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| SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada |
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Tuesday, May 25 2004 @ 09:29 PM EDT
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SCO has filed its response to AutoZone's two motions, requesting a stay, a change of venue to Tennessee, or a clue from SCO on what it is talking about. That's English. Here it is in legalese: PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT AUTOZONE'S MOTIONS TO (1) TRANSFER THIS ACTION TO THE WESTERN DISTRICT OF TENNESSEE, AND (2) STAY THIS ACTION OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT. They spend a great deal of time arguing as only lawyers can, but they never address the real issue, which is that AutoZone can't possibly establish who owns the copyright. If it is Novell, SCO has no business suing them, because you can't prevail in a copyright infringement action unless you own the copyright, and yet SCO argues, this case should go first.
The chances of them going first must seem slim, and they request that instead of changing the place where the trial is held to Tennessee, as requested by AutoZone, they'd like to go to Utah, if they have to go away from Nevada. Considering AutoZone said Nevada was not convenient for them, it's hard to see how Utah would be any more so. Of course, SCO doesn't care. At this point, it is a farce, and they are playing their cards as best they can. Delay, delay, delay. Of course, AutoZone filed two motions, and they asked the court to hear the motion to change venue first. Then, if that motion was granted, the court in Tennessee would do the rest. In footnote 1 of their Motion to Stay or, in the Alternative, For a More Definite Statement, AutoZone wrote: "As the record in this matter reflects, AutoZone has filed concurrently with the present Motion a Motion to Transfer Venue. AutoZone respectfully requests the Court to initially consider AutoZone's Motion to Transfer Venue and then, if the Court deems it appropriate, consider the present Motion. In the event the Court grants AutoZone's Motion to Transfer Venue, the Court may defer the present Motion to the United States District Court for the Western District of Tennessee." AutoZone's Motion to Transfer Venue is here as PDF. SCO answers both motions at once, in one document. I bet they think they are mighty clever. However, as you saw in the Novell hearing, even if the judge hears both at the same time, and that is kind of unusual anyway, the judge will still rule on the venue question first. Remarkably they even tell the court that they should *not* have to provide a more definite statement. It was plenty definite enough, they say, and AutoZone, they wax indignant, is improperly trying to obtain discovery. Then they allege that they have fully complied with discovery in the IBM case, and the judge even gave them a "good faith" rating. They don't mention that there was more discovery after that point in time, which IBM in its papers says SCO hasn't fully complied with. Telling them what lines, files or organization of Linux code is the subject of the litigation is a question for discovery, they state. AutoZone will find out later. I don't think it would be prudent for AutoZone to hold their breath. You are, what? Surprised? SCO doesn't want to show the code in public. The rest is blah, blah and more blah. I haven't finished reading it, partly because I didn't want you to have to wait, and partly because it started to turn my stomach. I should be used to them by now, but I am not. I think I'm developing an allergy to SCO.
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| Authored by: Harry Clayton on Tuesday, May 25 2004 @ 10:27 PM EDT |
---
Linux: There is no infringing code or Manuals.[ Reply to This | # ]
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| Authored by: Harry Clayton on Tuesday, May 25 2004 @ 10:29 PM EDT |
---
Linux: There is no infringing code or Manuals.[ Reply to This | # ]
|
- OT-Deja vu 1993 Sun/Novell/Others - Authored by: Anonymous on Wednesday, May 26 2004 @ 12:04 AM EDT
- PJ is Spy??? - Authored by: seeks2know on Wednesday, May 26 2004 @ 01:25 AM EDT
- OT: Australian Open Source Group refutes SCO - Authored by: Anonymous on Wednesday, May 26 2004 @ 02:14 AM EDT
- -.- - Authored by: silence on Wednesday, May 26 2004 @ 02:16 AM EDT
- The US legal system is a bit ...err... different, isn't it? - Authored by: Anonymous on Wednesday, May 26 2004 @ 03:41 AM EDT
- This paper looks pretty good - Authored by: one_penguin on Wednesday, May 26 2004 @ 04:38 AM EDT
- Quality of Free Software - Authored by: xtifr on Wednesday, May 26 2004 @ 07:35 AM EDT
- Legal question for PJ about the Autozone case - Authored by: Anonymous on Wednesday, May 26 2004 @ 07:57 AM EDT
- Split into pieces for viewing and transcription - Authored by: darkonc on Wednesday, May 26 2004 @ 07:59 AM EDT
- Microsoft gets tough against open source - Authored by: Anonymous on Wednesday, May 26 2004 @ 10:28 AM EDT
- Any word on Chrysler? - Authored by: rsteinmetz70112 on Wednesday, May 26 2004 @ 10:50 AM EDT
- Off Topic, Links, etc. here please. - Authored by: Anonymous on Wednesday, May 26 2004 @ 10:59 AM EDT
- Off Topic, Links, etc. here please. - Authored by: Anonymous on Wednesday, May 26 2004 @ 11:57 AM EDT
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| Authored by: Arker on Tuesday, May 25 2004 @ 10:36 PM EDT |
I can sympathise with the allergy comment - this filing is even slimier than
is usual for these imposters. I'm almost through it and feeling very much in
need of a shower. Their arguments opposing the venue change seem convincing on
their face, but the rest... ugh. Talk about chutzpah. I hope the judge knows
enough about the situation to notice the blatant dishonesty.
[ Reply to This | # ]
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| Authored by: gfolkert on Tuesday, May 25 2004 @ 10:36 PM EDT |
SCO-LIED-OSIS
I can't say it isn't so.
