppel prevents the patentee from further litigation involving the patent against other defendants, unless the patentee can demonstrate that it did not have a full and fair chance to litigate the validity of its patent in the earlier case).
Update 2: The Chart

We have a handy chart now showing the current SCO complaint from 2004 [PDF] and the proposed first amended version [PDF].

Putting them side by side with color highlighting makes it much easier to see what is added, what removed. Thank you, Erwan. He credits as follows: "This html diff was produced by grokdiff 1.00; rfcdiff is available from http://www.levkowetz.com/ietf/tools/rfcdiff/."

Here it is, after the double row of stars. Enjoy. (I just received a redlined version too, so choose whatever you find easiest to follow.) Here are some links so you can go directly to whatever document you want:

[ Motion ] [ First Amended Complaint ] [ Chart ]

***********************************

Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff, The SCO Group, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

THE SCO GROUP, INC.,
A Delaware corporation,

Plaintiff,
v.
AUTOZONE, INC.,
A Nevada corporation,

Defendant
Docket No.: 2:04-CV-237-RCJ-(GWF)

SCO'S MOTION TO AMEND
COMPLAINT

(1)

Plaintiff, the SCO Group, Inc. ("SCO"), respectfully seeks leave of Court to amend its Complaint and file a First Amended Complaint (attached hereto as Exhibit A) pursuant to Federal Rule of Civil Procedure 15(a), and in support of this Motion states as follows:

BACKGROUND

SCO instituted this action on March 3, 2004, asserting a single claim for copyright infringement based on AutoZone's conduct in migrating from SCO's OpenServer operating system to the Linux operating system. In its Complaint, SCO alleges that Linux contains and is a derivative of SCO's copyrighted UNIX System V technology.

In 2004, the Court stayed the action pending resolution of related cases proceeding in the Federal District Courts for the Districts of Utah and Delaware. Pursuant to its August 4, 2004 Order, as amended, the Court authorized limited discovery to permit SCO to determine whether or not it was appropriate for SCO to move for preliminary injunctive relief. During the course of that limited discovery, SCO uncovered evidence that AutoZone had made thousands of unauthorized copies of OpenServer materials in converting its computer systems from OpenServer to Linux at its headquarters and 3,500 retail stores in the United States and Mexico. (See May 27, 2005 Report of Plaintiff The SCO Group Inc. Regarding Discovery, at 6-11.)

On September 22, 2008, the Court lifted the stay effective December 31, 2008. On January 16, 2009, the Court entered the Stipulated Discovery Plan and Scheduling Order, which sets July 1, 2009, as the deadline for the parties to amend their pleadings, and January 15, 2010, as the deadline for them to complete fact discovery. Since January 16, 2009, the parties have exchanged Rule 26 Initial Disclosures, but have not otherwise conducted discovery in this case.

2

Based on the evidence it discovered in 2004, SCO seeks leave to file a First Amended Complaint to (1) expand the scope of the copyright claim to include infringement of OpenServer and related copyrights, and (2) add a single claim for breach of the agreements under which AutoZone licensed OpenServer and related materials from SCO's predecessor-in-interest.

ARGUMENT

Under Rule 15, which governs the amendment of pleadings, "leave shall be freely given when justice so requires." FED. R. CIV. P. 15. "The purpose of pleading is to facilitate a proper decision on the merits . . . and not erect formal and burdensome impediments to the litigation process. Unless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint." Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). The Ninth Circuit has repeatedly emphasized that "Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987).

Courts should grant leave to amend unless the non-moving party shows that the proposed amendment is unduly delayed, prompted by bad faith or dilatory motive, would unduly prejudice the opposing party, or would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original). Here, AutoZone cannot make any showing of prejudice or the other factors, let alone a showing sufficient to overcome the presumption in favor of granting this Motion.

3

First, SCO seeks to amend its Complaint by the deadline for amendment of pleadings in the Scheduling Order, just a few months after the Court lifted the stay that was in place in this case virtually since its inception. There can be no serious argument that SCO has unduly delayed or acted in bad faith by filing this Motion by the Court-ordered and stipulated deadline, especially where SCO could not have filed the Motion during the pendency of the stay.

Second, SCO uncovered the evidence in support of the proposed amendment over four years ago, and in January of this year informed counsel for AutoZone that SCO would seek to file an amended complaint based on that evidence. Counsel for AutoZone did not object, but rather agreed to the stipulated deadline for amendment of pleadings. Under these circumstances, there can be no credible argument that AutoZone has been prejudiced, much less unduly prejudiced, by the timing of this Motion, especially where AutoZone has subsequently elected not to take discovery to this point under the Scheduling Order.

Third, where more than six months remain for the parties to complete fact discovery and where the Scheduling Order sets May 10, 2010 as the deadline to file dispositive motions and June 9, 2010, as the deadline to file a joint pre-trial order, AutoZone cannot make the required showings. See, e.g., Golden Hour Data Systems, Inc. v. Health Services Integration, Inc., 2008 WL 2622794 (N.D.Cal. July 1, 2008) (granting leave to amend where discovery cut-off remained more than three months away and trial was not scheduled to begin for more than nine months); Jefferson v. Rowe, 2008 WL 669894 (E.D. Cal., Mar. 7, 2008) (granting leave where the case was still in the discovery phase).

4

Fourth, since AutoZone has conducted little to no discovery in this case, it cannot be argued that it will be prejudiced by having to re-take discovery based on new allegations in the proposed First Amended Complaint.

Fifth, because the proposed amendment relates to the same subject matter already at issue AutoZone's actions in converting its computer systems from OpenServer to Linux the proposed amendment will not substantially expand the scope of discovery or litigation, and AutoZone cannot argue that it will be unduly prejudiced by the amendment. See, e.g., LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir.) (no prejudice where the amended complaint referred "to the same chattels, the same consideration, and the same transaction" already at issue in the case); Kreinik v. Showbran Photo, Inc., No. 02 Civ. 1172 (RMB) (DF), 2003 WL 22339268, at *10 (S.D.N.Y. Oct. 14, 2003) (plaintiff's amendment would not cause the defendant any prejudice where new claims related to claims already at issue).

CONCLUSION

For the foregoing reasons, SCO respectfully requests that the Court grant leave for SCO to file its First Amended Complaint in this action.

DATED this 1st day of July 2009.

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Richard J. Pocker
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff, The SCO Group, Inc.

5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am an employee of Boies, Schiller & Flexner LLP and that on this 1st day of July 2009, I caused to be deposited in the United States Mail, postage prepaid, a true and correct copy of the foregoing SCO's Motion to Amend Complaint addressed as follows:

James J. Pisanelli, Esq. (State Bar No. 4027)
Nikki L. Wilmer (State Bar No. 6562)
Brownstein Hyatt Farber Schreck
[address]

David J. Stewart
Michael P. Kenny
Christopher A. Riley
Alston & Bird LLP
[address]

/s/ Shilah Wisniewski
An employee of Boies, Schiller & Flexner LLP

6

Exhibit A


Exhibit A

(7)

Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff, The SCO Group, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

THE SCO GROUP, INC.,
A Delaware corporation,

Plaintiff,

v.

