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AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearing Cancellation - Updated 2Xs
Saturday, July 18 2009 @ 12:10 PM EDT

AutoZone, Inc. has filed a Notice of Non-Opposition, Request to Vacate Hearing, and Proposed Order [PDF] to SCO's Motion for Leave to File Amended Complaint. In it AutoZone explains:
Although SCO's proposed First Amended Complaint (Dkt. 99) is filled with errors of fact and law, AutoZone will address these errors in response to SCO's amended complaint and otherwise through the course of this litigation.
And then it asks the judge to cancel the August 24th hearing that he set before AutoZone could respond to SCO's motion. That probably means the August 24th hearing will be canceled. So if you were planning to attend, and I know some were, be aware that it looks likely there will be no hearing that day. If/when the judge signs the proposed order, you'll know for sure.

Why isn't AutoZone opposing? I confess to some puzzlement. I waited to post this so I could think about it a bit. Several possible reasons occur to me, but the most likely is that they know something I don't and the strategy is based on that. Other possibilities: money. Every motion and every hearing costs money. And it is hard to get a motion to amend a complaint denied, because the law encourages such motions. So that is probably part of AutoZone's thinking, that it could be money down the drain. And it could be too that they would like to adjudicate some things, keeping in mind that AutoZone's stated position is that while SCO is bound by the Utah court ruling, AutoZone isn't, not being a party to SCO v. Novell. And maybe they were not so sure why the judge set a hearing before they could file an opposition and decided to avoid whatever that was about. This is a strategic decision, though, no doubt about it.

No matter how I look at this non-opposition, there is no escape from the conclusion that AutoZone just doesn't mind a bit if this litigation goes forward on any basis SCO wishes to invent or dredge up.

AutoZone, in my view, has always been too nice, decent and fair in the litigation, and I do worry about that. SCO has taken advantage of their honor and decency, as I view it, but then, in the end IBM's similar litigation persona paid off for them, and in any case, you stay true to what you are. But if it were me, at this point, I'd oppose at every point, in every way, all the way, honorably and fairly but with firmness and total focus. But I've known SCOfolk longer. And, of course, I don't have to pay for it. They do.

Here are the docket entries:

07/17/2009 - 101 - NOTICE by Defendant Autozone, Inc. of Non-Opposition to Plaintiff's Motion for Leave to File Amended Complaint, and Request to Vacate Hearing and Proposed Order Vacating Hearing (Wilmer, Nikki) (Entered: 07/17/2009)

07/17/2009 - 101 - ERROR: Wrong event selected. (MJZ) NOTICE by Defendant Autozone, Inc. of Non-Opposition to Plaintiff's Motion for Leave to File Amended Complaint, and Request to Vacate Hearing and Proposed Order Vacating Hearing (Wilmer, Nikki) (Entered: 07/17/2009)

07/17/2009 - 102 - Submission of PROPOSED ORDER filed by Defendant Autozone, Inc. (MJZ) (Entered: 07/17/2009)

07/17/2009 - NOTICE of Docket Correction to 101 Notice (Other) : ERROR: Wrong event selected by attorney Nikki L. Wilmer; CORRECTION: Refiled by Court as 102 Proposed Order Submission. (no image attached)(MJZ) (Entered: 07/17/2009)

What is the error message about, since both filings seem to be identical? It probably means the clerk wanted the proposed order listed, not the notice, to make it more prominent, in that the proposed order requires action by the court and the notice doesn't.

Here's a blast from the past, a 2001 ZDNet article that upholds something AutoZone long ago told the court, namely that it moved away from OpenServer to Linux because OpenServer was no longer going to be supported:

SCO purports to own the copyright in a computer operating system known as UNIX. AutoZone formerly used a version of the UNIX operating system known as "OpenServer" that AutoZone licensed from SCO on its store servers. As a result of an announcement by SCO in 1999 that it would no longer support the OpenServer system, AutoZone decided to switch its store servers to the competing Linux operating system. This migration process took approximately three years and was completed in 2003.
The 2001 article not only confirms that the code was no longer being supported back then, it shows Caldera was actively encouraging its OpenServer customers to switch to Linux or UnixWare, then being called OpenUnix:
One issue the company faces is encouraging customers of its OpenServer product, which the company is no longer developing, to migrate to OpenUnix or OpenLinux products. To encourage this transition and to make the two other products work more similarly, the company will release programming tools in the autumn, Bench said.

"As the two products are integrated, we have two or three fairly major products...that will be released this fall. We believe that solution set will give us a tremendous bridge for our current customer base to move forward on the new platforms," Bench said.

Yes, that Bob Bench. So these guys knew the real story, I'd conclude, and from day one. Perhaps AutoZone's 'sin' was moving to Red Hat instead of Caldera's Linux, but encourage OpenServer customers to switch to Linux Caldera certainly did.

Update:Here's why I say that. When SCO first announced its first SCOsource license, SCO System V for Linux Release 1.0, it was for COFF files, shared libraries, the very ones that SCO accused AutoZone of infringing. But here's the odd thing. Caldera customers, the ones using Caldera's version of Linux, got that license and the libraries for free. And they could use it for running OpenServer applications on Linux.