The SCO v. IBM Website is a good place to see
some dern good pulling together of info as well as here.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 25 2004 @ 10:41 PM EDT |
| I think allergy research would be better handled by the SCO Financial Group, LLC. From their calendar they appear
to be
involved in much new allergy research.
(BTW, is there any relation between
this SCO and the one we all discuss
fervently here on groklaw?) [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 25 2004 @ 10:46 PM EDT |
"The Novell matter arises because Novell, Inc. ("Novell") after
selling all its UNIX assets in return for substantial consideration..."
This sounds like lying to the court to me. Novell specifically excluded all
patents and copyrights in the original contract and still didn't explicitly
transfer the copyrights in the amended version. Novell also retained powerful
controls over Santa Cruz Operation's actions regarding existing Unix contracts
and entering into new ones. Novell also got 95% royalties from existing
contracts.
[ Reply to This | # ]
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| Authored by: Rasyr on Tuesday, May 25 2004 @ 10:53 PM EDT |
Now didn't they argue that the IBM counterclaims should wait because they cover
some of the same stuff as the Autozone suit (while claiming autozone should go
first)? And here they are saying that the cases are not related?
Am I remembering and reading this right?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 25 2004 @ 10:59 PM EDT |
It's pretty comical how SCO argues against the stay request because irreparable
harm will occur to them for the forseeable future. SCO has been complaining that
their rights are being infringed for over a year now, and yet they've done
nothing to try to mitigate the damages, such as demanding that Red Hat, SuSE or
kernel.org stop distributing the Linux kernel or documenting and proving
ownership of the code they allege infringes and demand that it be removed.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 25 2004 @ 11:28 PM EDT |
The good news is this memo will be cited extensively by IBM in their filings and
oral argument
For example
p4 "For example, SCO's investigation has given SCO reason to believe that,
apart from IBM's challenged conduct, Autozone has engaged in _separate_ improper
conduct transgressing SCO's rights"
p5 "If those actions [Novell and IBM cases] were as closely related to this
one as AutoZone contends in support of its motion to stay..."
Which gives rise to the obvious question, why does SCO think that parts of the
IBM case should be stayed or dismissed in favor of the AutoZone suit -- when SCO
themselves contend the actions are not related, and are about _separate_ (their
emphasis) issues,
[ Reply to This | # ]
|
- The good news - Authored by: Anonymous on Wednesday, May 26 2004 @ 12:06 AM EDT
- more good news - Authored by: Sander on Wednesday, May 26 2004 @ 12:35 AM EDT
- The good news - Authored by: Anonymous on Wednesday, May 26 2004 @ 12:36 AM EDT
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| Authored by: jkondis on Tuesday, May 25 2004 @ 11:42 PM EDT |
"Finally, Autozone's motion for a more definite statement should be
denied."
Like "WTH are we infringing?" SCO Group: "Just shut up while we
sue you. We reserve the right to sue you and not tell you what we're accusing
you of."
"SCO alleges that Autozone, a prior licensee of SCO, has infringed and will
continue to infringe SCO's copyrights in and relating to the Copyrighted
Material by employing one or more versions of the Linux operating system in its
business."
And what code would that be? The *only* evidence The SCO Group has offered so
far is *media* *hot* *air*. No code whatsoever. As far as anyone is concerned,
this is simply a company going to one of its predecessor's previous customers
(not even one of its own previous customers) and saying "You're violating
our copyrights, we won't tell you which, so give us money."
Give me a break, that's the oldest con trick in the book!
The SCO Group also thinks it's getting mileage by the subtle wording: inserting
"a prior licensee of SCO" into the accusation. The obvious
implication is that they want whoever is reading this document to associate
their previous use of Unix with some hypothetical copyright crime, as if
Autozone somehow snuck Unix code into Linux, or is using pirated copies of
Unix.
Slimy indeed. This is one of the slimiest documents I have ever seen. I do
*not* ever want to be associated with the people that came up with this, except
possibly to wipe my shoes on when I come in out of the rain.
---
Don't steal. Microsoft hates competition.[ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, May 25 2004 @ 11:44 PM EDT |
"Merely by advancing these extraordinary claims, Novell has severely and
improperly prejudiced SCO. It would be highly inequitable if - at Autozone's
request - this prejudice could be extended to the point of preventing SCO from
obtaining judicial review of the separate and additional continuing violation of
its rights here."
"Autozone subjected itself to this court's jurisdiction by incorporating in
Nevada." (Nevermind that SCO is incorporated in Delaware)
"Autozone's motion completely ignores the fact that transferring this
action to Tennessee is inconventient for SCO"
"Furthermore, courts have recognized, in the age of electronic discovery,
that the location of documents is a minor factor since documents are often kept
in electronic form and, in any event, are easily converted to electronic data
which is transmitted wherever needed" (this coming from a company who
couldn't find thousands of documents on their servers for months)
"Moreover, the mere fact that the defendant has to defend claims against it
does not constitute prejudice" (Wow! Compare that to the first SCO quote
about Novell...it looks like SCO is already providing AZ and others with cases
to use against SCO)[ Reply to This | # ]
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| Authored by: MyPersonalOpinio on Tuesday, May 25 2004 @ 11:44 PM EDT |
We shouldn't feel our stomachs churning, we should rejoice. After reading the
latest filing from the IBM case, I'm convinced that the more "rope" SCOX
produces, the higher tree they'll hang from.
This is like a bad chess game
where a player is sacrificing position for the sake of capturing one more pawn
during the opening moves.
On the other hand, this may explain today's >5%
run up in SCOX stock. After this post I'll go to read the headlines on the Yahoo
business news (I doubt they will say "SCO shoot themselves in the foot, again!",
most probably it will be something much more removed from the
truth).
