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AutoZone Hearing Transcript
Saturday, July 17 2004 @ 04:25 PM EDT

Here is the transcript of the AutoZone hearing. You will see that many of the stories you have been reading in the press about what happened at the hearing were not accurate. Well, what else is new? That's what transcripts are for.

As you will remember, there were three AutoZone motions before the court, the Motion to Stay, the Motion to Transfer, and the Motion for a More Definite Statement. Only the Motion to Stay was ruled on at the hearing. There was no ruling on the Motion to Transfer at this time. In fact, after AutoZone presented its argument on that point, when SCO's attorney asked if he should present argument on the matter, the judge told him no, that he was just going to order a stay. The Motion for a More Definite Statement never got discussed by either side, for the same reason, presumably. Later, if the stay is ever lifted, those issues can resurface.

Everything was stayed, with 90-day reports, just like in the Red Hat stay, with the only difference being that SCO has a brief discovery period, 30 days, and then can try to come up with a preliminary injunction request, and to do that they get one round of discovery, with the discovery limited to facts predicate to a preliminary injunction, meaning they have to try to demonstrate that allowing AutoZone to continue to boot up their computers every day is causing SCO irreparable harm. We know that is silly, but the judge is new to the case, as you will see in the transcript, still getting up to speed on the facts here.

This is the second time an overworked judge has given them something they didn't ask for, however, the first being Red Hat's stay, and, in my opinion, this was something they didn't merit. In the transcript, you'll hear SCO's attorney saying, after the judge mentions allowing them discovery regarding preparing a preliminary injunction, that he, the attorney, had better shut up now. That was a a little slip on his part. He's revealing his glee that he got something he never dreamed of even asking for, and he's indicating that he'd best say no more and just quit while he is ahead. I'll be interested to see if that is the last word from AutoZone, because it was an odd ruling. They might just put their energy into fighting the preliminary injunction, if and when it pops up. And judges do have a lot of discretion.

Later, after AutoZone tells the judge that SCO never asked for a preliminary injunction, and you'll hear what sounds like a surprised "Ah!" from the judge, he then tells SCO that they can't go on a fishing expedition, that they are limited in their discovery and that if they do not qualify for a preliminary injunction, they shouldn't do discovery at all. It was all very strange. The impression I formed was that, with all due respect, he goofed, not being altogether clear on everything in this case from the papers, and thought they had asked for a preliminary injunction, and rather than say he made a mistake, he tried to just bluster through. He tells AutoZone that their caseload is much lighter now in that district, but judging from this hearing, I have my doubts.

He justifies the preliminary injunction opportunity by saying that in SCO's papers on the motion to stay, they argue that a stay would prejudice them. I checked the document, and indeed, on page 12, they write that a stay should be denied because it "would severely prejudice SCO by allowing AutoZone to continue to infringe on its copyrights unimpeded for an unknown period of time." On page 14, they say that infringement of copyrights constitutes irreparable harm that entitles the copyright holder to injunctive relief. But the only relief they asked for, on page 22, was that AutoZone's motions be denied. They never asked for a preliminary injunction. In effect, the judge gave them what he thought they should have asked for and didn't. It's mighty peculiar to me, but I don't know much about Nevada and that circuit. But here's what sticks out: because SCO didn't ask for a preliminary injunction, AutoZone never had an opportunity to argue against one. Their lawyer tried to do so at the hearing, but the judge cut him off and wouldn't let him argue it. So, he gives one side something that the other side never had an opportunity to address. I don't think that's the way it's supposed to be.

If they present a preliminary injunction request and they clearly don't qualify for it, he may get a better bead on them. And he won't like it. Assuming the fix isn't in, and I don't see anything concrete yet to think that it is. What is more likely to happen is disputes over interpretations of his order, some of which began already in the courtroom, with SCO angling for more. I expect some real nastiness in their preliminary injunction, but I don't want to give them any ideas by laying out what I see specifically.

So, no doubt SCO will present a prelim, which will probably be denied, and then everything else is stayed. Actually, it's all stayed now anyway, no matter what the preliminary injunction ruling turns out to be. That's it. SCO did not get 60 days to do discovery, only 30. The judge clearly stated he thinks IBM and Red Hat, because it's the licensor, should go ahead of AutoZone, in order to avoid duplicative effort, so for now, everything else is put on a back burner. So, the bottom line is, SCO lost another motion, and they got a chance to do limited discovery, which won't matter in the end at all. They stood on their heads in the motion papers trying to make this the first case to be heard, ahead of IBM's. That has been turned down, which has implications in Utah, because there is no pending AutoZone case now that they can argue should go ahead of IBM.

It is a Groklaw transcript, not an official court transcript, so, while I tried to do a perfect job, any errors are mine, not the court's. You can get an official transcript from them directly for a small fee if you need one. I want to thank LHJ for helping me with this, and in fact he did the bulk of it. We had to guess by voices who was speaking in some cases, and it's certainly possible that we made a mistake. Where we weren't reasonably sure, we said "Unknown". If any of the parties wish any corrections made, kindly contact me.

The participants at the hearing were Judge Robert C. Jones, and for SCO Stanley Parry, with Curran & Parry, the local Nevada firm, (you'll see him listed on the complaint, and you have to admit, Parry is a good name for a lawyer), David Stone and Bob Magnanini from Boies, Schiller, and SCO's corporate counsel Ryan Tibbitts. For AutoZone, we have James Pisanelli of Schreck Brignone, the Nevada firm for AZ, and David Stewart and Michael Kenny from Alston & Bird, all of whose names you will see on AutoZone's Motion to Transfer.

Both sides begin with the local Nevada firm speaking, but then they turn it over to Boies Schiller's David Stone for SCO and David Stewart of Alston & Bird for AutoZone.

David Stone is the Administrative Partner in Boies Schiller's New Jersey office. He is a Harvard man, both college and law school, so no doubt a brainiac. He worked on the Yankees case with Boies and prior to joining that firm he participated in the appeal in State of Rhode Island v. Claus Von Bulow (maybe you saw the TV show about that case) and helped defend W.R. Grace in City of Woburn v. W. R. Grace -- which reminds me: don't ever believe any movies about trials because they are never accurate either -- and was involved in various litigations involving the Doris Duke estate (litigation is what often happens when the very rich die; lawyers can get a lot of money from doing estate work), and he's a specialist in antitrust law. The Boies Schiller site also says this:

"In addition, Mr. Stone also serves as Vice Chairman and General Counsel of the Federal Enforcement & Homeland Security Foundation, Adjunct Professor at Seton Hall Law School in the area of antitrust and complex commercial litigation, and on the Boards of the Directors of the Federal Drug Agents Foundation, the Smart Family Foundation and the New Jersey Performing Arts Center."

For AutoZone, doing most of the talking was Mr. Stewart and there is a picture of him on the linked-to page. Here is what the Alston & Bird web site tells us about him. First, he is a partner, and his specialty is IP law and domain-name matters (he's done more than a dozen UDRP cases). He heads up the firm's Atlanta Trademark Group and is a member of the firm's Intellectual Property-Litigation Group. This is a large firm, with more than 600 attorneys, by the way. He is not learning IP law on the job here, in short.

