|
SCO's Proposed Amended Complaint Against AutoZone, as text - Updated - Chart |
|
Sunday, July 05 2009 @ 01:31 PM EDT
|
As I mentioned earlier, SCO is asking the court [PDF] to let it amend its complaint against AutoZone, which is probably the only way it can go forward unless the appellate court rules in SCO's favor -- and then a jury does too, down the road apiece. We have the motion and the proposed amended complaint as text now. A normal litigant would just fold up shop and call it quits, now that Novell has been ruled the owner of the copyrights that SCO was suing AutoZone about. Not SCO. It is addicted to litigation, I guess, or someone is making them do it.
Like the Devil. Just kidding around. I don't know why they do what they do. But whatever the reason, now that the judge has told them to get a move on with this case and wrap it up as opposed to waiting until the appeal in Novell is over, rather than admit they had no case, they would like to morph the complaint to be about contract breach and more about OpenServer. Is that not totally the SCO you've come to know?
They presumably own whatever they developed in OpenServer on top of the code its predecessor-in-interest licensed from AT&T, so they'd like to sue about *that* now, while keeping a placeholder where the old claims are, in case they hit the jackpot on appeal in the Novell case. If you think about it, though, that's just another way of admitting SCO had no case originally against AutoZone. SCO's justification is that they allegedly found evidence in discovery in 2004 that they'd like to use now: Based on the evidence it discovered in 2004, SCO seeks leave to file a First Amended Complaint to (1) expand the scope of the copyright claim to include infringement of OpenServer and related copyrights, and (2) add a single claim for breach of the agreements under which AutoZone licensed OpenServer and related materials from SCO's predecessor-in-interest. I love that touch, "based on the evidence it discovered in 2004"... hahahaha. "Based on losing in Utah in 2007 and 2008" would be more like it, methinks. And "expand the scope of the copyright claim" is funny too. SCO's copyright claim got reeeeally small -- as in poof, it's gone -- thanks to Novell's victory, as it was ruled that the copyrights SCO was suing AutoZone about didn't pass to SCO under the 1995 SCO-Novell deal. When it comes to litigation, SCO's claims are always as big as the sky at the starting gate. At the end, they suddenly get small or disappear altogether, which is what I expect will happen in this case too. When SCO raised these allegations in 2005, AutoZone responded
in a letter to the judge [text]: In this case, despite nine months of discovery, SCO is unable to establish that code found on AutoZone's computers infringes any code in which SCO can legitimately claim to own any rights it could assert against AutoZone. I gather SCO deep down agrees, so it would like to alter the allegations. AutoZone also said it has licenses that allow them to do what they did, and more: SCO notes on Page 9 of the SCO Report that discovery revealed that OpenServer compiled programs were on AutoZone's server named "Spirit."' In deposition testimony, Mr. Celmer stated that AutoZone initially ran the Spirit server on the OpenServer operating system under license from SCO until the server experienced a hardware failure. (Celmer Deposition 100:12 -102:19.) When AutoZone restored the server after the failure, per Mr. Celmer's testimony, it decided to load the Linux operating system on the server. (Id.) Significantly" AutoZone had at that time and continues to have a license from SCO to use OpenServer on the Spirit machine through the more than 2900 end user licenses AutoZone has obtained from SCO.
Moreover, software AutoZone reloaded onto the Spirit server was intended to be a copy of the original software that was on the original Spirit machine. Thus, even if AutoZone had not been licensed to load the programs on the machine, AutoZone has the legal right to create a copy of a program for archival purposes. 17 U.S.C. § 117(a)(2). Because any OpenServer compiled program loaded onto the new Spirit server would likely not be able to run on that server (since it was now running the Linux operating system), the only possible reason for keeping programs compiled to run on OpenServer on the Spirit server was for archival purposes. Thus, AutoZone both had a license to copy the programs onto the Spirit server and a legal right to do so for archival purposes, even without the benefit of the license.
SCO holds the door open to going after AutoZone again in the future if the timing works out in the appeal. If they get remanded back to Utah for a jury trial, no doubt we'll be favored with SCO arguments that they believe they'll prevail in that trial and any later appeal if they don't, so there should be a stay on the AutoZone litigation. In the meantime, SCO is saying now not that it is the owner of the copyrights but that "on information and belief" it thinks it is the owner: 42. Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the
"Copyrighted Materials"). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials.
43. SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials: It owns "certain" copyrights. And the list of its copyright registrations is interesting, compared to the original list, a bunch of drivers and manuals, and then in the code department it claims these:
44. SCO also obtained and owns registrations for other
Copyrighted Materials, including without limitation registrations
for the following software code:
TITLE |
REGISTRATION NO. |
UNIX system V: release 3.0 |
TX-5-750-270 |
UNIX system V: release 3.1 |
TX-5-750-269 |
UNIX system V: release 3.2 |
TX-5-750-271 |
UNIX system V release 3.2/386 |
TX-5-750-268 |
UNIX system V: release 4.0 |
TX-5-776-217 |
UNIX System V: release 4.1 |
TX-5-762-234 |
UNIX system V, release 4.1ES |
TX-5-705-356 |
UNIX System V: release 4.2 |
TX-5-762-235 |
UNIX System V: release 4.2MP |
TX-5-972-097 |
UnixWare 7.1.3 |
TX-5-787-679 |
SCO OpenServer: release 5.0.5 |
TX-6-008-305 |
Here's the original list in the earlier complaint:
17. Registrations in the Copyrighted Materials have also been obtained by SCO and its registrations in the following additional registrations of software code:
UNIXWARE 7.1.3
| TX 5-787-679
|
UNIX SYSTEM V RELEASE 3.0
| TX 5-750-270
|
UNIX SYSTEM V RELEASE 3.1
| TX 5-750-269
|
UNIX SYSTEM V RELEASE 3.2
| TX 5-750-271
|
UNIX SYSTEM V RELEASE 4.0
| TX 5-776-217
|
UNIX SYSTEM V RELEASE 4.1ES
| TX 5-705-356
|
UNIX SYSTEM V RELEASE 4.2
| TX 5-762-235
|
UNIX SYSTEM V RELEASE 4.1
| TX 5-762-234
|
UNIX SYSTEM V RELEASE 3.2
| TX 5-750-268
|
They are so tiring, are they not? I think they sue not because anyone violated their rights, but because they just want money and/or to use the courts as an anticompetitive weapon against Linux, and by hook or by crook they aim to use litigation to get what they want. That's my interpretation of a case as weird as this one. AutoZone is not guilty of what they originally sued them over if SCO isn't the owner of the copyrights on the original list, so they just change what they are suing them over. I believe that speaks to motive. This is the same judge who earlier gave SCO limited discovery it hadn't even asked for. But if you read the transcript of the latest hearing on September 22nd, 2008, where he decided to lift the stay, it reads more like he would like to get the case off his docket and recognizes that Novell won. When SCO argued to keep the stay in place until the appeal was decided, he ruled that the case should go forward based on the findings in the Novell case, not waiting for any appeals. Note how the SCO lawyer pretends that Novell lost most of its claims, when in reality Novell decided before trial not to pursue some aspects of the case. If the judge grants SCO's new motion to amend, it's a low blow to AutoZone, which will have to spend money on more discovery about the new claims, but dealing with SCO is like trying to eradicate cockroaches, and they won't be exactly surprised. The judge may feel he has no choice but to let them amend. The system isn't set up for gamers of the system. There isn't a legal system in the world that is set up to be both fair to legitimate plaintiffs and also 100% solid against gamers of the system. Not that I know of anyway, and that's how I view this case, a gaming of the system. SCO originally wanted AutoZone to be the poster child to warn against switching from UNIX to Linux, using their shared libraries. But then they found out that no one needs those shared libraries to switch over, and besides SCO doesn't own the copyrights anyhow. So what to do? Call it a contract violation instead, and talk about COFF. Blech. Read the AutoZone response letter, and you'll see why I say blech. So, here's the motion asking to amend the complaint as text, followed by the proposed amended complaint. If someone could do a chart, in the Groklaw manner, to compare it with the original complaint, that would be hilarious. Also useful. If no one has time, I'll do it, but I have another project I'm working on too, so if you can, please volunteer. And here's AutoZone's answer to the original complaint, in case you weren't paying attention last February. If the new complaint is allowed, then they will answer the new one. Mo' money spent on bogo lawsuits. It's a crying shame.
Update: I just remembered something, a footnote in an earlier AutoZone filing. Here it is, in AutoZone's Motion to Stay: 5 Under the doctrine of defensive collateral estoppel, SCO will be estopped from litigating against AutoZone issues that were decided against SCO in the previously filed cases. However, because AutoZone is not a party to the previously filed cases, AutoZone may challenge issues decided in SCO's favor in the other cases. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found. , 402 U.S. 313 (1971) (setting forth rule that once a patent has been declared invalid via judicial inquiry, collateral estoppel prevents the patentee from further litigation involving the patent against other defendants, unless the patentee can demonstrate that it did not have a full and fair chance to litigate the validity of its patent in the earlier case).
Update 2: The Chart
We have a handy chart now showing the current SCO complaint from 2004 [PDF] and the proposed first amended version [PDF]. Putting them side by side with color highlighting makes it much easier to see what is added, what removed. Thank you, Erwan. He credits as follows: "This html diff was produced by grokdiff 1.00; rfcdiff is available from http://www.levkowetz.com/ietf/tools/rfcdiff/."
Here it is, after the double row of stars. Enjoy. (I just received a redlined version too, so choose whatever you find easiest to follow.) Here are some links so you can go directly to whatever document you want:
[ Motion ]
[ First Amended Complaint ]
[ Chart ]
***********************************
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for Plaintiff, The SCO Group, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.,
A Delaware corporation,
Plaintiff,
v.
AUTOZONE, INC.,
A Nevada corporation,
Defendant |
Docket No.: 2:04-CV-237-RCJ-(GWF)
SCO'S MOTION TO AMEND
COMPLAINT |
(1)
Plaintiff, the SCO Group, Inc. ("SCO"), respectfully seeks leave
of Court to amend its Complaint and file a First Amended Complaint
(attached hereto as Exhibit A) pursuant to Federal Rule of Civil
Procedure 15(a), and in support of this Motion states as
follows:
BACKGROUND
SCO instituted this action on March 3, 2004, asserting a single
claim for copyright infringement based on AutoZone's conduct in
migrating from SCO's OpenServer operating system to the Linux
operating system. In its Complaint, SCO alleges that Linux contains
and is a derivative of SCO's copyrighted UNIX System V
technology.