MyPersonalOpinion
------------
Beavis: Uh-huh, SCOX
needs IP for their 8un6h013.
Butthead: Heh, heh. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 25 2004 @ 11:51 PM EDT |
Let's not get carried away with the whole "disgust" thing. If they're making
legally sound arguments we should not complain, nor mock. After all, we believe
the law is on our side, just as much as they believe it is on theirs.
If they
are not making legally sound arguments, we can have faith that the judge will
perceive this and make appropriate judgments. It looks to me, however, that SCO
has plenty of precedence for its case in this motion.[ Reply to This | # ]
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- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: MyPersonalOpinio on Wednesday, May 26 2004 @ 12:35 AM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: MyPersonalOpinio on Wednesday, May 26 2004 @ 12:57 AM EDT
- 1, 2, 3 (corrected) - ignore immediate post above - Authored by: Anonymous on Wednesday, May 26 2004 @ 02:59 AM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: Anonymous on Wednesday, May 26 2004 @ 12:22 PM EDT
- 1, 2, 3 - Authored by: wvhillbilly on Wednesday, May 26 2004 @ 12:24 PM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: Anonymous on Wednesday, May 26 2004 @ 04:20 PM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: Anonymous on Wednesday, May 26 2004 @ 01:28 AM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: mscibing on Wednesday, May 26 2004 @ 02:34 AM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: jkondis on Wednesday, May 26 2004 @ 02:53 AM EDT
- SCO Responds to AutoZone - They Won't Specify Code Until Discovery; Request Utah, if Not Nevada - Authored by: walth on Wednesday, May 26 2004 @ 12:52 PM EDT
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| Authored by: fLameDogg on Wednesday, May 26 2004 @ 12:07 AM EDT |
"I think I'm developing an allergy to SCO."
SCOlitis?[ Reply to This | # ]
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| Authored by: kawabago on Wednesday, May 26 2004 @ 12:08 AM EDT |
Irritation presenting like scabies and spread by lawyers. Often associated with
another affliction, FUD, which is spread by microsofties which burrow into the
brain and cause it to lock up.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 12:20 AM EDT |
Can you really just file suit based on random lies?
Like, can I sue random people for not paying rent when they never even lived in
my house, and I don't even know them?
[ Reply to This | # ]
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| Authored by: VivianC on Wednesday, May 26 2004 @ 12:28 AM EDT |
Not that I would ever support SCO, I do think that they have a valid reason to
oppose moving the venue of this case. We all love to bash SCO, but can anyone
give me a good reason that the case should be moved (a legal reason).
As for the other parts, I would think that some sort of clarification on exactly
what is being infringed would be needed and SCO would have to prove they really
hold the copyright. If the material they base the case on is not being
challenged by Novell, the case can move forward. But if the alleged copyrights
are in dispute in another case, it should be stayed.[ Reply to This | # ]
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| Authored by: hutcheson on Wednesday, May 26 2004 @ 12:29 AM EDT |
These lawyers at least babble coherently, so in that respect they are a step
above the Red Hat and Daimler-Chrysler gang.
As noted, these people have gone beyond pounding on the facts or the law or the
table, and have resorted to wholesale, explicit, out-and-out outright deception.
That's a rather high-risk game, and indicates major desperation on SCO's part.
But I disagree with the "delay, delay" comment. THIS case MUST be
pushed forward. Despite the lawyer's handwaving, there are numerous ways in
which prior cases could settle their hash here, and several of them could happen
Real Soon Now. Kimball doesn't need anything else from the parties to rule on
Novell's motion to dismiss. He could refuse to remand -- and if he did, his only
excuse would be that a federal judge should rule on the copyright transfer. That
could happen any moment.
IBM has a motion before Kimball that would rather put a spike in the "good
faith" Big Lie.
And in the end, it's going to be rather difficult to assert that Autozone has
any issues that are not covered by Red Hat, which was indubitably filed first.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 12:32 AM EDT |
From AZ-10
I don't think they answer Shepard's McGraw-Hill Inc. v Legalsoft Corp
Which is a strong AZ point backing the requirement for a more definie statement
in exactly this type of case (identifying the programs by name was not enough in
a software copyright case)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 12:40 AM EDT |
In AZ10, AZ say that if (for example) SCO v Novell determines SCO doesn't have
the copyrights at issue, SCO would be bound by collateral estoppel, and couldn't
relitigate this issue against AZ
In AZ24, SCO says that as AZ intends
to fight its own defense on its own merits, AZ case should not be
stayed.
It seems to me, what SCO says is besides the point.
AZ's point is that SCO v AZ might be disposed of as a result of
collateral estoppel on SCO from one of the other cases. SCO have not
addressed this at all, and instead seem to want to contest AZ's ability to
litigate AZ's own defense in full (SCO want kind of a super inverse collateral
estoppel, if SCO prevail in one case, they want the defendants in other cases
not to be able to litigate).
IANAL, but I'm pretty sure that SCO's
concept of a sort of super inverse collateral estoppel has no basis in law.
Where do the SCOmedians come up with this stuff?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 12:53 AM EDT |
And so Magistrate Well's words return to haunt us after all. What WAS she
thinking.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 01:07 AM EDT |
From http://sco.tuxrocks.com/Docs/AZ/AZ-9.pdf pp. 11-12.
Needs markup and proofing. Spell-checked. Line breaks and page breaks
omitted.
---
DECLARATION OF JON A. BASCOM
Pursuant to 28 U.S.C. 1746, Jon A. Bascom makes the following
declaration under penalty of perjury.