He defended Warner Bros. in a copyright and trademark lawsuit, Leigh v. Warner Bros., 212 F.3d 121, involving the movie "Midnight in the Garden of Good and Evil", "in which the Eleventh Circuit became the first federal circuit court to rule that an artist cannot acquire trademark rights in an artistic style." He also was lead trial counsel for Umbro International, Inc., in a cyberpiracy case (I love that area of law) "that was the first case cited by the US Senate as support for its passage of the Anticybersquatting Consumer Protection Act of 1999 (ACPA)." He has represented Cable News Network also in connection with some ACPA cases, and he helped establish that "jurisdiction is proper in the district on the grounds that the registry for the domain name is located in the forum." This impresses me a lot. It's all very well to rely on earlier work, but to make new law is harder. The case was Cable News Network LP, LLLP v. cnnews.com, 162 F. Supp2d 484 (E.D.Va. 2001). He is also involved currently in challenging popup and popunder ads -- think Gator -- and thank you very much for that.

He has written several articles, including "Does Your Domain Name Subject You to Nationwide Jurisdiction", (published in the August 7, 2000 issue of The National Law Journal), "Help, Hackers Stole Our Name!", and "The First Amendment and Rights of Publicity: Is Parody a Legitimate Defense to Rights of Publicity Claims?" (Southeastern Intellectual Property Newsletter of Law and Policy (November 1997)). He graduated from Vanderbilt School of Law and was editor of the Vanderbilt Law Review, which means that he too was the cream of the crop.

He's also a member of INTA, the International Trademark Association, "a not-for-profit worldwide membership organization of trademark owners", and they have a trademark forum that in the good old days, when I had time to do fun things, (not that Groklaw/Grokline/Grokdoc aren't fun, but they are all-consuming at the moment) I used to enjoy reading, because the archives are publicly available, to try to learn and keep up-to-date. The law is so complex that lawyers need each other to help out when arcane things come up, and that is what you see on the tmtopics forum. Here is Mr. Stewart on tmtopics, assuming it may be the very same, answering a trademark question.

But here is the part that will interest many of you the most: between college and law school, he worked "as a computer science analyst for the Allison Gas Turbine Division of General Motors where he was responsible for the initial system design and implementation of an original just in time inventory system." He's a geek!

So we won't have to grit our teeth and listen to him ever say things that are technically ridiculous, as we do in this transcript, where SCO's attorney says that without source code, you can't run software. I wish that were true, actually, because then Microsoft, who is behind all this SCO viciousness, would be out of business, as would SCO, but it's not true.

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

HEARING TRANSCRIPT
The SCO Group v. AutoZone

July 12, 2004

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

Judge Robert C. Jones: SCO Group and AutoZone? [pause] Good morning. Your appearances, please.

Stanley Parry for SCO: Good morning, Your Honor. Stanley Parry on behalf of SCO Group and with me this morning is -- I'll let them introduce themselves -- but David Stone is to my right.

David Stone for SCO: Good morning, Your Honor. With Boies, Schiller & Flexner.

Robert Magnanini for SCO: Bob Magnanini, also from Boies, Schiller & Flexner.

Parry: And also corporate counsel Ryan Tibbitts is here with us . Your Honor, we have a motion pro hac vice to allow Mr. Magnanini and Mr. Stone to appear and argue this motion. Could that be granted at this point?

Judge Jones: That would be granted in the normal course and they certainly may argue this morning, without, assuming without objection.

Stone: Thank you, Your Honor.

James Pisanelli for AutoZone: Good morning, Your Honor. James Pisanelli from Schreck Brignone. I'm here with co-counsel from Alston & Bird, Dave Stewart and Mike Kenny.

Both Stewart and Kenny: Good morning.

Pisanelli: Mr. Stewart will be handling our argument.

Judge Jones: OK.

Stewart: Good morning, Your Honor. As you know, we've got three motions before you this morning, a Motion to Transfer, a Motion to Stay, and a Motion for a More Definite Statement. And if you have a preference as to which of those motions you'd like to hear first, I'll certainly. . .

Judge Jones: My preference is to hear all of them from you at the same time, [laughter] but of course one at a time, as you may present the argument.

Stewart: That's what I'll do, and I'll start with the Motion to Transfer and will do my best not to just parrot back our brief to you but sort of hit the high points.

Judge Jones: I've read it.

Stewart: On the Motion to Transfer, it is certainly true, as SCO has pointed out, that ordinarily the plaintiff's choice of forum is not to be disturbed lightly on a motion to transfer. However, the law in this circuit is established, as it is in other circuits as well, that that rule goes out the window essentially if the plaintiff chooses to file outside their home district, and in particular, the Ninth Circuit has said, as we've cited in our brief, that if the plaintiff chooses to file outside its home forum, its choice of forum is to be given "minimal consideration".

There are a number of factors that this court has recognized that are properly considered in connection with a motion to transfer brought under 28 U.S.C. Section 1404(a), as this motion is. First is convenience of the witnesses, second is access to proof, third is convenience of the parties, and fourth is the interest of justice. All four of these factors, we believe, overwhelmingly support transfer of this case to the Western District of Tennessee, which is the district to which we requested this case be transferred, and this case could have been filed there originally, because that's the district where AutoZone's principal residence is.

With regard to the convenience of the witnesses, it is undisputed that not a single relevant witness with material knowledge or information is present within this judicial district. All of the witnesses with knowledge regarding the UNIX code that SCO purports to own reside outside this district and more importantly, the most critical witnesses here, those are the witnesses who have knowledge of AutoZone's alleged infringement of that code, are employees or former employees of AutoZone's IT group and all reside in Memphis. Transfer of the case, naturally, will therefore be more convenient for the witnesses if the case is heard where those witnesses are located.

In terms of access to proof, again all of the relevant documents and code regarding the alleged infringement are located in Memphis. Although it is certainly true, as SCO has pointed out, that in this day and age of CD ROMS and broadband internet connections, documents can be transferred without a horrible amount of burden, the fact remains that is a relevant factor to consider and it weighs in favor of a transfer of the case to Memphis.

With regard to the convenience of the parties, neither party resides here. Both parties will therefore have to fly to get here and fly all the witnesses here for trial and for substantive hearings or motions in the case. Because AutoZone resides in Memphis, naturally it's much more convenient for it to try the case there, and it's not much less inconvenient, if *any* less convenient, for SCO to try this case in Memphis as opposed to trying it here. Again, they're going to have to travel. . .

Judge Jones: Were all these motions presented to the Red Hat court? Certainly a motion to stay was presented to that court.

Stewart: No, actually there was no motion to transfer in that case. The court issued the stay sua sponte. . .

Judge Jones: I see.

Stewart: . . . But did so based upon a statement that SCO made to the court in connection with the Motion to Dismiss the declaratory judgment complaint on ripeness grounds that it would likely move to stay the case because controlling issues are involved in the IBM case. And the court appears to have picked up on that and that appears to be the cause for the stay. Red Hat has moved for, has requested that the court reconsider that order and has requested that the court lift the stay. Naturally, counsel for SCO can address those issues better than I can. My understanding is, though, that those issues are fully briefed and awaiting decision by the judge in Delaware.