In 2004, the Court stayed the action pending resolution of
related cases proceeding in the Federal District Courts for the
Districts of Utah and Delaware. Pursuant to its August 4, 2004
Order, as amended, the Court authorized limited discovery to permit
SCO to determine whether or not it was appropriate for SCO to move
for preliminary injunctive relief. During the course of that
limited discovery, SCO uncovered evidence that AutoZone had made
thousands of unauthorized copies of OpenServer materials in
converting its computer systems from OpenServer to Linux at its
headquarters and 3,500 retail stores in the United States and
Mexico. (See May 27, 2005 Report of Plaintiff The SCO Group
Inc. Regarding Discovery, at 6-11.)
On September 22, 2008, the Court lifted the stay effective
December 31, 2008. On January 16, 2009, the Court entered the
Stipulated Discovery Plan and Scheduling Order, which sets July 1,
2009, as the deadline for the parties to amend their pleadings, and
January 15, 2010, as the deadline for them to complete fact
discovery. Since January 16, 2009, the parties have exchanged Rule
26 Initial Disclosures, but have not otherwise conducted discovery
in this case.
2
Based on the evidence it discovered in 2004, SCO seeks leave to
file a First Amended Complaint to (1) expand the scope of the
copyright claim to include infringement of OpenServer and related
copyrights, and (2) add a single claim for breach of the agreements
under which AutoZone licensed OpenServer and related materials from
SCO's predecessor-in-interest.
ARGUMENT
Under Rule 15, which governs the amendment of pleadings, "leave
shall be freely given when justice so requires." FED. R. CIV. P.
15. "The purpose of pleading is to facilitate a proper decision on
the merits . . . and not erect formal and burdensome impediments to
the litigation process. Unless undue prejudice to the opposing
party will result, a trial judge should ordinarily permit a party
to amend its complaint." Howey v. United States, 481 F.2d
1187, 1190 (9th Cir. 1973). The Ninth Circuit has repeatedly
emphasized that "Rule 15's policy of favoring amendments to
pleadings should be applied with extreme liberality." DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th
Cir.1987).
Courts should grant leave to amend unless the non-moving party
shows that the proposed amendment is unduly delayed, prompted by
bad faith or dilatory motive, would unduly prejudice the opposing
party, or would be futile. Foman v. Davis, 371 U.S. 178, 182
(1962). "Absent prejudice, or a strong showing of any of the
remaining Foman factors, there exists a presumption
under Rule 15(a) in favor of granting leave to amend." Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (emphasis in original). Here, AutoZone cannot make any
showing of prejudice or the other factors, let alone a showing
sufficient to overcome the presumption in favor of granting this
Motion.
3
First, SCO seeks to amend its Complaint by the deadline
for amendment of pleadings in the Scheduling Order, just a few
months after the Court lifted the stay that was in place in this
case virtually since its inception. There can be no serious
argument that SCO has unduly delayed or acted in bad faith by
filing this Motion by the Court-ordered and stipulated deadline,
especially where SCO could not have filed the Motion during the
pendency of the stay.
Second, SCO uncovered the evidence in support of the
proposed amendment over four years ago, and in January of this year
informed counsel for AutoZone that SCO would seek to file an
amended complaint based on that evidence. Counsel for AutoZone did
not object, but rather agreed to the stipulated deadline for
amendment of pleadings. Under these circumstances, there can be no
credible argument that AutoZone has been prejudiced, much less
unduly prejudiced, by the timing of this Motion, especially where
AutoZone has subsequently elected not to take discovery to this
point under the Scheduling Order.
Third, where more than six months remain for the parties
to complete fact discovery and where the Scheduling Order sets May
10, 2010 as the deadline to file dispositive motions and June 9,
2010, as the deadline to file a joint pre-trial order, AutoZone
cannot make the required showings. See, e.g., Golden Hour
Data Systems, Inc. v. Health Services Integration, Inc., 2008
WL 2622794 (N.D.Cal. July 1, 2008) (granting leave to amend where
discovery cut-off remained more than three months away and trial
was not scheduled to begin for more than nine months); Jefferson
v. Rowe, 2008 WL 669894 (E.D. Cal., Mar. 7, 2008) (granting
leave where the case was still in the discovery phase).
4
Fourth, since AutoZone has conducted little to no
discovery in this case, it cannot be argued that it will be
prejudiced by having to re-take discovery based on new allegations
in the proposed First Amended Complaint.
Fifth, because the proposed amendment relates to the same
subject matter already at issue — AutoZone's actions in
converting its computer systems from OpenServer to Linux —
the proposed amendment will not substantially expand the scope of
discovery or litigation, and AutoZone cannot argue that it will be
unduly prejudiced by the amendment. See, e.g.,
LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir.)
(no prejudice where the amended complaint referred "to the same
chattels, the same consideration, and the same transaction" already
at issue in the case); Kreinik v. Showbran Photo, Inc., No.
02 Civ. 1172 (RMB) (DF), 2003 WL 22339268, at *10 (S.D.N.Y. Oct.
14, 2003) (plaintiff's amendment would not cause the defendant any
prejudice where new claims related to claims already at issue).
CONCLUSION
For the foregoing reasons, SCO respectfully requests that the
Court grant leave for SCO to file its First Amended Complaint in
this action.
DATED this 1st day of July 2009.
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Richard J. Pocker
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff, The SCO Group, Inc.
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am an employee of Boies, Schiller &
Flexner LLP and that on this 1st day of July 2009, I
caused to be deposited in the United States Mail, postage prepaid,
a true and correct copy of the foregoing SCO's Motion to Amend
Complaint addressed as follows:
James J. Pisanelli, Esq. (State Bar No. 4027)
Nikki L. Wilmer (State Bar No. 6562)
Brownstein Hyatt Farber Schreck
[address]
David J. Stewart
Michael P. Kenny
Christopher A. Riley
Alston & Bird LLP
[address]
/s/ Shilah Wisniewski
An employee of Boies, Schiller & Flexner LLP
6
Exhibit A
Exhibit A
(7)
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for Plaintiff, The SCO Group, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.,
A Delaware corporation,
Plaintiff,
v.
AUTOZONE, INC.,
A Nevada corporation,
Defendant |
Docket No.: 2:04-CV-237-RCJ-(GWF)
FIRST AMENDED COMPLAINT AND
JURY DEMAND |
(8)
COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO"), and sues
the Defendant, AutoZone, Inc. ("AutoZone"), and alleges as
follows:
I. NATURE OF THIS ACTION
1. AutoZone uses one or more versions of the Linux operating
system that infringe on SCO's exclusive rights in its propriety
UNIX System V operating system technology.
2. In addition, as SCO confirmed through the limited discovery
the Court previously authorized in this action, contrary to
AutoZone's public statements to this Court and others, AutoZone
made many thousands of unauthorized copies of materials from SCO's
OpenServer operating system and related products, in migrating from
OpenServer to Linux in AutoZone's headquarters and 3,500 retail
stores.
3. SCO seeks relief under the Copyright Act to compensate SCO
for damages it has sustained as result of AutoZone's unlawful use
of Linux and to enjoin AutoZone's further unlawful use of Linux.
SCO also seeks relief under applicable contract law to compensate
SCO for damages it has sustained as a result of AutoZone's breach
of the agreements through which it obtained limited licenses to
OpenServer and related materials. SCO also seeks relief under the
Copyright Act to compensate SCO for damages it has sustained as a
result of AutoZone's unlawful use of OpenServer and related
products outside the scope of those limited licenses.
II. PARTIES, JURISDICTION, AND VENUE
4. SCO is a Delaware corporation with its principal place of
business in Utah County, Utah.
5. AutoZone is a Nevada corporation with its headquarters in
Tennessee.
2 (9)
6. This Court has subject matter jurisdiction over SCO's
copyright claims pursuant to 28 U.S.C. §§ 1331 and 1338.
Based on this jurisdiction, the Court also has supplemental
jurisdiction over SCO's contract claim.
7. This Court has personal jurisdiction over AutoZone because it
is incorporated and conducts substantial business in Nevada.
8. Venue is properly situated in this District pursuant to 28
U.S.C. §§ 1391 and 1400, and the prior order of this
Court.
III. FACTUAL BACKGROUND
A. SCO's Rights in UNIX Code and Products.
9. UNIX is a computer software operating system. Operating
systems serve as the link between computer hardware and the various
software programs (known as applications) that run on a computer.
Operating systems allow multiple software programs to run at the
same time and generally function as "traffic control" for those
programs.
10. UNIX is widely used in the business-computing environment of
the Fortune 1000 companies and other large corporations (often
called the "enterprise computing market").
11. The UNIX operating system was originally developed by
AT&T Bell Laboratories ("AT&T"). Over the years, AT&T
and its successors progressively developed updated versions and
releases of the operating system. UnixWare is the brand name for
the most current releases of UNIX System V.
12. In the 1980s, AT&T began to license UNIX System V as a
commercial product for use in enterprise applications by large
companies and institutions. Pursuant to standard licensing
agreements, AT&T granted the world's leading computer
manufacturers the right to use
3 (10)
a specific release of the valuable UNIX source code to develop
UNIX-derived versions of the operating system, known as UNIX
flavors, optimized to run on their respective computers.
International Business Machines, Hewlett-Packard, Sun Microsystems,
Silicon Graphics, Sequent Computer Systems, and Santa Cruz
Operation,Inc. ("Santa Cruz"), among others, became important
vendors of UNIX flavors.
13. Licensees obtained those rights subject to strict
restrictions on the use and disclosure of UNIX source code and
intellectual property, including the UNIX flavors themselves. These
restrictions protected the rights of AT&T and its successors,
including today SCO, in the UNIX technology and business.
14. Through a series of corporate acquisitions — from
AT&T, to Novell, to Santa Cruz, to SCO — SCO today owns
(among other assets related to UNIX) all right, title, and interest
in and to:
-
the source code for UNIX, UnixWare, and the UNIX flavor
OpenServer,
-
the licensing agreements with the foregoing UNIX vendors,
-
all claims for breach of those agreements
-
copyrights in and to UNIX and UnixWare, and
-
copyrights in and to OpenServer and related products.
15. Upon information and belief, SCO owns all copyrights to
UNIX, UnixWare, OpenServer, and related products.
16. On August 10, 2007, the Federal District Court for the
District of Utah ruled on summary judgment that SCO has a license
and other ownership rights, but does own the copyrights, to certain
older versions of UNIX and UnixWare. SCO has appealed this ruling
in the United States Court of Appeals for the Tenth Circuit, which
heard oral argument on the
4 (11)
appeal on May 6, 2009. The appeal was briefed and argued on an
expedited basis; SCO does not know when the Tenth Circuit will
issue a decision.
B. AutoZone's Unauthorized Use of Linux.
17. Linux is a form of "open source" software. The Linux source
code is freely available to the public — unlike the source
code for proprietary programs such as UNIX and its flavors. The
code for the Linux kernel can be freely downloaded from a public
website and installed on a computer. Like other open source
software, Linux is modified on an ongoing basis, based on voluntary
contributions from users around the world.