1.
I am more than 18 years of age and I am competent to make this
Declaration based on my personal knowledge. I am Vice President,
Information Technology, of AutoZone, Inc. ("AutoZone").
2.
AutoZone is a corporation formed under the laws of the State of
Nevada. AutoZone's principal place of business and headquarters are
located in Memphis, Tennessee with the Western District of Tennessee.
3.
AutoZone has computers that use the Linux operating system installed
in stores across the United States. The AutoZone computers that use
the Linux operating system are configured and managed by AutoZone's
information technology staff located in Memphis Tennessee. In
addition, the computers that use the Linux operating system and that
help manage and operate the AutoZone computer network throughout the
country are located in Memphis, Tennessee.
4.
The likely witnesses of AutoZone with relevant knowledge of the issues
asserted in the Complaint, including the information technology staff
familiar with the Linux operating system utilized by AutoZone, are
primarily located in Memphis, Tennessee. It would be a significant
burden for these witnesses, especially the information technology
staff familiar with the Linux operating system and its use within
AutoZone, to travel to Nevada. There are likely no AutoZone witnesses
with relevant knowledge located in Nevada.
5.
The documents relating to the use of the Linux operating system by
AutoZone are primarily located in Memphis, Tennessee where the
information technology staff manages and configures the AutoZone
computer network. Accordingly, the likely documents of AutoZone that
relate to issues asserted in the Complaint are primarily located in
Memphis, Tennessee. Similarly, there are likely few relevant AutoZone
documents located in Nevada.
5.
I declare under penalty of perjury that the foregoing is true and
correct. Executed this 21 day of April, 2004.
[signature]
JON A. BASCOM
AutoZone, Inc.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 01:18 AM EDT |
Have any of the parties yet raised the point that if SCO loses it will be
bankrupt and legal costs will therefore not be recoverable? Surely this is now
becoming very relevant.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 01:39 AM EDT |
SCO memo in AZ:
p4 "For example, SCO's investigation has given SCO
reason to believe that, apart from IBM's challenged conduct, Autozone has
engaged in separate improper
conduct transgressing SCO's rights"
(emphasis on separate in the original)
IBM interrogatory
12:
Please identify, with specificity (by file and line of code) (a)
all source code and other material in Linux (including but not limited to
the Linux kernel, any Linux operating system and any Linux
distribution) to which plaintiff has rights; and (b) the nature of plaintiff's
rights, including but not limited to whether and how the code or other material
derives from UNIX.
Interrogatory 12 is clearly broad enough to include
any and all material in AutoZone's implementation of Linux to which SCO claims
rights. (And remember SCO's allegation in the AutoZone case is that AutoZone's
Linux infringes SCO's UNIX copyrights).
Item 43 in document 153 of IBM
case, summarizes everything in Linux that SCO claims rights on (on their 4th
attempt as of 19 April 2004):
"(a) material allegedly contributed by IBM
from its AIX and Dynix operating systems programs"
"(b) certain so-called
Application Binary Interface ("ABI") files"
"(c) code allegedly contributed
to Linux by SGI"
"(d) an assortment of code of code identified for the first
time on April 19, 2004."
Now if, as of April 19th, SCO have truly
identified to IBM everything in Linux that they claim rights on...
How
can there be "separate" Linux code in the AutoZone case?
And remember
SCO filed their AutoZone case BEFORE producing the list of code summarized by
IBM... so it can not be that they subsequently discovered this code after April
19th 2004.
[ Reply to This | # ]
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| Authored by: The Highlander on Wednesday, May 26 2004 @ 01:40 AM EDT |
The whole SCO/IBM/Novell/Autozone/DC/Red Hat UNIX/Linux ordeal has got to be one
of the more ridiculous series of legal proceedings yet to have happened. If this
wasn't such a technical case, I'm sure that the media would be buzzing around in
a feeding frenzy, pretty much as we do. SCO would have been figuratively torn to
pieces long ago.
At what point does someone finally stop this nonsense? SCO wants to say that
this case, which was clearly filed after the IBM, Novell & Red Hat cases,
should proceed, even when the issues at hand are central to the other cases?
Disgusting isn't the right word, this is loathsome.
IANAL and in fact I sometimes wonder whether I inhabit another world with
utopian standards of fair play and ethics, but this is just plain wrong. Is
there no legislative or judicial body that can step in and mandate that SCO
finally put up or shut up?
Perhaps I am too naive, but I thought that the principles of justice and the law
were very simple. When is it that justice became more about the minutiae of the
law and less about the principles? I don't see how any right thinking person
could argue that the party bringing a case, has the right to bring a case with
no evidence, then stall their way through discovery, going on fishing trip after
fishing trip, in a effort to find incriminating evidence to support their
baseless assertions. It's just not right, no amount of procedural wrangling
changes that. Again IANAL however, I thought that evidence was an important part
of bringing a case. How is justice, or for that matter law, served by this
mess?
I know someone will reply about how the civil system is complex, and is designed
to protect all parties, or how we have to give SCO every opportunity lest they
appeal because they were unfairly dealt with. Unfair? They have no evidence,
they have presented no evidence and they continue to delay and evade. How is
that fair to anyone, except perhaps the attorneys involved and those executives
at SCO who somehow believe that this serves whatever craeer goals they still
cling to.
Yet again I simply cannot believe the goings on in the SCO/IBM case and the
related cases/events surrounding it.
Perhaps all the lawyers judges reading this could explain how it is that the
party bringing a case can do so with NO evidecne, without showing said evidence
or giving a cause specific enough to be answered by the defendant? Additionally
why are such cases not thrown out with prejudice on the grounds that they are
clearly frivalous and attempts to use the legal system to abuse the other party?