And, finally, the interest of justice. The Western District of Tennessee has a greater interest in adjudicating the merits of this claim because that's where the alleged infringement took place and the case load is substantially lighter in the Western District of Tennessee on the civil side than it is here, and as a consequence of that, naturally the Western District of Tennessee is able to get its civil cases to trial much more quickly. In fact, in 2003, the average was 18 months from the date of filing to trial in the Western District of Tennessee versus 32 months. . .

Judge Jones: That's not true here any more. We have two additional judgeships. Our case load is down now. Mine is below 300. And the average is 375. We can get a case to trial as soon as you want to set it.

Stewart: OK.

Judge Jones: I can set it in the next six months. I can set it in four months. Or even next month, if you want it. [laughs]

Stewart: I'm not sure we'll be ready to try it that quickly. [laughter] But for reasons I'll address in a moment, in connection with the Motion to Stay, all of these issues are already being litigated elsewhere, particularly a case that is substantially further down the road. I think it's premature in this case to be thinking about a stay, pardon me, to be thinking about a trial, when . . .

Judge Jones: That's the main concern for me, is just duplicative effort.

Stewart: Right.

Judge Jones: Whether I should simply... the better choices are to either transfer it to that court or to simply stay it here, like Delaware did.

Stewart: Well, I will tell you, Your Honor, our client's principal interest is in the stay. It doesn't want to be investing the substantial time and energy and money into litigating this case when SCO has already brought all of the issues that are relevant to this case in litigation elsewhere, where all of these issues are already in front of courts in Utah and Delaware, and the Motion to Transfer is filed because it does believe that eventually if it becomes appropriate for a stay to be lifted, that this case should go forward in the Western District of Tennessee, it appeared to us that now is the appropriate time to raise that motion, but certainly that's in Your Honor's discretion, and ultimately it is the stay that we are most interested in this morning.

The... with regard to case loads, it sounds like that's changed recently. The most recent statistics from the Western District of Tennessee are, though, that there are an average of 269 civil cases per judge in that district.

The only connection of any kind between this litigation and this forum is the fact that AutoZone's incorporated here. Now we don't, obviously by any means, intend to say that it was improper for this case to be filed here. We're not arguing over jurisdiction. It's simply a convenience of the parties/forum non conveniens type analysis. And this court has recognized in both the Cambridge Filter and Miracle Blade cases that if all you've got to justify keeping the court in this district is the fact that one or more of the defendants is incorporated here, that that alone is not sufficient to outweigh the balance of the Section 1404 factors. And we'd submit that this case should be transferred to the Western District of Tennessee for those reasons.

Now, SCO in its response brief has addressed the possibility of transcribing the case to Utah. We've addressed those issues. We don't believe it's any more appropriate to transfer this case to Utah than it is to leave it here. I'd be happy to address those points, if you'd like to hear them.

Judge Jones: I would. What is the status, primarily, what is the status of the cases pending in Utah?

Stewart: Again, I'll give you my understanding but I will defer to SCO's counsel to make sure that I'm getting all the facts right. I'm sort of looking over everyone's shoulders, watching what's going on. My understanding is that at present, SCO has filed a motion to dismiss IBM's tenth counterclaim. That tenth counterclaim is a counterclaim that IBM filed to say, essentially, "Nothing in Linux infringes any rights that SCO purports to own in UNIX." We believe all of the issues in the present case were already in front of the court in the IBM case prior to the filing of that counterclaim and in fact, as I'll talk about in a moment . . .

Judge Jones: SCO filed a motion to dismiss or, or... IBM filed a motion for summary judgment for . . .

Stewart: Both.

Judge Jones: . . . failure to allow discovery?

Stewart:Both. SCO filed a motion to dismiss or stay the tenth counterclaim pending resolution of this lawsuit, claiming that this was the first-filed suit on those issues, and IBM has filed a motion for summary judgment on its tenth counterclaim, saying that discovery has been completed, SCO says it has complied with all of its discovery obligations, IBM's gone through the code, there is no infringing code, and so IBM has moved for summary judgment on that basis. My understanding is that the District Court in Delaware has scheduled all of those motions for hearing on August 4. And again, I'll ...

Judge Jones: That's in Delaware?

Stewart: No, that's in Utah. That's the IBM case in Utah.

Judge Jones: All right. Delaware is scheduled for a hearing as well?

Stewart: Pardon me?

Judge Jones: Those are scheduled for hearing? The Utah court, the Utah court. That's the one I'm focusing on. That's the one I'm trying to understand. How soon will we get an answer, so we can avoid duplicative effort? How soon will we get an answer on the basic issue in IBM and the Linux versus the Unix code?

Stewart: Right, I'll have to answer that a couple of different ways. If the court grants IBM's motion for summary judgment, it could be very quick. Those issues are briefed, and the court's going to hear argument on that on August 4th. I don't know how quickly the court would rule after that, but if the court grants the motion, then it would, the case would be over.

If that case is decided against SCO, SCO has no cause of action against AutoZone.

Judge Jones: Let me hear from SCO, please.

I'd like you to primarily address those two issues. Of course your argument that it ought to be transferred to Utah. I'm not too enamored with the idea of sending it to Tennessee, but it seems to me that a very good option here is simply to stay it, briefly at least, until we see whether we are going to get an answer from the Utah court.

Stone: Your Honor, first of all I'd like to thank you for allowing me to argue here today. I appreciate it.

If Your Honor will indulge me, I'd like to place this case in context, because I think it's important towards the motions that are before Your Honor to understand the context in which this cause was brought and the importance of this case to SCO. And I think that the Complaint, which is really focusing on the copyright infringement, doesn't give you that overview. But since they've now brought in these other cases, I think it's important to understand why they are not dispositive of this case and why this case really is different to some extent from those cases.

UNIX is an operating system. It's an operating system which for twenty years has been the dominant operating system on enterprise servers. Enterprise servers are computers which run the most sophisticated software in the United States and in the world. For example, Credit Suisse, the New York Stock Exchange, most Fortune 500 companies use some version of this Unix software, which was originally developed by AT&T. The reason they use it is because it's got something called five 9's capability, which means it's 99.999 error-free. It's very, very efficient. If Your Honor has every used, for example, Microsoft Windows, and has noticed where it freezes whenever you try to run any other new programs at the same time, the value of something like Unix is that it's so error-free and so efficient that when you're doing big, important operations or if you're doing national, operations of national scope, you need a much more sophisticated operating system.

Several years ago a person named Linus Torvald, who's from Finland, created a primitive version of a Unix-type operating system, which he essentially put on the internet and invited people to contribute to it to make it better. Basically, it's SCO's position that certain companies, one of them being IBM, contributed code and other types of materials that are protected by not only licensing agreements but copyright laws to Linux for its own business purposes in order to create a competitor to the Microsoft software and the Unix software, which SCO owns and which SCO receives millions and millions of dollars in royalties from every year.

Judge Jones: So that I understand.... I don't want to cut you off, please keep going, but the issue of ownership is pending in the Utah Novell case, and the issue of the conflict is pending in the IBM Utah case.