18. Starting approximately in early 2000, Linux was wrongfully
transformed from an upstart hobbyist's program into a powerful
general enterprise operating system competitive with UNIX and
Windows. According to leaders within the Linux-development
community, Linux is intended to displace UNIX System V.
19. Linux is in material respects a variant or clone of UNIX
System V technology. Linux is a derivative of, and substantially
similar to, UNIX System V under the Copyright Act.
20. Subsequent to the transformation of Linux into a
commercially viable operating system, AutoZone started to use,
copy, modify, and/or distribute one or more implementations of
Linux in its business operations. AutoZone today continues to use,
copy, modify, and/or distribute Linux. AutoZone thus has infringed
and continues to infringe SCO's exclusive rights as owner of the
copyrights to UNIX System V.
C. AutoZone's Limited Licenses to OpenServer
Technologies.
21. In 1988, Santa Cruz licensed UNIX System V Release 3.2 from
AT&T. As a UNIX licensee, Santa Cruz then developed and
marketed OpenServer, based on that UNIX
5 (12)
release. In 1995, Santa Cruz purchased the base UNIX technology
and the UNIX licensing business from Novell, Inc., which had
acquired them from AT&T. In 2001, SCO acquired the base UNIX
technology and the UNIX licensing business, as well OpenServer and
related products, from Santa Cruz.
22. By the late 1990s, before Linux was transformed into a
commercially viable competitor to UNIX, OpenServer was a market
leader in worldwide UNIX sales. Today, OpenServer accounts for the
majority of SCO's revenues.
23. On May 14, 1990, Santa Cruz entered into an Authorized
Industry Reseller Agreement with AutoZone (the "AIRA") granting
AutoZone a limited license to "LICENSED PRODUCT," including
OpenServer and related products.
24. Under the AIRA, AutoZone obtained the right to use the
LICENSED PRODUCT "exactly as shipped . . . by SCO." (AIRA §
1.) The AIRA also provides that AutoZone "may not modify or
change LICENSED PRODUCT in any manner" and "may not make
or cause to be made any copy of any part of LICENSED
PRODUCT." (Id. (emphasis added).) In addition, AutoZone
agreed to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's
prior permission." (Id. § 2.1.H.)
25. On January 24, 2001, Santa Cruz entered into a Corporate
Software License Agreement with AutoZone (the "CSLA"). Section 1.0
of the CSLA, entitled "Grant of Right," provides:
SCO grants Company a non-transferable and non-exclusive
license to use the Licensed Products provided to Company under this
Agreement and to utilize any SCO Serial Number and Activation Key
("SNAK") or Certificate of License ("COLA") made available to
Company to install such Licensed Product on Company's systems
worldwide, subject to the terms of this
6 (13)
Agreement. Any use of the SNAK and/or COLA shall be in
accordance with the terms and conditions set forth
herein.
26. The standard COLA provides: "This certificate licenses the
software product listed below according to the rights outlined in
the Software License Agreement included with your SCO product."
27. Section 3.1 of the CSLA provides:
Company shall have the right to reproduce the Licensed
Product as expressly set forth herein. The Licensed Products
may not be modified or revised in any way, nor may it be
translated or localized in any way without the prior written
consent of SCO. All copies of the Licensed Product reproduced by
Company shall include the copyright notice of SCO and/or its
suppliers and all other proprietary markings.
(Emphasis added.)
28. Section 11.2 of the CSLA requires that AutoZone "not reverse
engineer or decompile, translate, create derivative works or
modify any of the Licensed Product, except as expressly
provided herein." (Emphasis added.) The CSLA does not provide any
such exception.
29. SCO owns and is the successor-in-interest to all contractual
rights arising under and related to the AIRA, CSLA, and COLA.
D. AutoZone's Unauthorized Use of OpenServer
Technologies.
30. AutoZone licensed OpenServer and related products under the
AIRA and CSLA, subject to the terms of those agreements. As
explained below, AutoZone breached those agreements in migrating or
converting its computer systems at its headquarters and 3,500
stores from a UNIX-based operating system to a Linux-based
operating system.
31. Pursuant to this Court's August 6, 2004 Order, as amended,
SCO conducted limited discovery to determine whether or not it was
necessary for SCO to move for a
7 (14)
preliminary injunction. Contrary to the statements AutoZone made
to this Court at that time and contrary to an Internet posting by
AutoZone's former senior technology advisor, AutoZone admitted to
extensive copying of programs containing OpenServer code. After
such facts came to light, AutoZone swore that it had voluntarily
removed all such programs from its Linux servers and certified that
other such programs were recompiled without such code. Accordingly,
SCO elected not to file for preliminary injunctive relief.
32. In particular, AutoZone admitted that it created what
amounts to tens of thousands of copies of OpenServer files in
Common Object File Format ("COFF") and installed them onto its
various Linux servers located in AutoZone's headquarters and 3,500
stores in the United States and Mexico. With respect to just nine
of these COFF files, for example, AutoZone's senior technical
advisor testified:
Q. Okay. So I think you earlier told me that there were
— there was a Linux release, and then there was some other
kind of release, and somehow, the COFF files got into the Linux
release. Is that right?
A. Right.
Q. As you sit here today, do you recall how many machines those
nine COFF files were on before they were deleted?
A. I believe they were on all of our store servers.
Q. Okay. So all 3500?
A. Right.
33. To illustrate, SCO's limited discovery to date confirms that
AutoZone engaged in the following activities, among others, in
violation of SCO's contract rights and copyrights:
8 (15)
-
AutoZone developers copied 1,681 separate COFF files onto at
least 387 AutoZone store machines located throughout the United
States.
-
AutoZone developers copied 28 COFF files consisting of sort
files, help utilities, and other miscellaneous files, onto all its
machines in 3,500 AutoZone stores in the United States and
Mexico.
-
AutoZone copied two COFF files, Compx and Decompx, onto the
machines located in those stores. These files were programs that
AutoZone had licensed from a third party which contained
proprietary SCO code. AutoZone used these files at least from
January 2000 until it deleted them during the Court-ordered
discovery process. When AutoZone deleted Compx and Decompx from its
Linux servers, the replenishment system used by AutoZone to replace
inventory from its warehouses failed on approximately 650
machines.
-
AutoZone's machine load computer was found to contain a program
entitled dexpand.x that was compiled under SCO's proprietary
OpenServer operating system.
-
AutoZone copied over 4,500 programs that were compiled to run on
OpenServer onto AutoZone's "Spirit Server" which was used to store
AutoZone's source code in its headquarters. The vast majority of
these programs contain some portion of SCO's proprietary static
libraries. AutoZone has admitted to copying on Spirit at least
1,130 programs compiled to run on OpenServer.
-
In addition, with the aid of a software tool written by SCO's
technical consultant, AutoZone discovered an additional fifteen SCO
Extensible Linking Format
9 (16)
("ELF") and Xenix files which were also compiled to work on SCO
proprietary operating systems (earlier versions of OpenServer that
were licensed by AutoZone). AutoZone admitted that those files
"likely also exist on all 3500 AutoZone store servers."
-
AutoZone copied approximately 370 programs onto its Linux
development machine known as "Wrangler." The majority of these
programs appear to contain some portion of SCO's proprietary static
libraries.
-
AutoZone developers copied numerous SCO files, the precise
number of which has not been disclosed in discovery, onto
AutoZone's "Vision" server which was used in part by AutoZone to
compare the output of programs that it was porting from OpenServer
to Linux, to ensure that the output was identical.
34. AutoZone conducted its migration to Linux in an ad
hoc manner through developers who had worked and were
familiar with SCO's proprietary OpenServer code and related
products, with no formal controls in place to protect those
materials. AutoZone has admitted that the persons responsible for
implementing the migration were not focused on protecting those
materials. Those persons did not consult counsel prior to or during
the migration process, nor did they review the AIRA or CSLA to
determine if the planned migration ran afoul of those licenses.
35. AutoZone's conduct constituted a breach of terms of the AIRA
and CSLA.
36. AutoZone breached the provisions requiring that it "not make
or cause to be made any copy of any part of LICENSED PRODUCT."
(AIRA § 1.)
10 (17)
37. In addition, in taking materials from software products
licensed to AutoZone under the AIRA and using them to migrate to
Linux, AutoZone breached the provisions requiring it to use those
materials "exactly as shipped" and "not modify or change LICENSED
PRODUCT in any manner." (Id.) AutoZone also breached the
provisions permitting it to "modify . . . SCO LICENSED PRODUCT . .
. only with SCO's prior permission." (Id. § 2.1.H.)
38. Similarly, AutoZone's conduct in migrating to Linux breached
Section 3.1 of the CSLA, which provides that "Licensed Products may
not be modified or revised in any way," and Section 11.2 of the
CSLA, which requires that AutoZone not "create derivative works or
modify any of the Licensed Product, except as expressly provided
herein."
39. AutoZone's breach of its contractual obligations worked
damage upon SCO, including by depriving SCO of the licensing fees
that AutoZone was required to pay SCO for each copy and
installation of OpenServer and related materials.
40. AutoZone also infringed SCO's copyrights in the OpenServer
and related products licensed through the AIRA and CSLA, by using,
copying, reproducing, adapting, modifying, and/or distributing
OpenServer and related products in migrating to Linux.
FIRST CAUSE OF ACTION
(Copyright Infringement in Linux)
41. Plaintiff repeats and re-asserts all allegations set forth
in the foregoing paragraphs of this First Amended Complaint as
though fully set forth herein.
42. Upon information and belief, SCO is the sole and exclusive
owner of the copyrights to UNIX, UnixWare, and OpenServer
(including related products), including source code, object code,
programming tools, documentation, and derivative works thereof
(the
11 (18)
"Copyrighted Materials"). SCO is the sole, exclusive, and
undisputed owner of certain copyrights to the Copyrighted
Materials.