AUTOZONE, INC.,
A Nevada corporation,

Defendant
Docket No.: 2:04-CV-237-RCJ-(GWF)

FIRST AMENDED COMPLAINT AND
JURY DEMAND

(8)

COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO"), and sues the Defendant, AutoZone, Inc. ("AutoZone"), and alleges as follows:

I. NATURE OF THIS ACTION

1. AutoZone uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its propriety UNIX System V operating system technology.

2. In addition, as SCO confirmed through the limited discovery the Court previously authorized in this action, contrary to AutoZone's public statements to this Court and others, AutoZone made many thousands of unauthorized copies of materials from SCO's OpenServer operating system and related products, in migrating from OpenServer to Linux in AutoZone's headquarters and 3,500 retail stores.

3. SCO seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of AutoZone's unlawful use of Linux and to enjoin AutoZone's further unlawful use of Linux. SCO also seeks relief under applicable contract law to compensate SCO for damages it has sustained as a result of AutoZone's breach of the agreements through which it obtained limited licenses to OpenServer and related materials. SCO also seeks relief under the Copyright Act to compensate SCO for damages it has sustained as a result of AutoZone's unlawful use of OpenServer and related products outside the scope of those limited licenses.

II. PARTIES, JURISDICTION, AND VENUE

4. SCO is a Delaware corporation with its principal place of business in Utah County, Utah.

5. AutoZone is a Nevada corporation with its headquarters in Tennessee.

2 (9)

6. This Court has subject matter jurisdiction over SCO's copyright claims pursuant to 28 U.S.C. 1331 and 1338. Based on this jurisdiction, the Court also has supplemental jurisdiction over SCO's contract claim.

7. This Court has personal jurisdiction over AutoZone because it is incorporated and conducts substantial business in Nevada.

8. Venue is properly situated in this District pursuant to 28 U.S.C. 1391 and 1400, and the prior order of this Court.

III. FACTUAL BACKGROUND

A. SCO's Rights in UNIX Code and Products.

9. 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 a computer. Operating systems allow multiple software programs to run at the same time and generally function as "traffic control" for those programs.

10. UNIX is widely used in the business-computing environment of the Fortune 1000 companies and other large corporations (often called the "enterprise computing market").

11. The UNIX operating system was originally developed by AT&T Bell Laboratories ("AT&T"). Over the years, AT&T and its successors progressively developed updated versions and releases of the operating system. UnixWare is the brand name for the most current releases of UNIX System V.

12. In the 1980s, AT&T began to license UNIX System V as a commercial product for use in enterprise applications by large companies and institutions. Pursuant to standard licensing agreements, AT&T granted the world's leading computer manufacturers the right to use

3 (10)

a specific release of the valuable UNIX source code to develop UNIX-derived versions of the operating system, known as UNIX flavors, optimized to run on their respective computers. International Business Machines, Hewlett-Packard, Sun Microsystems, Silicon Graphics, Sequent Computer Systems, and Santa Cruz Operation,Inc. ("Santa Cruz"), among others, became important vendors of UNIX flavors.

13. Licensees obtained those rights subject to strict restrictions on the use and disclosure of UNIX source code and intellectual property, including the UNIX flavors themselves. These restrictions protected the rights of AT&T and its successors, including today SCO, in the UNIX technology and business.

14. Through a series of corporate acquisitions from AT&T, to Novell, to Santa Cruz, to SCO SCO today owns (among other assets related to UNIX) all right, title, and interest in and to:

  1. the source code for UNIX, UnixWare, and the UNIX flavor OpenServer,

  2. the licensing agreements with the foregoing UNIX vendors,

  3. all claims for breach of those agreements

  4. copyrights in and to UNIX and UnixWare, and

  5. copyrights in and to OpenServer and related products.

15. Upon information and belief, SCO owns all copyrights to UNIX, UnixWare, OpenServer, and related products.

16. On August 10, 2007, the Federal District Court for the District of Utah ruled on summary judgment that SCO has a license and other ownership rights, but does own the copyrights, to certain older versions of UNIX and UnixWare. SCO has appealed this ruling in the United States Court of Appeals for the Tenth Circuit, which heard oral argument on the

4 (11)

appeal on May 6, 2009. The appeal was briefed and argued on an expedited basis; SCO does not know when the Tenth Circuit will issue a decision.

B. AutoZone's Unauthorized Use of Linux.

17. Linux is a form of "open source" software. The Linux source code is freely available to the public unlike the source code for proprietary programs such as UNIX and its flavors. The code for the Linux kernel can be freely downloaded from a public website and installed on a computer. Like other open source software, Linux is modified on an ongoing basis, based on voluntary contributions from users around the world.

18. Starting approximately in early 2000, Linux was wrongfully transformed from an upstart hobbyist's program into a powerful general enterprise operating system competitive with UNIX and Windows. According to leaders within the Linux-development community, Linux is intended to displace UNIX System V.

19. Linux is in material respects a variant or clone of UNIX System V technology. Linux is a derivative of, and substantially similar to, UNIX System V under the Copyright Act.

20. Subsequent to the transformation of Linux into a commercially viable operating system, AutoZone started to use, copy, modify, and/or distribute one or more implementations of Linux in its business operations. AutoZone today continues to use, copy, modify, and/or distribute Linux. AutoZone thus has infringed and continues to infringe SCO's exclusive rights as owner of the copyrights to UNIX System V.

C. AutoZone's Limited Licenses to OpenServer Technologies.

21. In 1988, Santa Cruz licensed UNIX System V Release 3.2 from AT&T. As a UNIX licensee, Santa Cruz then developed and marketed OpenServer, based on that UNIX

5 (12)

release. In 1995, Santa Cruz purchased the base UNIX technology and the UNIX licensing business from Novell, Inc., which had acquired them from AT&T. In 2001, SCO acquired the base UNIX technology and the UNIX licensing business, as well OpenServer and related products, from Santa Cruz.

22. By the late 1990s, before Linux was transformed into a commercially viable competitor to UNIX, OpenServer was a market leader in worldwide UNIX sales. Today, OpenServer accounts for the majority of SCO's revenues.

23. On May 14, 1990, Santa Cruz entered into an Authorized Industry Reseller Agreement with AutoZone (the "AIRA") granting AutoZone a limited license to "LICENSED PRODUCT," including OpenServer and related products.

24. Under the AIRA, AutoZone obtained the right to use the LICENSED PRODUCT "exactly as shipped . . . by SCO." (AIRA 1.) The AIRA also provides that AutoZone "may not modify or change LICENSED PRODUCT in any manner" and "may not make or cause to be made any copy of any part of LICENSED PRODUCT." (Id. (emphasis added).) In addition, AutoZone agreed to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. 2.1.H.)

25. On January 24, 2001, Santa Cruz entered into a Corporate Software License Agreement with AutoZone (the "CSLA"). Section 1.0 of the CSLA, entitled "Grant of Right," provides:

SCO grants Company a non-transferable and non-exclusive license to use the Licensed Products provided to Company under this Agreement and to utilize any SCO Serial Number and Activation Key ("SNAK") or Certificate of License ("COLA") made available to Company to install such Licensed Product on Company's systems worldwide, subject to the terms of this

6 (13)

Agreement. Any use of the SNAK and/or COLA shall be in accordance with the terms and conditions set forth herein.

