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| AutoZone Files Another Status Report |
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Friday, May 27 2005 @ 03:10 AM EDT
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Here's AutoZone's status report [PDF] to the judge on how things are going in the other important SCO cases, as the parties were ordered to do. It is dated May 10, 2005, and it was probably very enjoyable to write, because they inform the judge that Judge Dale Kimball wrote some very negative things about SCO's case. There is also a footnote, in which they signify that SCO speaks with forked tongue. SCO filed their 90-day status report on April 18, so I don't know how these folks are doing their counting, but it is fascinating to read the two documents side by side, because while AutoZone stresses what Kimball found wanting in SCO's case in SCO v. IBM, SCO's letter [PDF] exudes positivity, doesn't mention Kimball's words, and stresses their discovery motions and Judge Wells' order. AutoZone doesn't even mention the Wells discovery order, and so the judge is in the dark that she has modified it since SCO's letter. Both letters are accurate, so far as they go, but they couldn't tell more different tales. If you put them together, you get a more complete picture. AutoZone's, being later, pokes holes in some of the SCO positivity, letting the judge know, for example, that the G2 motion, which SCO wrote about hopefully, was denied. All the judge wants to know is if anything got decided. What? In SCO litigation? We are dreaming of the day. If you wish to calculate dates for SCO to file a preliminary injunction, if it chooses to, here's the stipulation to extend discovery an extra 45 days, counting from the date the stipulation and order was entered, and here's [PDF] the judge's order that SCO would have to file its preliminary injunction, if it is going to, 20 days from the close of discovery. Unless this order has been modified, and we just haven't gotten the word, then SCO's deadline is upon them. If they do file, then more discovery happens. Otherwise, it's all stayed. If you wish to review what happened at the hearing, here you go. Essentially, SCO claimed irreparable harm, and so the judge granted them the opportunity to file a preliminary injunction motion, with limited discovery, but otherwise, the case would be stayed. So unless they file, it goes on the back burner with Red Hat.
*********************************
[Alston & Bird letterhead]
May 10, 2005
Via Overnight UPS
The Honorable Robert C. Jones
U.S. District Judge
U.S. District Court, District of Nevada
[address]
Re: The SCO Group, Inc. v. AutoZone, Inc. CV-S-0237-RCJ-LRL
Dear Judge Jones:
Pursuant to the Court's August 6, 2004 Order, AutoZone, Inc. submits this letter to update the Court on the ongoing litigation related to this matter. Although AutoZone is not a party to the other related cases, AutoZone has derived the following information from publicly available sources.
1. The SCO Group, Inc., v. International Business Machines Corporation, Case
No. 2:03-CV-0294 DAK (D. Utah)
a. September 15, 2004 Hearing and Subsequent Rulings
On September 15, 2004, the Utah District Court held a hearing regarding several dispositive motions filed by the parties. On February 8, 2005, the Court issued a memorandum decision and order on the motions.
The first motion involved IBM's tenth counterclaim, in which IBM requests a declaration from the Court that "IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities. . . ." SCO moved to dismiss this counterclaim on the grounds that it is permissive and that introduction of the counterclaim would unduly complicate the ongoing litigation.1 The Court did not decide whether the counterclaim was permissive or compulsory; however, the Court found that "there is no question that (the counterclaim) overlaps to some extent with the claims brought by SCO." Thus, the court allowed IBM's Tenth Counterclaim to remain because SCO had clearly alleged a copyright infringement claim "[n]otwithstanding SCO's puzzling denial in its briefing that it has not[.]"
The Court next considered IBM's cross-motion for partial summary judgment on its tenth counterclaim. The Court found it "astonishing" that SCO had not offered "any competent evidence" to create a disputed fact regarding SCO's allegations that IBM has infringed SCO's alleged copyrights through IBM's Linux activities. The Court also noted that SCO "chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights." Nevertheless, the Court resisted the "temptation to grant IBM's motion" and held that summary judgment was premature because of ongoing discovery in the case.