43. SCO and its predecessors-in-interest obtained, and SCO today
owns, numerous copyright registrations in Copyrighted Materials,
including without limitation registrations for the following
reference materials:
TITLE |
REGISTRATION NO. |
UNIX SYSTEM V RELEASE 4 Integrated
Software Development Guide |
TX 2 931-646 |
UNIX SYSTEM V RELEASE 4 Reference
Manual For Intel Processor Commands m-z |
TX 3 221-656 |
UNIX SYSTEM V RELEASE 4 Reference
Manual for Intel Processors Commands a-l |
TX 3 227-639 |
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Intel Processors |
TX 3 232-578 |
UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams for Intel Processors |
TX 3 218-286 |
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Motorola Processors |
TX 220-500 |
UNIX SYSTEM V RELEASE 4 Reference
Manual for Motorola Processors Commands a-
l |
TX 3 220-331 |
UNIX SYSTEM V RELEASE 4
PROGRAMMER'S GUIDE |
TX 2 120-502 |
UNIX SYSTEM V/386 RELEASE 4 Transport
Application Interface Guide |
TX 2 881-542 |
UNIX SYSTEM V/386 RELEASE 4 Device
Interface/Driver Kernel Interface (DDI/DKI) |
TX 2 883-235 |
12 (19)
Reference Manual |
|
UNIX SYSTEM V/386 RELEASE 4
Programmer's Guide: SCSI Driver Interface |
TX 2 902-863 |
UNIX SYSTEM V/386 RELEASE 4 System
Administrator's Reference Manual |
TX 2 881-543 |
UNIX SYSTEM V/386RELEASE 4
Programmer's Reference Manual |
TX 2 853-760 |
UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual |
TX 2 890-471 |
UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual |
TX 2 820-791 |
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface (DDI/DKI)
Reference Manual |
TX 3 820-792 |
UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams |
TX 2 833-114 |
UNIX SYSTEM V RELEASE 4 Programmer's
Reference Manual |
TX 2 832-009 |
UNIX SYSTEM V RELEASE 4 System
Administrator's Reference Manual |
TX 2 830-989 |
UNIX SYSTEM V/386 Programmer's Guide
Vol. II |
TX 2 454-884 |
UNIX SYSTEM V/386 RELEASE 3.2
Programmer's Reference Manual |
TX 2 494-658 |
UNIX SYSTEM V/386 Programmer's
Reference Manual |
TX 2 373-759 |
UNIX SYSTEM V/386 System
Administrator's Reference Manual |
TX 2 371-952 |
UNIX SYSTEM V/386 Streams Programmer's
Guide |
TX 2 367-657 |
13 (20)
UNIX SYSTEM V/386 Streams Primer |
TX 2 366-532 |
UNIX SYSTEM V RELEASE 3.2 System
Administrator's Reference Manual |
TX 2 611-860 |
UNIX SYSTEM V. RELEASE 3.2
Programmer's Reference Manual |
TX 2 605-292 |
UNIX SYSTEM V Documentor's Workbench
Reference Manual |
TX 2 986-119 |
UNIX SYSTEM V RELEASE 4 User's
Reference Manual/System Administrator's
Reference Manual for Motorola Processors
Commands m-z |
TX 3 218-267 |
UNIX SYSTEM V RELEASE 4 System Files
and Devices Reference Manual for Motorola
Processors |
TX 3 221-654 |
44. SCO also obtained and owns registrations for other
Copyrighted Materials, including without limitation registrations
for the following software code:
TITLE |
REGISTRATION NO. |
UNIX system V: release 3.0 |
TX-5-750-270 |
UNIX system V: release 3.1 |
TX-5-750-269 |
UNIX system V: release 3.2 |
TX-5-750-271 |
UNIX system V release 3.2/386 |
TX-5-750-268 |
UNIX system V: release 4.0 |
TX-5-776-217 |
UNIX System V: release 4.1 |
TX-5-762-234 |
UNIX system V, release 4.1ES |
TX-5-705-356 |
UNIX System V: release 4.2 |
TX-5-762-235 |
UNIX System V: release 4.2MP |
TX-5-972-097 |
UnixWare 7.1.3 |
TX-5-787-679 |
SCO OpenServer: release 5.0.5 |
TX-6-008-305 |
45. Under 17 U.S.C. § 410 (c), the Certificates of
Copyright Registrations identified above constitute prima facie
evidence of the validity of the copyrights and of the facts stated
in
14 (21)
the Certificates. SCO's registered copyrights in the Copyrighted
Materials, and the facts stated in the corresponding Certificates,
are entitled to such statutory presumptions.
46. SCO and its predecessors-in-interest created the Copyrighted
Materials as original works of authorship, and, as such, the
Copyrighted Materials constitute copyrightable subject matter under
the copyright laws of the United States. The Copyrighted Materials
automatically became subject to copyright protection under 17
U.S.C. § 102(a) when they were fixed in a tangible medium of
expression.
47. Copyright protection under 17 U.S.C. §§ 102 and
103 extends to derivative works. Derivative works are defined in 17
U.S.C. § 101 to include works based on the original work and
any other form in which the original work may be recast,
transformed, modified, or adapted.
48. The Copyrighted Materials include protected expression of
code, structure, sequence, and/or organization in many categories
of UNIX System V functionality, including but not limited to the
following: System V static shared libraries; System V dynamic
shared libraries; System V inter-process communication mechanisms
including semaphores, message queues, and shared memory; enhanced
reliable signal processing; System V file system switch interface;
virtual file system capabilities; process scheduling classes,
including real time support; asynchronous input/output; file system
quotas; support for Lightweight Processes (kernel threads); user
level threads; and loadable kernel modules.
49. The Copyrighted Materials, in whole or in part, have been
unlawfully copied or otherwise improperly used to create a
derivative work of UNIX System V, including one or more Linux
implementations, including without limitation Linux versions 2.4
and 2.6. As a result,
15 (22)
such versions of Linux are unauthorized derivative works of UNIX
System V under the Copyright Act.
50. AutoZone has infringed and will continue to infringe SCO's
copyrights to the Copyrighted Materials by using, copying,
modifying, and/or distributing parts of the Copyrighted Materials,
or derivative works based on the Copyrighted Materials, in
connection with AutoZone's implementations of one or more versions
of the Linux operating system, inconsistent with SCO's exclusive
rights under the Copyright Act.
51. AutoZone has infringed SCO's copyrights in OpenServer 5.0.5
and other Copyrighted Materials, by using, copying, reproducing,
adapting, modifying, and/or distributing OpenServer and related
products, in AutoZone's migration from OpenServer to Linux.
52. In addition, under the specific terms and conditions set
forth in the AIRA and CSLA, SCO granted AutoZone a non-exclusive
license to the technologies covered by SCO's copyrights in
OpenServer and related products. AutoZone expressly covenanted not
to use those technologies except as provided in those agreements.
AutoZone infringed SCO's copyrights in OpenServer 5.0.5 and related
products, by using, copying, reproducing, adapting, modifying,
and/or distributing those materials outside the scope of the
limited licenses granted in the AIRA and CSLA.
53. AutoZone does not own any copyright to the Copyrighted
Materials, nor does it have permission or proper license from SCO
to use any part of the Copyrighted Materials as part of a Linux
implementation.
16 (23)
54. Upon information and belief, AutoZone willfully engaged in
its infringing conduct, with knowledge of SCO's copyrights in the
Copyrighted Materials, and AutoZone continues to engage in such
conduct in the same manner.
55. As a result of AutoZone's infringing acts as described
above, SCO has been damaged and is entitled to damages, including
actual damages pursuant to 17 U.S.C. § 504(a); statutory
damages, pursuant to 17 U.S.C. § 504(b); and enhanced damages,
costs, and attorney's fees pursuant to 17 U.S.C. § 505.
56. In addition, SCO has no adequate remedy at law. AutoZone's
conduct has caused, and if not enjoined, will continue to cause,
irreparable harm to SCO. As a result, pursuant to 17 U.S.C. §
502, SCO is also entitled to relief enjoining AutoZone's further
use, copying, modification, and distribution of Copyrighted
Materials or derivative works of Copyrighted Materials.
SECOND CAUSE OF ACTION
(Breach of Contract)
57. Plaintiff repeats and re-asserts all allegations set forth
in the foregoing paragraphs of this First Amended Complaint as
though fully set forth herein.
58. AutoZone materially breached its contractual obligations to
SCO, including Section 1 of the AIRA, by making many thousands of
unauthorized copies of materials licensed to AutoZone under that
contract.
59. AutoZone materially breached its contractual obligations to
SCO, including Sections 1 and 2.1.H of the AIRA and Sections 3.1
and 11.2 of the CSLA, by taking materials from the operating
systems it licensed under those agreements and using those
materials in its migration from OpenServer to Linux.
17 (24)
60. AutoZone's breaches of the AIRA and CSLA have caused SCO
damage in an amount to be proved at trial. Those breaches have also
caused SCO special damages, including without limitation the costs
of prosecuting this action.
PRAYER FOR RELIEF
WHEREFORE, having fully set forth its complaint, plaintiff prays
for relief from this Court as follows:
-
Injunctive relief pursuant to 17 U.S.C. § against
AutoZone's further unlawful use of any part of the Copyrighted
Materials and derivatives works thereof;
-
SCO's actual damages as a result of AutoZone's infringement and,
to the extent applicable and elected by SCO prior to trial pursuant
to 17 U.S.C. § 504, SCO's statutory damages and enhanced
damages;
-
Attorney's fees and costs pursuant to 17 U.S.C. § 505;
-
SCO's actual damages and special damages as a result of
AutoZone's contractual breaches; and
-
Pre- and post-judgment interest, and all other legal and
equitable relief deemed just and proper by this Court.
18 (25)
JURY DEMAND
Plaintiff demands that all issues in this case be tried by a
jury in accordance with the Seventh Amendment to the United States
Constitution and Rule 38(b) of the Federal Rules of Civil
Procedure.
DATED this 1st day of July 2009.
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Richard J. Pocker
Richard J. Pocker
Nevada Bar No. 3568
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for Plaintiff, The SCO Group, Inc.