Stone: Your Honor, that's not quite accurate, if you'll allow me to.... The first statement, I believe is somewhat accurate. In the Novell case, what happened is that Novell was going around saying in the press, "SCO doesn't own the copyrights, even though we sold them to SCO for more than potentially 100 million dollars and even though for the last, you know, umpteen years people have been paying royalties to SCO and we've been receiving percentages of those royalties with the understanding that SCO owned all this," but now they say SCO doesn't own the copyrights. We sued them for essentially a slander of title. It is not a copyright case. It is not a copyright infringement case. It's a slander of title case, which was removed to the federal court.

That case, nothing has occurred in it at this point other than that Judge Kimball has ruled that it's going to stay in the federal court. There's been no discovery, nothing had happened.

As ... to just go on with my story, because I think it's important to place this in context. So one of the concerns that SCO has is entities such as IBM and individuals who have access through their licensing agreements with SCO to our source code, which is proprietary, using that and somehow contributing either modifications, derivative works, concepts and methods, or the code itself into Linux. That's one issue. There's a second issue. The second issue is end users of Linux who had previously been SCO customers, such as AutoZone, which used Unix System V, which is -- they used our OpenServer software for many years, and paid us royalties for it -- migrating, what we call migrating to Linux. In other words, changing all those computers all over the country and instead of running our software, which is proprietary and they pay royalties on it, to Linux.

Now, there are many issues which can arise in this migration process, which don't necessarily have to do with what's in Linux. For example, we allege in our complaint that AutoZone has violated our copyrights in something that's called static shared libraries. Static shared libraries are an older version of libraries that SCO used in its OpenServer software, which is the software that they licensed to AutoZone. Since that time, these libraries have been improved, and now there's something called dynamic shared libraries, which is what Linux uses, because Linux was only recently created. It wasn't created at the time of static shared libraries.

If you wanted to migrate from this OpenServer and take all the applications which have been written to run on that operating system, and then run them flawlessly on Linux, you need the static shared libraries. And we have reason to believe, and that's why we allege it in the complaint, that what they did is they copied our static shared libraries which we ... they have licensed from us, which they owe us royalties for, into these applications so they could run them on Linux. That's something that has nothing to do with IBM or the IBM case, because IBM does not use, to our knowledge, I mean we haven't had discovery yet, but based on what we know, they don't use static shared libraries. So that's an example of how this case could go in a totally different direction than the IBM case, because the IBM case is about putting things into Linux that you don't have a right to. This case is about to illustrate to end users the problems that they have in migrating to Linux and basically leaving our system without violating our copyrights. So this case, if it was resolved on the static shared libraries, based on what we know today -- we haven't had the discovery yet -- wouldn't implicate the IBM case at all.

So that's an example of why you can't just simply look at these cases and say they're the same. They're not the same.

The other point about the IBM case, which I think is credible is that that case was really brought, it was brought by SCO as a license, breach of license case. We had a license which says to IBM that they can have our source code, which is like the keys to the kingdom -- if you don't have the source code, you can't write the applications, you can't run the software, and so, you know, you're very limited in what you can do -- so IBM paid us a lot of money for this source code. They then modified it, created derivative works from it, used methods and concepts in other products that they created, which under our license we claim we control, that they cannot just release that into the public ....

Judge Jones: What's the status of that lawsuit?

Stone: That lawsuit is the lawsuit right now in which there is motions to compel, motions to dismiss, motions for summary judgment are pending. What happened is in March of this year ....

Judge Jones: Who's that before?

Stone: That's before Judge Kimball.

Judge Jones: And how soon are those hearings set?

Stone: August 4th there's going to be an argument on that, Your Honor. But I would point out that the likelihood of IBM getting summary judgment ... their summary judgment motion was not based on material undisputed facts. It was based on the fact that even though there were no copyright claims asserted by either party in the case until February of this year, and in fact IBM did not bring end user or any kind of claims until March of this year, that somehow, you know, SCO has not given them sufficient discovery, and therefore the court should just, as a sanction essentially against SCO, grant summary judgment. I mean they're not saying that they proved or the evidence shows that ....

Judge Jones: Understand. Now Red Hat is ... was it through Red Hat that AutoZone originally licensed?

Stone: Linux? Yeah, what happened is when AutoZone made a decision to move to Linux, it had to find a distributor of Linux to help it do that, and Red Hat was the distributor that it found.

Judge Jones: And the stay in the Red Hat case is applicable how long?

Stone: What the judge has done is put the case on an indefinite stay with 90-day status reports. We just recently reported to the judge within the last two weeks as to what's going on in the IBM case, and the judge has taken no action.

Judge Jones: You've moved to dissolve the stay?

Stone: AutoZone -- I'm sorry, there's a lot of parties here -- Red Hat moved for reconsideration of the judge's stay, and we opposed that, and the judge has made no ruling on that to my knowledge at this point.

But, if I may, Your Honor, I don't know if you want me to address the issues of transfer, because I don't ...

Judge Jones: I don't think so. My inclination is to do just as the Red Hat court has done. That is to give 90-day stays with status checks shortly after status checks are due in the Red Hat case. They're the licensor. But to except from the stay an opportunity for brief discovery and the movement of an injunction, an injunction pending the case. So that ... I mean your complaint is you know, we'll be hurt if you stay us ...

Stone: Yes, Your Honor.

Judge Jones: ... indefinitely. On the other hand, it occurs to me that, first of all the IBM case, and secondarily the Red Hat case, which are the licensors to AutoZone, those cases ought to be resolved, so the court can make ... without duplicating the effort, can make its final conclusions on the case here.

So it seems to me that what I ought to do is impose a stay, just as the Red Hat court has done. Put you on 90-day statuses, shortly after, two weeks after the status is due to the Delaware court, but to allow you an exception for the brief discovery necessary and for the presentation of a motion for an injunction pending trial.

Stone: So Your Honor, if I understand you, you're going to allow us to have some discovery on the infringement issue, to be able to show that there's irreparable harm that could potentially arise from the ongoing infringement....

Judge Jones: Enough to present an issue for preliminary injunction.

Stone: Thank you, your honor. Could you ... unless you have other issues you want me to address, I think I ought to shut up.

Judge Jones: I think I've understood pretty well, and I've reviewed your pleadings.

Stone: Thank you, judge.

Stewart: Your honor, could I be heard on the point about discovery and a preliminary injunction?

Judge Jones: Please.

Stewart: Couple of points. First, SCO's never *asked* for a preliminary injunction in any case.

Judge Jones: Ah.

Stewart: Until today, they had never identified in this case anything that they allege that AutoZone has done that somebody else didn't do. And they don't even know if in fact AutoZone did it. They don't have any evidence to point to to that. From what I've heard they don't even have good-faith information and belief on which to base that claim. We're about ready to engage on a fishing expedition. And it is hard to say how broad that's going to be. It presumably could end up encompassing everything that's also at issue in Red Hat and IBM and Novell. And so if we are going to go down this road, I would like, I would ask the court to enter additional guidance on the scope of the discovery so that it is perhaps very limited to just what, if anything ...

Judge Jones: I think the way I would limit it is I would give them 30 days to propound it. That, the normal 30 day response time follows, of course. And it's, I'm not going to limit SCO other than to say that it is limited to any factual predicates or to obtain factual predicates to a request for preliminary injunction. The only reason for doing that is because they raised that issue in their responses, that they would be harmed if the court simply held off and did not let them proceed here one way or the other.

