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| DAIMLERCHRYSLER'S ANSWER AND AFFIRMATIVE DEFENSES -- as text |
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Wednesday, April 28 2004 @ 11:53 PM EDT
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Thanks to two volunteers, we already have the DaimlerChrysler Answer and Affirmative Defenses as text. A special thanks to Steve Martin for the HTML. Enjoy.
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
THE SCO GROUP, INC.,
Plaintiff,
vs.
DAIMLERCHRYSLER CORPORATION,
Defendant.
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Civil Action No. 04-056587-CKB
Honorable Rae Lee Chabot
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Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND
SERLIN, P.C.
Attorneys for Plaintiff
[address]
[phone]
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James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address]
[phone]
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ANSWER AND AFFIRMATIVE DEFENSES OF
DEFENDANT DAIMLERCHRYSLER CORPORATION
Defendant DaimlerChrysler Corporation ("DCC"), through its counsel, Dykema Gossett
PLLC, for its Answer and Affirmative Defenses to the Complaint ("Complaint") of Plaintiff The
SCO Group, Inc. ("Plaintiff") states as follows:
INTRODUCTION
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in paragraph 1 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in the first sentence of paragaraph 2 of the Complaint. DCC
denies the allegations contained in the second sentence of paragraph 2 of the Complaint.
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DCC denies the allegations of paragraph 3 of the Complaint, except that it admits
that it is the successor in interest to Chrysler Motors Corporation for an agreement designated
SOFT-01341 between AT&T Information Systems and Chrysler Motors Corporation.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in the first and second sentences of paragraph 4 of the
Complaint. DCC denies the allegations contained in the third sentence of paragraph 4 of the
Complaint.
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DCC denies the allegations contained in paragraph 5 of the Complaint.
PARTIES, JURISDICTION AND VENUE
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 6 of the Complaint.
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DCC admits that it is a Delaware corporation with its principal place of business
in the County of Oakland, State of Michigan.
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Paragraph 8 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations contained in
paragraph 8 of the Complaint.
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Paragraph 9 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations contained in
paragraph 9 of the Complaint.
BACKGROUND FACTS
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DCC admits that UNIX is a computer software operating system. DCC is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
contained in paragraph 10 of the Complaint.
-
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 11 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 12 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 13 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 14 of the Complaint.
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Paragraph 15 of the Complaint states legal conclusions to which no answer is
required To the extent an answer may be required, DCC denies the allegations contained in
paragraph 15 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 16 of the Complaint.
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DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 17 of the Complaint.
FIRST CAUSE OF ACTION
(BREACH OF CONTRACT/DECLARATORY JUDGMENT)
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DCC incorporates its responses to the preceding paragraphs as if set forth fully
herein.
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Paragraph 19 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 19 of the Complaint and further states that the AT&T Information Systems, Inc.
Software Agreement, Agreement No. SOFT-01341, entered into by Chrysler Motors Corporation
and AT&T Information Systems, Inc. (the "License Agreement") speaks for itself. To the extent
that paragraph 19 contains allegations which purport to characterize the contents of the License
Agreement, DCC denies them.
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Paragraph 20 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 20 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 20 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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Paragraph 21 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 21 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 21 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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Paragraph 22 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 22 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 22 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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Paragraph 23 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 23 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 23 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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Paragraph 24 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 24 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 24 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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Paragraph 25 of the Complaint states legal conclusions to which no answer is required.
To the extent an answer may be required, DCC denies the allegations set forth in
paragraph 25 of the Complaint and further states that the License Agreement speaks for itself.
To the extent that paragraph 25 contains allegations which purport to characterize the contents of
the License Agreement, DCC denies them.
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DCC denies the allegations set forth in paragraph 26 of the Complaint and states
that the letter dated December 18, 2003 alleged in paragraph 26 of the Complaint (the "SCO
Letter") speaks for itself. To the extent that paragraph 26 contains allegations which purport to
characterize the contents of the SCO Letter, DCC denies them.
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DCC denies the allegations contained in paragraph 27 of the Complaint.
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DCC denies the allegations contained in paragraph 28 of the Complaint.
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DCC denies the allegations contained in paragraph 29 of the Complaint.
WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this
Court dismiss Plaintiff's Complaint with prejudice, award DCC its costs and attorney's fees as
may be permitted by law, and grant such other relief as may be appropriate.
AFFIRMATIVE DEFENSES
Defendant DaimlerChrysler Corporation ("DCC"), through its counsel, Dykema Gossett
PLLC, for its Affirmative Defenses to the Complaint ("Complaint") of Plaintiff The SCO Group,
Inc. states as follows:
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Failure to State a Claim. The Complaint fails to state a claim against DCC upon
which relief can be granted.
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Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims
are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or acquiescence.