19 (26)
*********************************
*********************************
Complaint | First Amended Complaint |
|
COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO") sues Defendant, AutoZone, Inc., ("AutoZone") and alleges as follows: |
COMES NOW, the Plaintiff, The SCO Group, Inc. ("SCO"), and sues the Defendant, AutoZone, Inc. ("AutoZone"), and alleges as follows: |
|
|
INTRODUCTION |
I. NATURE OF THIS ACTION |
1. Defendant uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its propriety UNIX System V operating system technology. This case seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of Defendant's infringing uses of SCO's proprietary UNIX System V technology, and to enjoin any further use by Defendant of the protected UNIX System V technology contained in Linux. |
1. AutoZone uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its propriety UNIX System V operating system technology. |
|
2. In addition, as SCO confirmed through the limited discovery the Court previously authorized in this action, contrary to AutoZone's public statements to this Court and others, AutoZone made many thousands of unauthorized copies of materials from SCO's OpenServer operating system and related products, in migrating from OpenServer to Linux in AutoZone's headquarters and 3,500 retail stores. |
|
3. SCO seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of AutoZone's unlawful use of Linux and to enjoin AutoZone's further unlawful use of Linux. SCO also seeks relief under applicable contract law to compensate SCO for damages it has sustained as a result of AutoZone's breach of the agreements through which it obtained limited licenses to OpenServer and related materials. SCO also seeks relief under the Copyright Act to compensate SCO for damages it has sustained as a result of AutoZone's unlawful use of OpenServer and related products outside the scope of those limited licenses. |
|
|
|
II. PARTIES, JURISDICTION, AND VENUE |
2. Plaintiff SCO is a Delaware corporation with its principal place of business in Utah County, State of Utah. |
4. SCO is a Delaware corporation with its principal place of business in Utah County, Utah. |
3. Defendant is a Nevada corporation with its principal place of business in the State of Tennessee. |
5. AutoZone is a Nevada corporation with its headquarters in Tennessee. |
|
2 (9) |
4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. '' 1331 and 1338. |
6. This Court has subject matter jurisdiction over SCO's copyright claims pursuant to 28 U.S.C. § § 1331 and 1338. Based on this jurisdiction, the Court also has supplemental jurisdiction over SCO's contract claim. |
|
7. This Court has personal jurisdiction over AutoZone because it is incorporated and conducts substantial business in Nevada. |
5. Venue is properly situated in this District pursuant to 28 U.S.C. '' 1391 and 1400. |
8. Venue is properly situated in this District pursuant to 28 U.S.C. § § 1391 and 1400, and the prior order of this Court. |
|
|
BACKGROUND FACTS |
III. FACTUAL BACKGROUND |
|
A. SCO's Rights in UNIX Code and Products. |
6. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs (known as applications) that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a "traffic control" system for the different software programs that run on a computer. |
9. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs (known as applications) that run on a computer. Operating systems allow multiple software programs to run at the same time and generally function as "traffic control" for those programs. |
7. In the business-computing environment for the Fortune 1000 and other large corporations (often called the "enterprise computing market"), UNIX is widely used. |
10. UNIX is widely used in the business-computing environment of the Fortune 1000 companies and other large corporations (often called the "enterprise computing market"). |
8. The UNIX operating system was originally developed by AT&T Bell Laboratories ("AAT&T"). After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies. |
11. The UNIX operating system was originally developed by AT&T Bell Laboratories ("AT&T"). Over the years, AT&T and its successors progressively developed updated versions and releases of the operating system. UnixWare is the brand name for the most current releases of UNIX System V. |
|
12. In the 1980s, AT&T began to license UNIX System V as a commercial product for use in enterprise applications by large companies and institutions. Pursuant to standard licensing agreements, AT&T granted the world's leading computer manufacturers the right to use |
|
3 (10) |
9. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T, and its related companies licensed UNIX for widespread enterprise use. Pursuant to a license with AT&T, various companies, including International Business Machines, Hewlett-Packard, Inc., Sun Microsystems, Inc., Silicon Graphics, Inc., and Sequent Computer Systems, became some of the principal United States-based UNIX vendors, among many others. |
a specific release of the valuable UNIX source code to develop UNIX-derived versions of the operating system, known as UNIX flavors, optimized to run on their respective computers. International Business Machines, Hewlett-Packard, Sun Microsystems, Silicon Graphics, Sequent Computer Systems, and Santa Cruz Operation,Inc. ("Santa Cruz"), among others, became important vendors of UNIX flavors. |
10. These license agreements place restrictions on the valuable intellectual property developed by AT&T, which allow UNIX to be available for use by others while, at the same time, protecting AT&T's (and its successors') rights.. |
13. Licensees obtained those rights subject to strict restrictions on the use and disclosure of UNIX source code and intellectual property, including the UNIX flavors themselves. These restrictions protected the rights of AT&T and its successors, including today SCO, in the UNIX technology and business. |
11. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. |
14. Through a series of corporate acquisitions - from AT&T, to Novell, to Santa Cruz, to SCO - SCO today owns (among other assets related to UNIX) all right, title, and interest in and to: |
|
the source code for UNIX, UnixWare, and the UNIX flavor OpenServer, |
|
the licensing agreements with the foregoing UNIX vendors, |
|
all claims for breach of those agreements |
|
copyrights in and to UNIX and UnixWare, and |
|
copyrights in and to OpenServer and related products. |
|
15. Upon information and belief, SCO owns all copyrights to UNIX, UnixWare, OpenServer, and related products. |
|
16. On August 10, 2007, the Federal District Court for the District of Utah ruled on summary judgment that SCO has a license and other ownership rights, but does own the copyrights, to certain older versions of UNIX and UnixWare. SCO has appealed this ruling in the United States Court of Appeals for the Tenth Circuit, which heard oral argument on the |
|
4 (11) |
|
appeal on May 6, 2009. The appeal was briefed and argued on an expedited basis; SCO does not know when the Tenth Circuit will issue a decision. |
|
B. AutoZone's Unauthorized Use of Linux. |
|
17. Linux is a form of "open source" software. The Linux source code is freely available to the public - unlike the source code for proprietary programs such as UNIX and its flavors. The code for the Linux kernel can be freely downloaded from a public website and installed on a computer. Like other open source software, Linux is modified on an ongoing basis, based on voluntary contributions from users around the world. |
12. During the past few years a competing, and free, operating system know as Linux has been transformed from a non-commercial operating system into a powerful general enterprise operating system. |
18. Starting approximately in early 2000, Linux was wrongfully transformed from an upstart hobbyist's program into a powerful general enterprise operating system competitive with UNIX and Windows. According to leaders within the Linux-development community, Linux is intended to displace UNIX System V. |
13. Linux is in material respects an operating system variant or clone of UNIX System V technology. According to leaders within the Linux community, Linux is not just a "clone" but is intended to displace UNIX System V. |
19. Linux is in material respects a variant or clone of UNIX System V technology. Linux is a derivative of, and substantially similar to, UNIX System V under the Copyright Act. |
|
20. Subsequent to the transformation of Linux into a commercially viable operating system, AutoZone started to use, copy, modify, and/or distribute one or more implementations of Linux in its business operations. AutoZone today continues to use, copy, modify, and/or distribute Linux. AutoZone thus has infringed and continues to infringe SCO's exclusive rights as owner of the copyrights to UNIX System V. |
|
C. AutoZone's Limited Licenses to OpenServer Technologies. |
|
21. In 1988, Santa Cruz licensed UNIX System V Release 3.2 from AT&T. As a UNIX licensee, Santa Cruz then developed and marketed OpenServer, based on that UNIX |
|
5 (12) |
|
release. In 1995, Santa Cruz purchased the base UNIX technology and the UNIX licensing business from Novell, Inc., which had acquired them from AT&T. In 2001, SCO acquired the base UNIX technology and the UNIX licensing business, as well OpenServer and related products, from Santa Cruz. |
|
22. By the late 1990s, before Linux was transformed into a commercially viable competitor to UNIX, OpenServer was a market leader in worldwide UNIX sales. Today, OpenServer accounts for the majority of SCO's revenues. |
|
23. On May 14, 1990, Santa Cruz entered into an Authorized Industry Reseller Agreement with AutoZone (the "AIRA") granting AutoZone a limited license to "LICENSED PRODUCT," including OpenServer and related products. |
|
24. Under the AIRA, AutoZone obtained the right to use the LICENSED PRODUCT "exactly as shipped . . . by SCO." (AIRA § 1.) The AIRA also provides that AutoZone "may not modify or change LICENSED PRODUCT in any manner" and "may not make or cause to be made any copy of any part of LICENSED PRODUCT." (Id. (emphasis added).) In addition, AutoZone agreed to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. § 2.1.H.) |
|
25. On January 24, 2001, Santa Cruz entered into a Corporate Software License Agreement with AutoZone (the "CSLA"). Section 1.0 of the CSLA, entitled "Grant of Right," provides: |
|
SCO grants Company a non-transferable and non-exclusive license to use the Licensed Products provided to Company under this Agreement and to utilize any SCO Serial Number and Activation Key ("SNAK") or Certificate of License ("COLA") made available to Company to install such Licensed Product on Company's systems worldwide, subject to the terms of this |
|
6 (13) |
|
Agreement. Any use of the SNAK and/or COLA shall be in accordance with the terms and conditions set forth herein. |
|
26. The standard COLA provides: "This certificate licenses the software product listed below according to the rights outlined in the Software License Agreement included with your SCO product." |
|
27. Section 3.1 of the CSLA provides: |
|
Company shall have the right to reproduce the Licensed Product as expressly set forth herein. The Licensed Products may not be modified or revised in any way, nor may it be translated or localized in any way without the prior written consent of SCO. All copies of the Licensed Product reproduced by Company shall include the copyright notice of SCO and/or its suppliers and all other proprietary markings. |