Stone: Your Honor, I just want to be clear, will we be permitted to take depositions? It will be any type of discovery that is permitted under the rules?

Judge Jones: My contemplation was to allow you during thirty days to propound discovery sufficient to form a factual presentation to the court that you have the right to a preliminary injunction. If you don't have the right to a preliminary injunction, you shouldn't proceed with discovery at all.

But to answer your complaint that, yeah, you would be prejudiced by a stay, because then users, end users, can proceed to use your copyrighted materials without royalties, it occurred to me that I should give you the opportunity to present a motion for a preliminary injunction, and that would be the only exception to the stay. So there would be a brief period. It would be, the discovery would be limited in time -- 30 days, plus the normal, that's interrogs, the 30-day response time to follow from your presentation, and any other discovery necessary, but limited in scope only by the inquiry as to facts predicate to preliminary injunction. Otherwise, you shouldn't go on a free-ranging discovery course preparatory to a trial.

Unknown: Your Honor, there is the rule 26 procedure that I consider discovery. Are we dispensing with that right now, or did the court want us to ...?

Judge Jones: We'll be staying the lawsuit, so you will not go through the normal 26 or 16 time periods and procedures with the magistrate judge.

Unknown: And then Your Honor, just so it's kind of clear so that we don't have to come back. Why doesn't the court say he can take like five depositions or three depositions or something like that? Otherwise, I think we end up coming back and arguing this all.

Judge Jones: I'd be glad to pick an arbitrary number out of the air, but I think maybe it makes sense for you to consult together.

Unknown: OK.

Judge Jones: Here's three or five that we need and this is why we need them, this is why it's applicable.

Unknown: I've always assumed that we could come back to the court, both parties ...

Judge Jones: You can. I'm available on the telephone, of course, and the magistrate judge would be too.

Stewart: Your Honor, before we go too far down this road -- and I may very well be a salmon swimming unsuccessfully upstream -- I respectfully request that the court reconsider this part of its, the order that you're contemplating, for several reasons. One -- and I've not looked at the standards of the Ninth Circuit for the issuance of a preliminary injunction in some time -- but my understanding is that you have to show irreparable harm. It is clear in every circuit I can think of that the loss of a license fee is not irreparable harm and cannot justify the entry of an injunction. That is the only harm that we've heard today. The only other harm that SCO has even alleged in any of their moving papers is a presumption of irreparable harm that just naturally flows by law from proof of copyright infringement. But that is a rebuttable presumption and in this case it's easily rebutted, and just in terms of the irreparable harm factor for the entitlement to a preliminary injunction, they've known about the ....

Judge Jones: You're arguing the merits of a motion that is not even before me.

Stewart: Your Honor, these issues are already before the court on the papers that are in front of you, and so my point is that a preliminary, giving them the opportunity to take discovery before preliminary injunction that you can already ascertain they can't get will cause the parties to engage in substantial time and expense that ultimately will not be fruitful. They cannot ....

Judge Jones: I don't think 60 days' worth is unnecessary time and expense. That will be the order. I'll ask for counsel to prepare an order. Would you like to undertake to prepare an order reflecting the stay, with the exception, one-time exception, for motion for preliminary injunction?

Stewart: We will, Your Honor.

Judge Jones: And pass it by counsel. And then submit it to the court.

Stone: Thank you, Your Honor.

Stewart: Thank you.

Unknown for SCO: Your Honor, one last thing in your order is, they need to file an answer.

Unknown: No!

Unknown: I guess they should put that in the order.

Stewart: Your Honor, my understanding is the case has been stayed.

Judge Jones: It will be stayed. They're not required to file an answer.

Unknown: OK.


  


AutoZone Hearing Transcript | 243 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: LHJ on Sunday, July 18 2004 @ 01:22 PM EDT

So we can fix them, thanks

[ Reply to This | # ]

Ah, the old Black Hole of Knowledge...
Authored by: mikemike on Sunday, July 18 2004 @ 01:58 PM EDT
Says the SCO lawyer "This case is about to illustrate to end users the
problems that they have in migrating to Linux and basically leaving our system
without violating our copyrights."

Once you have eaten of the tree of the knowledge of the true system code, your
eyes are opened, you cannot deny what you know, and you must be bannished from
the garden of creativity and communication to go forth and live in the world
owned by the one LscORD of Heaven and Earth.

[ Reply to This | # ]

A mistake
Authored by: Anonymous on Sunday, July 18 2004 @ 02:17 PM EDT
Oh yes, the judge made a mistake.

But it's not bad news, I think it gives huge opportunity for SCO to make idiots
of themselves.

And forced to do it in a very restricted time frame.

"put up, or shut up, now" is what everyone wants from SCO.

And this judge gives it to us all...

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: Anonymous on Sunday, July 18 2004 @ 02:23 PM EDT
Stewart: Couple of points. First, SCO's never *asked* for a preliminary injunction in any case.

Judge Jones: Ah.

So far, my impression is that this judge is not on the ball. I hope he gets better as he sinks his teeth into the details, which, with three cases going on, are admittedly complex.

[ Reply to This | # ]

Lets hope he calls Kimball.
Authored by: Franki on Sunday, July 18 2004 @ 02:41 PM EDT
I think this judge really should have spoken to Kimball before he heard this.
(is that allowed?)
Because what we have now, is that SCO are going to ask for far more discovery
then what they actually need or have a right to, Far more.. and they will then
claim that AZ weren't compliant and they need mirrors of all hard drives running
on all AZ servers, blah blah blah.. and the judge is going to really wish he had
either been really specific as to the limit of the discovery, or had panned his
mistake when it was made clear that that was exactly what it was. (a mistake.)

AZ was right, loss of a license is in no way considered irrepairable harm. so
what else exactly can SCO claim?

They will probably claim that AZ is secretly distributing Linux somehow, it's
all nuts.

The fact that SCO filed this suit where they did, which served no real purpose,
makes me wonder if there isn't something else going on here..

Could they have picked the location based on the judge they were likely to get?

rgds

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: Anonymous on Sunday, July 18 2004 @ 02:43 PM EDT
"SCO doesn't own the copyrights, even though we sold them to SCO for more than potentially 100 million dollars and even though for the last, you know, umpteen years people have been paying royalties to SCO and we've been receiving percentages of those royalties with the understanding that SCO owned all this," but now they say SCO doesn't own the copyrights.
You almost have to admire the depths of the bull he can throw with a straight face. never quite lying outright. I guess saying that you're paid the royalties is accurate. And stating that Novell gets a percentage is accurate. The fact that you're nothing but a collection agency and the percentage you give to Novell is 95% is immaterial. I am curious though. What is more then potentially 100 million? What do two modifiers make?

----------------------
Black - White .. Nah.. grey - gray
ShadowHawk

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: tredman on Sunday, July 18 2004 @ 02:44 PM EDT
Oh, my goodness. Where to begin...

I think when all is said and done, and you look at the hearing in a broad
context, Stewart did a pretty good job of just sticking to the facts and
presenting things in a simple, succinct way. IBM is probably keeping their eye
on this guy. He could come in handy down the road.