26. The standard COLA provides: "This certificate licenses the software product listed below according to the rights outlined in the Software License Agreement included with your SCO product."

27. Section 3.1 of the CSLA provides:

Company shall have the right to reproduce the Licensed Product as expressly set forth herein. The Licensed Products may not be modified or revised in any way, nor may it be translated or localized in any way without the prior written consent of SCO. All copies of the Licensed Product reproduced by Company shall include the copyright notice of SCO and/or its suppliers and all other proprietary markings.
(Emphasis added.)

28. Section 11.2 of the CSLA requires that AutoZone "not reverse engineer or decompile, translate, create derivative works or modify any of the Licensed Product, except as expressly provided herein." (Emphasis added.) The CSLA does not provide any such exception.

29. SCO owns and is the successor-in-interest to all contractual rights arising under and related to the AIRA, CSLA, and COLA.

D. AutoZone's Unauthorized Use of OpenServer Technologies.

30. AutoZone licensed OpenServer and related products under the AIRA and CSLA, subject to the terms of those agreements. As explained below, AutoZone breached those agreements in migrating or converting its computer systems at its headquarters and 3,500 stores from a UNIX-based operating system to a Linux-based operating system.

31. Pursuant to this Court's August 6, 2004 Order, as amended, SCO conducted limited discovery to determine whether or not it was necessary for SCO to move for a

7 (14)

preliminary injunction. Contrary to the statements AutoZone made to this Court at that time and contrary to an Internet posting by AutoZone's former senior technology advisor, AutoZone admitted to extensive copying of programs containing OpenServer code. After such facts came to light, AutoZone swore that it had voluntarily removed all such programs from its Linux servers and certified that other such programs were recompiled without such code. Accordingly, SCO elected not to file for preliminary injunctive relief.

32. In particular, AutoZone admitted that it created what amounts to tens of thousands of copies of OpenServer files in Common Object File Format ("COFF") and installed them onto its various Linux servers located in AutoZone's headquarters and 3,500 stores in the United States and Mexico. With respect to just nine of these COFF files, for example, AutoZone's senior technical advisor testified:

Q. Okay. So I think you earlier told me that there were there was a Linux release, and then there was some other kind of release, and somehow, the COFF files got into the Linux release. Is that right?

A. Right.

Q. As you sit here today, do you recall how many machines those nine COFF files were on before they were deleted?

A. I believe they were on all of our store servers.

Q. Okay. So all 3500?

A. Right.

33. To illustrate, SCO's limited discovery to date confirms that AutoZone engaged in the following activities, among others, in violation of SCO's contract rights and copyrights:

8 (15)

  1. AutoZone developers copied 1,681 separate COFF files onto at least 387 AutoZone store machines located throughout the United States.

  2. AutoZone developers copied 28 COFF files consisting of sort files, help utilities, and other miscellaneous files, onto all its machines in 3,500 AutoZone stores in the United States and Mexico.

  3. AutoZone copied two COFF files, Compx and Decompx, onto the machines located in those stores. These files were programs that AutoZone had licensed from a third party which contained proprietary SCO code. AutoZone used these files at least from January 2000 until it deleted them during the Court-ordered discovery process. When AutoZone deleted Compx and Decompx from its Linux servers, the replenishment system used by AutoZone to replace inventory from its warehouses failed on approximately 650 machines.

  4. AutoZone's machine load computer was found to contain a program entitled dexpand.x that was compiled under SCO's proprietary OpenServer operating system.

  5. AutoZone copied over 4,500 programs that were compiled to run on OpenServer onto AutoZone's "Spirit Server" which was used to store AutoZone's source code in its headquarters. The vast majority of these programs contain some portion of SCO's proprietary static libraries. AutoZone has admitted to copying on Spirit at least 1,130 programs compiled to run on OpenServer.

  6. In addition, with the aid of a software tool written by SCO's technical consultant, AutoZone discovered an additional fifteen SCO Extensible Linking Format

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    ("ELF") and Xenix files which were also compiled to work on SCO proprietary operating systems (earlier versions of OpenServer that were licensed by AutoZone). AutoZone admitted that those files "likely also exist on all 3500 AutoZone store servers."

  7. AutoZone copied approximately 370 programs onto its Linux development machine known as "Wrangler." The majority of these programs appear to contain some portion of SCO's proprietary static libraries.

  8. AutoZone developers copied numerous SCO files, the precise number of which has not been disclosed in discovery, onto AutoZone's "Vision" server which was used in part by AutoZone to compare the output of programs that it was porting from OpenServer to Linux, to ensure that the output was identical.

34. AutoZone conducted its migration to Linux in an ad hoc manner through developers who had worked and were familiar with SCO's proprietary OpenServer code and related products, with no formal controls in place to protect those materials. AutoZone has admitted that the persons responsible for implementing the migration were not focused on protecting those materials. Those persons did not consult counsel prior to or during the migration process, nor did they review the AIRA or CSLA to determine if the planned migration ran afoul of those licenses.

35. AutoZone's conduct constituted a breach of terms of the AIRA and CSLA.

36. AutoZone breached the provisions requiring that it "not make or cause to be made any copy of any part of LICENSED PRODUCT." (AIRA 1.)

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37. In addition, in taking materials from software products licensed to AutoZone under the AIRA and using them to migrate to Linux, AutoZone breached the provisions requiring it to use those materials "exactly as shipped" and "not modify or change LICENSED PRODUCT in any manner." (Id.) AutoZone also breached the provisions permitting it to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. 2.1.H.)

38. Similarly, AutoZone's conduct in migrating to Linux breached Section 3.1 of the CSLA, which provides that "Licensed Products may not be modified or revised in any way," and Section 11.2 of the CSLA, which requires that AutoZone not "create derivative works or modify any of the Licensed Product, except as expressly provided herein."

39. AutoZone's breach of its contractual obligations worked damage upon SCO, including by depriving SCO of the licensing fees that AutoZone was required to pay SCO for each copy and installation of OpenServer and related materials.

40. AutoZone also infringed SCO's copyrights in the OpenServer and related products licensed through the AIRA and CSLA, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products in migrating to Linux.

FIRST CAUSE OF ACTION
(Copyright Infringement in Linux)

41. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein.

42. Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the

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"Copyrighted Materials"). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials.

43. SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials:

TITLE REGISTRATION NO.
UNIX SYSTEM V RELEASE 4 Integrated
Software Development Guide
TX 2 931-646
UNIX SYSTEM V RELEASE 4 Reference
Manual For Intel Processor Commands m-z
TX 3 221-656
UNIX SYSTEM V RELEASE 4 Reference
Manual for Intel Processors Commands a-l
TX 3 227-639
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Intel Processors
TX 3 232-578
UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams for Intel Processors
TX 3 218-286
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Motorola Processors
TX 220-500
UNIX SYSTEM V RELEASE 4 Reference
Manual for Motorola Processors Commands a-
l
TX 3 220-331
UNIX SYSTEM V RELEASE 4
PROGRAMMER'S GUIDE
TX 2 120-502
UNIX SYSTEM V/386 RELEASE 4 Transport
Application Interface Guide
TX 2 881-542
UNIX SYSTEM V/386 RELEASE 4 Device
Interface/Driver Kernel Interface (DDI/DKI)
TX 2 883-235

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Reference Manual
UNIX SYSTEM V/386 RELEASE 4
Programmer's Guide: SCSI Driver Interface
TX 2 902-863
UNIX SYSTEM V/386 RELEASE 4 System
Administrator's Reference Manual
TX 2 881-543
UNIX SYSTEM V/386RELEASE 4
Programmer's Reference Manual
TX 2 853-760
UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual
TX 2 890-471
UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual
TX 2 820-791
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface (DDI/DKI)
Reference Manual
TX 3 820-792
UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams
TX 2 833-114
UNIX SYSTEM V RELEASE 4 Programmer's
Reference Manual
TX 2 832-009
UNIX SYSTEM V RELEASE 4 System
Administrator's Reference Manual
TX 2 830-989
UNIX SYSTEM V/386 Programmer's Guide
Vol. II
TX 2 454-884
UNIX SYSTEM V/386 RELEASE 3.2
Programmer's Reference Manual
TX 2 494-658
UNIX SYSTEM V/386 Programmer's
Reference Manual
TX 2 373-759
UNIX SYSTEM V/386 System
Administrator's Reference Manual
TX 2 371-952
UNIX SYSTEM V/386 Streams Programmer's
Guide
TX 2 367-657

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UNIX SYSTEM V/386 Streams Primer TX 2 366-532
UNIX SYSTEM V RELEASE 3.2 System
Administrator's Reference Manual
TX 2 611-860
UNIX SYSTEM V. RELEASE 3.2
Programmer's Reference Manual
TX 2 605-292
UNIX SYSTEM V Documentor's Workbench
Reference Manual
TX 2 986-119
UNIX SYSTEM V RELEASE 4 User's
Reference Manual/System Administrator's
Reference Manual for Motorola Processors
Commands m-z
TX 3 218-267
UNIX SYSTEM V RELEASE 4 System Files
and Devices Reference Manual for Motorola
Processors
TX 3 221-654

44. SCO also obtained and owns registrations for other Copyrighted Materials, including without limitation registrations for the following software code:

TITLE REGISTRATION NO.
UNIX system V: release 3.0 TX-5-750-270
UNIX system V: release 3.1 TX-5-750-269
UNIX system V: release 3.2 TX-5-750-271
UNIX system V release 3.2/386 TX-5-750-268
UNIX system V: release 4.0 TX-5-776-217
UNIX System V: release 4.1 TX-5-762-234
UNIX system V, release 4.1ES TX-5-705-356
UNIX System V: release 4.2 TX-5-762-235
UNIX System V: release 4.2MP TX-5-972-097
UnixWare 7.1.3 TX-5-787-679
SCO OpenServer: release 5.0.5 TX-6-008-305

45. Under 17 U.S.C. 410 (c), the Certificates of Copyright Registrations identified above constitute prima facie evidence of the validity of the copyrights and of the facts stated in

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the Certificates. SCO's registered copyrights in the Copyrighted Materials, and the facts stated in the corresponding Certificates, are entitled to such statutory presumptions.

46. SCO and its predecessors-in-interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials automatically became subject to copyright protection under 17 U.S.C. 102(a) when they were fixed in a tangible medium of expression.

47. Copyright protection under 17 U.S.C. 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. 101 to include works based on the original work and any other form in which the original work may be recast, transformed, modified, or adapted.

48. The Copyrighted Materials include protected expression of code, structure, sequence, and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules.

49. The Copyrighted Materials, in whole or in part, have been unlawfully copied or otherwise improperly used to create a derivative work of UNIX System V, including one or more Linux implementations, including without limitation Linux versions 2.4 and 2.6. As a result,

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such versions of Linux are unauthorized derivative works of UNIX System V under the Copyright Act.

50. AutoZone has infringed and will continue to infringe SCO's copyrights to the Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials, in connection with AutoZone's implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act.

51. AutoZone has infringed SCO's copyrights in OpenServer 5.0.5 and other Copyrighted Materials, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products, in AutoZone's migration from OpenServer to Linux.

52. In addition, under the specific terms and conditions set forth in the AIRA and CSLA, SCO granted AutoZone a non-exclusive license to the technologies covered by SCO's copyrights in OpenServer and related products. AutoZone expressly covenanted not to use those technologies except as provided in those agreements. AutoZone infringed SCO's copyrights in OpenServer 5.0.5 and related products, by using, copying, reproducing, adapting, modifying, and/or distributing those materials outside the scope of the limited licenses granted in the AIRA and CSLA.

53. AutoZone does not own any copyright to the Copyrighted Materials, nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation.

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54. Upon information and belief, AutoZone willfully engaged in its infringing conduct, with knowledge of SCO's copyrights in the Copyrighted Materials, and AutoZone continues to engage in such conduct in the same manner.

55. As a result of AutoZone's infringing acts as described above, SCO has been damaged and is entitled to damages, including actual damages pursuant to 17 U.S.C. 504(a); statutory damages, pursuant to 17 U.S.C. 504(b); and enhanced damages, costs, and attorney's fees pursuant to 17 U.S.C. 505.

56. In addition, SCO has no adequate remedy at law. AutoZone's conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. As a result, pursuant to 17 U.S.C. 502, SCO is also entitled to relief enjoining AutoZone's further use, copying, modification, and distribution of Copyrighted Materials or derivative works of Copyrighted Materials.

SECOND CAUSE OF ACTION
(Breach of Contract)

57. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein.

58. AutoZone materially breached its contractual obligations to SCO, including Section 1 of the AIRA, by making many thousands of unauthorized copies of materials licensed to AutoZone under that contract.

59. AutoZone materially breached its contractual obligations to SCO, including Sections 1 and 2.1.H of the AIRA and Sections 3.1 and 11.2 of the CSLA, by taking materials from the operating systems it licensed under those agreements and using those materials in its migration from OpenServer to Linux.

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60. AutoZone's breaches of the AIRA and CSLA have caused SCO damage in an amount to be proved at trial. Those breaches have also caused SCO special damages, including without limitation the costs of prosecuting this action.

PRAYER FOR RELIEF

WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows:

  1. Injunctive relief pursuant to 17 U.S.C. against AutoZone's further unlawful use of any part of the Copyrighted Materials and derivatives works thereof;

  2. SCO's actual damages as a result of AutoZone's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. 504, SCO's statutory damages and enhanced damages;

  3. Attorney's fees and costs pursuant to 17 U.S.C. 505;

  4. SCO's actual damages and special damages as a result of AutoZone's contractual breaches; and

  5. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court.

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JURY DEMAND

Plaintiff demands that all issues in this case be tried by a jury in accordance with the Seventh Amendment to the United States Constitution and Rule 38(b) of the Federal Rules of Civil Procedure.

DATED this 1st day of July 2009.

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Richard J. Pocker
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff, The SCO Group, Inc.

