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AutoZone's Reply Memorandum in Support of Motion to Stay or For More Definite Statement - as text
Monday, June 21 2004 @ 04:12 PM EDT

Here's AutoZone's Reply Memorandum in Support of its Motion to Stay Or, In the Alternative, For a More Definite Statement as text. Thanks so much to Steve Martin for doing the work.

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

James J. Pisanelli
Nevada Bar No. 4027
Nicki Wilmer
Nevada Bar No. 6562
SCHRECK BRIGNONE
[address]
[phone]

Michael P. Kenny, Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
[address]
[phone]

Attorneys for Defendant AutoZone, Inc.

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.

CV-S-04-0237-RCJ-LRL

DEFENDANT AUTOZONE, INC.'S REPLY MEMORANDUM
IN SUPPORT OF ITS MOTION TO STAY OR, IN THE
ALTERNATIVE, FOR A MORE DEFINITE STATEMENT

INTRODUCTION

Plaintiff The SCO Group, Inc. ("SCO") has effectively conceded in the Red Hat litigation that AutoZone, Inc. ("AutoZone") is entitled to a stay of SCO's claims in the present action. As AutoZone noted in its opening brief, the District of Delaware stayed the Red Hat case sua sponte -- albeit with SCO's encouragement -- pending resolution of SCO's lawsuit against IBM in Utah. Red Hat has recently moved the court to open the stay. In opposing Red Hat's motion, SCO stated:

[T]here is no doubt that, as it is presently constituted, the IBM case will address central issues raised in [the Red Hat] lawsuit. Therefore, it would be a 'waste of judicial resources,' and the resources of the parties, to litigate [the Red Hat] case while a substantially similar question is being litigated in federal district court in Utah.
Red Hat v. SCO, Opp'n to Red Hat's Mot. For Recons., at 4 (emphasis added) (hereinafter "SCO Opp. to Recons.") (attached hereto as Ex. A).

SCO further stated to the court:

[T]he Court correctly observed that the IBM case will address a central issue in [the Red Hat] case: whether Linux contains misappropriated UNIX code. As noted in the Court's Order, this issue is raised by SCO's claim for breach of contract arising from IBM's contributions of code to Linux in violation of its contractual obligations.
Id. at 3.

How SCO can contend that "there is no doubt" that the IBM case will resolve threshold issues in the Red Hat case, yet deny the same in this case is unclear in light of the fact that SCO's claims against AutoZone relate to AutoZone's use of a version of Linux that AutoZone obtained from Red Hat. Nevertheless, what is clear from SCO's own admissions, as well as the other facts and authority addressed below, is that this case should be stayed pending resolution of the IBM case as well as the Red Hat and Novell cases.

UPDATE ON CURRENT LITIGATION INVOLVING UNIX AND LINUX

A. SCO Group, Inc. v. Novell, Inc., No. 2:04CV00139 (D. Utah filed Jan. 20, 2004)

On May 11, 2004, the court in the Novell case heard oral argument on Novell's Motion to Dismiss and SCO's Motion to Remand. The court took the motions under advisement and has not issued a ruling to date.

B. SCO Group, Inc. v. Int'l Bus. Mach. Inc., No. 2:03CV294 (D. Utah, filed Mar. 25, 2003)

On April 23, 2004, SCO moved to dismiss or stay IBM's Tenth Counterclaim, which seeks a declaratory judgment that "IBM does not infringe, induce the infringement of or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." See SCO v. IBM, Mot. to Dismiss, or to Stay Count Ten of Coutercl.-Pl. IBM's Second Amended Countercl. Against SCO (hereinafter "SCO Mot. to Dismiss or Stay Count Ten") (attached hereto as Ex. B); SCO v. IBM, Second Am. Countercl. (attached to AutoZone Motion to Stay as Ex. J) ¶ 173. In its motion, SCO argues that the counterclaim should be dismissed or stayed because the subject matter of the counterclaim is directly at issue in SCO's action for copyright infringement against AutoZone. SCO Mot. to Dismiss or Stay Count Ten at 2.

IBM has opposed SCO' motion and moved for summary judgment on its Tenth Counterclaim. SCO v. IBM, Def./Countercl.Pl. IBM's Cross-mot. for Partial Summ. J. on Claim for Decl. of Non-Infringement (hereinafter "IBM Mot. for Partial Summ. J.") (attached hereto as Ex. C). The basis for IBM's motion is that discovery is nearly complete, yet SCO has "failed to come forth with evidence to demonstrate infringement" of SCO's copyrights by IBM. Id at 2. Specifically, IBM notes that SCO failed to produce "evidence that IBM's Linux activities infringe SCO's purported copyrights, despite the two court orders requiring it to do so." Id.

Briefing on these two motions is underway. A hearing on both parties' motions is scheduled for August 4, 2004.

C. Red Hat, Inc. v. SCO Group, Inc., No. 1:03CV772 (D. Del. Filed Aug. 4, 2003)

On April 21, 2004, Red Hat filed a Motion for Reconsideration of the court's sua sponte order staying the proceedings pending resolution of the IBM litigation. Red Hat v. SCO, Mot. for Recons. (attached hereto as Ex. D). As set forth above, SCO has aggressively opposed the motion on the basis that the previously filed IBM case will address the threshold issue of whether Linux misappropriates SCO's copyrights in UNIX. SCO Opp. to Recons. at 3, 4. The motion has been fully briefed by the parties, and is awaiting ruling by the court.

ARGUMENT AND CITATION OF AUTHORITY

A. The Court Should Stay this Case Pending Resolution of Previously Filed Actions.

AutoZone submits that SCO's statements to the court in the Red Hat case justify the stay of this case without further consideration of the merits of AutoZone's motion. Nevertheless, consideration of the merits only further supports the appropriateness of the stay AutoZone requests.

1. SCO Will Not be Prejudiced or Suffer Irreparable Harm if This Case is Stayed.

SCO's principal argument in opposition to AutoZone's Motion to Stay is that it will suffer irreparable harm if the case is stayed. SCO Brief at pp. 13-14. However, SCO fails to identify any specific harm that it will suffer that is truly irreparable in nature. SCO simply cites a case for the proposition that a showing of reasonable likelihood of success on the merits in a copyright infringement action raises a presumption of irreparable harm in the context of a motion for preliminary injunction. SCO Brief at p. 13.