|
(Emphasis added.) |
|
28. Section 11.2 of the CSLA requires that AutoZone "not reverse engineer or decompile, translate, create derivative works or modify any of the Licensed Product, except as expressly provided herein." (Emphasis added.) The CSLA does not provide any such exception. |
|
29. SCO owns and is the successor-in-interest to all contractual rights arising under and related to the AIRA, CSLA, and COLA. |
|
D. AutoZone's Unauthorized Use of OpenServer Technologies. |
|
30. AutoZone licensed OpenServer and related products under the AIRA and CSLA, subject to the terms of those agreements. As explained below, AutoZone breached those agreements in migrating or converting its computer systems at its headquarters and 3,500 stores from a UNIX-based operating system to a Linux-based operating system. |
|
31. Pursuant to this Court's August 6, 2004 Order, as amended, SCO conducted limited discovery to determine whether or not it was necessary for SCO to move for a |
|
7 (14) |
|
preliminary injunction. Contrary to the statements AutoZone made to this Court at that time and contrary to an Internet posting by AutoZone's former senior technology advisor, AutoZone admitted to extensive copying of programs containing OpenServer code. After such facts came to light, AutoZone swore that it had voluntarily removed all such programs from its Linux servers and certified that other such programs were recompiled without such code. Accordingly, SCO elected not to file for preliminary injunctive relief. |
|
32. In particular, AutoZone admitted that it created what amounts to tens of thousands of copies of OpenServer files in Common Object File Format ("COFF") and installed them onto its various Linux servers located in AutoZone's headquarters and 3,500 stores in the United States and Mexico. With respect to just nine of these COFF files, for example, AutoZone's senior technical advisor testified: |
|
Q. Okay. So I think you earlier told me that there were - there was a Linux release, and then there was some other kind of release, and somehow, the COFF files got into the Linux release. Is that right? |
|
|
|
A. Right. |
|
|
|
Q. As you sit here today, do you recall how many machines those nine COFF files were on before they were deleted? |
|
|
|
A. I believe they were on all of our store servers. |
|
|
|
Q. Okay. So all 3500? |
|
|
|
A. Right. |
|
33. To illustrate, SCO's limited discovery to date confirms that AutoZone engaged in the following activities, among others, in violation of SCO's contract rights and copyrights: |
|
8 (15) |
|
AutoZone developers copied 1,681 separate COFF files onto at least 387 AutoZone store machines located throughout the United States. |
|
AutoZone developers copied 28 COFF files consisting of sort files, help utilities, and other miscellaneous files, onto all its machines in 3,500 AutoZone stores in the United States and Mexico. |
|
AutoZone copied two COFF files, Compx and Decompx, onto the machines located in those stores. These files were programs that AutoZone had licensed from a third party which contained proprietary SCO code. AutoZone used these files at least from January 2000 until it deleted them during the Court-ordered discovery process. When AutoZone deleted Compx and Decompx from its Linux servers, the replenishment system used by AutoZone to replace inventory from its warehouses failed on approximately 650 machines. |
|
AutoZone's machine load computer was found to contain a program entitled dexpand.x that was compiled under SCO's proprietary OpenServer operating system. |
|
AutoZone copied over 4,500 programs that were compiled to run on OpenServer onto AutoZone's "Spirit Server" which was used to store AutoZone's source code in its headquarters. The vast majority of these programs contain some portion of SCO's proprietary static libraries. AutoZone has admitted to copying on Spirit at least 1,130 programs compiled to run on OpenServer. |
|
In addition, with the aid of a software tool written by SCO's technical consultant, AutoZone discovered an additional fifteen SCO Extensible Linking Format |
|
9 (16) |
|
("ELF") and Xenix files which were also compiled to work on SCO proprietary operating systems (earlier versions of OpenServer that were licensed by AutoZone). AutoZone admitted that those files "likely also exist on all 3500 AutoZone store servers." |
|
AutoZone copied approximately 370 programs onto its Linux development machine known as "Wrangler." The majority of these programs appear to contain some portion of SCO's proprietary static libraries. |
|
AutoZone developers copied numerous SCO files, the precise number of which has not been disclosed in discovery, onto AutoZone's "Vision" server which was used in part by AutoZone to compare the output of programs that it was porting from OpenServer to Linux, to ensure that the output was identical. |
|
34. AutoZone conducted its migration to Linux in an ad hoc manner through developers who had worked and were familiar with SCO's proprietary OpenServer code and related products, with no formal controls in place to protect those materials. AutoZone has admitted that the persons responsible for implementing the migration were not focused on protecting those materials. Those persons did not consult counsel prior to or during the migration process, nor did they review the AIRA or CSLA to determine if the planned migration ran afoul of those licenses. |
|
35. AutoZone's conduct constituted a breach of terms of the AIRA and CSLA. |
|
36. AutoZone breached the provisions requiring that it "not make or cause to be made any copy of any part of LICENSED PRODUCT." (AIRA § 1.) |
|
10 (17) |
|
37. In addition, in taking materials from software products licensed to AutoZone under the AIRA and using them to migrate to Linux, AutoZone breached the provisions requiring it to use those materials "exactly as shipped" and "not modify or change LICENSED PRODUCT in any manner." (Id.) AutoZone also breached the provisions permitting it to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. § 2.1.H.) |
|
38. Similarly, AutoZone's conduct in migrating to Linux breached Section 3.1 of the CSLA, which provides that "Licensed Products may not be modified or revised in any way," and Section 11.2 of the CSLA, which requires that AutoZone not "create derivative works or modify any of the Licensed Product, except as expressly provided herein." |
|
39. AutoZone's breach of its contractual obligations worked damage upon SCO, including by depriving SCO of the licensing fees that AutoZone was required to pay SCO for each copy and installation of OpenServer and related materials. |
|
40. AutoZone also infringed SCO's copyrights in the OpenServer and related products licensed through the AIRA and CSLA, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products in migrating to Linux. |
CAUSE OF ACTION |
FIRST CAUSE OF ACTION |
(Copyright Infringement) |
(Copyright Infringement in Linux) |
14. Plaintiff repeats and re-alleges all allegations set forth in paragraphs 1 through 13 of this Complaint as though fully set forth herein. |
41. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein. |
15. SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. These materials are covered by numerous copyright registrations issued by the United States Copyright Office (the "Copyrighted Materials"). Registrations in the Copyrighted Materials have been obtained by SCO and its predecessors in interest and are owned by SCO. Included among such registrations are the following reference materials: |
42. Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the |
|
11 (18) |
|
"Copyrighted Materials"). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials. |
|
43. SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials: |
TITLE REGISTRATION NO. |
TITLE |
|
REGISTRATION NO. |
UNIX SYSTEM V RELEASE 4 Integrated Software Development Guide TX 2 931-646 |
UNIX SYSTEM V RELEASE 4 Integrated |
|
Software Development Guide TX 2 931-646 |
UNIX SYSTEM V RELEASE 4 Reference Manual For Intel Processor Commands m-z TX 3 221-656 |
UNIX SYSTEM V RELEASE 4 Reference |
|
Manual For Intel Processor Commands m-z TX 3 221-656 |
UNIX SYSTEM V RELEASE 4 Reference Manual for Intel Processors Commands a-1 TX 3 227-639. |
UNIX SYSTEM V RELEASE 4 Reference |
|
Manual for Intel Processors Commands a-l TX 3 227-639 |
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Intel Processors TX 3 232-578 |
UNIX SYSTEM V RELEASE 4 Device Driver |
|
Interface/Driver Kernel Interface Reference |
|
Manual for Intel Processors TX 3 232-578 |
UNIX SYSTEM V RELEASE 4 Programmer's Guide: Streams for Intel Processors TX 3 218-286 |
UNIX SYSTEM V RELEASE 4 Programmer's |
|
Guide: Streams for Intel Processors TX 3 218-286 |
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Motorola Processors |
UNIX SYSTEM V RELEASE 4 Device Driver |
TX 220-500 |
Interface/Driver Kernel Interface Reference |
|
Manual for Motorola Processors TX 220-500 |
UNIX SYSTEM V RELEASE 4 Reference Manual for Motorola Processors Commands a-1 TX 3 220-331 |
UNIX SYSTEM V RELEASE 4 Reference |
|
Manual for Motorola Processors Commands a- |
|
l TX 3 220-331 |
UNIX SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE TX 2 120-502 |
UNIX SYSTEM V RELEASE 4 |
|
PROGRAMMER'S GUIDE TX 2 120-502 |
UNIX SYSTEM V/386 RELEASE 4 Transport Application Interface Guide TX 2 881-542 |
UNIX SYSTEM V/386 RELEASE 4 Transport |
|
Application Interface Guide TX 2 881-542 |
UNIX SYSTEM V/386 RELEASE 4 Device Interface/Driver Kernel Interface (DDI/DKI) Reference Manual TX 2 883-235 |
UNIX SYSTEM V/386 RELEASE 4 Device |
|
Interface/Driver Kernel Interface (DDI/DKI) TX 2 883-235 |
|
12 (19) |
|
Reference Manual |
UNIX SYSTEM V/386 RELEASE 4 Programmers Guide: SCSI Driver Interface TX 2 902-863 |
UNIX SYSTEM V/386 RELEASE 4 |
|
Programmer's Guide: SCSI Driver Interface TX 2 902-863 |
UNIX SYSTEM V/386 RELEASE 4 System Administrators Reference Manual TX 2 881-543 |
UNIX SYSTEM V/386 RELEASE 4 System |
|
Administrator's Reference Manual TX 2 881-543 |
UNIX SYSTEM V/386 RELEASE 4 Programmers Reference Manual |
UNIX SYSTEM V/386RELEASE 4 |
TX 2 853-760 |
Programmer's Reference Manual TX 2 853-760 |
UNIX SYSTEM V/386 RELEASE 4 Users Reference Manual TX 2 890-471 |
UNIX SYSTEM V/386 RELEASE 4 User's |
|
Reference Manual TX 2 890-471 |
UNIX SYSTEM V/386 RELEASE 4 Users Reference Manual TX 2 820-791 |
UNIX SYSTEM V/386 RELEASE 4 User's |
|
Reference Manual TX 2 820-791 |
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface (DDI/DKI) Reference Manual TX 3 820-792 |
UNIX SYSTEM V RELEASE 4 Device Driver |
|
Interface/Driver Kernel Interface (DDI/DKI) |
|
Reference Manual TX 3 820-792 |
UNIX SYSTEM V RELEASE 4 Programmers Guide: Streams TX 2 833-114 |
UNIX SYSTEM V RELEASE 4 Programmer's |
|
Guide: Streams TX 2 833-114 |
UNIX SYSTEM V RELEASE 4 Programmers Reference Manual TX 2 832-009 |
UNIX SYSTEM V RELEASE 4 Programmer's |
|
Reference Manual TX 2 832-009 |
UNIX SYSTEM V RELEASE 4 System Administrator's Reference Manual TX 2 830-989. |
UNIX SYSTEM V RELEASE 4 System |
|
Administrator's Reference Manual TX 2 830-989 |
UNIX SYSTEM V/386 Programmers Guide Vol. II TX 2 454-884 |
UNIX SYSTEM V/386 Programmer's Guide |
|
Vol. II TX 2 454-884 |
UNIX SYSTEM V/386 RELEASE 3.2 Programmers Reference Manual TX 2 494-658 |
UNIX SYSTEM V/386 RELEASE 3.2 |
|
Programmer's Reference Manual TX 2 494-658 |
UNIX SYSTEM V/386 Programmers Reference Manual TX 2 373-759 |
UNIX SYSTEM V/386 Programmer's |
|
Reference Manual TX 2 373-759 |