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*********************************
*********************************

Complaint First Amended Complaint
COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO") sues Defendant, AutoZone, Inc., ("AutoZone") and alleges as follows: COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO"), and sues the Defendant, AutoZone, Inc. ("AutoZone"), and alleges as follows:
INTRODUCTION I. NATURE OF THIS ACTION
1. Defendant uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its propriety UNIX System V operating system technology. This case seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of Defendant's infringing uses of SCO's proprietary UNIX System V technology, and to enjoin any further use by Defendant of the protected UNIX System V technology contained in Linux. 1. AutoZone uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its propriety UNIX System V operating system technology.
2. In addition, as SCO confirmed through the limited discovery the Court previously authorized in this action, contrary to AutoZone's public statements to this Court and others, AutoZone made many thousands of unauthorized copies of materials from SCO's OpenServer operating system and related products, in migrating from OpenServer to Linux in AutoZone's headquarters and 3,500 retail stores.
3. SCO seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of AutoZone's unlawful use of Linux and to enjoin AutoZone's further unlawful use of Linux. SCO also seeks relief under applicable contract law to compensate SCO for damages it has sustained as a result of AutoZone's breach of the agreements through which it obtained limited licenses to OpenServer and related materials. SCO also seeks relief under the Copyright Act to compensate SCO for damages it has sustained as a result of AutoZone's unlawful use of OpenServer and related products outside the scope of those limited licenses.
II. PARTIES, JURISDICTION, AND VENUE
2. Plaintiff SCO is a Delaware corporation with its principal place of business in Utah County, State of Utah. 4. SCO is a Delaware corporation with its principal place of business in Utah County, Utah.
3. Defendant is a Nevada corporation with its principal place of business in the State of Tennessee. 5. AutoZone is a Nevada corporation with its headquarters in Tennessee.
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4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. '' 1331 and 1338. 6. This Court has subject matter jurisdiction over SCO's copyright claims pursuant to 28 U.S.C. 1331 and 1338. Based on this jurisdiction, the Court also has supplemental jurisdiction over SCO's contract claim.
7. This Court has personal jurisdiction over AutoZone because it is incorporated and conducts substantial business in Nevada.
5. Venue is properly situated in this District pursuant to 28 U.S.C. '' 1391 and 1400. 8. Venue is properly situated in this District pursuant to 28 U.S.C. 1391 and 1400, and the prior order of this Court.
BACKGROUND FACTS III. FACTUAL BACKGROUND
A. SCO's Rights in UNIX Code and Products.
6. 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. 9. 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 a computer. Operating systems allow multiple software programs to run at the same time and generally function as "traffic control" for those programs.
7. In the business-computing environment for the Fortune 1000 and other large corporations (often called the "enterprise computing market"), UNIX is widely used. 10. UNIX is widely used in the business-computing environment of the Fortune 1000 companies and other large corporations (often called the "enterprise computing market").
8. The UNIX operating system was originally developed by AT&T Bell Laboratories ("AAT&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. 11. The UNIX operating system was originally developed by AT&T Bell Laboratories ("AT&T"). Over the years, AT&T and its successors progressively developed updated versions and releases of the operating system. UnixWare is the brand name for the most current releases of UNIX System V.
12. In the 1980s, AT&T began to license UNIX System V as a commercial product for use in enterprise applications by large companies and institutions. Pursuant to standard licensing agreements, AT&T granted the world's leading computer manufacturers the right to use
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9. 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. a specific release of the valuable UNIX source code to develop UNIX-derived versions of the operating system, known as UNIX flavors, optimized to run on their respective computers. International Business Machines, Hewlett-Packard, Sun Microsystems, Silicon Graphics, Sequent Computer Systems, and Santa Cruz Operation,Inc. ("Santa Cruz"), among others, became important vendors of UNIX flavors.
10. 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 successors') rights.. 13. Licensees obtained those rights subject to strict restrictions on the use and disclosure of UNIX source code and intellectual property, including the UNIX flavors themselves. These restrictions protected the rights of AT&T and its successors, including today SCO, in the UNIX technology and business.
11. 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. 14. Through a series of corporate acquisitions - from AT&T, to Novell, to Santa Cruz, to SCO - SCO today owns (among other assets related to UNIX) all right, title, and interest in and to:
the source code for UNIX, UnixWare, and the UNIX flavor OpenServer,
the licensing agreements with the foregoing UNIX vendors,
all claims for breach of those agreements
copyrights in and to UNIX and UnixWare, and
copyrights in and to OpenServer and related products.
15. Upon information and belief, SCO owns all copyrights to UNIX, UnixWare, OpenServer, and related products.
16. On August 10, 2007, the Federal District Court for the District of Utah ruled on summary judgment that SCO has a license and other ownership rights, but does own the copyrights, to certain older versions of UNIX and UnixWare. SCO has appealed this ruling in the United States Court of Appeals for the Tenth Circuit, which heard oral argument on the
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appeal on May 6, 2009. The appeal was briefed and argued on an expedited basis; SCO does not know when the Tenth Circuit will issue a decision.
B. AutoZone's Unauthorized Use of Linux.
17. Linux is a form of "open source" software. The Linux source code is freely available to the public - unlike the source code for proprietary programs such as UNIX and its flavors. The code for the Linux kernel can be freely downloaded from a public website and installed on a computer. Like other open source software, Linux is modified on an ongoing basis, based on voluntary contributions from users around the world.
12. During the past few years a competing, and free, operating system know as Linux has been transformed from a non-commercial operating system into a powerful general enterprise operating system. 18. Starting approximately in early 2000, Linux was wrongfully transformed from an upstart hobbyist's program into a powerful general enterprise operating system competitive with UNIX and Windows. According to leaders within the Linux-development community, Linux is intended to displace UNIX System V.
13. Linux is in material respects an operating system variant or clone of UNIX System V technology. According to leaders within the Linux community, Linux is not just a "clone" but is intended to displace UNIX System V. 19. Linux is in material respects a variant or clone of UNIX System V technology. Linux is a derivative of, and substantially similar to, UNIX System V under the Copyright Act.
20. Subsequent to the transformation of Linux into a commercially viable operating system, AutoZone started to use, copy, modify, and/or distribute one or more implementations of Linux in its business operations. AutoZone today continues to use, copy, modify, and/or distribute Linux. AutoZone thus has infringed and continues to infringe SCO's exclusive rights as owner of the copyrights to UNIX System V.
C. AutoZone's Limited Licenses to OpenServer Technologies.
21. In 1988, Santa Cruz licensed UNIX System V Release 3.2 from AT&T. As a UNIX licensee, Santa Cruz then developed and marketed OpenServer, based on that UNIX