As an initial matter, SCO has made no showing of "a reasonable likelihood of success on the merits" in this case. Indeed, as addressed in AutoZone's alternative motion for a more definite statement, AutoZone cannot even identify with certainty what SCO is claiming. SCO is therefore not properly entitled to a presumption of irreparable harm in this case. Nonetheless, even if such a presumption applied in this case, it would easily be rebutted.

This is not a case against a software distributor in which the defendant's continued use and distribution of an infringing product might irrevocably damage SCO's business. AutoZone is in the auto parts business and uses Linux solely for its own internal use. Even if AutoZone were to make additional copies of Linux for use on its internal servers while this case is stayed, the only true harm SCO would suffer from AutoZone's action is the loss of license fees SCO claims it would be owed.(1) The law is well settled that monetary damages do not constitute irreparable harm. See, e.g., Sampson v. Murray, 415 U.S. 61, 90 (1974); Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984).

SCO's claim that it will suffer irreparable harm if this case is stayed is further rebutted by at least two other facts. First, SCO knew or should have known that AutoZone was using Red Hat Linux at least as early as 1999 when Red Hat issued a press release announcing the same. See Red Hat Inc. News Release -- 11/29/1999 (attached hereto as Ex. F). At the very least, SCO knew all facts necessary to file this action at least as early as May 2003, when SCO sent a letter to AutoZone stating that SCO "believe[s] that Linux infringes on [its] Unix intellectual property and other rights" and "intend[s] to aggressively protect and enforce these rights." See SCO Letter to AutoZone dated May 12, 2003 (attached hereto as Ex. G). As a distributor of both UNIX and Linux, SCO has long possessed the knowledge necessary to determine whether the source code of Linux infringed any SCO copyrights in the source code of UNIX. Notwithstanding this knowledge, SCO waited at least ten (10) months -- and perhaps as long as five (5) years -- from its first knowledge of AutoZone's use of Linux to file suit against AutoZone. Such delay in filing negates SCO's claim that it will be irreparably injured by a stay of this case. See Richard Feiner & Co v. Turner Entm't. Co., 98 F.3d 33, 34 (2nd Cir. 1996) ("An unreasonable delay suggests that ... any harm suffered by the plaintiff is not so severe as to be 'irreparable.'"); Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2nd Cir. 1995) (delay of nine (9) months in filing suit evidence of lack of irreparable harm for issuance of preliminary injunction).

Second, SCO has aggressively sought to stay the Red Hat case, despite the fact that Red Hat is one of the leading distributors of Linux in the United States. SCO's case for prejudice or irreparable harm is clearly more relevant in a case against a leading distributor of the alleged infringing product than in a case against a single end user of the product like AutoZone. If SCO was genuinely concerned about irreparable harm associated with the continued distribution and use of Linux, common sense suggests that SCO would be seeking to move the Red Hat case forward as quickly as possible -- rather than pursuing a single end user.

Finally, it is worth noting that a stay of the present case does not mean that this case will start anew when the stay is lifted. The progression of the Novell, IBM, and Red Hat cases will undoubtedly aid discovery and clarify the issues in this case in a meaningful way. Relevant witnesses will be identified, responsive documents will be produced, and issues will be framed in the pending cases that will assist SCO and AutoZone in preparing this case for trial. The stay of this case will therefore not mean that the case will be truly idle.

2. AutoZone Will Suffer Meaningful Prejudice if the Case is Not Stayed.

SCO incorrectly contends that AutoZone cannot demonstrate that it will suffer any prejudice if this Motion is denied. SCO Brief at pp. 11-12. AutoZone undoubtedly will be prejudiced if it is forced to engage in the substantial time and expense of defending a copyright infringement action in a forum having no relation to the case while three (3) previously filed actions are pending which address threshold elements of SCO's claims against AutoZone. If any of several threshold issues are decided against SCO in those previously filed actions, SCO will be estopped from asserting its claims against AutoZone.

Additionally, the prejudice to the parties is simply one factor, and not a prerequisite, in granting a motion to stay. Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972). For example, the court in the Red Hat case stayed its proceedings sua sponte without any analysis whatsoever of the respective prejudice on the parties. Red Hat v. SCO, Order (attached to AutoZone Motion to Stay as Ex. A) pp. 4-5.

In sum, AutoZone will suffer clearly demonstrable prejudice if the requested stay is denied, but SCO will suffer no identifiable prejudice or harm of any kind if a stay is granted.

3. Possible Settlement or Other Resolution of the IBM, Red Hat, or Novell Cases Does Not Affect AutoZone's Motion to Stay.

SCO repeatedly notes that the present case should not be stayed pending resolution of the IBM, Red Hat, and Novell cases because those cases may settle or be resolved on legal or factual grounds unrelated to the issues in the present case. SCO Brief at pp. 14, 15, 17. SCO does not cite any authority for denying a motion to stay because of the possibility that the pending actions might settle or be resolved on grounds unrelated to the present case. Indeed, every case could potentially settle or be resolved on non-substantive grounds. Therefore, under SCO's logic, no case could ever be stayed pending resolution of a prior filed case that addresses the same or threshold issues. That is clearly not the law, no doubt in large part because it is equally possible that prior cases will not settle and will be decided on grounds that are dispositive of issues in later filed cases. See Gen-Probe, Inc. v. Amoco Corp. 926 F. Supp. 948, 963 (S.D. Cal. 1996) (granting stay in favor of prior filed case).

SCO's contention that the other cases might settle is also inconsistent with SCO's public pronouncements about the cases. As the court in Red Hat noted, "SCO has publicly stated that ... 'chances for negotiating with companies [like Red Hat] appear to be slim.'" Red Hat v. SCO, Order at p. 4 (quoting SCO public pronouncement). SCO's contention that a stay is inappropriate because the prior filed cases may settle is therefore meritless.(2)

4. The Previously Filed Cases Involve Seminal, Threshold Issues Regarding SCO's Claims of Copyright Ownership.

SCO's response brief ignores authority cited by AutoZone in its opening brief that a stay of proceedings is appropriate when issues of the ownership or validity of a patent (like a copyright) are at issue in a previously filed, pending action. AutoZone Motion to Stay at pp. 11-12. AutoZone discussed Gen-Probe, Inc. v. Amoco Corp. 926 F. Supp. 948, 963 (S.D. Cal. 1966), in which Amoco filed a motion to stay the proceedings pending the resolution of the CNS v. Gen-Probe case, a previously-filed case addressing the issue of ownership of patents that was an essential element of Gen-Probe's claim against Amoco. After Amoco argued that "if CNS were to succeed in its claims against Gen-Probe, Gen-Probe would be deprived of any ownership interest in the patents in suit, and would lack standing to complain even of Amoco's current acts of infringement," the district court granted the motion to stay pending the resolution of the CNS v. Gen-Probe case. Id. at 963-64.