Please help me understand, this is just plain wrong.
- Highlander[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 01:43 AM EDT |
From http://sco.tuxrocks.com/Docs/AZ/AZ-9.pdf pp.1,-2. Spell-checked. Needs
markup and proofing. Lines, columns and pages flowed.
---
James J. Pisanelli, Esq.
Nevada Bar No. 4027
Nikki L. Wilmer, Esq.
Nevada Bar No. 6562
SCHRECK BRIGNONE
[address]
Michael P. Kenney, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address]
Attorneys for Defendant AutoZone, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.
a Delaware Corporate
Plaintiff,
v.
AUTOZONE, INC.
a Nevada Corporation
Defendant.
Civil Action File No.
CV-S-04-0237-RCJ-LRL
DEFENDANT AUTOZONE, INC.'S MOTION TO TRANSFER VENUE
Defendant AutoZone, Inc. ("AutoZone") moves this Court, pursuant to 28
U.S.C. 1404(a), for an Order transferring venue to the United States District
Court for the Western District of Tennessee. The grounds in support of
AutoZone's Motion are set forth in detail in the attached Memorandum of Law.1
DATED this 23rd day of April, 2004.
SCHRECK BRIGNONE
By: [signature]
James J. Pisanelli, Esq. #4027
Nikki L. Wilmer, Esq., #6562
[address]
and
Michael P. Kenney, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address]
Attorneys for Defendant
AutoZone, Inc.
1 As the record in this matter reflects, AutoZone has filed,
concurrently with this Motion, a Motion to Stay or in the Alternative, For a
More Definite Statement. AutoZone respectfully requests the Court to consider
the present Motion initially, and then, if the Court deems it appropriate, to
consider the Motion to Stay. In the event the Court grants the present Motion to
Transfer Venue, the Court may defer the Motion to Stay to the United States
District Court for the Western District of Tennessee.
[ Reply to This | # ]
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| Authored by: johnarras on Wednesday, May 26 2004 @ 02:01 AM EDT |
I've loved reading this site for a year, and I never posted before, but this is
just sick:
The case alleges that AutoZone is infringing valid and valuable copyrights that
SCO owns in the UNIX software by using and implementing Linux software in its
business.
I thought they said there were no copyright issues wrt Linux... I hope there are
severe penalties that can be enforced by the courts against lawyers and clients
who go into the courts and simultaneously say contradictory things like that. I
hope that all of the judges in these cases can keep track of what's going on in
all of the other cases and they can and will do something about this. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 02:07 AM EDT |
I've seen a lot of discussion here over how this will interface with the IBM
case, but it strikes me that there's a rather direct link to the Red Hat
situation.
In this document, SCO argues that Autozone's use of Linux, regardless of any
issues that could be settled in the IBM case, violates "their"
copyrights. The Red Hat matter is currently stayed pending IBM, since it
appeared to the judge that the IBM case would settle the issues at stake in Red
Hat's complaint.
If SCO can successfully argue that they can sue Autozone regardless of the IBM
outcome, then it would appear that Red Hat has all the evidence they need to get
the stay lifted. For that matter, just the fact that they're making this claim
publically ought to. (Well, maybe that's a little bit of wishful thinking. But
only a little.)
I don't remember if Autozone uses Red Hat (think I remember someone saying they
did), but that shouldn't matter. SCO doesn't seem to be alleging that use of a
particular distro is infringing - just that Autozone is using "Linux".
Red Hat is Linux - infringement would be transitive.
So... I'm sure the RH lawyers are flipping out over this. Expect some
interesting invective from their side in the near future.
-K
[ Reply to This | # ]
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| Authored by: DBLR on Wednesday, May 26 2004 @ 02:41 AM EDT |
Once more we see SCO at the bottom of page 21 of the AZ-PDF.24 crying that it
still wants the sun, the moon and the stars from IBM in there reply Memorandum
to AZ's Motions.
I quote:
7. At this early stage of discovery in the IBM case, although SCO has identified
numerous specific examples of improper contributions by IBM to Linux, SCO has
been prevented from Identifying all possible infringement based on IBM
contributions because IBM has, thus far, not produced all versions of its AIX
operating system which was derived from UNIX. These versions are not publicly
available.
Charles
---
Some Lawyers are just like bananas, they are all crooked, yellow and slimy.[ Reply to This | # ]
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| Authored by: Khym Chanur on Wednesday, May 26 2004 @ 03:15 AM EDT |
| Among the copyrights SCO references in its complaint are UNIX manuals. AutoZone
replied "What in the world do manuals have to do with anything? Is SCO
accusing us of copying their manuals? Or of something else? We have no idea;
make SCO be more specific." SCO didn't even deign to mention the manuals.
AutoZone also said "What in the world do libraries have to do with the
kernel?", on which SCO is also silent. Will the judge give them a whack for
simply ignoring two portions of AutoZone's reponse? ---
Give a man a
match, and he'll be warm for a minute, but set him on fire, and he'll be warm
for the rest of his life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
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| Authored by: kedens on Wednesday, May 26 2004 @ 03:19 AM EDT |
I don't understand why SCO would want the case to go to Utah. Wouldn't the case
end up in front of Judge Kimball at that point? If it did end up in front of
Judge Kimball then wouldn't that mean that judge Kimball would even more clearly
see how SCO tries to twist things from its other cases in such a way as to be
likened unto a child who when playing a game that you've never played before
will tell you the rules incorrectlly at an opportune game playing time so that
they will win.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 03:24 AM EDT |
How can SCO sue Autozone for allegedly infringing on code which
they don't know anything about, have had nothing to do with, and
which SCO won't tell them anything about?