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release. In 1995, Santa Cruz purchased the base UNIX technology and the UNIX licensing business from Novell, Inc., which had acquired them from AT&T. In 2001, SCO acquired the base UNIX technology and the UNIX licensing business, as well OpenServer and related products, from Santa Cruz.
22. By the late 1990s, before Linux was transformed into a commercially viable competitor to UNIX, OpenServer was a market leader in worldwide UNIX sales. Today, OpenServer accounts for the majority of SCO's revenues.
23. On May 14, 1990, Santa Cruz entered into an Authorized Industry Reseller Agreement with AutoZone (the "AIRA") granting AutoZone a limited license to "LICENSED PRODUCT," including OpenServer and related products.
24. Under the AIRA, AutoZone obtained the right to use the LICENSED PRODUCT "exactly as shipped . . . by SCO." (AIRA 1.) The AIRA also provides that AutoZone "may not modify or change LICENSED PRODUCT in any manner" and "may not make or cause to be made any copy of any part of LICENSED PRODUCT." (Id. (emphasis added).) In addition, AutoZone agreed to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. 2.1.H.)
25. On January 24, 2001, Santa Cruz entered into a Corporate Software License Agreement with AutoZone (the "CSLA"). Section 1.0 of the CSLA, entitled "Grant of Right," provides:
SCO grants Company a non-transferable and non-exclusive license to use the Licensed Products provided to Company under this Agreement and to utilize any SCO Serial Number and Activation Key ("SNAK") or Certificate of License ("COLA") made available to Company to install such Licensed Product on Company's systems worldwide, subject to the terms of this
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Agreement. Any use of the SNAK and/or COLA shall be in accordance with the terms and conditions set forth herein.
26. The standard COLA provides: "This certificate licenses the software product listed below according to the rights outlined in the Software License Agreement included with your SCO product."
27. Section 3.1 of the CSLA provides:
Company shall have the right to reproduce the Licensed Product as expressly set forth herein. The Licensed Products may not be modified or revised in any way, nor may it be translated or localized in any way without the prior written consent of SCO. All copies of the Licensed Product reproduced by Company shall include the copyright notice of SCO and/or its suppliers and all other proprietary markings.
(Emphasis added.)
28. Section 11.2 of the CSLA requires that AutoZone "not reverse engineer or decompile, translate, create derivative works or modify any of the Licensed Product, except as expressly provided herein." (Emphasis added.) The CSLA does not provide any such exception.
29. SCO owns and is the successor-in-interest to all contractual rights arising under and related to the AIRA, CSLA, and COLA.
D. AutoZone's Unauthorized Use of OpenServer Technologies.
30. AutoZone licensed OpenServer and related products under the AIRA and CSLA, subject to the terms of those agreements. As explained below, AutoZone breached those agreements in migrating or converting its computer systems at its headquarters and 3,500 stores from a UNIX-based operating system to a Linux-based operating system.
31. Pursuant to this Court's August 6, 2004 Order, as amended, SCO conducted limited discovery to determine whether or not it was necessary for SCO to move for a
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preliminary injunction. Contrary to the statements AutoZone made to this Court at that time and contrary to an Internet posting by AutoZone's former senior technology advisor, AutoZone admitted to extensive copying of programs containing OpenServer code. After such facts came to light, AutoZone swore that it had voluntarily removed all such programs from its Linux servers and certified that other such programs were recompiled without such code. Accordingly, SCO elected not to file for preliminary injunctive relief.
32. In particular, AutoZone admitted that it created what amounts to tens of thousands of copies of OpenServer files in Common Object File Format ("COFF") and installed them onto its various Linux servers located in AutoZone's headquarters and 3,500 stores in the United States and Mexico. With respect to just nine of these COFF files, for example, AutoZone's senior technical advisor testified:
Q. Okay. So I think you earlier told me that there were - there was a Linux release, and then there was some other kind of release, and somehow, the COFF files got into the Linux release. Is that right?
A. Right.
Q. As you sit here today, do you recall how many machines those nine COFF files were on before they were deleted?
A. I believe they were on all of our store servers.
Q. Okay. So all 3500?
A. Right.
33. To illustrate, SCO's limited discovery to date confirms that AutoZone engaged in the following activities, among others, in violation of SCO's contract rights and copyrights:
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AutoZone developers copied 1,681 separate COFF files onto at least 387 AutoZone store machines located throughout the United States.
AutoZone developers copied 28 COFF files consisting of sort files, help utilities, and other miscellaneous files, onto all its machines in 3,500 AutoZone stores in the United States and Mexico.
AutoZone copied two COFF files, Compx and Decompx, onto the machines located in those stores. These files were programs that AutoZone had licensed from a third party which contained proprietary SCO code. AutoZone used these files at least from January 2000 until it deleted them during the Court-ordered discovery process. When AutoZone deleted Compx and Decompx from its Linux servers, the replenishment system used by AutoZone to replace inventory from its warehouses failed on approximately 650 machines.
AutoZone's machine load computer was found to contain a program entitled dexpand.x that was compiled under SCO's proprietary OpenServer operating system.
AutoZone copied over 4,500 programs that were compiled to run on OpenServer onto AutoZone's "Spirit Server" which was used to store AutoZone's source code in its headquarters. The vast majority of these programs contain some portion of SCO's proprietary static libraries. AutoZone has admitted to copying on Spirit at least 1,130 programs compiled to run on OpenServer.
In addition, with the aid of a software tool written by SCO's technical consultant, AutoZone discovered an additional fifteen SCO Extensible Linking Format
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("ELF") and Xenix files which were also compiled to work on SCO proprietary operating systems (earlier versions of OpenServer that were licensed by AutoZone). AutoZone admitted that those files "likely also exist on all 3500 AutoZone store servers."
AutoZone copied approximately 370 programs onto its Linux development machine known as "Wrangler." The majority of these programs appear to contain some portion of SCO's proprietary static libraries.
AutoZone developers copied numerous SCO files, the precise number of which has not been disclosed in discovery, onto AutoZone's "Vision" server which was used in part by AutoZone to compare the output of programs that it was porting from OpenServer to Linux, to ensure that the output was identical.
34. AutoZone conducted its migration to Linux in an ad hoc manner through developers who had worked and were familiar with SCO's proprietary OpenServer code and related products, with no formal controls in place to protect those materials. AutoZone has admitted that the persons responsible for implementing the migration were not focused on protecting those materials. Those persons did not consult counsel prior to or during the migration process, nor did they review the AIRA or CSLA to determine if the planned migration ran afoul of those licenses.
35. AutoZone's conduct constituted a breach of terms of the AIRA and CSLA.
36. AutoZone breached the provisions requiring that it "not make or cause to be made any copy of any part of LICENSED PRODUCT." (AIRA 1.)