SCO's only attempt to distinguish Gen-Probe is its mischaracterization of the case by stating that it involved parallel litigation between the same parties. SCO Brief at p. 18. Clearly, the two cases involved in Gen-Probe did not involve the same parties -- the first case was CNS v. Gen-Probe and the second case was Gen-Probe v. Amoco. Gen-Probe, 926 F. Supp. at 963-64. Rather, Gen-Probe is directly on point with the present case. If Novell succeeds in establishing that SCO has no ownership interest in the UNIX copyrights, SCO would lack standing to assert any claims of copyright infringement against AutoZone related to the UNIX copyrights. Similarly, if IBM or Red Hat establishes that whatever code or manuals SCO claims to have been infringed by Linux are not copyrightable, SCO would have no copyright to assert against AutoZone. Therefore, like the district court in Gen-Probe, this court should stay the present case pending the resolution of the copyright issues in the Novell case.

5. This Case Should be Stayed Under the First-to-File Rule.

SCO claims that AutoZone's Motion to Stay should be denied under the first-to-file rule. SCO's Brief at p. 17. However, the first-to-file rule is inapplicable under the facts of the case, and, even if it were, it would support the grant -- not the denial -- of this Motion.

As an initial matter, the case SCO cites in support of its position that the first-to-file rule justifies denial of AutoZone's motion holds that the rule only applies to actions involving the same parties. SCO Brief at p. 17; Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 625 (9th Cir. 1991) ("[The first-to-file rule] may be invoked 'when a complaint involving the same parties and issues has already been filed in another district.'") (quoting Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)). Neither the Novell, IBM, nor Red Hat cases share the same parties with each other or with this case. Accordingly, the first-to-file rule is inapplicable to this case under the very authority SCO cites to invoke the rule.

Even if the first-to-file rule did apply, however, it dictates that the present case should be stayed pending the resolution of the other, prior filed cases. The IBM case was filed on March 25, 2003 -- nearly twelve (12) months before the present case; the Red Hat case was filed on August 4, 2003 -- eight (8) months before the present case; and the Novell case was filed on January 20, 2004 -- nearly two months before the present case. Therefore, it is undisputed that these cases are all prior filed and that the first-to-file rule would direct that these cases be resolved before the instant action.(3)

SCO contends that the copyright claims in IBM case are junior to the issues in the present case because the issues were not at issue in IBM until IBM filed its Second Amended Counterclaims on March 29, 2004 (which added the Tenth Counterclaim). SCO's argument is misplaced because it ignores SCO's own admissions that threshold issues involving whether Linux misappropriates UNIX were already at issue in the IBM case well before IBM filed its Tenth Counterclaim. SCO stated in response to Red Hat's Motion for Reconsideration that the issue of whether Linux misappropriates UNIX code "is raised by SCO's claim for breach of contract arising from IBM's contributions of code to Linux in violation of its contractual obligations." SCO Opp. to Recons. at 3. SCO asserted this claim in its original Complaint against IBM (attached to AutoZone Motion to Stay as Ex. C), which SCO filed on March 6, 2003 -- one year before SCO filed the present action. SCO expanded and clarified this claim in its First Amended Complaint against IBM (attached to AutoZone Motion to Stay as Ex. O), which SCO filed on June 16, 2003 -- nine months before SCO filed the present lawsuit.

Even assuming that the IBM case did not address issues of infringement until IBM filed its Second Amended Counterclaims, IBM's amendment relates back to the date on which it filed its original counterclaims for purposes of the first-to-file rule, or August 6, 2003 -- eight (8) months prior to SCO's lawsuit against AutoZone. Ramsey Group, Inc. v. EGS Intl', Inc., 208 F.R.D. 559, 564-65 (W.D.N.C. 2002) (amendment to complaint relates back to original filing date for purposes of first-to-file rule); Employees Savs. Plan of Mobil Oil Corp. v. Vickery, 99 F.R.D. 138, 142 (S.D.N.Y. 1983) (same); GT Plus, Ltd. v. Ja-Ru, Inc., 41 F. Supp. 2d 421, 424 (S.D.N.Y. 1998) (amendment to complaint adding claims raised in second-filed suit relates back to original complaint and original filing date applies to first-to-file rule). The first-to-file rule therefore supports, not defeats, AutoZone's Motion for Stay.

6. This Case Should be Stayed Pending Resolution of the IBM Case.

SCO has admitted in the IBM litigation that the issues involved in the present case are also at issue in IBM. See SCO v. IBM, SCO's Mem. in Supp. of Mot. to Dismiss or to Stay Count Ten of Pl. IBM's Second Countercl. Against SCO (attached hereto as Ex. H) p. 4 (the IBM "case also will determine the enforceability of SCO's claims of infringement arising from the use of Linux, including the enforceability of SCO's copyrights."). SCO has further conceded in the IBM litigation that "AutoZone will be litigating the same issues that IBM seeks to inject in this case through Count Ten." Id. at 5. SCO then concludes that "two federal courts should not simultaneously be determining whether the same copyrights are infringed." Id. On this point, AutoZone is in total agreement with SCO.

Where AutoZone and SCO disagree is whether the IBM case or the present case should move forward first. SCO's only argument as to why this case should move forward before IBM is based on the first-to-file rule. As set forth above, SCO's reliance upon the first-to-file rule is misplaced. Because the first-to-file rule actually supports the IBM case moving forward first, this case should be stayed pending IBM under SCO's own logic.

Ironically, SCO has specifically agreed with the position AutoZone advocates in this motion in statements that SCO has made to the court in the Red Hat case. In that case, SCO has aggressively argued that Red Hat should be stayed pending resolution of the IBM case:

  • "The previously filed SCO v. IBM Case addresses most, if not all, of the issues of copyright infringement and misappropriation. If these issues are decided against SCO in that case, then Red Hat's lawsuit becomes unnecessary." Red Hat v. SCO, SCO's Opening Br. in Supp. of its Mot. to Dismiss (attached to AutoZone Motion to Stay as Ex. N) p. 15.
  • "The infringement and misappropriation issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court." Red Hat v. SCO, SCO's Opening Br. in Supp. of its Mot. to Dismiss at 2.
  • [This] Court correctly observed that the IBM case will address a central issue in this case: whether Linux contains misappropriated UNIX code. As noted in the Court's Order, this issue is raised by SCO's claim for breach of contract arising from IBM's contributions of code to Linux in violation of its contractual obligations. Red Hat v. SCO, SCO's Opp. to Recons. at 3.