So, how much more would it be free for OpenServer customers who had already purchased OpenServer and already had the libraries to be able to use them without charge? Presumably they could, if they used them with Caldera Linux. So the issue isn't that no one could use the libraries on Linux or even that they could only use them if they bought them. They were free and free to use on Linux. Here's a screenshot of the relevant information from the announcement, which was on SCO's website in 2003:

So what is SCO's beef with AutoZone? And what damages can they possibly expect in a fact pattern like this, even if it could prevail?

Update 2: LinuxJournal published a review of OpenServer in 1997, and it turns out SCO at the time was giving OpenServer away for free at trade shows, trying to build up interest, and it also made it available for educational use for $19. It came with everything, I gather, SCO sued AutoZone over:

The Santa Cruz Operation (SCO, http://www.sco.com/) has a new strategy for attracting users to its OpenServer Desktop System. SCO is giving it away for free, or at least nearly for free.

Though the company could claim 40% of the Unix market share a couple of years ago, it's now facing serious pressure from Windows NT and of course, Linux. Because the OS is priced similarly to NT, it has traditionally been out of the reach of students, educators and the idle curious. While there are a vast number of commercial applications running on OpenServer (it's often employed as a base for retail database systems, thus its market share), the company obviously wants to interest a new generation of developers and administrators.

To further its aims, SCO has made its single-user license free. The catch is that you still have to purchase the media. The OpenServer package, which includes a CD-ROM, a boot disk, a disk of drivers and a small pamphlet costs $19.00 US. If you're used to downloading your distributions at no cost, that's not an option, but SCO has also been handing out their OS gratis at trade shows. You won't be able to download the source anywhere. OpenServer may be free, but it's not “open”. Additionally, the single-user license is intended for educational use only. If you want to run OpenServer as part of your business, you're supposed to purchase a license....

Unfortunately, while SCO provides an OS, it doesn't offer much in the way of a distribution. And, before you're able to port your favorite applications, you may have dig up a compiler. After several tries, I finally got the installer to recognize my free license for the OpenServer Development System. I had to install the non-developer version, then use the SCO software installer to import the developer version from the CD-ROM. This process provides a prompt for the developer license, and this time, the free license worked. It never did accept the license from the main install screen.

Here's the announcement about giving away "free" licenses to UnixWare and Openserver in 1996:
UNIX UNBOUND!

SCO Provides FREE UNIX System Licenses To Students, Educators and UNIX Enthusiasts Around The World

SCO Forum96, Santa Cruz, CA (August 19, 1996) -- In a move that empowers students, educators and UNIX system enthusiasts with free access to the world's most popular business computing environment, SCO today announced plans to provide a free license to use its popular UNIX systems, including SCO OpenServer and SCO UnixWare, to anyone in the world who wants to use them for educational and non-commercial use to enable the evaluation and understanding of UNIX systems. The bold move has far-reaching implications for the future of the UNIX platform and marks the stunning public debut of SCO's stewardship of the UNIX system. It also represents the first time in more than 20 years that the owner of UNIX technology has provided the operating system free of charge to the public.

Alok Mohan, SCO's president and CEO, said, "This is only the second time in UNIX's 25-year history that the owner of the technology has made this offer. The last time this happened, a $60-billion-dollar industry was born."

The UNIX system was in its infancy when AT&T Bell Labs gave it away for free to colleges and universities to help with research and development projects. Soon, thousands of students were learning to program on UNIX systems. After graduation, they took that knowledge into the corporate world, building a $60-billion-dollar industry. The legacy of AT&T's gift to universities includes the Internet, the World Wide Web, multiprocessing, and much more. Today, the UNIX system is the software engine that processes trillions of dollars' of business transactions around the world.

"SCO believes it is time to return the favor," said Mohan, "and deliver the result of more than 20 years of technical innovation back to educators and students worldwide. With the explosive growth of the Internet and the breadth of development tools for UNIX systems available today, one can only imagine what this new generation will do with this open operating system platform."

What the Students Will Get

The availability of free UNIX system licenses begins with SCO OpenServer license, followed closely by a free SCO UnixWare license. The initial availability of a free SCO OpenServer license provides UNIX system enthusiasts with access to a high-end, commercial quality UNIX product that would normally be out of reach due to price constraints. Students, as well as professionals who use the UNIX system at work, now have an affordable means of running the UNIX platform at home, enabling them to create a home BBS or web site.

What's In Free SCO OpenServer?

With a Free SCO OpenServer license, users interested in UNIX technology have access to a fully functional, single user version of the SCO OpenServer Desktop System, which includes SCO Doctor Lite, and SCO ARCserve/Open Lite from Cheyenne, and the SCO OpenServer Development System. The SCO OpenServer Desktop is an advanced, single user UNIX operating system that delivers RISC workstation capabilities and performance on cost-effective Intel architecture platforms. The Desktop System integrates a powerful 32-bit, multitasking, X/Open UNIX system compliant operating system with networking, graphics, and Internet facilities. The Development System includes a set of state-of-the-art C compilers, debuggers, application programming interfaces, and libraries for developing applications.

How to Get It

Free SCO OpenServer license can be ordered and licensed via the Internet. To place a media order or acquire a license to use the software, go to: http://www3.sco.com/Products. Free SCO OpenServer is licensed for educational and non-commercial use. The license is free of charge. The product media, if desired, costs $19.


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