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37. In addition, in taking materials from software products licensed to AutoZone under the AIRA and using them to migrate to Linux, AutoZone breached the provisions requiring it to use those materials "exactly as shipped" and "not modify or change LICENSED PRODUCT in any manner." (Id.) AutoZone also breached the provisions permitting it to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. 2.1.H.)
38. Similarly, AutoZone's conduct in migrating to Linux breached Section 3.1 of the CSLA, which provides that "Licensed Products may not be modified or revised in any way," and Section 11.2 of the CSLA, which requires that AutoZone not "create derivative works or modify any of the Licensed Product, except as expressly provided herein."
39. AutoZone's breach of its contractual obligations worked damage upon SCO, including by depriving SCO of the licensing fees that AutoZone was required to pay SCO for each copy and installation of OpenServer and related materials.
40. AutoZone also infringed SCO's copyrights in the OpenServer and related products licensed through the AIRA and CSLA, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products in migrating to Linux.
CAUSE OF ACTION FIRST CAUSE OF ACTION
(Copyright Infringement) (Copyright Infringement in Linux)
14. Plaintiff repeats and re-alleges all allegations set forth in paragraphs 1 through 13 of this Complaint as though fully set forth herein. 41. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein.
15. SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. These materials are covered by numerous copyright registrations issued by the United States Copyright Office (the "Copyrighted Materials"). Registrations in the Copyrighted Materials have been obtained by SCO and its predecessors in interest and are owned by SCO. Included among such registrations are the following reference materials: 42. Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the
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"Copyrighted Materials"). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials.
43. SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials:
TITLE REGISTRATION NO. TITLE
REGISTRATION NO.
UNIX SYSTEM V RELEASE 4 Integrated Software Development Guide TX 2 931-646 UNIX SYSTEM V RELEASE 4 Integrated
Software Development Guide TX 2 931-646
UNIX SYSTEM V RELEASE 4 Reference Manual For Intel Processor Commands m-z TX 3 221-656 UNIX SYSTEM V RELEASE 4 Reference
Manual For Intel Processor Commands m-z TX 3 221-656
UNIX SYSTEM V RELEASE 4 Reference Manual for Intel Processors Commands a-1 TX 3 227-639. UNIX SYSTEM V RELEASE 4 Reference
Manual for Intel Processors Commands a-l TX 3 227-639
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Intel Processors TX 3 232-578 UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Intel Processors TX 3 232-578
UNIX SYSTEM V RELEASE 4 Programmer's Guide: Streams for Intel Processors TX 3 218-286 UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams for Intel Processors TX 3 218-286
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Motorola Processors UNIX SYSTEM V RELEASE 4 Device Driver
TX 220-500 Interface/Driver Kernel Interface Reference
Manual for Motorola Processors TX 220-500
UNIX SYSTEM V RELEASE 4 Reference Manual for Motorola Processors Commands a-1 TX 3 220-331 UNIX SYSTEM V RELEASE 4 Reference
Manual for Motorola Processors Commands a-
l TX 3 220-331
UNIX SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE TX 2 120-502 UNIX SYSTEM V RELEASE 4
PROGRAMMER'S GUIDE TX 2 120-502
UNIX SYSTEM V/386 RELEASE 4 Transport Application Interface Guide TX 2 881-542 UNIX SYSTEM V/386 RELEASE 4 Transport
Application Interface Guide TX 2 881-542
UNIX SYSTEM V/386 RELEASE 4 Device Interface/Driver Kernel Interface (DDI/DKI) Reference Manual TX 2 883-235 UNIX SYSTEM V/386 RELEASE 4 Device
Interface/Driver Kernel Interface (DDI/DKI) TX 2 883-235
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Reference Manual
UNIX SYSTEM V/386 RELEASE 4 Programmers Guide: SCSI Driver Interface TX 2 902-863 UNIX SYSTEM V/386 RELEASE 4
Programmer's Guide: SCSI Driver Interface TX 2 902-863
UNIX SYSTEM V/386 RELEASE 4 System Administrators Reference Manual TX 2 881-543 UNIX SYSTEM V/386 RELEASE 4 System
Administrator's Reference Manual TX 2 881-543
UNIX SYSTEM V/386 RELEASE 4 Programmers Reference Manual UNIX SYSTEM V/386RELEASE 4
TX 2 853-760 Programmer's Reference Manual TX 2 853-760
UNIX SYSTEM V/386 RELEASE 4 Users Reference Manual TX 2 890-471 UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual TX 2 890-471
UNIX SYSTEM V/386 RELEASE 4 Users Reference Manual TX 2 820-791 UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual TX 2 820-791
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface (DDI/DKI) Reference Manual TX 3 820-792 UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface (DDI/DKI)
Reference Manual TX 3 820-792
UNIX SYSTEM V RELEASE 4 Programmers Guide: Streams TX 2 833-114 UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams TX 2 833-114
UNIX SYSTEM V RELEASE 4 Programmers Reference Manual TX 2 832-009 UNIX SYSTEM V RELEASE 4 Programmer's
Reference Manual TX 2 832-009
UNIX SYSTEM V RELEASE 4 System Administrator's Reference Manual TX 2 830-989. UNIX SYSTEM V RELEASE 4 System
Administrator's Reference Manual TX 2 830-989
UNIX SYSTEM V/386 Programmers Guide Vol. II TX 2 454-884 UNIX SYSTEM V/386 Programmer's Guide
Vol. II TX 2 454-884
UNIX SYSTEM V/386 RELEASE 3.2 Programmers Reference Manual TX 2 494-658 UNIX SYSTEM V/386 RELEASE 3.2
Programmer's Reference Manual TX 2 494-658
UNIX SYSTEM V/386 Programmers Reference Manual TX 2 373-759 UNIX SYSTEM V/386 Programmer's
Reference Manual TX 2 373-759
UNIX SYSTEM V/386 System Administrators Reference Manual TX 2 371-952 UNIX SYSTEM V/386 System
Administrator's Reference Manual TX 2 371-952
UNIX SYSTEM V/386 Streams Programmers Guide TX 2 367-657 UNIX SYSTEM V/386 Streams Programmer's
Guide TX 2 367-657
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UNIX SYSTEM V/386 Streams Primer TX 2 366-532 UNIX SYSTEM V/386 Streams Primer TX 2 366-532
UNIX SYSTEM V RELEASE 3.2 System Administrators Reference Manual TX 2 611-860 UNIX SYSTEM V RELEASE 3.2 System
Administrator's Reference Manual TX 2 611-860
UNIX SYSTEM V. RELEASE 3.2 Programmers Reference Manual TX 2 605-292 UNIX SYSTEM V. RELEASE 3.2
Programmer's Reference Manual TX 2 605-292
UNIX SYSTEM V Documentors Workbench Reference Manual TX 2 986-119 UNIX SYSTEM V Documentor's Workbench
Reference Manual TX 2 986-119
UNIX SYSTEM V RELEASE 4 Users Reference Manual/System Administrators Reference Manual for Motorola Processors Commands m-z TX 3 218-267 UNIX SYSTEM V RELEASE 4 User's
Reference Manual/System Administrator's
Reference Manual for Motorola Processors
Commands m-z TX 3 218-267
UNIX SYSTEM V RELEASE 4 System Files and Devices Reference Manual for Motorola Processors TX 3 221-654 UNIX SYSTEM V RELEASE 4 System Files
and Devices Reference Manual for Motorola
Processors TX 3 221-654
44. SCO also obtained and owns registrations for other Copyrighted Materials, including without limitation registrations for the following software code:
16. Pursuant to 17 U.S.C. _410 (c) the Certificates of Copyright Registrations identified above constitutes prima facie evidence of the validity of the copyrights and of the facts stated in the Certificates. SCO's registered copyrights in the Copyrighted Materials as embodied in the above Copyright Registrations are entitled to such statutory presumptions. TITLE
17. Registrations in the Copyrighted Materials have also been obtained by SCO and its registrations in the following additional registrations of software code: REGISTRATION NO.
UNIXWARE 7.1.3 TX 5-787-679 UNIX system V: release 3.0 TX-5-750-270
UNIX SYSTEM V RELEASE 3.0 TX 5-750-270 UNIX system V: release 3.1 TX-5-750-269
UNIX SYSTEM V RELEASE 3.1 TX 5-750-269 UNIX system V: release 3.2 TX-5-750-271
UNIX SYSTEM V RELEASE 3.2 TX 5-750-271 UNIX system V release 3.2/386 TX-5-750-268
UNIX SYSTEM V RELEASE 4.0 TX 5-776-217 UNIX system V: release 4.0 TX-5-776-217
UNIX SYSTEM V RELEASE 4.1ES TX 5-705-356 UNIX System V: release 4.1 TX-5-762-234
UNIX SYSTEM V RELEASE 4.2 TX 5-762-235 UNIX system V, release 4.1ES TX-5-705-356
UNIX SYSTEM V RELEASE 4.1 TX 5-762-234 UNIX System V: release 4.2 TX-5-762-235
UNIX SYSTEM V RELEASE 3.2 TX 5-750-268 UNIX System V: release 4.2MP TX-5-972-097