AutoZone submits that SCO should be bound by its judicial admissions, and this Court should stay the present case pending resolution of the relevant issues in IBM. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988).

A stay of the present case pending the IBM case is also warranted given the respective stages of the actions. It is well-established that an action that has advanced significantly further should proceed before an action that is in the very early stages of litigation. See, e.g., Coop. Centrale Raiffeisen-Boerenleen Bank B.A. v. Northwestern Nat'l Ins. Co., 778 F. Supp. 1274, 1279 (S.D.N.Y. 1991) (denying stay in favor of second action because "the parties [in the present case] have conducted substantial discovery, and they have briefed and argued a motion for summary judgment" whereas the defendant in the second action "had not even filed its answer"); Ward v. Follett Corp., 158 F.R.D. 645, 649 (N.D. Cal. 1994) (dismissing case because, in part, "discovery is already underway" in related action); Marianna Imports, Inc. v. Helene Curtis, Inc., 873 F. Supp. 308, 309 (D.Neb. 1994) (dismissing case because "[t]he action in Illinois is further developed than this case as discovery there has already commenced"); Optical Recording Corp. v. Capitol-EMI Music, Inc., 803 F. Supp. 971, 974 (D. Del. 1992) (denying motion to dismiss or stay because "this action has proceeded further than the New York lawsuit").

Although this case has only recently been filed, relevant discovery in the IBM case is nearly complete. IBM recently reported to the court that the parties "have essentially completed their document productions, depositions have commenced, and IBM has moved for summary judgment ... ." IBM v. SCO, IBM's Mem. In Opp. To SCO's Mot. To Dismiss or Stay Count Ten of IBM's Second Am. Countercl. (attached hereto as Ex. I) p. 3. Because the IBM case is nearly complete on issues that SCO concedes are largely the same and that are key threshold issues to relevant issues in this case, and because the relevant claims in IBM have now been tendered to the court for resolution on the merits, AutoZone submits that considerations of judicial economy strongly support the stay of this case pending the District of Utah's resolution of the IBM case.

7. This Case Should Be Stayed Pending Resolution of the Red Hat Case Because The Law Favors Declaratory Judgment Actions By a Product Manufacturer or Distributor Over Infringement Actions Against Customers or End Users.

Federal Courts have long recognized in the analogous context of patent infringement litigation that a declaratory judgment action by a product manufacturer or distributor against a patent owner should proceed before infringement actions by the patent owner against the manufacturer's customers or end users. See, e.g., Ricoh C. v. Aeroflex Inc., 279 F. Supp. 2d 554, 557 (D. Del. 2003) ("A manufacturer's declaratory judgment suit should be given preference over a patentee's suit against the manufacturer's customers when those customers are being sued for their ordinary use of the manufacturer's products"); see also Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990) ("[L]itigation against or brought by the manufacturer of infringing good takes precedence over a suit by the patent owner against customers of the manufacturer."); Codex Corp. v. Milgo Elecs. Corp., 553 F.2d 735, 737-38 (1st Cir. 1977); Whelen Techs., Inc. v. Mill Specialties, Inc., 741 F. Supp. 715, 715 (D. Ill. 1990) ("In patent infringement actions, stays are appropriate where the first action is brought against the customer of an offending manufacturer and a subsequent action is brought involving the manufacturer itself.").

This rule "acknowledges that a patentee's election to sue customers, rather than a manufacturer itself, is often based on a desire to intimidate smaller businesses." Ricoh, 279 F. Supp. 2d at 557.

The rule set forth in these patent cases applies with equal force in the present case. This case involves an infringement action brought by the copyright holder (SCO) against the product customer or end user (AutoZone) merely on the basis of the customer's or end user's normal use of the manufacturer's or distributor's (Red Hat's) product. The Red Hat case is a declaratory judgment action by the "manufacturer" and distributor of Red Hat Linux (Red Hat) against the purported copyright holder (SCO). AutoZone therefore submits that this case should be stayed while Red Hat's claims against SCO proceed to resolution. Ricoh, F. Supp. 2d at 557; Katz, 909 F.2d at 1464; Whelen Techs., 741 F. Supp. at 715.

B. In the Alternative, the Court Should Direct SCO to Amend its Complaint to Provide AutoZone with a More Definitive Statement of SCO's Claims.

As set forth in AutoZone's opening brief, SCO's Complaint fails to comply with Rule 8 because it does not give AutoZone "fair notice" of SCO's copyright infringement claim and the grounds upon which the claim rests. Underwood v. Archer Mgmt. Servs., Inc., 857 F. Supp. 96, 97 (D.D.C. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). In support of its position, AutoZone cited to specific ways in which the Complaint fails to give AutoZone proper notice of the nature and basis of SCO's claims. Rather than address any of these issues, SCO responds to AutoZone's motion merely by alleging broadly that its complaint meets Rule 8's pleading requirements. SCO Brief at pp. 19-20.

SCO implicitly acknowledges the vague nature of its Complaint by its failure to address the mystery surrounding its listing of thirty reference manuals, programmer's guides, and other written documentation relating to UNIX within its copyright registrations. Compl. ¶ 15. As stated in AutoZone's initial brief, SCO lists these materials and never mentions the materials again in the Complaint. AutoZone is entitled to know whether SCO is alleging that AutoZone has infringed the copyrights in these materials, and, if so, how.

SCO similarly fails to address how the problem associated with shared libraries identified by AutoZone in its Motion to Stay is solved or otherwise addressed in the Complaint. Again, SCO has implicitly acknowledged that its broad references to the functionality of UNIX's shared libraries does nothing to reasonably apprise AutoZone of the copyrights SCO claims to own in UNIX.

SCO's minimal response in its brief indicates that SCO is intentionally trying to avoid identifying the nature and basis of its purported claims. As AutoZone previously noted, the Linux code is freely available to anyone to examine, and SCO has been in possession of the code for years. SCO can readily identify the lines, files, or organization of Linux code that it claims infringes UNIX, and SCO can likewise readily identify the corresponding lines, files, or organization of UNIX that SCO claims to be infringed. As the Complaint currently stands, Rule 8 requires SCO to do so. Without such information, AutoZone cannot determine the applicability of specific affirmative defenses and whether any of SCO's claims are subject to dismissal or judgment under Rules 12 or 56 and is left to guess which of the millions of lines of Linux source code, or worse yet, which organizational elements within those millions of lines of code, are the subject of SCO's claims.