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Lack of Capacity to Sue. Plaintiff is not a party to the License Agreement
attached to the Complaint, and therefore Plaintiff may lack the capacity to sue.
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Lack of Standing. Plaintiff is not a party to the License Agreement attached to the
Complaint, and therefore Plaintiff may lack standing to sue. Plaintiff also lacks standing to sue
because the terms of Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its
right to enforce the License Agreement upon Novell's request, which, upon information and
belief, Novell has expressly requested Plaintiff to do.
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Lack of Case or Controversy. Plaintiff's action for declaratory judgment fails for
lack of a case or controversy because DCC did not breach the License Agreement.
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Lack of Breach/Cure of Alleged Breach. Plaintiff fails to identify a duty under
the License Agreement that DCC breached, and DCC has cured any alleged failure to comply
with an actual duty under the License Agreement. Nothing set forth herein shall be construed as
an admission by DCC that it has failed to comply with any duty under the License Agreement.
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Mitigation of Damages. The damages sought by Plaintiff are not recoverable
because Plaintiff has failed to mitigate its damages.
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Plaintiff's Claims are Moot. The claims asserted in the Complaint are moot
because DCC has provided Plaintiff with a proper certification under the License
Agreement.
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Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in the
Complaint by its contract with Novell, Inc.
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Reservation of Right. DCC reserves the right, upon completion of its discovery
and investigation or otherwise, to assert such additional defenses as may be appropriate.
WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this
Court dismiss Plaintiff's Complaint with prejudice, award DCC its costs and attorney's
fees as may be permitted by law, and grant such other relief as may be appropriate.
DYKEMA GOSSETT PLLC
By: (signature)
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
Attorneys for DaimlerChrysler Corporation
[address]
[phone]
Dated: April 15, 2004
Of Counsel:
HALE and DOOR LLP
Mark G. Matuschak
Michelle D. Miller
[address]
[phone]
Robin L. Alperstein
[address]
[phone]
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| Authored by: PJ on Wednesday, April 28 2004 @ 11:57 PM EDT |
| Corrections here please. Thank you for helping us to get it right. [ Reply to This | # ]
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| Authored by: Harry Clayton on Thursday, April 29 2004 @ 12:07 AM EDT |
URI/URLs and Off Topic posts here please.
Thank You.
---
Linux: There is no infringing code.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 12:09 AM EDT |
How does this part play in this whole thing?
2. Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims
are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or
acquiescence.
[ Reply to This | # ]
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| Authored by: orpheus52 on Thursday, April 29 2004 @ 12:11 AM EDT |
| They have no case. [ Reply to This | # ]
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| Authored by: kawabago on Thursday, April 29 2004 @ 12:30 AM EDT |
This case is not about what we claimed when we filed , it's actually about these
amended claims .....[ Reply to This | # ]
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- SCO Lawgic - Authored by: Anonymous on Thursday, April 29 2004 @ 01:40 AM EDT
- SCO Lawgic - Authored by: Anonymous on Thursday, April 29 2004 @ 05:29 PM EDT
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| Authored by: overshoot on Thursday, April 29 2004 @ 01:07 AM EDT |
| 2. DCC is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in the first sentence of paragaraph 2 of
the Complaint. DCC denies the allegations contained in the second sentence of
paragraph 2 of the Complaint.
4. DCC is without knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the
first and second sentences of paragraph 4 of the Complaint. DCC denies the
allegations contained in the third sentence of paragraph 4 of the
Complaint.
So what? Have a look at the original
complaint:
2. SCO has requested that DC provide the contractually
required certification that DC is complying with the terms of its UNIX
technology license. SCO has thus asked DC to certify--as contractually it must--
that its use of UNIX technology is within the agreed parameters of permitted use
established by the license.
DCC is denying that SCOX sent them any
letter!
4. Nevertheless, DC has refused to provide the contractually
required certification of compliance that SCO requested. DC has in fact refused
even to respond to SCO’s request. It would be irrational and contrary to DC’s
self-interest for DC to violate the license’s certification requirement’s in
this way unless DC was also violating the license’s limits on permitted use of
UNIX technology, precluding DC from certifying compliance.
In other
words, DCC is demanding that SCOX prove that they sent any letter and in
particular prove that DCC "refused" anything. As we all noted, SCOX didn't even
send the letter (assuming that it was sent at all) registered mail, and in fact
sent it to the wrong address!
If SCOX can't come up with proof of service at
the hearing, it's all over then and there.
[ Reply to This | # ]
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| Authored by: DaveAtFraud on Thursday, April 29 2004 @ 01:16 AM EDT |
3. DCC denies the allegations of paragraph 3 of the Complaint,
except that it admits that it is the successor in interest to Chrysler Motors
Corporation for an agreement designated SOFT-01341 between AT&T
Information Systems and Chrysler Motors Corporation. (emphasis mine)
DCC notes that their agreement was with AT&T. I'm guessing
they will want the SCOflaws to show that they are really the successors of
interest to that agreement.