This is a frivolous lawsuit if ever there was one. The misuse of the
court to carry out a stock scam, fradulent extortion of money
under legal threat, and carrying out a campaign to slander Linux
under directions of an investor or proxy investor Microsoft are the
only possible explanations.
Severe penalties should be imposed for this kind of abuse of the
legal system to perpetrate criminal fraud, extortion, and
interference with business. This should extend to Microsoft and
Canopy.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 04:17 AM EDT |
From http://www.groklaw.net/pdf/AZ-24.pdf pp.1,3. Spell-checked. Needs markup
and proofing. Lines, columns and pages flowed.
---
Stanley W. Parry, Esq.
State Bar No. 1417
Glenn M. Machado, Esq.
State Bar No. 7802
CURRAN & PARRY
[address, phone]
Stephen N. Zack, Esq.
Mark J. Heise, Esq.
DAVID S. Stone, Esq.
Boies, Schiller & Flexner LLP
[address, phone]
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
v.
AUTOZONE, INC.,
a Nevada corporation,
Defendant.
Civil Action File No.
CVS-S-04-0237-RCJ-LRL
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT AUTOZONE'S MOTIONS
TO (1) TRANSFER THIS ACTION TO THE WESTERN DISTRICT OF TENNESSEE, AND
(2) STAY THIS ACTION OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE
STATEMENT
COMES NOW, Plaintiff THE SCO GROUP, INC. by and through its attorneys,
the law firms of Curran & Parry and Boies, Schiller & Flexner, LLP,
hereby files its OPPOSITION TO DEFENDANT AUTOZONE'S MOTIONS TO (1) TRANSFER
THIS ACTION TO THE WESTERN DISTRICT OF TENNESSEE, AND (2) STAY THIS
ACTION OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT. This
Motion is based upon the following Memorandum of Points and
Authorities as well as upon all other papers and pleadings on file in
this action.
DATED this 24th day of May, 2004
[signature]
Stanley W. Parry, Esq.
Nevada Bar No. 1417
Glenn M. Machado, Esq.
State Bar No. 7802
CURRAN & PARRY
[address, phone]
Attorneys for Plaintiff
Stephen N. Zack, Esq.
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER, LLP
[address]
Attorneys for Plaintiff
[ Reply to This | # ]
|
- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT... blah, blah, blah - Authored by: Anonymous on Wednesday, May 26 2004 @ 05:20 AM EDT
- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT... blah, blah, blah - Authored by: Anonymous on Wednesday, May 26 2004 @ 06:21 AM EDT
- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT... blah, blah, blah - Authored by: Anonymous on Wednesday, May 26 2004 @ 07:26 AM EDT
- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT... blah, blah, blah - Authored by: Anonymous on Wednesday, May 26 2004 @ 08:33 AM EDT
- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT... blah, blah, blah - Authored by: Anonymous on Wednesday, May 26 2004 @ 09:24 AM EDT
- Fishing Trip - Authored by: Anonymous on Wednesday, May 26 2004 @ 12:32 PM EDT
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| Authored by: Khym Chanur on Wednesday, May 26 2004 @ 04:29 AM EDT |
What are the standards for a plantif's complaint being sufficiently definite?
This is just common sense, not actual legal reasoning, but if the defendant can
only respond with "We might be guilty, or we might be innocent, we really
haven't a clue", then the complaint must either be too vague, or the
complaint is being filed against the wrong party.
---
Give a man a match, and he'll be warm for a minute, but set him on fire, and
he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 04:46 AM EDT |
SCO argues that a delay in this case will cause irrepairable harm but that's not
true.
SCO used to contribute to Linux for many years and they still distribute it from
their website. SCO sued IBM and didn't sue AZ until over a year later. Now all
of a sudden they are going to be hurt if the AutoZone case doesn't go to trial
right away?
If SCO was serious about stopping the harm done by Linux they would a) Show the
code so that it could be removed. b) Sue Linux distibutors instead of trying
to avoid any lawsuits with them.
AutoZone mostly uses Linux internally. They are not a big contributer to Linux.
They do not distribute a lot of Linux.
The delay might not be very long. SCO vs Novell is waiting for a judgement.
IBM vs SCO is potentially going to a summary judgement. RedHat is trying to
have the stay lifted.
SCO doesn't really say in it's pleading that it has moved to have IBM's
declaratory judgement stayed pending the AZ case. AZ is being accused of
secondary copyright infringement at worst. IBM is being accused of direct
copyright infringement. It doesn't make sense to stay the IBM case instead of
the AZ case.
The motion to stay the AZ case should be granted.
Frankly, if I was AZ, I might agree to a transfer to Utah Federal court. It's
not handy, but Kimball is a good judge. SCO's strategy seems to be to try lying
to the judges in the different venues. If it was just one judge then it makes
it trickier to lie and not get caught.
[ Reply to This | # ]
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| Authored by: garbage on Wednesday, May 26 2004 @ 04:57 AM EDT |
It is absolutely staggering that any plaintiff can get away with this to such an
extent for so long in the US legal system.
US lawyers what the hell is going on
over there?
Are there no limits to this?[ Reply to This | # ]
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| Authored by: blacklight on Wednesday, May 26 2004 @ 05:50 AM EDT |
I am waiting for the text version of SCOG's motion to be made available on
groklaw, so my comments are at this point very preliminary:
(1) Given that SCOG is trying to stall the IBM case by arguing that the Autozone
case will settle the copyrights issue, SCOG's argument in the IBM case if
Autozone wins the stay. Given that SCOG's copyrights are also under a cloud,
going forward with the Autozone does not make much sense. By all accounts, IBM
is considered the primary infringer and IBM is practically demanding the right
to be tried first, as evidenced by its motion for a partial declaratory
judgment.