SCO claims that the information AutoZone seeks in its Motion for More Definite Statement is properly the subject of discovery, and that AutoZone's motion should thus be denied. SCO Brief at pp. 19-20. The IBM case demonstrates, however, that AutoZone will not get this information from SCO in discovery. IBM has been requesting from the outset of that case that SCO identify the UNIX code that is allegedly copied or otherwise misappropriated in Linux. SCO insists that, following two orders compelling it to provide the information, it has fully complied and produced all evidence in its possession, custody or control responsive to IBM's requests. IBM has recently filed a motion for summary judgment on its Tenth Counterclaim because what SCO has produced does not evidence any infringement of UNIX by Linux. See IBM Mot. for Partial Summ. J. at 2. SCO's contention that AutoZone will get the information in discovery that it now seeks thus appears wholly illusory. Accordingly, SCO should be directed to amend its Complaint and provide a more definite statement of its claims.

CONCLUSION

For the foregoing reasons and the reasons set forth in its opening brief, AutoZone respectfully requests that the Court stay this action pending resolution of the IBM, Novell, and Red Hat cases. In the alternative, SCO requests that the Court direct SCO to provide a more definite statement of its claims so that AutoZone can frame a proper responsive pleading.

This 4th day of June, 2004.

[signature]
James J. Pisanelli, Esq.
Nicki L. Wilmer, Esq.
SCHRECK BRIGNONE
[address]
[phone]

Attorneys for Defendant
AutoZone, Inc.


  1. SCO's CEO has stated that SCO is not trying to "blow up Linux" but "to get a transaction fee every time [Linux] is sold." See Interview of SCO CEO Darl McBride with CRN.COM dated Nov. 18, 2003 (attached hereto as Ex. E.) Therefore, it is clear that what SCO is truly interested in is not that AutoZone cease use of Linux, but that AutoZone (and other end users) pay SCO a license fee.

  2. Other than making self-serving statements that Novell's claims to ownership of UNIX are unfounded, SCO's only argument as to why the present case should not be stayed in favor of Novell is that the Novell case could settle or be resolved on different grounds. Having disposed of this argument, AutoZone submits that the present case is properly stayed pending resolution of Novell.

  3. The fact that the Red Hat case is currently stayed does not change the analysis. That case is stayed, and not dismissed, pending the IBM case. Moreover, it is possible that the court will lift the stay in response to Red Hat's pending motion for reconsideration.


  


AutoZone's Reply Memorandum in Support of Motion to Stay or For More Definite Statement - as text | 326 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: Anonymous on Monday, June 21 2004 @ 04:20 PM EDT
To help PJ find them faster

[ Reply to This | # ]

to STAY
Authored by: Anonymous on Monday, June 21 2004 @ 04:20 PM EDT
obvious typo everyone has seen already... title has "Say" instead of

"Stay"

[ Reply to This | # ]

  • to STAY - Authored by: Anonymous on Monday, June 21 2004 @ 05:56 PM EDT
  • to STAY - Authored by: insensitive clod on Tuesday, June 22 2004 @ 07:23 AM EDT
This morning's hearing on the motion was not held.
Authored by: Anonymous on Monday, June 21 2004 @ 04:25 PM EDT
I've spoken to Barbara Price, Judge Jones's courtroom administrator, and she confirmed that Jones signed last week's stipulation to cancel this morning's hearing. No new date has yet been set.

Below is the stipulation as it is listed on PACER. The signed order has not shown up yet.

Doc #: Date Filled: 6/16/2004 Status: EOD: Docket Type: EVENT Docket Title: RECEIVED Judge: RCJ Caption: stip to vacate & cont hrg. Sub to RCJ

[ Reply to This | # ]

OT and links here please
Authored by: Jaymz on Monday, June 21 2004 @ 04:28 PM EDT
.

---

Jaymz

[ Reply to This | # ]

Gee AutoZone Just Doesn't Get It!
Authored by: seanlynch on Monday, June 21 2004 @ 04:39 PM EDT
Gee AutoZone Just Doesn't Get It!

SCO will suffer irreparable harm if the AZ case is stayed. You see, The SCO will
have to face the full force of IBM's Tenth Counterclaim, and the decision
forthcoming in the Novell case.

These events will cause an abrupt end to SCO's pump and dump schemes. It will
effectively cause SCO's efforts at extorting money from companies for use of
"IP" that SCO does not even own to cease. And it will probably trigger
an implosion of the stock price for SCOX.

This will eventually be followed by investigations from authorities and criminal
charges.

Yes sir, if AutoZone is stayed SCO will be irreparably harmed.

I can't wait!

Seán

[ Reply to This | # ]

News items and links here
Authored by: Anonymous on Monday, June 21 2004 @ 04:44 PM EDT
EOM

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: quigongene on Monday, June 21 2004 @ 04:49 PM EDT
Very impressive work on the part of AZ's legal council. Clear, concise and to
the point. This is much easier read than much of SCOX's doublespeak.

[ Reply to This | # ]

Never argue with those lawyers
Authored by: Anonymous on Monday, June 21 2004 @ 04:51 PM EDT
Mental note: Never get into an argument with any Autozone lawyer, as I'll end up
hogtied with my own words. It's like legal Akido.

Ouch.

Legal filings can sometimes be interesting to read, but it's rare that they're
hilarious like this. I think it's the authors' skill at using SCO's own
arguments against them and mocking them cruelly as they do so. The sarcasm is
visibly condensing on the page.

Great stuff. I imagine the judge will find it difficult to see SCO as a credible
party when contrasting this filing with SCO's response. SCO's filings appear to
have increased considerably in quality over time, but ... that's not hard.

Sometimes the blind agreement and cheering for the anti-SCO party in whatever is
currently under discussion irritates me - but it's also clear that at times it's
neither blind nor in any way unwarranted. I think this is one such time.

--
Craig R

[ Reply to This | # ]

Any Good News Source Needs Its Funnies--Bad Vegetable Puns Here
Authored by: Weeble on Monday, June 21 2004 @ 04:55 PM EDT
They can be bad puns about vegetables, or puns about bad vegetables.

Either way, the cornier the better.

And don't let the overserious folks squash this thread. Just let 'em stand to
the side saying, "Sufferin' succotash!"