Finally, the Court denied without prejudice two IBM motions for summary judgment that had not yet been fully briefed. The court ruled that judicial economy was not being served in the case by entertaining dispositive motions prior to the close of discovery. Thus, the Court denied all pending dispositive motions, and ordered that no dispositive motions may be filed until after the cose of discovery.
b. Other Motions
On October 14, 2004, SCO filed a motion for leave to file an amended complaint. Both the memorandum in support of the motion and the new complaint were filed under seal. After filing a sealed response to the motion to amend, IBM filed a motion for entry of an order clarifying its ninth counterclaim, which seeks a declaration with respect to its UNIX activities. On April 21, 2005, the Court heard oral argument on SCO's motion to amend its complaint, as well as several discovery issues. The Court has not yet issued a ruling on the motions.
On April 26, 2005, the Court heard oral argument on G2 Computer Intelligence Inc.'s ex parte motion to intervene and unseal the court's file. On April 28, 2005, the court denied the motion, but cautioned both parties to be careful in designating documents as confidential.
2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04-CV-00139 (D. Utah)
On August 6, 2004, Novell filed a motion to dismiss SCO's amended complaint with prejudice. The motion has been fully briefed, and the oral argument is currently scheduled to be heard on May 25, 2005.
3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del.)
As reported previously, the District of Delaware ordered this case stayed sua sponte on April 6, 2004. On April 20, 2004, Red Hat filed a motion for reconsideration of that order. On March 31, 2005, the Court denied Red Hat's motion. Accordingly, this case remains stayed pending resolution of the IBM and Novell cases.
Very truly yours,
___[signature]___
David J. Stewart
DJS:dlb
cc: Stanley W. Parry, Esq. (via facsimile)
David Stone, Esq. (via facsimile)
1 SCO initially claimed that IBM's tenth counterclaim should be denied because the issues would be litigated against AutoZone. After those issues were stayed in this case, SCO argued instead that the counterclaim should be stayed because it was permissive.
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| Authored by: jbb on Friday, May 27 2005 @ 03:14 AM EDT |
To make the easier to find.
---
SCO cannot violate the covenants that led to and underlie Linux without
forfeiting the benefits those covenants confer.[ Reply to This | # ]
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| Authored by: phildriscoll on Friday, May 27 2005 @ 03:24 AM EDT |
The momtion has been fully briefed
should read
The motion has been fully briefed [ Reply to This | # ]
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| Authored by: tbogart on Friday, May 27 2005 @ 03:29 AM EDT |
Oh goody, I may get to start the OT thread
[ Reply to This | # ]
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- OT here - more Cell - Authored by: tbogart on Friday, May 27 2005 @ 03:33 AM EDT
- Selling Free software is piracy?!! - Authored by: zcat on Friday, May 27 2005 @ 04:40 AM EDT
- OT - SoftWars - Authored by: DaveRexel on Friday, May 27 2005 @ 05:09 AM EDT
- Another MS Patent granted - Authored by: TerryC on Friday, May 27 2005 @ 09:39 AM EDT
- UK Patent Office "Technical Contribution" Workshops Report (EU Software Patents) - Authored by: Simon G Best on Friday, May 27 2005 @ 10:20 AM EDT
- Lawyer delivers 119-day speech - Authored by: Fredric on Friday, May 27 2005 @ 10:23 AM EDT
- Use of exclamation point? - Authored by: DannyB on Friday, May 27 2005 @ 11:36 AM EDT
- Surely you mean... - Authored by: Anonymous on Friday, May 27 2005 @ 11:59 AM EDT
- Well done! - Authored by: Anonymous on Friday, May 27 2005 @ 12:01 PM EDT
- "Professors and Companies Speak against Software Patents in Verona" - Authored by: Anonymous on Friday, May 27 2005 @ 11:56 AM EDT
- OT - Nokia says they won't use their patents against Linux kernel - Authored by: WojtekPod on Friday, May 27 2005 @ 12:05 PM EDT
- "Digital rights management embedded in Intel chips " - Authored by: Anonymous on Friday, May 27 2005 @ 12:41 PM EDT
- More news from Utah - Authored by: Anonymous on Friday, May 27 2005 @ 01:13 PM EDT
- Delete this post. - Authored by: Anonymous on Friday, May 27 2005 @ 01:22 PM EDT
- Delete this post. - Authored by: Anonymous on Friday, May 27 2005 @ 02:24 PM EDT
- Delete this post. - Authored by: Ed L. on Friday, May 27 2005 @ 03:27 PM EDT
- Delete this post. - Authored by: Anonymous on Friday, May 27 2005 @ 06:10 PM EDT
- ??? - Authored by: Anonymous on Friday, May 27 2005 @ 10:29 PM EDT
- My current pet hate. - Authored by: Anonymous on Friday, May 27 2005 @ 01:20 PM EDT
- Please Ban Again LinuxToday!! - Authored by: Anonymous on Friday, May 27 2005 @ 01:45 PM EDT
- NWS Forecast Website to be made proprietary! - Authored by: Anonymous on Friday, May 27 2005 @ 02:19 PM EDT
- Summary Judgment Asked in GPL Price-Fixing Suit - Authored by: Anonymous on Friday, May 27 2005 @ 04:14 PM EDT
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| Authored by: Anonymous on Friday, May 27 2005 @ 09:48 AM EDT |
it goes on the back burner with Red Hat
More like
back in the 'fridge... I don't think the Red Hat suit is even up to room
temperature at this point.