I do have issues with Stone, however, and not just because I'm a Linux geek.
First, his explanation of the five-9's. While he seems to get the gist of the
concept, he butchers the explanation. Five-9's does not mean that the code is
99.999% error free, it means that there is a 99.999% reliability factor, which
means that an OS with five-9's of reliability would only be down for around 8
hours and 45 minutes in a year. In actuality, it's simply a marketing term. I
know many shops that would be appalled to have their system down for 8 minutes
out of the year, much less 8 hours. And by the way, didn't the NYSE migrate
some of their systems to Linux not to far back? I think I remember something
about that, but it may have been another stock exchange that did it.

Then. of course, there's the judge's comment: "...but the issue of
ownership is pending in the Utah Novell case, and the issue of the conflict is
pending in the IBM Utah case," of which Stone denied the statement and
argued semantics on the issue. In the end, he basically ended up agreeing with
the judge, but you wouldn't know it by his explanation.

And don't even get me started on the term "static shared libraries".
Dude. Either they're static or shared. And since when does Linux not support
static libraries? Ever heard of Busybox, the Linux Router Project and others?
They all use the age-old method of statically linking libraries in order to keep
everything in one binary. In fact, the Linux-From-Scratch project uses many
statically linked binaries in the initial stage of installation. I believe
Gentoo does, too. The big difference in static and shared libraries are when
they're "attached", or linked, to the program. Static libraries are
linked when the program is being compiled. Shared libraries link to the program
when it is run, and already in binary form. If you have the source code, you
can pretty much pick and choose which way you want to link, within boundaries.
If you only have the binary, and the static libaries weren't linked in when the
program was compiled, shared is the only way to go.

I think the whole issue of the PI is just SCO taking advantage of a judge who
isn't used to dealing with them. They sucker punched him in the motion, and he
took it, hook, line and sinker. I do believe, though, that most good judges can
be fooled once, but not twice, and here's hoping Judge Jones is a good judge.

Tim

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: midav on Sunday, July 18 2004 @ 02:58 PM EDT
In the Novell case, what happened is that Novell was going around saying in the press,"SCO doesn't own the copyrights, even though we sold them to SCO for more than potentially 100 million dollars and even though for the last, you know, umpteen years people have been paying royalties to SCO and we've been receiving percentages of those royalties with the understanding that SCO owned all this,"

Is not Mr Stone essentially lied to the court? Novel did not receive 'percentages'. Novel has been receiving 100% percent of royalties from SVR4 licenses, except from the UnixWare and Merged Product licensees, with 5% pay back to SCO as a collection fee 'percentage'.

Right to collect money from UNIX licensees for 5% comission is as ridiculous basis for the claim of the copyright ownership as it would be for my travel agent to claim ownership of the Continental Airlines because she collects money for the tickets.

For $100M dollars (which btw were paid by SCO (not TSG,) Caldera aquired UNIX business from SCO much much cheaper,) SCO got UnixWare, its customer base, right to develop UnixWare and Merged Product and receive 100% royalties for those and 5% comission from all other SVR4 licenses collected on behalf of Novel.

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: blacklight on Sunday, July 18 2004 @ 03:02 PM EDT
Judge David Stone's actions reminds me of Aeasop's "Dog in the Manger"
fable, where the dog sits on the hay and prevents the cattle from getting to it:
the dog has nothing to gain because it can't eat the hay, and of course the
cattle can't eat the hay because the dog is all over it. Judge Stone may be too
overworked to give this case the proper consideration, but he is not willing to
ship it to Tennessee where the average judge's workload (269) over there is less
than his (300). Judge Stone made a boo boo when he volunteered a preliminary
injunction on behalf of SCOG but since he admits that his case load is lighter
(300) than the local average (375), there may be other issues involved his the
bonehead decision than mere overwork - inattention to detail and incompetence
being two of the more obvious and more innocent possibilities. As a computer
geek, Judge Stone probably has a pretty good grasp of the implications of SCOG's
litigations and he may have decided to hold on to the case out of career
motivation.

I realize my summary is unkind to Judge Stone, and I am always ready to revise
it as more facts and evidence come in, of course. In the meantime, my wariness
toward Judge Stone is at a high pitch.

[ Reply to This | # ]

Static Shared Libraries
Authored by: Anonymous on Sunday, July 18 2004 @ 03:09 PM EDT
I'd like to clear up the term "static shared libraries". As I wrote here. They exist, but they are ancient. Here is something right from the horse's mouth. In the final analysis, re-using static shared libs today is like reusing buggy whips.

raoul

[ Reply to This | # ]

SCO misrepresntation of RedHat Case
Authored by: Anonymous on Sunday, July 18 2004 @ 03:18 PM EDT
Stone:
That case, nothing has occurred in it at this point other than that Judge Kimball has ruled that it's going to stay in the federal court. There's been no discovery, nothing had happened.

Hello! Wasn't there a dismissal followed by a refiling? What is this "nothing has occurred"? Doesn't this fall under the "little white lies" doctrine or is it the "big fat whoppers" rule of evidence?

[ Reply to This | # ]

IBM will use this hearing to hurt SCO
Authored by: Anonymous on Sunday, July 18 2004 @ 03:23 PM EDT
In the IBM case - SCO have argued, and are still arguing (SCO's motion is still pending and due for oral arguments on August 4th) - that IBM's 10th counterclaim should be dismissed or stayed on the basis that the same issues are being litigated in SCO v AZ

Yet we have this, from SCO's attorney at the hearing:

As ... to just go on with my story, because I think it's important to place this in context. So one of the concerns that SCO has is entities such as IBM and individuals who have access through their licensing agreements with SCO to our source code, which is proprietary, using that and somehow contributing either modifications, derivative works, concepts and methods, or the code itself into Linux. That's one issue. There's a second issue. The second issue is end users of Linux who had previously been SCO customers, such as AutoZone, which used Unix System V, which is -- they used our OpenServer software for many years, and paid us royalties for it -- migrating, what we call migrating to Linux. In other words, changing all those computers all over the country and instead of running our software, which is proprietary and they pay royalties on it, to Linux.

Now, there are many issues which can arise in this migration process, which don't necessarily have to do with what's in Linux. For example, we allege in our complaint that AutoZone has violated our copyrights in something that's called static shared libraries. (etc)

...

If you wanted to migrate from this OpenServer and take all the applications which have been written to run on that operating system, and then run them flawlessly on Linux, you need the static shared libraries. And we have reason to believe, and that's why we allege it in the complaint, that what they did is they copied our static shared libraries which we ... they have licensed from us, which they owe us royalties for, into these applications so they could run them on Linux. That's something that has nothing to do with IBM or the IBM case, because IBM does not use, to our knowledge, I mean we haven't had discovery yet, but based on what we know, they don't use static shared libraries. So that's an example of how this case could go in a totally different direction than the IBM case, because the IBM case is about putting things into Linux that you don't have a right to. This case is about to illustrate to end users the problems that they have in migrating to Linux and basically leaving our system without violating our copyrights. So this case, if it was resolved on the static shared libraries, based on what we know today -- we haven't had the discovery yet -- wouldn't implicate the IBM case at all.

Quatermass

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: brian on Sunday, July 18 2004 @ 03:29 PM EDT
PJ, I just wanted to thank you and all who help you on
this legal stuff. As I learn more and more about our legal
system from your work I am more and more coming to grips
with the real issues that affect us all. If allowed to
continue I feel that there are dangerous precidents that
will be set and in fact have been set by tired, overworked
judges in both Nevada and Delaware.