---
"Profanity is the effort of a feeble mind to express itself--forcefully."
--the late Rev. O. Dean Martin

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: red floyd on Monday, June 21 2004 @ 05:07 PM EDT
This is why you don't make public statements about pending and current
litigation, Darl.

This is also why you don't try to deadlock the courts with "Stay A pending
B, and Stay B pending A".

Both situations come back to bite you in the *ss.


---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: red floyd on Monday, June 21 2004 @ 05:09 PM EDT
This was a thing of beauty to read. It might even surpass some of the best
we've seen from the Nazgul.

I can picture AZ's lawyer chortling with glee as they use SCOX's own court
filings (not to mention Darl's big mouth) agains them.

---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: Anonymous on Monday, June 21 2004 @ 05:13 PM EDT
While I am not an advocate of judicial activism, the Judge should just dismiss
the Autozone case with prejudice. If SCO cannot document with specificity the
infringing code, the court should not allow SCO to waste the resources of the
court and Autozone. The courts should have a fiduciary duty to the payers.

IANAL

[ Reply to This | # ]

I am amazed....
Authored by: MikeA on Monday, June 21 2004 @ 05:25 PM EDT
I am amazed that SCOG files so many idiodic things with the courts that are either completely wrong, or can be used against them, or both. Reading Autozone's filing which tears them apart is just another example of this. This does not seem to be the great work of Boies et al.

This can mean only two things:

1. That Boies and company do not actually write the court papers for SCOG, but instead they are all written by hacks like Kevin McBride.

2. That the court papers are intentionally written poorly (because they know they do not have a case) just to keep the machine running and burn time.

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

AutoZone Lawyers might give lawyers a good name.
Authored by: Franki on Monday, June 21 2004 @ 05:32 PM EDT
Wow, short, not gibberish, to the point, and powerfully convincing, whatever AZ
is paying these guys, it's not enough.

We need to give AZ's lawyers a name too, something that signifies clarity, logic
and effective speaking.

As the Jim Carey movie goes:

L: Your honour, I object!

J: Why?

L: Because it's devestating to my case.

Of all the legal docs on groklaw from all the various parties, the AZ ones are
the most pleasurable to read.

I think they might be the first ones to outright claim that the whole reason SCO
are doing this is to force license fee's from companies, and that they want to
push this case fast to make sure that they can extort money before the Novell,
IBM or Redhat cases can end the license drive by proving that there was no legal
issue in the first place.

If I ever get into legal trouble in the US, I know where I'm going to find my
lawyers. :-)

regards

Franki

[ Reply to This | # ]

Irreparable Harm
Authored by: overshoot on Monday, June 21 2004 @ 05:53 PM EDT
Reminiscent of "Liar, Liar:"

SCOX might as well blurt out "Your Honor, if the Court stays this case it will irreparably harm our ability to intimidate other end-users like AutoZone. Since intimidation is our only remaining business, we depend on the opportunity to extort money from businesses before the IBM, Red Hat, or Novell cases resolve the issues."

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: jacks4u on Monday, June 21 2004 @ 06:13 PM EDT
Touche!

Very impressive.

Thank you, AutoZone, for doing your homework, and for calling their bluf!

[ Reply to This | # ]

Judicial Admission
Authored by: AllParadox on Monday, June 21 2004 @ 06:15 PM EDT
The way I learned it, a "judicial admission" was a rule of evidence,
that it was an admission, verbal or written, made by a party in the course of
the proceedings.

Attorneys for the parties are not witnesses and are not parties, and unless
there is a very strict specification about a statement(e.g."Your honor, we
stipulate that the defendant was at the scene of the crime on the night of the
murder"), their statements are technically not admissions .

Still, throwing your opponent's arguments in his face is a time-honored tactic
of advocacy.

It warms the cockles of my heart to see such quaint and arcane practices still
being used.

I do wonder, obliquely, if it is still considered unethical for an attorney to
make one argument in one court, and exactly the opposite argument in another
court, involving at least one common party, while both proceedings are still
continuing.

---
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 | # ]

Judicial Sanctions, et al
Authored by: tredman on Monday, June 21 2004 @ 06:27 PM EDT
I was wondering if discovery of behavior like this (contradicting legal briefs)
can be treated as contempt? I'm actually kind of suprised that none of the
judges presiding in any of the SCO cases haven't at least mentioned the word
"contempt", or at the very least, alluded to it in any of their
courtroom appearances.

I thought we were going to see something like this after the second judicial
order to SCO to comply with the IBM interrogatories, but I suppose that those on
the bench are much more patient than I.

Along the same lines, I can appreciate that they would give SCO just enough rope
to hang themselves and prevent any kind of appeal. However, at what point does
a justice have to say, "Enough is Enough!"?

Tim

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: John M. Horn on Monday, June 21 2004 @ 06:32 PM EDT

Geez, these AutoZone attorneys are good. IANAL so I really appreciate the clear,
concise phraseology. Even a laymen can easily follow their logic and
conclusions.

They are definitely worth whatever AZ is paying them. I fervently hope the court
awards attorney fees to AZ if such a thing is possible in such a case.

John Horn

[ Reply to This | # ]

Crossing the T
Authored by: overshoot on Monday, June 21 2004 @ 06:39 PM EDT
Well, this one certainly dots the i's in an adequate way but the really impressive part is the way it crosses SCOX' T.

Yes, that's a naval reference.

[ Reply to This | # ]

What's that loud pounding noise?
Authored by: Debonair on Monday, June 21 2004 @ 06:53 PM EDT
Oh.... it's just AZ driving nails into SCOG's coffin.
Anyone care to bet who will throw the first shovel of dirt in the hole?
This reminds me of the old Alfred Hitchcock movie where a convict arranges with
the prison undertaker to get in a coffin with a corpse to escape from prison.
After the coffin is buried, the undertake will come back, dig up the coffin and
let the escapee out. When it starts getting stuffy down there, the convict
checks out the corpse the is in there with. Much to his dismay, it the
undertaker!

[ Reply to This | # ]

And the noose tightens
Authored by: brian on Monday, June 21 2004 @ 06:59 PM EDT
"SCO has further conceded in the IBM litigation that
"AutoZone will be litigating the same issues that IBM
seeks to inject in this case through Count Ten." Id. at 5.
SCO then concludes that "two federal courts should not
simultaneously be determining whether the same copyrights
are infringed." Id. On this point, AutoZone is in total
agreement with SCO."

It is good to see someone following up on the shell game
SCO is playing in trying to shuffle these cases. I knew
this would come back to bite SCO in the backside. Nothing
like having your own words used against you. I agree that
two judges shouldn't hear the same case and since it is
far more progressed in the IBM case then that is where it
should be heard. Good work AZ attornies. Almost worthy of
nazgul status.....