Hint to Darl: good luck! Better start looking
really hard for that asset purchase agreement between Caldera and Tarantella and
you might want to accelerate that slander of title suit with Novell, assuming
you can win it.
---
Quietly implementing RFC 1925 wherever I go. [ Reply to This | # ]
|
- Interesting detail - Authored by: sam on Thursday, April 29 2004 @ 02:30 AM EDT
- Interesting detail - Authored by: Dominic Jackson on Thursday, April 29 2004 @ 06:54 AM EDT
- Not at all apparent to me! - Authored by: Tsu Dho Nimh on Thursday, April 29 2004 @ 07:58 AM EDT
- Huh? - Authored by: jelenko on Thursday, April 29 2004 @ 08:43 AM EDT
- Huh? - Authored by: old joe on Thursday, April 29 2004 @ 04:35 PM EDT
- Your house belongs to me, Eric, isn't it obvious? - Authored by: Eric on Thursday, April 29 2004 @ 09:58 AM EDT
- Interesting detail - Authored by: DaveAtFraud on Thursday, April 29 2004 @ 11:56 AM EDT
- Did the APA transfer to Caldera? - Authored by: mitphd on Thursday, April 29 2004 @ 12:22 PM EDT
- Interesting detail - Authored by: sam on Thursday, April 29 2004 @ 04:45 PM EDT
- Flawed business practices - Authored by: _Arthur on Thursday, April 29 2004 @ 10:02 AM EDT
- Purchase agreement between cald and oldSCO - Authored by: coffee17 on Thursday, April 29 2004 @ 10:29 AM EDT
- Interesting detail - Authored by: Anonymous on Thursday, April 29 2004 @ 05:45 PM EDT
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| Authored by: AllParadox on Thursday, April 29 2004 @ 01:35 AM EDT |
Always fun to read Answers from a firm that has the facts and the law down pat.
These are all clear, to the point, and where useful, more explanatory than
necessary. IMHO, this is the flat-out best way to curry favor with a judge:
tell him what is really going on.
This case will not last long. These attorneys go for the jugular with a
howitzer. I am looking for a motion to dismiss with prejudice soon (soon in
"court time"), backed up with references to documents pulled from the
other TSG cases.
---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney[ Reply to This | # ]
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- Fabulous Answer - Authored by: Anonymous on Thursday, April 29 2004 @ 02:15 AM EDT
- Fabulous Answer - Authored by: Anonymous on Thursday, April 29 2004 @ 10:00 AM EDT
- Fabulous Answer - Authored by: Anonymous on Thursday, April 29 2004 @ 10:59 AM EDT
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| Authored by: mojotoad on Thursday, April 29 2004 @ 02:31 AM EDT |
| Is there really any doubt why Groklaw is a success?
If it's not clear yet,
let me state it: legal wrangling is a proper case study of game theory.
Quid
erat demonstrandum. The proof is in the pudding.
Geeks now love
law.
Either that, or there were always geeks amongst the lawyers. Just as
geeks have always been amongst the businessmen.
Matt
P.S. Game Theory
[ Reply to This | # ]
|
- Or, in other words ... - Authored by: Rudisaurus on Thursday, April 29 2004 @ 02:46 AM EDT
- Or, in other words ... - Authored by: Wol on Thursday, April 29 2004 @ 03:28 AM EDT
- Quad, maybe! - Authored by: jlp on Thursday, April 29 2004 @ 03:53 AM EDT
- Quad, maybe! - Authored by: Anonymous on Thursday, April 29 2004 @ 05:38 AM EDT
- Quad, maybe! - Authored by: Anonymous on Thursday, April 29 2004 @ 08:03 AM EDT
- Quad, maybe! - Authored by: Anonymous on Thursday, April 29 2004 @ 10:07 AM EDT
- Or, in other words ... - Authored by: mojotoad on Thursday, April 29 2004 @ 04:25 AM EDT
- Other words indeed - Authored by: mhoyes on Thursday, April 29 2004 @ 06:55 AM EDT
- geeks and law - Authored by: Anonymous on Thursday, April 29 2004 @ 02:49 AM EDT
- geeks and law - Authored by: Sander on Thursday, April 29 2004 @ 03:31 AM EDT
- geeks and law - Authored by: Anonymous on Thursday, April 29 2004 @ 04:09 AM EDT
- geeks and law - Authored by: Anonymous on Thursday, April 29 2004 @ 04:13 AM EDT
- geeks and law (nitpick) - Authored by: Anonymous on Thursday, April 29 2004 @ 11:33 AM EDT
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| Authored by: grouch on Thursday, April 29 2004 @ 03:33 AM EDT |
| Sent to PJ via email, but in case she's swamped with more transcriptions and
bombshells...