This is the stuff I come to this site for (as I stated in
another post in the previous topic). I learn so much not
only about the law but the philosophy behind the law. So
again, thank you!

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Five Nines
Authored by: RedBarchetta on Sunday, July 18 2004 @ 04:03 PM EDT
"David Jones (for SCO): Enterprise servers are computers which run the most sophisticated software in the United States and in the world. For example, Credit Suisse, the New York Stock Exchange, most Fortune 500 companies use some version of this Unix software, which was originally developed by AT&T. The reason they use it is because it's got something called five 9's capability, which means it's 99.999 error-free. It's very, very efficient. If Your Honor has every used, for example, Microsoft Windows, and has noticed where it freezes whenever you try to run any other new programs at the same time [..]"
Well, Windows isn't quite so bad that it freezes "whenever you try to run other than new progams at the same time," but it seems that attorney David Stone is quite familiar with the blue screen of death. In fact, given the state of Windows multi-tasking nowadays, this could be considered a myth that is being perpetuated. Not that I have a problem with this, it's just that I see an exaggeration being put forth to bolster their UNIX claims.

And no, I don't use Windows unless I have to (1 of my 4 systems has Windows 'just in case'). But my Linux machine is no more reliable than my Windows machine. Both will lock-up very, very seldomly, without explanation, so I don't buy the argument that Linux is more reliable than Windows "because they copied (proven) UNIX code."

Linux seems to be a home-grown effort based on it's various inconsistencies and strange nuances, which I fully expected when I chose to migrate off of Windows. But to somehow claim that Linux is now as reliable as old, UNIX is not quite so true. Try raising two applications that share IRQ's and see how nice Linux behaves (incidentally, I am using the v2.4.2 kernel - this issue may have been fixed in v2.6.x).

---
Collaborative efforts synergise.

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: Anonymous on Sunday, July 18 2004 @ 06:17 PM EDT
Hmm. I just asked myself if groklaw would be the right site to bring someone
(like this judge) up to speed, and it probably isn't.

Sure, all the materials are here, but what's missing is a kind of executive
summary with links to all the events. It's all nice and well if you followed it
from the beginning, but for someone who just starts to digest it all, you would
need a constantly updated starter page (with a lot of links) which explains the
timeframes, and gives a brief overview about what's happened at the cases so
far.

TToni

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: Anonymous on Sunday, July 18 2004 @ 06:21 PM EDT
    "...The second issue is end users of Linux who had previously been SCO customers, such as AutoZone, which used Unix System V, which is -- they used our OpenServer software for many years, and paid us royalties for it -- migrating, what we call migrating to Linux..."

Interesting. Does the attorney not know what he's talking about, or was he quickly covering his tracks, or is this the "all your UNIX are belong to us" story?

OpenServer is not a direct evolution of UNIX Sys V.

UNIX Sys V is in the Novell -> UnixWare -> Open UNIX -> SCO UnixWare branch of the family tree, while OpenServer is in the UNIX TSS V7 ->SCO Xenix -> OpenDesktop -> OpenServer branch of the family tree.

I guess in TSCOG's mind (if you can call it that) it's all one-and-the-same...

t_t_b

---
Release The Missing Exhibits(tm)!

[ Reply to This | # ]

Groklaw Hearing Transcript
Authored by: leopardi on Sunday, July 18 2004 @ 07:16 PM EDT
I'm Australian, so not familiar with US courts. How does
Groklaw make its own transcripts? Isn't there a court
stenographer, or is that only in old Perry Mason episodes
from last century? Are you allowed to bring recording
devices into the court? Or is there someplace where they
stream audio from the courtrooms? If your own transcript
is wildly inaccurate, especially in relation to what the
judge said, does that put you in contempt of court, or
only in criminal trials, or only in some jurisdictions, or
only if the judge cares?

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: Anonymous on Sunday, July 18 2004 @ 07:20 PM EDT
It sounds like the motion to compel will be heard by
Kimball on the 4th together with the other two motions.

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: jamBeault on Sunday, July 18 2004 @ 08:17 PM EDT
Dear Ms Jones [or do you prefer Mrs.? You mentioned your husband],

Yes! Now we're back to what I mostly come here for: the legal
"stuff".

Actually what I really come here for is to read your intelligent,
insightful, and frequently humorous remarks concerning the legal stuff
(too thick? Sorry ;-)

At any rate, thank you and your elves for providing the "program" for

this three (five?) ring circus. An occasional valiant attempt to rescue
those poor thralls of the Evil Empire, and anecdotes of your misspent
youth as a chess player ;-) is a small price to pay for the afore
mentioned intelligence, insight, and humor.

Pax, slack, blessed be,

jam

[ Reply to This | # ]

Argh about the judge
Authored by: Anonymous on Sunday, July 18 2004 @ 09:03 PM EDT
Judge Jones: You're arguing the merits of a motion that is not even before me.

That's because you're ruling on a motion that is not even before you! Duh!

Sorry, had to get that off my chest.

[ Reply to This | # ]

OT: interesting perspective in lamlaw article on this article
Authored by: Anonymous on Sunday, July 18 2004 @ 09:06 PM EDT
There's an article on www.lamlaw.com on this article which is interesting, and looks at it wholy differently from the angles we are considering. Here's a bit I found most interesting (but the theme runs thru-out the lamlaw article) - emphasis added

There is one horrible misrepresentation made at that hearing however by the SCO lawyers. They know better of course. But under that circumstances they could only say something neutral about SCO if they misrepresented the action in the IBM case.

I have seen several references now by SCO that the motion for Summary Judgment is little more than an attempt at sanctions for SCO failing to respond to discovery. Those lawyers know they are lying about that. Sanctions can be imposed on one party or the other for inappropriate conduct or failing to respond to discovery. But no judge I can think of has ever issued a Summary Judgment for such purposes. And those SCO lawyers who have made up that claim just insult the judge in the IBM case. They insult the judge by suggesting that the court would even consider a Summary Judgment for that purpose.

Now looking at SCO's rule 56f memo in IBM (which is part of I think the author is referring to in the 2nd paragraph), there are pages and pages about how IBM's PSJ mption is predicated on sanctions (the bold bit I quoted).

Comments anybody?

Quatermass

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: inode_buddha on Sunday, July 18 2004 @ 09:34 PM EDT
I would like to publicly say "Thank you" for this transcription. Being
that I lack 90 deciBels in each ear, there is no way I could have followed this
case without some text to read. Again, thanks!

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

Hopes fading for justice
Authored by: garbage on Sunday, July 18 2004 @ 10:00 PM EDT
"This is the second time an overworked judge has given them something they

didn't ask for, however, the first being Red Hat's stay, and, in my opinion,
this
was something they didn't merit."

I agree PJ. Taken together with SCOX's unpunished disregard of two court
orders to show specific evidence for their claims this is looking increasingly
like SCOX will get prevail in the end.

This farce has dragged on far too long.

No evidence has ever been presented for the claims of SCOX but still the US
courts, binded by 'due process', facilitate the gaming of the system by SCOX.

This is Micro$oft DOJ all over again.

I forsee Linux eventually being smothered by protracted endless litigation (in
US) & bad press.