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Attorney QA
Authored by: RedBarchetta on Monday, June 21 2004 @ 08:07 PM EDT
I know this has been mentioned before, but one thing I find interesting (hysterically funny?) is the amount of comments that tear into SCO's legal team, and the equal amount that compliment the opposing sides attorneys (Autozone,DC,IBM).

I'm in total agreement. Although TSG's attorneys have managed to turn out one or two good legal responses, of which I can't quite recall at the moment, most of what they have produced is scheisse.

It could be that the willingness of an attorney to take on a lame case is in direct correlation with his/her quality. You see, you have your millions of run-of-the-mill, unscrupulous bad debt chasers (legal software jockeys) who avoid the court because they can't argue their way out of a paper bag. Then you have your highly-respected, historically significant attorneys such as Patrick Henry, and Clarence Darrow that would never have touched a case on behalf of an entity like The SCO Group, based on scruples alone.

Hence, the reason why The SCO Group ended with attorneys like David Boies and Mark Heise... two legal genuises that don't have a trace of ethics or morality (very much like their clients), and whose ultimate destiny is the bowels of history (very much like their clients).

---
Collaborative efforts synergise.

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Say or For More Definite Statement - as text
Authored by: blacklight on Monday, June 21 2004 @ 08:28 PM EDT
AZ's reply memorandum shows that consummate professionals are at work: not a
word wasted, not a word out of place, not a hint of melodrama. The facts are
presented and supported, the case cited are dissected and the law is delineated.
The SCOG legal team are walking dead men, and I wonder how Kevin McBride, the
golden throat of parking ticket litigation and the god of small claims court
litigation, is going to top this.

[ Reply to This | # ]

The "tone" is a pleasure
Authored by: tangomike on Monday, June 21 2004 @ 08:38 PM EDT
There have been a lot of rude comments about lawyers taking any case as long as
the money is good. I have to say this brief has the tone of someone who really
has better things to do, and is irritated that they're having to spend the
clients' money on this.

I bet the court agrees: stayed until it blows away.

Unfortunately TSCOG will spin it as "ongoing" and the media will miss
the point.

---
To The SCO Group - please come back when you pass a Turing test.

[ Reply to This | # ]

What about novell?
Authored by: Anonymous on Monday, June 21 2004 @ 09:01 PM EDT
Lots of arguments for why the case should be stayed until ibm and red hat are
decided, but why not novell (in my quite possibly inaccurate judgement, the
biggest reason for staying). I'm very surprised they didn't attach the novell
judge's recent ruling saying there were serious doubts about who owned the
rights to unix. are they saving this for later? had that ruling not come out
when this was filed?

[ Reply to This | # ]

AZO should have put this in
Authored by: skidrash on Monday, June 21 2004 @ 09:32 PM EDT
I know the following is basically in the filing, I just wish AZO had put in
something like this

"there is absolutely no single thing that AZO does with Linux which IBM
does not do"

"there is absolutely no single thing that AZO does with Linux which RedHat
does not do"

"For Any thing regarding Linux that SCOG wants to harrass AZO over, RH
& IBM are far, FAR and away the better entities for SCOG to play
with."

[ Reply to This | # ]

The Groklaw Effect.
Authored by: Anonymous on Monday, June 21 2004 @ 10:11 PM EDT
Most pleadings, both the best and worst of the craft, disappear into the
courthouse and are seldom seen by the public. Maybe we now have the Groklaw
Effect where every filing is instantly circulated worldwide for microscopic
examination. Bogus arguments are challenged, facts checked, citations reviewed,
and logic tested. Slipshod legal work, lies and deception are now paraded in
public for all to see, subjecting the lawyers and their clients to instant and
stunning public humiliation.

With the latest filings from AZ, DC, and IBM we might be witnessing an emerging
phenomenon. Can it be that the truth has value, legal arguments must pass a
minimal sanity check and the pleadings themselves reflect on the character of
the participants?

I hope so...

Thank you Pamela...

[ Reply to This | # ]

Re: AutoZone's Reply Memorandum
Authored by: Anonymous on Monday, June 21 2004 @ 10:58 PM EDT

``As set forth in AutoZone's opening brief, SCO's Complaint fails to comply with Rule 8 because it does not give AutoZone "fair notice" of SCO's copyright infringement claim and the grounds upon which the claim rests. [snip] In support of its position, AutoZone cited to specific ways in which the Complaint fails to give AutoZone proper notice of the nature and basis of SCO's claims. Rather than address any of these issues, SCO responds to AutoZone's motion merely by alleging broadly that its complaint meets Rule 8's pleading requirements. SCO Brief at pp. 19-20.''

Does anyone else find it odd that, in its relatively short time as a litigating company, this pattern seems to be ``classic SCO''?

``SCO implicitly acknowledges the vague nature of its Complaint by its failure to address the mystery surrounding its listing of thirty reference manuals, programmer's guides, and other written documentation relating to UNIX within its copyright registrations. [snip] AutoZone is entitled to know whether SCO is alleging that AutoZone has infringed the copyrights in these materials, and, if so, how.''

Heck, if they aren't going to specify lines of code, do you really think they'd be forthcoming about the items on that list of copyrighted materials?

``SCO similarly fails to address how the problem associated with shared libraries identified by AutoZone in its Motion to Stay is solved or otherwise addressed in the Complaint. Again, SCO has implicitly acknowledged that its broad references to the functionality of UNIX's shared libraries does nothing to reasonably apprise AutoZone of the copyrights SCO claims to own in UNIX.''

More ``classic SCO''. Their typical response is unresponsive. Is this the best Boies and copmpany can muster? Is this what he and his associates have descended to? I strongly doubt that I could have a lower opinion of Boies after all this.

``SCO's minimal response in its brief indicates that SCO is intentionally trying to avoid identifying the nature and basis of its purported claims. As AutoZone previously noted, the Linux code is freely available to anyone to examine, and SCO has been in possession of the code for years. SCO can readily identify the lines, files, or organization of Linux code that it claims infringes UNIX, and SCO can likewise readily identify the corresponding lines, files, or organization of UNIX that SCO claims to be infringed. As the Complaint currently stands, Rule 8 requires SCO to do so. Without such information, AutoZone cannot determine the applicability of specific affirmative defenses and whether any of SCO's claims are subject to dismissal or judgment under Rules 12 or 56 and is left to guess which of the millions of lines of Linux source code, or worse yet, which organizational elements within those millions of lines of code, are the subject of SCO's claims.''