SCO's Complaint -
DaimlerChrysler's Answer
in one convenient table for comparison.
(It
helps when the originals are in as nice a form as these!)
---
Can you
trust your computer?
http://www.gnu.org/philosophy/can-you-trust.html
[ Reply to This | # ]
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| Authored by: major_figjam on Thursday, April 29 2004 @ 04:05 AM EDT |
Have tried to match the two up - complaint has numbered paras - the rebuttal
follows.
Introduction
1. SCO is the exclusive licensor of software licenses for the UNIX operating
system. These software licenses are agreements that restrict the permitted use
of the UNIX operating system. To help insure compliance with the restrictions on
such permitted use, the licenses include a monitoring and reporting mechanism
designed to detect (and thus deter) violations of those agreed
limits. Specifically, the licenses require licensees to certify their compliance
with those restrictions. Like all provisions in the license, these reporting and
monitoring provisions exist only because they have been agreed to by the
licensee.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in paragraph 1 of the Complaint.
2. SCO has requested that DC provide the contractually required certification
that DC is complying with the terms of its UNIX technology license. SCO has thus
asked DC to certify--as contractually it must-- that its use of UNIX technology
is within the agreed parameters of permitted use established by the license.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in the first sentence of paragraph 2 of the
Complaint. DCC denies the allegations contained in the second sentence of
paragraph 2 of the Complaint.
3. DC agreed to and accepted the terms of its UNIX license. DC has received very
substantial benefits as a result of entering that license and DC has never
challenged the validity of that license.
DCC denies the allegations of paragraph 3 of the Complaint, except that it
admits that it is the successor in interest to Chrysler Motors Corporation for
an agreement designated SOFT-01341 between AT&T Information Systems and
Chrysler Motors Corporation.
4. Nevertheless, DC has refused to provide the contractually required
certification of compliance that SCO requested. DC has in fact refused even to
respond to SCO's request. It would be irrational and contrary to DC's
self-interest for DC to violate the license's certification requirements in this
way unless DC was also violating the license's limits on permitted use of UNIX
technology, precluding DC from certifying compliance.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in the first and second sentences of
paragraph 4 of the Complaint. DCC denies the allegations contained in the third
sentence of paragraph 4 of the Complaint.
5. By refusing to provide the certification that the license requires as a means
of enabling SCO to monitor compliance with, and thus protect, the rights that DC
agreed to respect, DC has compelled SCO to institute this litigation to secure a
judicial remedy.
DCC denies the allegations contained in paragraph 5 of the Complaint.
Parties, Jurisdiction and Venue
6. Plaintiff SCO is a Delaware corporation with its principal place of business
in the County of Utah, State of Utah.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 6 of the Complaint
7. Defendant DC is a Delaware corporation with its principal place of business
in the County of Oakland, State of Michigan.
DCC admits that it is a Delaware corporation with its principal place of
business in the County of Oakland, State of Michigan
8. This Court has subject matter jurisdiction over SCO's Complaint because the
amount in controversy exceeds the sum of Twenty-Five Thousand ($25,000.00)
Dollars and/or is otherwise within the equitable jurisdiction of this Court.
DCC admits that it is a Delaware corporation with its principal place of
business in the County of Oakland, State of Michigan.
9. Venue is properly situated in Oakland County, Michigan because DC has a place
of business in Oakland County.
Paragraph 9 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
contained in paragraph 9 of the Complaint
Background Facts
10. UNIX is a computer software operating system. Operating systems serve as the
link between computer hardware and the various software programs (known as
applications) that run on the computer. Operating systems allow multiple
software programs to run at the same time and generally function as a
"traffic control" system for the different software programs that run
on a computer.
DCC admits that UNIX is a computer software operating system. DCC is without
knowledge or information sufficient to form a belief as to the truth of the
remaining allegations contained in paragraph 10 of the Complaint
11. In the business-computing environment for the Fortune 1000 and other large
corporations (often called the "enterprise computing market"), UNIX is
widely used.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 11 of the Complaint.
12. The UNIX operating system was originally developed by AT&T Bell
Laboratories ("AT&T"). After successful in-house use of the UNIX
software, AT&T began to license UNIX as a commercial product for use in
enterprise applications by other large companies.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 12 of the Complaint.
13. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of
AT&T, and its related companies, licensed UNIX for widespread enterprise
use. Pursuant to a
license with AT&T, various companies, including International Business
Machines, Hewlett-Packard, Inc., Sun Microsystems, Inc., Silicon Graphics, Inc.,
and Sequent
Computer Systems, became some of the principal United States-based UNIX vendors,
among many others.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 13 of the Complaint.