UNIX SYSTEM V/386 System Administrators Reference Manual TX 2 371-952 |
UNIX SYSTEM V/386 System |
|
Administrator's Reference Manual TX 2 371-952 |
UNIX SYSTEM V/386 Streams Programmers Guide TX 2 367-657 |
UNIX SYSTEM V/386 Streams Programmer's |
|
Guide TX 2 367-657 |
|
13 (20) |
UNIX SYSTEM V/386 Streams Primer TX 2 366-532 |
UNIX SYSTEM V/386 Streams Primer TX 2 366-532 |
|
UNIX SYSTEM V RELEASE 3.2 System Administrators Reference Manual TX 2 611-860 |
UNIX SYSTEM V RELEASE 3.2 System |
|
Administrator's Reference Manual TX 2 611-860 |
UNIX SYSTEM V. RELEASE 3.2 Programmers Reference Manual TX 2 605-292 |
UNIX SYSTEM V. RELEASE 3.2 |
|
Programmer's Reference Manual TX 2 605-292 |
UNIX SYSTEM V Documentors Workbench Reference Manual TX 2 986-119 |
UNIX SYSTEM V Documentor's Workbench |
|
Reference Manual TX 2 986-119 |
UNIX SYSTEM V RELEASE 4 Users Reference Manual/System Administrators Reference Manual for Motorola Processors Commands m-z TX 3 218-267 |
UNIX SYSTEM V RELEASE 4 User's |
|
Reference Manual/System Administrator's |
|
Reference Manual for Motorola Processors |
|
Commands m-z TX 3 218-267 |
UNIX SYSTEM V RELEASE 4 System Files and Devices Reference Manual for Motorola Processors TX 3 221-654 |
UNIX SYSTEM V RELEASE 4 System Files |
|
and Devices Reference Manual for Motorola |
|
Processors TX 3 221-654 |
|
44. SCO also obtained and owns registrations for other Copyrighted Materials, including without limitation registrations for the following software code: |
16. Pursuant to 17 U.S.C. _410 (c) the Certificates of Copyright Registrations identified above constitutes prima facie evidence of the validity of the copyrights and of the facts stated in the Certificates. SCO's registered copyrights in the Copyrighted Materials as embodied in the above Copyright Registrations are entitled to such statutory presumptions. |
TITLE |
17. Registrations in the Copyrighted Materials have also been obtained by SCO and its registrations in the following additional registrations of software code: |
REGISTRATION NO. |
UNIXWARE 7.1.3 TX 5-787-679 |
UNIX system V: release 3.0 TX-5-750-270 |
UNIX SYSTEM V RELEASE 3.0 TX 5-750-270 |
UNIX system V: release 3.1 TX-5-750-269 |
UNIX SYSTEM V RELEASE 3.1 TX 5-750-269 |
UNIX system V: release 3.2 TX-5-750-271 |
UNIX SYSTEM V RELEASE 3.2 TX 5-750-271 |
UNIX system V release 3.2/386 TX-5-750-268 |
UNIX SYSTEM V RELEASE 4.0 TX 5-776-217 |
UNIX system V: release 4.0 TX-5-776-217 |
UNIX SYSTEM V RELEASE 4.1ES TX 5-705-356 |
UNIX System V: release 4.1 TX-5-762-234 |
UNIX SYSTEM V RELEASE 4.2 TX 5-762-235 |
UNIX system V, release 4.1ES TX-5-705-356 |
UNIX SYSTEM V RELEASE 4.1 TX 5-762-234 |
UNIX System V: release 4.2 TX-5-762-235 |
UNIX SYSTEM V RELEASE 3.2 TX 5-750-268 |
UNIX System V: release 4.2MP TX-5-972-097 |
|
UnixWare 7.1.3 TX-5-787-679 |
|
SCO OpenServer: release 5.0.5 TX-6-008-305 |
|
45. Under 17 U.S.C. § 410 (c), the Certificates of Copyright Registrations identified above constitute prima facie evidence of the validity of the copyrights and of the facts stated in |
|
14 (21) |
|
the Certificates. SCO's registered copyrights in the Copyrighted Materials, and the facts stated in the corresponding Certificates, are entitled to such statutory presumptions. |
18. SCO and its predecessors in interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials were automatically subject to copyright protection under 17 U.S.C. Section 102(a) when such programs were fixed in a tangible medium of expression. Copyright protection under 17 U.S.C. Section 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. Section 101 to include works based on the original work or any other form in which the original work may be recast, transformed, modified or adapted. |
46. SCO and its predecessors-in-interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials automatically became subject to copyright protection under 17 U.S.C. § 102(a) when they were fixed in a tangible medium of expression. |
|
47. Copyright protection under 17 U.S.C. § § 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. § 101 to include works based on the original work and any other form in which the original work may be recast, transformed, modified, or adapted. |
19. The Copyrighted Materials include protected expression of code, structure, sequence and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules. |
48. The Copyrighted Materials include protected expression of code, structure, sequence, and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules. |
20. On information and belief, parts or all of the Copyrighted Material has been copied or otherwise improperly used as the basis for creation of derivative work software code, included one or more Linux implementations, including Linux versions 2.4 and 2.6, without the permission of SCO. |
49. The Copyrighted Materials, in whole or in part, have been unlawfully copied or otherwise improperly used to create a derivative work of UNIX System V, including one or more Linux implementations, including without limitation Linux versions 2.4 and 2.6. As a result, |
|
15 (22) |
|
such versions of Linux are unauthorized derivative works of UNIX System V under the Copyright Act. |
21. Defendant has infringed and will continue to infringe SCO's copyrights in and relating to Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials in connection with its implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act. |
50. AutoZone has infringed and will continue to infringe SCO's copyrights to the Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials, in connection with AutoZone's implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act. |
|
51. AutoZone has infringed SCO's copyrights in OpenServer 5.0.5 and other Copyrighted Materials, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products, in AutoZone's migration from OpenServer to Linux. |
|
52. In addition, under the specific terms and conditions set forth in the AIRA and CSLA, SCO granted AutoZone a non-exclusive license to the technologies covered by SCO's copyrights in OpenServer and related products. AutoZone expressly covenanted not to use those technologies except as provided in those agreements. AutoZone infringed SCO's copyrights in OpenServer 5.0.5 and related products, by using, copying, reproducing, adapting, modifying, and/or distributing those materials outside the scope of the limited licenses granted in the AIRA and CSLA. |
22. Defendant does not own the copyright to the Copyrighted Materials nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation. |
53. AutoZone does not own any copyright to the Copyrighted Materials, nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation. |
|
16 (23) |
23. Upon information and belief, Defendant's conduct was and is willfully done with knowledge of SCO's copyrights. |
54. Upon information and belief, AutoZone willfully engaged in its infringing conduct, with knowledge of SCO's copyrights in the Copyrighted Materials, and AutoZone continues to engage in such conduct in the same manner. |
|
55. As a result of AutoZone's infringing acts as described above, SCO has been damaged and is entitled to damages, including actual damages pursuant to 17 U.S.C. § 504(a); statutory damages, pursuant to 17 U.S.C. § 504(b); and enhanced damages, costs, and attorney's fees pursuant to 17 U.S.C. § 505. |
24. Plaintiff has no adequate remedy at law. Defendant's conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. |
56. In addition, SCO has no adequate remedy at law. AutoZone's conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. As a result, pursuant to 17 U.S.C. § 502, SCO is also entitled to relief enjoining AutoZone's further use, copying, modification, and distribution of Copyrighted Materials or derivative works of Copyrighted Materials. |
25. As a result of Defendant's wrongful conduct, SCO is entitled to the following relief: |
SECOND CAUSE OF ACTION |
a. Injunctive relief pursuant to 17 U.S.C. Section 502 against Defendant's further use or copying of any part of the Copyrighted Materials; |
(Breach of Contract) |
b. SCO's actual damages as a result of Defendant's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. Section 504, SCO's statutory damages and enhanced damages; and |
57. Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein. |
c. Attorney's fees and costs pursuant to 17 U.S.C. Section 505 |
58. AutoZone materially breached its contractual obligations to SCO, including Section 1 of the AIRA, by making many thousands of unauthorized copies of materials licensed to AutoZone under that contract. |
|
59. AutoZone materially breached its contractual obligations to SCO, including Sections 1 and 2.1.H of the AIRA and Sections 3.1 and 11.2 of the CSLA, by taking materials from the operating systems it licensed under those agreements and using those materials in its migration from OpenServer to Linux. |
|
17 (24) |
|
60. AutoZone's breaches of the AIRA and CSLA have caused SCO damage in an amount to be proved at trial. Those breaches have also caused SCO special damages, including without limitation the costs of prosecuting this action. |
PRAYER FOR RELIEF |
PRAYER FOR RELIEF |
WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows: |
WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows: |
|
1. Injunctive relief pursuant to 17 U.S.C. Section 502 against Defendant's further use or copying of any part of the Copyrighted Materials; |
Injunctive relief pursuant to 17 U.S.C. § against AutoZone's further unlawful use of any part of the Copyrighted Materials and derivatives works thereof; |
2. SCO's actual damages as a result of Defendant's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. Section 504, SCO's statutory damages and enhanced damages; |
SCO's actual damages as a result of AutoZone's infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. § 504, SCO's statutory damages and enhanced damages; |
3. Attorney's fees and costs pursuant to 17 U.S.C. Section 505; and |
Attorney's fees and costs pursuant to 17 U.S.C. § 505; |
|
SCO's actual damages and special damages as a result of AutoZone's contractual breaches; and |
4. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court. |
Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court. |
|
18 (25) |
JURY DEMAND |
JURY DEMAND |
|
Plaintiff demands that all issues in this case be tried by a jury in accordance with the Seventh Amendment to the U.S. Constitution and Rule 38(b) of the Federal Rules of Civil Procedure. |
Plaintiff demands that all issues in this case be tried by a jury in accordance with the Seventh Amendment to the United States Constitution and Rule 38(b) of the Federal Rules of Civil Procedure. |
DATED this 2nd day of March, 2004. |
DATED this 1st day of July 2009. |
Stanley W. Parry, Esq. |
BOIES, SCHILLER & FLEXNER LLP |
Nevada Bar No. 1417 |
By: /s/ Richard J. Pocker |
Glenn M. Machado, Esq. |
Richard J. Pocker |
State Bar No. 7802 |
Nevada Bar No. 3568 |
CURRAN & PARRY |
BOIES, SCHILLER & FLEXNER LLP |
[address, phone] |
[address] |
Attorneys for Plaintiff |
[phone] |
|
Attorneys for Plaintiff, The SCO Group, Inc. |
| |
| | |
|
|
Authored by: josmith42 on Sunday, July 05 2009 @ 01:34 PM EDT |
Place corrections to the article in this thread.
---
This comment was typed using the QWERTY keyboard layout. I used to use Dvorak,
but no longer :-([ Reply to This | # ]
|
|
Authored by: josmith42 on Sunday, July 05 2009 @ 01:35 PM EDT |
A lot of people like to have off topic posts all in one thread. If you're one
of those people, have at it.