(2) Judge Wells' statement that SCOG is complying with discovery in good faith
in the IBM case is a double edged sword, as evidenced by IBM's motion for a
partial declaratory judgment.
(3) Autozone as a defendant is entitled to have the charges against it clearly
enunciated, and to see the evidence that SCOG has for filing its complaint let
alone to sustain it. I doubt that SCOG's repeated use of the "information
and belief" phrase amounts to evidence of anything.
(4) Shifting the venue is matter of convenience rather than a matter of
necessity to either party. SCOG argues that electronic material can go anywhere
but the argument cuts both ways: SCOG's electronic data can travel to Tennessee
just as well as to Utah. However, neither witnesses nor printed materials travel
as conveniently. In addition, my little finger tells me that SCOG will subpoena
everything under the sun. On the other hand, whether the Autozone case ends up
in Utah or Tennessee is a "don't care" condition as far as the
rendering of justice is concerned.[ Reply to This | # ]
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| Authored by: GLJason on Wednesday, May 26 2004 @ 05:52 AM EDT |
| Your honor, this case appears to be solely about AutoZone's use of the Linux
operating system. SCO has twice been ordered by the magistrate in their case
against IBM to provide specifically every line of code in Linux that they claim
ownership of and how it derives from their copyrighted materials. Twice they
have certified that they have complied fully with the orders and yet they have
only produced 160 lines of code, all of which has been removed from Linux and
which AutoZone does not use. It would appear that by their own admission there
is no code in Linux which infringes on their copyrights. We must ask again for
a more definite statement on how our use of the Linux operating system infringes
on any of their purported copyrights, especially the copyrights they list for
manuals. We do not have access to any of the protected materials they list and
do not know how our use of works copyrighted by other authors would possibly
infringe on SCO's purported rights.
SCO does not purport to hold copyrights
to Linux, yet claims that defendant's use of Linux is infringing. SCO fails to
show how any of SCO's copyrights are infringed by AutoZone. AutoZone has not
copied material from any of the registered copyrights to its knowledge. The
discovery process is intended to let each side determine facts and evidence in a
case. It should not be required for the defendent to ascertain the nature of
the claim or to what extent the plaintiff is claiming rights.
SCO's claims
are tantamount to an author claiming that the Encyclopedia Britannica infringes
on their copyrights and listing in the complaint the copyrights for every book
they have ever written and including some musical compositions as well, yet
failing to specify in what way the encyclopedias infringe upon their rights.
Not only that, but the author would be suing the purchaser of a set of
encyclopedias for using them instead of suing "Encyclopedia Britannica, Inc."
which would have been the entity that misappropriated the materials.
If SCO
is accusing AutoZone of infringing on their purported copyrights, they should
immediately have available knowledge of exactly how and when the infringement
occurred and to what copyright registration specifically the supposedly
infringed materials are from. These items should be introduced as part of the
complaint and the defendant should not be forced through a lengthy discovery
process in order to ascertain what they supposedly have done wrong. In light of
how discovery is progressing in the SCO v. IBM case and SCO's failure to comply
with two court orders to provide the evidence that would support their claim in
this case, it would be an injustice to allow this case to continue on such a
weak complaint. [ Reply to This | # ]
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| Authored by: thiegroe on Wednesday, May 26 2004 @ 06:20 AM EDT |
On Page 4 Line 19 and futher SCO states:
The Novell matter arises
because Novell, Inc (“Novell”) after selling all of its UNIX assets in return
for substantial consideration, in addition to the substantial value of a
separate income stream, now effectively asserts that the only thing it “gave”
SCO in return are obligations and costs (i.e., negative value to SCO, and still
more benefit to Novell).(2)
(2) After Novell advanced
these positions, IBM invested $50,000,000 in Novell
How can
you put so much virtual reality in 1 sentence? The insinuation in the footnote
is even worse.
Marc
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Wednesday, May 26 2004 @ 06:53 AM EDT |
I wonder if AutoZone ever had access to the Unix Source?
If not how could they know they were infringing?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 07:00 AM EDT |
| How can SCO argue against this. In their own quote on page 19 they say:
"To be
sufficient under Rule 8 a claim for infringement must state, inter alia, which
specific original work is the subject of the copyright claim, that
plaintiff owns the copyright, that the work in question has been
registered in compliance with the statute and by what acts and during what time
defendant has infringed the copyright." (emphasis added)
How can anyone NOT
stay this as their very ownership is in question in the Novell case? Later they
say:
"SCO specifically alleges ownership of those works."
They don't say
copyrights, they say works. What does that mean?
From a more pragmatic view,
you sue someone over copyrights you supposedly have but are being contested in
another case. You go ahead and sue someone else for infringing those very same
copyrights. How can you win the second case if you may lose the first?
I think
they may be arguing that they may lose the first case based on our poor
abilities as lawyers to plead a case properly, and then the copyright ownership
will still be up in the air. SCO also argues that given the massive amount of
harm AZO is causing them, that we can't wait for these other cases either, even
though we are going to lose those because of our inability to properly select
the type of case to file. (e.g. "Who was the idiot that suggested we file a
slander of title case?")
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 07:05 AM EDT |
About SCO arguing that AutoZone's request for more details on what files and
lines in the Linux kernel is improper.