UnixWare 7.1.3 TX-5-787-679
SCO OpenServer: release 5.0.5 TX-6-008-305
45. Under 17 U.S.C. 410 (c), the Certificates of Copyright Registrations identified above constitute prima facie evidence of the validity of the copyrights and of the facts stated in
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the Certificates. SCO's registered copyrights in the Copyrighted Materials, and the facts stated in the corresponding Certificates, are entitled to such statutory presumptions.
18. SCO and its predecessors in interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials were automatically subject to copyright protection under 17 U.S.C. Section 102(a) when such programs were fixed in a tangible medium of expression. Copyright protection under 17 U.S.C. Section 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. Section 101 to include works based on the original work or any other form in which the original work may be recast, transformed, modified or adapted. 46. SCO and its predecessors-in-interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials automatically became subject to copyright protection under 17 U.S.C. 102(a) when they were fixed in a tangible medium of expression.
47. Copyright protection under 17 U.S.C. 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. 101 to include works based on the original work and any other form in which the original work may be recast, transformed, modified, or adapted.
19. The Copyrighted Materials include protected expression of code, structure, sequence and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules. 48. The Copyrighted Materials include protected expression of code, structure, sequence, and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules.
20. On information and belief, parts or all of the Copyrighted Material has been copied or otherwise improperly used as the basis for creation of derivative work software code, included one or more Linux implementations, including Linux versions 2.4 and 2.6, without the permission of SCO. 49. The Copyrighted Materials, in whole or in part, have been unlawfully copied or otherwise improperly used to create a derivative work of UNIX System V, including one or more Linux implementations, including without limitation Linux versions 2.4 and 2.6. As a result,
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such versions of Linux are unauthorized derivative works of UNIX System V under the Copyright Act.
21. Defendant has infringed and will continue to infringe SCO's copyrights in and relating to Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials in connection with its implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act. 50. AutoZone has infringed and will continue to infringe SCO's copyrights to the Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials, in connection with AutoZone's implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act.
51. AutoZone has infringed SCO's copyrights in OpenServer 5.0.5 and other Copyrighted Materials, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products, in AutoZone's migration from OpenServer to Linux.
52. In addition, under the specific terms and conditions set forth in the AIRA and CSLA, SCO granted AutoZone a non-exclusive license to the technologies covered by SCO's copyrights in OpenServer and related products. AutoZone expressly covenanted not to use those technologies except as provided in those agreements. AutoZone infringed SCO's copyrights in OpenServer 5.0.5 and related products, by using, copying, reproducing, adapting, modifying, and/or distributing those materials outside the scope of the limited licenses granted in the AIRA and CSLA.
22. Defendant does not own the copyright to the Copyrighted Materials nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation. 53. AutoZone does not own any copyright to the Copyrighted Materials, nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation.
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23. Upon information and belief, Defendant's conduct was and is willfully done with knowledge of SCO's copyrights. 54. Upon information and belief, AutoZone willfully engaged in its infringing conduct, with knowledge of SCO's copyrights in the Copyrighted Materials, and AutoZone continues to engage in such conduct in the same manner.
55. As a result of AutoZone's infringing acts as described above, SCO has been damaged and is entitled to damages, including actual damages pursuant to 17 U.S.C. 504(a); statutory damages, pursuant to 17 U.S.C. 504(b); and enhanced damages, costs, and attorney's fees pursuant to 17 U.S.C. 505.
24. Plaintiff has no adequate remedy at law. Defendant's conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. 56. In addition, SCO has no adequate remedy at law. AutoZone's conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. As a result, pursuant to 17 U.S.C. 502, SCO is also entitled to relief enjoining AutoZone's further use, copying, modification, and distribution of Copyrighted Materials or derivative works of Copyrighted Materials.
25. As a result of Defendant's wrongful conduct, SCO is entitled to the following relief: SECOND CAUSE OF ACTION
a. Injunctive relief pursuant to 17 U.S.C. Section 502 against Defendant's further use or copying of any part of the Copyrighted Materials; (Breach of Contract)
b. SCO's actual damages as a result of Defendant's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. Section 504, SCO's statutory damages and enhanced damages; and 57. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein.
c. Attorney's fees and costs pursuant to 17 U.S.C. Section 505 58. AutoZone materially breached its contractual obligations to SCO, including Section 1 of the AIRA, by making many thousands of unauthorized copies of materials licensed to AutoZone under that contract.
59. AutoZone materially breached its contractual obligations to SCO, including Sections 1 and 2.1.H of the AIRA and Sections 3.1 and 11.2 of the CSLA, by taking materials from the operating systems it licensed under those agreements and using those materials in its migration from OpenServer to Linux.
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60. AutoZone's breaches of the AIRA and CSLA have caused SCO damage in an amount to be proved at trial. Those breaches have also caused SCO special damages, including without limitation the costs of prosecuting this action.
PRAYER FOR RELIEF PRAYER FOR RELIEF
WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows: WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows:
1. Injunctive relief pursuant to 17 U.S.C. Section 502 against Defendant's further use or copying of any part of the Copyrighted Materials; Injunctive relief pursuant to 17 U.S.C. against AutoZone's further unlawful use of any part of the Copyrighted Materials and derivatives works thereof;
2. SCO's actual damages as a result of Defendant's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. Section 504, SCO's statutory damages and enhanced damages; SCO's actual damages as a result of AutoZone's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. 504, SCO's statutory damages and enhanced damages;
3. Attorney's fees and costs pursuant to 17 U.S.C. Section 505; and Attorney's fees and costs pursuant to 17 U.S.C. 505;
SCO's actual damages and special damages as a result of AutoZone's contractual breaches; and
4. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court.
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JURY DEMAND JURY DEMAND
Plaintiff demands that all issues in this case be tried by a jury in accordance with the Seventh Amendment to the U.S. Constitution and Rule 38(b) of the Federal Rules of Civil Procedure. Plaintiff demands that all issues in this case be tried by a jury in accordance with the Seventh Amendment to the United States Constitution and Rule 38(b) of the Federal Rules of Civil Procedure.
DATED this 2nd day of March, 2004. DATED this 1st day of July 2009.
Stanley W. Parry, Esq. BOIES, SCHILLER & FLEXNER LLP
Nevada Bar No. 1417 By: /s/ Richard J. Pocker
Glenn M. Machado, Esq. Richard J. Pocker
State Bar No. 7802 Nevada Bar No. 3568
CURRAN & PARRY BOIES, SCHILLER & FLEXNER LLP
[address, phone] [address]
Attorneys for Plaintiff [phone]
Attorneys for Plaintiff, The SCO Group, Inc.

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