14. These license agreements place restrictions on the valuable intellectual
property developed by AT&T, which allow UNIX to be available for use by
others while, at
the same time, protecting AT&T's (and its successor's) rights.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 14 of the Complaint.
15. Through a series of corporate acquisitions, SCO presently owns all right,
title and interest in and to UNIX and UnixWare operating system source code,
software and sublicensing agreements, together with copyrights, additional
licensing rights in and to UNIX and UnixWare, and claims against all parties
breaching such agreements.
Paragraph 15 of the Complaint states legal conclusions to which no answer is
required To the extent an answer may be required, DCC denies the allegations
contained in paragraph 15 of the Complaint.
16. During the past few years a competing, and free, operating system known as
Linux has been transformed from a non-commercial operating system into a
powerful
general enterprise operating system.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 16 of the Complaint.
17. Linux is a computer software operating system that, in material respects, is
a variant or clone of UNIX System V. According to leaders within the Linux
community,
Linux is not just a "clone," but is intended to displace UNIX System
V.
DCC is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 17 of the Complaint
FIRST CAUSE OF ACTION (Breach of Contract/Declaratory Judgment)
18. Plaintiff incorporates and re-alleges paragraphs 1 - 17 above.
DCC incorporates its responses to the preceding paragraphs as if set forth fully
herein.
19. SCO is the successor to AT&T under that certain Software Agreement
originally executed by and between AT&T and Chrysler Motors Corporation
designated as SOFT-01341 (the "DC Software Agreement" or the
"Agreement"). The DC Software Agreement specifies the terms and
conditions for use of authorized distributions of UNIX System V source code,
including modifications and derivative works based thereon, by Defendant. The DC
Software Agreement is attached hereto as Exhibit "A".
Paragraph 19 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 19 of the Complaint and further states that the AT&T
Information Systems, Inc. Software Agreement, Agreement No. SOFT-01341, entered
into by Chrysler Motors Corporation and AT&T Information Systems, Inc. (the
"License Agreement") speaks for itself. To the extent that paragraph
19 contains allegations which purport to characterize the contents of the
License Agreement, DCC denies them.
20. With respect to the scope of rights granted for use of the System V source
code under Section 2.01 of the DC Software Agreement, Defendant received the
following rights in UNIX:
A personal, nontransferable and nonexclusive right to use in the United States
each Software Product identified in the one or more Supplements hereto, solely
for Licensee's own internal business purposes and solely on or in conjunction
with Designated CPUs for such Software Product. Such right to use includes the
right to modify such Software Product and to prepare derivative works based on
such Software Product, provided that any such modification or derivative work
that contains any part of a Software Product subject to this Agreement is
treated hereunder the same as such Software Product. (Emphasis added.)
Paragraph 20 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 20 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 20 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them.
21. Defendant agreed in §2.06 of the DC Software Agreement to the following
restrictions on use of the Software Product (including System V source code,
derivative works and methods based thereon):
No right is granted by this Agreement for the use of Software Products directly
for others, or for any use of Software Products by others ....
Paragraph 21 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 21 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 21 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them.
22. Defendant agreed in §7.09 of the DC Software Agreement to the following
restrictions on transfer of the Software Product, including resulting
modifications or derivative works of UNIX System V:
Nothing in this Agreement grants to Licensee the right to sell, lease or
otherwise transfer or dispose of a Software Product in whole or in part.
Paragraph 22 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 22 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 22 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them.
23. Defendant agreed under §7.05(a) of the DC Software Agreement to the
following restrictions on confidentiality of the Software Product:
Licensee agrees that it shall hold all parts of the Software Products subject to
this Agreement in confidence for [SCO]. Licensee further agrees that it shall
not make any disclosure of any or all of such Software Products (including
methods or concepts utilized therein) to anyone, except to employees of Licensee
to whom such disclosure is necessary to the use for which rights are granted
hereunder. Licensee shall appropriately notify each employee to whom any such
disclosure is made that such disclosure is made in confidence and shall be kept
in confidence by such employee.
Paragraph 23 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 23 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 23 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them.
24. Consistent with these restrictions, in § 2.05, Defendant also agreed to
account to SCO on an annual basis regarding its use of System V software
licensed pursuant to the Software Agreement. Specifically, § 2.05 provides as
follows:
On [SCO's] request, but not more frequently than annually, Licensee shall
furnish to [SCO] a statement, certified by an authorized representative of
Licensee, listing the location, type and serial number of all Designated CPUs
hereunder and stating that the use by Licensee of Software Products subject to
this Agreement has been reviewed and that each such Software Product is being
used solely on such Designated CPUs (or temporarily on back-up CPUs) for such
Software Products in full compliance with the provisions of this Agreement.
(Emphasis added.)
Paragraph 24 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 24 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 24 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them
25. Section 2.05 of the Software Agreement is designed to insure compliance by
DC "with the provisions of this Agreement," and to do so by supplying
a monitoring mechanism that prevents and deters violations of the Software
Agreement.