...D [ Reply to This | # ]
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| Authored by: blacklight on Friday, May 27 2005 @ 10:04 AM EDT |
"Both letters are accurate, so far as they go, but they couldn't tell more
different tales" PJ
As regards to the concept of accuracy: there are many forms of lying, one of
which is the deliberate, selective, skewed reporting of the facts so as to
create a perception and visualization of reality that is not necessarily in sync
with the reality. Not that I am telling anything that any of us on groklaw don't
already know: I think our friends at SCOG are big practitioners of this
particular form of lying.[ Reply to This | # ]
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| Authored by: MplsBrian on Friday, May 27 2005 @ 10:14 AM EDT |
From AZ's letter:
The Court found it "astonishing" that SCO had not
offered "any competent evidence" to create a disputed fact regarding SCO's
allegations that IBM has infringed SCO's alleged copyrights through IBM's Linux
activities.
According to my scorecard, this continues to be the
case. Has SCO offered any new evidence, competent or not, beyond their wish for
being allowed to amend the complaint again? [ Reply to This | # ]
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| Authored by: arch_dude on Friday, May 27 2005 @ 10:16 AM EDT |
I love this line:
Although AutoZone is not a party to the other
related cases, AutoZone has derived the following information from publicly
available sources.
For this particular case, "publicly available
sources" are just a bit easier than for most cases. I wonder if Autozone and
their law firm would consider donating (say) 10% of the research money that
Groklaw saved them, to Groklaw? As a matter of flair and style, their filings
are very fun to read, so they are already contributing to Groklaw in a sense.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 27 2005 @ 10:35 AM EDT |
I don't know on what basis, or what SCO will claim needs to be injuncted
...but I think that they will file for it, so that Darl has something to talk
about on 1st June.
Based on their past behavior they will do it even if it has no real basis, and
even if it further weakens their position in the long-run, simply because they
always work in the most aggressive way possible to maximize short term PR
advantage.[ Reply to This | # ]
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| Authored by: pooky on Friday, May 27 2005 @ 10:41 AM EDT |
By my math they have until around the end of June to file for a preliminary
injunction (considering the date of the request, the order for the extention can
not have been ordered any earlier than March 16th).
From what I understand from friends (IANAL after all), in cases of infringement,
the preliminary injunction is everything. Infringement causes harm, the court is
asked to for relief from that harm. If one doesn't argue for an injunction, it
becomes difficult to argue there is significant harm from the infringement.
Usually I guess cases like this are all about the injunction and largely get
decided based on whether an injunction is ordered or not. Essentially, the side
that loses this motion usually either drops or settles the case depending.
So, I would think that if SCO doesn't file for the injunction they are screwed
(I mean their company is sinking while Autozone is infringing SCO's rights and
causing financial harm...) However if they file for the injunction and lose,
they are screwed because they now have a PR nightmare (we sued an infringer and
lost). That will flatline SCOSource revenue completely and I doubt anyone at
this point fears SCO suing them considering their financial status.
Should be an interesting month or so to see what they do.
-pooky
---
Many Bothans died to bring us this information.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 27 2005 @ 11:34 AM EDT |
That is how you deliver important documents, not put them in the post and see
what happens.
Tufty
Just dropping by
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Friday, May 27 2005 @ 05:03 PM EDT |
SCOG could file for an injunction to prevent AutoZone from using OpenServer
shared libraries. AutoZone might well not oppose that since they aren't doing it
anyway.
SCOG gets a big win in the courtroom and Darl gets a big announcement for his
conference call.
I think this case iwarping my brain.
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
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