Could AutoZone have been making an attempt to make SCO look bad to the court? If
AutoZone suggests to the court that SCO made no attempt to negotiate with them,
tell them exactly what they've done wrong, and make any kind of attempt at
mitigating damages and allowing AutoZone to cease infringing, wouldn't it
suggest bad faith on SCO's part? How can SCO recover damages if the defendant
had no information on the alleged damages and any opportunity to stop the
damage?
Are there any kind of laws or unwritten rules about a plaintiff being required
to make a good faith attempt to settle a dispute before resorting to wasting a
court's time with a lawsuit?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 07:26 AM EDT |
Pamela,
It's not "blah, blah and more blah", it's yad, yad, yad and more
yad!!!!!!!!!![ Reply to This | # ]
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| Authored by: aaron_tx on Wednesday, May 26 2004 @ 09:29 AM EDT |
I thought the reason SCO sued AutoZone was for converting from SCO's UNIX to
Linux. IANAL so I am probably confused. Wasn't SCO trying to say that AutoZone
improperly incorporated SCO's UNIX code into the distro AZ is using in order to
make their proprietary application run on Linux?
Thanks[ Reply to This | # ]
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| Authored by: dmscvc123 on Wednesday, May 26 2004 @ 10:36 AM EDT |
"In fact, as Autozone will learn when it conducts appropriate discovery,
SCO has fully complied with its obligations in the IBM litigation by providing
all information in its possession at this early stage of discovery concerning
IBM's improper contributions to Linux."
Isn't SCO v. IBM documentary discovery almost over? Isn't SCO admitting they
didn't comply with the IBM discovery order, since SCO was told to show *ALL*
infringing Linux code that would make IBM (or any other company) a contributory
infringer?[ Reply to This | # ]
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| Authored by: codswallop on Wednesday, May 26 2004 @ 11:01 AM EDT |
On the whole, the motion, on its face, is pretty reasonable. We know lots of
reasons why what SCO says aren't true, but at this stage, I don't think the
court has many ways to take judicial notice of any of them.
Certainly SCO is right that Utah is the most suitable venue. I suspect the
proposal is just rhetoric, but given the reception they're likely to receive
there, they deserve to get what they're asking for. The Utah court is certainly
the best equipped to decide what can be consolidated with what or bifurcated or
stayed etc. This might be the quickest way to resolve this mess.
SCO's arguments against a stay are fairly persuasive, the other cases could be
decided on grounds that wouldn't affect this one.
Their arguments against a more definitive statement are weaker. While SCO has
stated what was infringed, that it owned the rights and that it was registered
(the Novell registrations can't be argued at this stage), it seems overly vahue
on how these rights were infringed. I haven't been able to find the Shepherd's
McGraw-Hill decision, but I suspect this is where the court will part company
with SCO's reasoning.
As far as I know, there's nothing to prevent Autozone from moving for a stay
once discovery has started. At that point the defense can raise the issue of the
double registration of the copyrights. If SCO want the presumption of copyright
ownership and damages that come with registration, they'll have to agree to a
stay or go on without them.
Without the presumption, Autozone can raise the issue of Novell's challenge to
the copyrights. This should produce a stay anyway.
It looks like this is just procedural wrangling, and that the outcome will be a
stay or maybe a change of venue to Utah and a stay. It's just going to take a
few months.[ Reply to This | # ]
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| Authored by: maco on Wednesday, May 26 2004 @ 11:23 AM EDT |
I think SCOX's lawyers are mocking the bombastic tone set by the Autozone
lawyers, as if what they're saying is self-evident, duh. The big difference is,
whereas AZ hyperbolees in tone, SCOX hypoerbolees in fact.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 12:33 PM EDT |
This may be a California thing, instead of a federal thing, but...
If there are any "IAAL"s out there, when does SCO become a Vexatious
litigant?
(I knew a vexatious litigant who ended up being sent to jail for simply filing a
lawsuit.)[ Reply to This | # ]
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| Authored by: Asynchronous on Wednesday, May 26 2004 @ 12:43 PM EDT |
Oh, like that's a new one.
It's an old tune told by a bunch of blathering
idiots. Our Juducial system is too antiquated and bloated to get off
it's arse and deal with these reprehensible misfits and their stock scam.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 26 2004 @ 10:21 PM EDT |
I thought defendants tended to get consideration for venue. Does the scene of
the infraction determine jurisdiction? Unless your in Texas and have made large
judical campaign contributions.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 27 2004 @ 12:34 AM EDT |
I haven't read through all the comments, so somebody might have noted this,
but take a look at this statement (page 3, lines 16-18) from AutoZone's
motion:
As plaintiff, SCO certainly will have no objection to the
prospect of getting to trial more quickly on its claims.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 27 2004 @ 08:33 AM EDT |
In the mind of SCO they should not have to tell anyone why they are being sued,
after all then the infringment could be stopped, or worse the code could be
proven to not be owned by SCO.[ Reply to This | # ]
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| Authored by: jnem on Thursday, May 27 2004 @ 10:42 AM EDT |
SCO is being a bit disingenuous, of course. They claim that, "No judicial
efficiency would result [from a transfer to Tennessee] since the majority of
SCO's witnesses are located in nearby Utah, . . .".
SCO's headquarters in Lindon, UT is 465 miles, 7 hours 40 min, from Las Vegas by
the fastest route. Practically next door![ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 27 2004 @ 01:26 PM EDT |
"SCO has filed its response to AutoZone's two motions, requesting a stay"
-
that comma after motions needs to be removed, as I think it makes it seem that
SCO was requesting a stay, etc.
[ Reply to This | # ]
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