Paragraph 25 of the Complaint states legal conclusions to which no answer is
required. To the extent an answer may be required, DCC denies the allegations
set forth in paragraph 25 of the Complaint and further states that the License
Agreement speaks for itself. To the extent that paragraph 25 contains
allegations which purport to characterize the contents of the License Agreement,
DCC denies them.
26. By letter dated December 18, 2003, SCO requested that DC provide the writing
required under § 2.05 certifying that DC was "in full compliance with the
provisions of the Software Agreement. Although DC should have been in a
position to produce such a compliance certification on shorter notice, SCO's
letter requested that the required certification be provided within 30 days of
receipt of that letter. (The SCO December 18, 2003, letter is attached hereto as
Exhibit "B").
DCC denies the allegations set forth in paragraph 26 of the Complaint and states
that the letter dated December 18, 2003 alleged in paragraph 26 of the Complaint
(the "SCO Letter") speaks for itself. To the extent that paragraph 26
contains allegations which purport to characterize the contents of the SCO
Letter, DCC denies them.
27. DC has refused to comply with its obligations under § 2.05 of the Software
Agreement. Specifically, DC has refused even to respond to SCO's request for the
contractually required compliance certification within 30 days, or at any time
since. DC has thereby refused to state that it is not now violating its
obligations under the Software Agreement, and DC has refused to state that it
has not in the past been violating its obligations under the Software Agreement.
DC has refused to provide such a certification even though it is also one of
DC's express obligations under the Software Agreement to provide such a
certification.
DCC denies the allegations contained in paragraph 27 of the Complaint.
28. On information and belief, DC's refusal to certify that it is not violating
the DC Software Agreement is also based, in part, on DC's use of UNIX
technology, in violation of the DC Software Agreement, in migrating its
installed base to the Linux operating system.
DCC denies the allegations contained in paragraph 28 of the Complaint.
29. It would be irrational and contrary to DC's self-interest for it to continue
to withhold the requested certification and thereby violate the Software
Agreement's reporting requirements if DC were not also violating the Software
Agreement's non-reporting, core substantive requirements.
DCC denies the allegations contained in paragraph 29 of the Complaint.
[ Reply to This | # ]
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| Authored by: jmc on Thursday, April 29 2004 @ 06:09 AM EDT |
Are we possibly waiting to see that as well?
[ Reply to This | # ]
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| Authored by: hal9000 on Thursday, April 29 2004 @ 07:07 AM EDT |
This particular document has been missing for over a year
in the IBM case.
SCOG appears to have the Novell -> Caldera APA ready to
hand but this document is a lot older than the Tarrentella
server division purchase.
I would have thought that this should have been more available since it is a
recent purchase.
IBM should request the documents from Tarrentella to verify
that SCOG is the successor in interest to the Novell/AT&T
Unix licencing business.
It is possible that SCOG do not want IBM to have this
as it may have something which kills their case.
(May be a more specific definition of derivative works
than the old AT&T derived works definition ?)
Just the facts jack, Just the facts[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 07:21 AM EDT |
Hey! it looks like "There's-a-Red-Under-My-Bed" O'Dowd's back "on mission"
again
his latest take on the world of international espionage can be found
here
(sigh)
make of it what you will
CPW[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 07:43 AM EDT |
In Para 10: UNIX is not a computer operating system - Why did DCC admit that it
is?
I thought Unix was a name that may be assigned to an operating system that meets
certian criterion. Perhaps this is not important in this case.
26 What does this mean? [(the "SCO Letter") speaks for itself].
Perhaps I'm dense, are they talking abouth the miss-addressing issue?
SCOG: 26. By letter dated December 18, 2003, SCO requested that DC provide the
writing required under § 2.05 certifying that DC was “in full compliance with
the provisions of [the Software Agreement].” Although DC should have been in a
position to produce such a compliance certification on shorter notice, SCO’s
letter requested that the required certification be provided within 30 days of
receipt of that letter. (The SCO December 18, 2003, letter is attached hereto as
Exhibit “B”).
DCC 26. DCC denies the allegations set forth in paragraph 26 of the Complaint
and states that the letter dated December 18, 2003 alleged in paragraph 26 of
the Complaint (the "SCO Letter") speaks for itself. To the extent that
paragraph 26 contains allegations which purport to characterize the contents of
the SCO Letter, DCC denies them.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 08:11 AM EDT |
There once was a link to an interesting book being offered free. I think it was
several months ago. It seemed very interesting at the time and I intended to
come back to it.
I know several others were commenting on how good it was etc.
Any ideas what this was?[ Reply to This | # ]
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| Authored by: codswallop on Thursday, April 29 2004 @ 08:18 AM EDT |
DCC's defenses break new ground in two respects, and raise issues that SCO
hasn't had to address directly. The first is Novell's rights concerning existing
licensees.