And the funny thing is that SCO has had all these millions of lines of freely available Linux source code and yet cannot find infringing code without having access to millions and millions of lines of additional code (i.e., AIX and Dynix). You don't really think thay'll have time to find AutoZone's infringing code while they already busy looking for IBM's do you? :-)

``SCO claims that the information AutoZone seeks in its Motion for More Definite Statement is properly the subject of discovery, and that AutoZone's motion should thus be denied.''

Oh you AutoZone lawyers are obviously unaware of how the U.S. court system works. You see evidence is something you reveal a little at a time while the case is being tried. Not all at once, mind you, but little by little. :-D

(In case someone hadn't noticed, I'm poking a little sarcastic fun at all of this. AutoZone's legal team has definitely got its poop in a pile. They're exposing the farce that is SCO's case and I'm loving it. I only hope that the good judge is seeing through the SCO BS as readily as AutoZone has been able to.)

[ Reply to This | # ]

Please help me on some facts...
Authored by: edumarest on Monday, June 21 2004 @ 11:14 PM EDT
...was not the server fee $695 per copy of Linux used?

How many servers does Autozone use? Their stores likely use thin clients so
there should not be a license required for each station. Does each store have an
internal server? It's likely but I don't know. Is twenty servers too many for
Auozone? That would be, what, $15K or so in SCO money?

So they add a server or two. Wow, what a fantastic amount of money to cause
irreparable harm.

So SCO will be harmed right into bankruptcy? They will spend $1.5 million to get
$15K, $150k, whatever. I can see what would cause the bankruptcy.

This is obviously not a cash cow. This is stupidity.

BTW, I usually shop Autozone.

---
A generation which ignores history has no past and no future.
Robert Heinlein (1907 - 1988), The Notebooks of Lazurus Long

[ Reply to This | # ]

The Groklaw Effect
Authored by: penfold on Monday, June 21 2004 @ 11:25 PM EDT
I must say, reading this filing and having followed these cases for the past
year or so now, I firmly believe that every lawfirm involved in these cases
reference this site.

I can almost feel the spirit of Groklaw embodied in Autozone's filings. It seems
like someone took all of our dicussions, debates and theories and presented them
in a very tight and professional document with the applicable case law that
supports those points.

When these cases are finally closed, I do hope that the counsels that have
referenced the material here get a chance to say how helpful (or unhelpful on
behalf of SCOX) they found the information here, and make any suggestions that
could help us improve and enhance our discussions.

I am throughly enjoying and cannot get enough of Groklaw. I cannot say how
grateful I am PJ decided to give this experiment a try. I don't know if she has
changed the world, but I am left with no doubt that she has most certainly left
her mark.

And everyone else that has pitched in, from picking up documents and researching
the many topics, to transcribing and proofreading, and even those who have
played devil's advocate so we all could explore some tangent have all had an
enormous impact. Truely a shining example of the old saying, "the sum is
greater than the parts."

It is simply mind blowing when I try to wrap my head around it all.

---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence!

[ Reply to This | # ]

AutoZone's Reply Memorandum in Support of Motion to Stay or For More Definite Statement - as tex
Authored by: kbwojo on Tuesday, June 22 2004 @ 01:28 AM EDT
I can see one possible scenerio about why TSG's is suing AZ and DC. What if they
thought that win or lose this is a good business move. What if they figured that
by going after a couple of big companies that maybe they would scare a-lot of
companies into folding. They could have just used these cases to show that they
were serious about taking people to court and they were not afraid to take on
the big companies (that's why they chose DC and AutoZone). Now all these other
companies would be afraid of TSG and they would just start buying licenses by
the hundreds. Win or lose these cases they would now have a steady cash flow and
could be making more money than these two cases actually cost.

This may not be the case, but I did as others have and tried to think like TSG
and this is what came to my feeble little mind.

[ Reply to This | # ]

Good Value
Authored by: garbage on Tuesday, June 22 2004 @ 08:57 AM EDT
This places devastating crticism of SCOX on the public record.

Until now the
schills could spin things the way they wanted but with this they cannot plead
ignorance.

[ Reply to This | # ]

TSG having problems with FUD
Authored by: phrostie on Tuesday, June 22 2004 @ 09:21 AM EDT
this is dated 10 Jun 2004, but i just read it.
It seems TSG is having problems with people generating FUD.
oh the irony.

http://www.vnunet.com/news/1155786

"Revenue for the first two quarters of fiscal 2004 was $21.5m, compared to
revenue for the first two quarters of fiscal 2003 of $34.9m.

But SCO insisted that it will continue its controversial legal battles with IBM,
Novell, Red Hat and Daimler Chrysler over the Linux operating system.

Bert Young, the company's chief financial officer, said: "Our cash position
is sufficient to fund lawsuits for several years to come."

McBride blamed the spreading of fear, uncertainty and doubt by the companies it
is battling in the courts for stopping its licensing programme from taking off.

"The claims from Novell about what Unix copyrights they had sold or not
sold raised questions in the minds of our customers. We did not cause this
problem," he said."

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

I love this part!
Authored by: Anonymous on Tuesday, June 22 2004 @ 01:32 PM EDT
SCO claims that the information AutoZone seeks in its Motion for More Definite Statement is properly the subject of discovery, and that AutoZone's motion should thus be denied. SCO Brief at pp. 19-20. The IBM case demonstrates, however, that AutoZone will not get this information from SCO in discovery. IBM has been requesting from the outset of that case that SCO identify the UNIX code that is allegedly copied or otherwise misappropriated in Linux. SCO insists that, following two orders compelling it to provide the information, it has fully complied and produced all evidence in its possession, custody or control responsive to IBM's requests. IBM has recently filed a motion for summary judgment on its Tenth Counterclaim because what SCO has produced does not evidence any infringement of UNIX by Linux. See IBM Mot. for Partial Summ. J. at 2. SCO's contention that AutoZone will get the information in discovery that it now seeks thus appears wholly illusory. Accordingly, SCO should be directed to amend its Complaint and provide a more definite statement of its claims.

[ Reply to This | # ]

Blazing Saddles
Authored by: Anonymous on Tuesday, June 22 2004 @ 09:13 PM EDT
I'm reminded of a quote from "Blazing Saddles:"

"Oh baby, you are soooo goood. And they are so
DUMB!"

[ Reply to This | # ]

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