I kept warning of this but was howled down by 'the judge will see through it'
& 'the judge is clever' type remarks.

You cannot rely on judges to do the right thing, they live in an abstract
legalistic world far removed from truth & justce.

I say the time has come for urgent action by the Linux community from Linus
down to do something about this before it is too late!!!

[ Reply to This | # ]

Library Formats Include COFF, XCOFF, and ELF
Authored by: Anonymous on Sunday, July 18 2004 @ 10:02 PM EDT
Some people are pointing out that static shared libraries refer to COFF
(Common Object File Format) libraries. ATT UNIX and SunOS used COFF.
XCOFF extended COFF. ELF is a much newer and better standard but it
is less efficient.

Leave it to newSCO lawyers to obscure every statement. Blame newSCO
lawyers for hiding the fact they are staking further claims to all SW on
this planet (except Microsoft and Sun).

All these judges have their hands full with the newSCO lawyers.

[ Reply to This | # ]

What this case is really about.
Authored by: mobrien_12 on Sunday, July 18 2004 @ 10:38 PM EDT
"This case is about to illustrate to end users the problems that they have
in migrating to Linux and basically leaving our system without violating our
copyrights."

Well, that about says it all. This case is about FUD, and frightening any of
SCO's customers or former customers who dream of leaving SCO's worthless,
outdated product and moving to Linux.

[ Reply to This | # ]

AutoZone Hearing Transcript
Authored by: bobn on Monday, July 19 2004 @ 12:33 AM EDT
Stone: That case [SCO v Novell], nothing has occurred in it at this point other than that Judge Kimball has ruled that it's going to stay in the federal court. There's been no discovery, nothing had happened.

What a lying sack of crap this guy is. It was dismissed for bad pleading and in the process Kimball stated that he did *not* see a transfer of copyrights. How can scumbag Stone call this nothing?

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

Can attornies be held to account for misleading statements?
Authored by: brian on Monday, July 19 2004 @ 01:07 AM EDT
The reason for my question is as follows...

"Judge Jones: So that I understand.... I don't want to cut
you off, please keep going, but the issue of ownership is
pending in the Utah Novell case, and the issue of the
conflict is pending in the IBM Utah case.

Stone: Your Honor, that's not quite accurate, if you'll
allow me to.... The first statement, I believe is somewhat
accurate. In the Novell case, what happened is that Novell
was going around saying in the press, "SCO doesn't own the
copyrights, even though we sold them to SCO for more than
potentially 100 million dollars and even though for the
last, you know, umpteen years people have been paying
royalties to SCO and we've been receiving percentages of
those royalties with the understanding that SCO owned all
this," but now they say SCO doesn't own the copyrights. We
sued them for essentially a slander of title. It is not a
copyright case. It is not a copyright infringement case.
It's a slander of title case, which was removed to the
federal court."

This is all true. Now for the misleading part...

"That case, nothing has occurred in it at this point other
than that Judge Kimball has ruled that it's going to stay
in the federal court. There's been no discovery, nothing
had happened."

Didn't the AZ case hearing happen *AFTER* Judge Kimball
ruled and dismissed the Novell case? If so, this is a
misleading statement at best and an out and out lie at
worst. IIRC, Judge Kimball ruled on *BOTH* motions (SCO's
"lets take this to state court" *AND* Novell's "Lets drop
it here and now for insufficient pleadings"). Am I right
in that?

B.

---
#ifndef IANAL
#define IANAL
#endif

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AutoZone Hearing Transcript
Authored by: echeadle on Monday, July 19 2004 @ 02:11 AM EDT
Given the foregoing facts, as well as other significant limitations on the use
of automated search tools (described below), SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (Sontag Decl. ΒΆΒΆ 15, 18-23.)


Interesting statement considering what darl had to say:

Along the way, over the last several months, once we had the copyright issue
resolved where fully we had clarity around the copyright ownership on Unix and
System V source code, we've gone in, we've done a deep dive into Linux, we've
compared the source code of Linux with Unix every which way but Tuesday. We've
come out with a number of violations that relate to those copyrights.

Must have been a tuesday that day.

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Do Judges talk together about conflicting cases?
Authored by: Franki on Monday, July 19 2004 @ 02:57 AM EDT
I'm curious,

Is it likely that the judges in the various SCO cases have spoken to each other
about them?

Is it normal for them to do so? to share impressions of the parties and
whatnot?
Because it would have really helped here had they done so.

What SCO are doing overall is pretty standard negotiating tactic, ask for 5
billion, a totally unrealistic amount, and then the amount you are really after
won't seem so bad, not compared to what you actually stated you were after.

Its up to the judges to see though this, and I only hope they do.

regards

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

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AutoZone Hearing Transcript
Authored by: tredman on Monday, July 19 2004 @ 06:33 AM EDT
As several have pointed out, my decimals are borked. Five-9's does indeed
translate to about five minutes per year. I stand humbly corrected. Unlike
SCO, I'm big enough to admit when I've made a blunder.

Tim

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AutoZone Hearing Transcript
Authored by: greybeard on Monday, July 19 2004 @ 10:19 AM EDT
This really seems like dangerous ground to me. All SCO needs is one clueless or
inattentive judge to, effectively, put someone out of business until the IBM
case is completed (circa 2025 or whenever the SCO.v.IBM judge retires and so
their endless extensions stop). Once a single large entity like Autozone is
seriously hurt without the slightest demonstration of harm to or fact from SCO,
the SCO license extortion business will boom.

If SCO has the warchest, I can see SCO filing another dozen of these
Autozone-styled suits, each with a new naive and clueless judge, hoping to get
lucky. They may only need one.

---
-greybeard-

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AutoZone Hearing Transcript
Authored by: Anonymous on Monday, July 19 2004 @ 01:17 PM EDT
The way I see this is a complete win for AZ. look at it this way, the motion to
stay was granted. Now if he would have granted to motion to transfer then there
would be another motion to stay that would have to be heard before another
judge. He could not really grant a motion for a more definative statement unless
he denied the motion to transfer. But by doing it the way he did, the motion to
stay is granted. The motion to transfer was not touched so it can be brought up
at a latter time, and AZ is going to see some what where SCO is going with the
case when they do some of the limited discovery. So AZ kind of gets a more
difinative statement without losing the chance to transfer later. Does anyone
else see it this way?

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Preliminary Injunction discovery might be a good thing
Authored by: Anonymous on Monday, July 19 2004 @ 04:08 PM EDT
I know the judge went "beyond the call" in getting to the heart of
what he felt needs to be addressed, but it may be a good thing in the long run.
If SCO tries for and fails to get a Preliminary injunction, that's the defacto
end of any end-user lawsuits. SCO might file 'em, but they are sure to get
stayed and without an injunction, so there's little time or expense to an end
user in the near future until IBM is worked out sufficiently for the Nevada
court to lift their stay.

Any other court is going to ask why they should proceed when Nevada stayed the
case. SCO will have to argue, and bring, a lawsuit regarding use of Linux itself
being a violation, since they claim that is not at issue anywhere, and that is
something we know they will not do.

SCO will probably try for the PIJ and argue that the irreparable harm is the
message it sends to other end users/former SCO customers that they can keep on
infringing with no worries.

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