4) Lack of Standing. Plaintiff is not a party to the
License Agreement attached to the Complaint, and therefore Plaintiff may lack
standing to sue. Plaintiff also lacks standing to sue because the terms of
Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its
right to enforce the License Agreement upon Novell's request, which, upon
information and belief, Novell has expressly requested Plaintiff to do
9)
Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in
the Complaint by its contract with Novell, Inc
DCC is saying
they're going to try for a quick decision on this. That would end the whole
thing.
The other new issue is the bit about standing and capacity to
sue.
3) Lack of Capacity to Sue. Plaintiff is not a party to the
License Agreement attached to the Complaint, and therefore Plaintiff may lack
the capacity to sue.
If DCC can carry this argument against
SOFT0015 or a clone, SCO couldn't act against any licensees who hadn't signed
agreements with them. The agreements are not assignable by the licensee, but
they don't say anything about the licensor, so unless DCC know something we
don't, I cant see how they can get anywhere with this.
They may mean to
raise the issue of SCO's standing being impaired by their not holding the
copyrights, but this may be reading to much into it. The APA language says Santa
Cruz shall "perform appropriate auditing and enforcement".
Everyone has
just assumed this is a copyright right that is assignable due to the agreement
being a license agreement. The agreement itself is not assignable, so maybe DCC
feel otherwise.
Laches wouldn't work here for SCO, because it's a bar to
asserting a right, not a way to acquire one. People don't get rights under
copyright just because everyone has acted as if they had them, but, of course,
IANAL.
[ Reply to This | # ]
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| Authored by: prayforwind on Thursday, April 29 2004 @ 08:41 AM EDT |
| Seems DM's original agreement was with SCO's predessesor, not SCO; and that
they've not used the software for seven
years.
http://www.techworld.com/opsys/news/index.cfm?newsid=1473 ---
jabbe
r me: prayforwind@jabber.org [ Reply to This | # ]
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| Authored by: QTlurker on Thursday, April 29 2004 @ 09:43 AM EDT |
On the surface, the case against DC is trivial. How can they be damaged by
DC's unresponsiveness? There must be another element to this probe.
It
is quite clear (IMHO) from reading comments here, and the techworld
article, contributed elsewhere above, that SCOG seeks an excuse to be allowed
discovery against DC.
I presume that they hope to find material
demonstrating how SVR4 found its way into Linux via DC programmers. This (in
their parallel universe) could be forged into a weapon to compel compliance with
the Linux Tax.
In a real world sense, the case has now moot.
SCOG asked for a certificate of compliance and DC complied. They sent a final
one to USL 7 years ago, and then again sent one to SCOG recently.
INAL,
on what grounds can the case proceed? What SCOG strategy will convince a busy
judge to keep the case open, and allow SCOG free reign over DC? Will a judge buy
into the argument that the EULA is forever, or can they?
[ Reply to This | # ]
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| Authored by: frk3 on Thursday, April 29 2004 @ 10:17 AM EDT |
Man, this is getting a bit surreal.
I am certain, in the course of
depositions, Kevin has said something like this:
Are you now, or have you
ever been a member or supporter of the Free/Open Sofware movement?
Kind of
scary, but funny in a way. :) [ Reply to This | # ]
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| Authored by: icebarron on Thursday, April 29 2004 @ 10:22 AM EDT |
I believe that if you check a few sources, you will find that they don't use
UNIX any longer. To sue someone for once using a piece of software is a joke in
and of itself...
sco is a loser...
Dan[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 10:35 AM EDT |
You know you've been reading groklaw too much when...
(This could probably
do with some straightening out of the actual events and facts, and some tidying
of the rhymes and metre to actually fit properly to the tune of Tam
Lin...)
The Ballad of Tam Linux
I forbid you companies all
that use Unix servers
For to travel to Linux for SysV code is there
IBM
tied her kirtle green a bit above her knee
and has gone to Linux as fast go
can she
She'd not ported a filesystem, a filesystem but only two
When up
and comes SCO says lady port no more
Why come you to Linux without command
from me?
I'll come and go young IBM says and ask no leave of thee
IBM
tied her kirtle green a bit above her knee
and has gone to court as fast as
go can she
Then up and spoke SCO's lawyers and spoke they meek and
mild
oh and alas IBM they said we fear you taint the code
And if that be
so young IBM said my self shall bear the blame
Theres not a Linux user in
all your halls shall get the baby's name
For my source is not of SysV as it
is an open source
I'll not change my own true source for any copyright you
have
IBM tied her kirtle green a bit above her knee
and has gone to
Linux as fast as go can she
Oh tell to me Linux, how came you in controversy
to dwell?
The King of SCO has caught me when they sublicenced SysV from
Novell
And at the end of seven years SCO pay a tithe to hell
Thou art so
fair and full of money I am feared it be thyself
But tonight is Halloween
when the Baystar folks ride
Those that would their court case win at
Microsoft they must hide
First let past the investors black and then the
brown
Quickly subpoena the white steed and pull the rider down
For I
ride on the white steed the nearest to the town
For I was of Linus born,
they give me that reknown
Oh they will turn me in your arms into a breach of
Trade Secrets
But hold tight and fear not for the secret is told
Oh they
will turn me in your arms into a Copyright Infringement
But hold tight and
fear not for the API is open
Oh they will turn me in your arms into a Patent
Infringement
But hold tight and fear not for they have no patent at
all
Oh they will turn me in your arms into a breach of Contract
Hold
tight and fear not and you shall free the code
All in the middle of the
night she heard the bridle ring
She heeded what he did say and Linux did
win
Up and spoke the Bill, an angry Bill was he
Oh woe betide your ill
faured face an ill death may you die
Had I known, Linux, what this night I
did see
I'd have looked him in the eye and turned him to a tree [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 11:16 AM EDT |
Found this quote today and thought I would resurrect it: "We are not
particularly thrilled at having to sue anyone but this is an educational process
and we expect we will come to a resolution with end users," said McBride.
I just wonder if McBride received an education, if not he is denser than I
thought. It appears that he simply thought DCC would cough up $ to avoid being
sued. Poor Darl.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 11:39 AM EDT |
| I'm thinking Groklaw needs a new slogan. Maybe something
like "Hell hath
no fury like a woman SCOrned" ;-)
PJ, you and this site continue to amaze
me. The
information and knowledge is outstanding! Keep up the
great work.
Kudos to everyone else that contributes to
this site. I really enjoy reading
Groklaw daily. It's a
prime
example of what a community can do. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 29 2004 @ 12:19 PM EDT |
On Yahoo one yould see an interesting sales action of
200,000 SCO shares sold shortly before markets were closing. This one time
figure has gone. AFAIK those data are updated automatically without any human
interference.
So what happened to the 200,000 figure lately? The data
are supplied through Reuters. The Yankee Group (inluding top analyst Laura
DiDio) is owned by Reuters as well. Could it be that somebody is pampering
arround with data and what would be a reason/benefit for hiding volume sales of
200,000 SCO shares?[ Reply to This | # ]
|
- Tin foil hat! - Authored by: Anonymous on Thursday, April 29 2004 @ 01:24 PM EDT
| |
| Authored by: Anonymous on Thursday, April 29 2004 @ 01:40 PM EDT |
Cant log in to groklaw, forgot my password (Dumb I know).
Is there any way to retrieve it or do I need to register again under a different
email address?[ Reply to This | # ]
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| Authored by: GLJason on Thursday, April 29 2004 @ 09:36 PM EDT |
I was just reading the licensing agreement between
AT&T and DCC. Guess what, they didn't indemnify DCC against copyright
violations in their software! Didn't Darl blab about that being a problem with
open source software? Here's part os section 7.02:
...
AT&T-IS and other developers make no other representations or warranties,
expressly or impliedly. By way of example but not of limitation, AT&T-IS
and other developers make no representations or warranties of merchantability or
fitness for any particular purpose, or that the use of any SOFTWARE PRODUCT
will not infringe any patent, copyright or trademark. AT&T-IS and other
developers shall not be held to any liability with respect to any claim by
LICENSEE, or a third party on account of, or arising from, the use of any
SOFTWARE PRODUCT.
Sounds like if someone found some GPL code in
Unix SYSV that they could sue any Unix Source licensee. Or if Microsoft found
some of their code in Unix SYSV, they could go around suing any Unix Source
licensee because AT&T offered no indemnity.[ Reply to This | # ]
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| Authored by: GLJason on Friday, April 30 2004 @ 01:34 AM EDT |
| Would this be too tough a case for the GPL to weather? I think it's wrong to
talk about people and companies "violating" the GPL. Nothing says that code
released under the GPL must only be released under the GPL. The original
author(s) retain the copyright. They allow anyone to use and modify the code as
long as they release the modified source code under the GPL as well so that the
author can benefit from the changes. If someone incorporates source code from a
downloaded GPL package on the internet into their proprietary program, they are
violating the author's copyright. They are completely ignoring the GPL, so they
are using the code without any license. Sure they may be able to satisfy future
obligations by "open sourcing" their proprietary program, but the copyright of
the author was still disregarded for a period of time.
Does the RIAA stop
suing someone just because they say they've stopped downloading music off the
internet? No, they settle out of court for thousands of dollars or take them to
court. The people downloading music aren't even making a profit like
coprorations would off of pirating GPL code. [ Reply to This | # ]
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