---
This comment was typed using the QWERTY keyboard layout. I used to use Dvorak,
but no longer :-([ Reply to This | # ]
|
- Keyboard change - Authored by: Anonymous on Sunday, July 05 2009 @ 02:00 PM EDT
- Keyboard change - Authored by: josmith42 on Sunday, July 05 2009 @ 11:38 PM EDT
- Keyboards - Authored by: Anonymous on Tuesday, July 07 2009 @ 04:37 AM EDT
- Numeric Keypad - Authored by: Anonymous on Tuesday, July 07 2009 @ 11:09 AM EDT
- Keyboards - Authored by: Anonymous on Tuesday, July 07 2009 @ 11:09 AM EDT
- Keyboards - Authored by: stegu on Tuesday, July 07 2009 @ 07:42 PM EDT
- Autozone will get my business this month - Authored by: hardmath on Sunday, July 05 2009 @ 06:06 PM EDT
- CRTC Internet Speed Hearings - Authored by: Anonymous on Sunday, July 05 2009 @ 07:23 PM EDT
- More about the US legal system - Authored by: Anonymous on Monday, July 06 2009 @ 06:14 AM EDT
- BT opts out of Phorm - Authored by: amster69 on Monday, July 06 2009 @ 08:00 AM EDT
- Hmm.... - Authored by: Anonymous on Monday, July 06 2009 @ 12:27 PM EDT
- Off topic here - microsoft and C# and patents. - Authored by: Anonymous on Monday, July 06 2009 @ 08:16 AM EDT
- This is for PJ - Authored by: gjleger on Monday, July 06 2009 @ 10:19 AM EDT
- FYI - Directory of Open Access Journals - Authored by: Anonymous on Monday, July 06 2009 @ 02:16 PM EDT
- Microsoft will be applying the Community Promise to the ECMA 334 and ECMA 335 specs - Authored by: Anonymous on Tuesday, July 07 2009 @ 12:30 AM EDT
- Miguel de Icaza comments on Microsoft's announcement - Authored by: Anonymous on Tuesday, July 07 2009 @ 12:38 AM EDT
- This is a clear attempt at breaking the GPL "virality" - Authored by: Anonymous on Tuesday, July 07 2009 @ 02:28 AM EDT
- "Microsoft" and "Promise" in one sentence? - Authored by: Anonymous on Tuesday, July 07 2009 @ 02:43 AM EDT
- So what? - Authored by: cjk fossman on Tuesday, July 07 2009 @ 07:29 AM EDT
- Microsoft will be applying the Community Promise to the ECMA 334 and ECMA 335 specs - Authored by: dwiget001 on Tuesday, July 07 2009 @ 09:47 AM EDT
- Microsoft will be applying the Community Promise to the ECMA 334 and ECMA 335 specs - Authored by: tknarr on Tuesday, July 07 2009 @ 12:08 PM EDT
- Microsoft will be applying the Community Promise to the ECMA 334 and ECMA 335 specs - Authored by: Anonymous on Tuesday, July 07 2009 @ 01:06 PM EDT
- The real Microsoft Promise - Authored by: Anonymous on Tuesday, July 07 2009 @ 01:21 PM EDT
- Fedora View - Authored by: Anonymous on Tuesday, July 07 2009 @ 02:33 PM EDT
- Microsoft will be applying the Community Promise to the ECMA 334 and ECMA 335 specs - Authored by: kjs on Tuesday, July 07 2009 @ 08:36 PM EDT
- Rise of the 'Produser' - How Creative Commons licensing is shifting who makes media, and how - Authored by: Anonymous on Tuesday, July 07 2009 @ 03:13 AM EDT
- Can't agree - Authored by: Anonymous on Tuesday, July 07 2009 @ 02:10 PM EDT
- UK Patent Office 'prior art' - Authored by: Anonymous on Tuesday, July 07 2009 @ 08:09 AM EDT
- Just Released: VLC media player 1.0.0 - Goldeneye - Authored by: Anonymous on Tuesday, July 07 2009 @ 09:27 AM EDT
- Yet Another IE hole - Authored by: SpaceLifeForm on Tuesday, July 07 2009 @ 01:44 PM EDT
- Hot Off PACER: IBM has subpoenaed unXis - Authored by: Steve Martin on Tuesday, July 07 2009 @ 02:11 PM EDT
- AutoZone Settlement Totals $90,000 - Authored by: The Mad Hatter r on Tuesday, July 07 2009 @ 10:02 PM EDT
- Google + Dow Jones = Vampire 2.0 - Authored by: Anonymous on Wednesday, July 08 2009 @ 01:32 AM EDT
|
Authored by: josmith42 on Sunday, July 05 2009 @ 01:38 PM EDT |
If you have a comment to make about one of the news picks, you can put it here.
It would be nice if you include a link to the original article, since the news
picks run off the main page so quickly.
---
This comment was typed using the QWERTY keyboard layout. I used to use Dvorak,
but no longer :-([ Reply to This | # ]
|
|
Authored by: Anonymous on Sunday, July 05 2009 @ 02:55 PM EDT |
Who is on the hook for Autozone ? Are they responsible for their own systems, or
is there a warranty involved, so that this claim is actually a claim against
some 3rd party like an insurance company ?
And if there's a warranty, who sold it ?[ Reply to This | # ]
|
|
Authored by: Anonymous on Sunday, July 05 2009 @ 04:51 PM EDT |
With a big part of their claims having hit the rocks, and now waiting for rescue
via appeal and retrial (where betting odds are apparently in the eye of the
beholder), SCO could end up with the majority of their claims being breach of
contract.
AutoZone doesn't think there was any breach.
How likely is this to turn into an argument over what the contract really says?
What state laws apply to the contracts? Would it end up with a bench trial on
the interpretation preceding - or maybe precluding - a jury trial?
cpeterson
IANAL. IANAA,E.[ Reply to This | # ]
|
- Jury Demand - Authored by: PJ on Sunday, July 05 2009 @ 05:39 PM EDT
- Jury Demand - Authored by: PJ on Sunday, July 05 2009 @ 05:47 PM EDT
- Jury Demand - Authored by: Anonymous on Sunday, July 05 2009 @ 06:03 PM EDT
- Jury Demand - Authored by: Anonymous on Sunday, July 05 2009 @ 06:18 PM EDT
|
Authored by: sk43 on Sunday, July 05 2009 @ 06:03 PM EDT |
In its Revised Supplemental Response to IBM's 1st and 2nd Interrogatories dated
January 15, 2004, in supplemental response 8, SCO basically alleges many of the
facts that are now part of its Amended Complaint
link
"Upon information and belief,
AutoZone's new Linux based software implemented by IBM featured SCO's shared
libraries which had been stripped out of SCO's UNIX based OpenServer by IBM and
embedded inside AutoZone's Linux implementation in order to continue to allow
the continued operation of AutoZone's legacy applications. The basis for SCO's
belief is the precision and efficiency with which the migration to Linux
occurred, which suggests the use of shared libraries to run legacy applications
on Linux. Among other things, this was a breach of the AutoZone OpenServer
License Agreement for use of SCO software beyond the scope of the
license."
"Upon information and belief, AutoZone is currently in breach of
the AutoZone OpenServer License Agreement in that AutoZone is improperly using
"shared libraries" (short cuts and methods which allow programs to interface
with one another and the services of the operating system) contained in the
OpenServer (UNIX based) operating system to enable "legacy applications" to
function on Linux. Legacy applications are those versions of software
applications that have a lengthy and proven track record of high level function
and reliability. The legacy applications utilized by AutoZone were designed
specifically to operate with OpenServer (UNIX based) shared libraries, but do
not function with Linux shared libraries."
This allegation predates the
filing of the AutoZone lawsuit. So why was the Copyright claim not included in
the original lawsuit?
There is a very good reason. At the time it filed its
original complaint, SCO had not ever registered the copyright in OpenServer
5.0.5. It was first registered Aug 31, 2004, nearly 5 months after it filed its
original complaint against AutoZone. [Search www.copyright.gov for
TX0006008305.]
We wonder if Troy Keller ever conducted a "due dligence"
search for the OpenServer 5.0.5 copyright registration certificate during the
Santa Cruz => Caldera transaction:
link
.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Sunday, July 05 2009 @ 06:47 PM EDT |
1. As I understand, the files which are complained about are, for the most part,
libraries. Can these files even be usefully accessed or used on Linux?
2. Did not Autozone actually make the changeover to Linux quite openly, with not
only the acquiescence but also with the actual paid help (consulting) of
Caldera, the company which is now under a different name suing Autozone for
doing the conversion to Linux in which Caldera actively helped? [ Reply to This | # ]
|
|
Authored by: Anonymous on Sunday, July 05 2009 @ 07:48 PM EDT |
As I understand it, fraud is a knowing misrepresentation of a material fact with
the intent that the other party rely upon that misrepresentation.
This apears to be one.
What repeatedly caught my attention was the deliberate conflation of 'copyright'
and 'technology'. In general the mode of argument is this: in sentence one, the
writer says we own the XXX 'copyright'; in sentence two, the writer says they
used the XXX 'technology'; with sentence three saying therefore we have been
wronged.
This syllogism can only be true if ownership of 'technology' is a wholly
enclosed subset of ownership of 'copyright', which I understand not to be true,
indeed to be generally false. That is, 'copyright' grants ownership of a
specific expression, it does not grant any ownership right to underlying
knowledge. 'Technology' can only be owned by patent.
This is almost not new. As I recall, in the IBM litigation NewSCO made similar
claims to ownership of technology, but with the distinction that their claim was
founded in a contract provision, not copyright.
What makes this appear to be a fraud on the court are the missing paragraphs
that should say: the following case law supports our position that ownership of
the copyrights gives us ownership of the technology, or: notwithstanding the
lack of case law we claim that.... To >silently< make that claim is to
knowingly misrepresent the law for the wrongful purpose of inducing a judicial
error.
If I am remembering the IBM case correctly, the basing of the equivalent issue
in that case on contract law (vice copyright) would appear to be evidence that
this motion's misrepresentations are knowing and deliberate.
I Am Not A Lawyer, I Don't Even Play One On TV.
JG
[ Reply to This | # ]
|
|
Authored by: jbb on Monday, July 06 2009 @ 12:15 AM EDT |
Could it be that by amending their complaint SCO is able to keep getting
the
services of BS&F (in the Autozone case) without having to pay BS&F
more
money? I don't remember the details of the contract.
--- You just
can't win with DRM. [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 06 2009 @ 12:43 AM EDT |
SCO can pay the defendant attorney fees for the previous charges and file a new
case.
[ Reply to This | # ]
|
|
Authored by: Tufty on Monday, July 06 2009 @ 12:50 AM EDT |
My take on this (IANAL so likely am wrong) is that they are angling for the use
of Linux to be declared illegal, a stick they can use to beat others. Or rather
their masters can use to beat others.
Tufty
---
Linux powered squirrel.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 06 2009 @ 07:55 AM EDT |
"...someone is making them do it."
Would a legal firm which is already running in the red on this case encourage
the client as the only possible way of getting any payoff, looking at things
with purely legal eyes, instead of recommending calling it quits and cutting
losses?
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 06 2009 @ 02:14 PM EDT |
How can they keep throwing out statements with absolutely no foundation as the
basis for their claims? Can't the judge say "Stop... no further claims or
argument until you provide back that up with some fact".
First, claiming damages "...to compensate SCO for damages it has sustained
as result of AutoZone's unlawful use of Linux and to enjoin AutoZone's further
unlawful use of Linux."
Ok... their claim is that Autozone used copyrighted *Openserver Libraries* in
their migration. How does that make Linux use "unlawful"? Use of the
libraries unlawful perhaps, but Linux? SCO has no rights to Linux. They pull
"unlawful out of thin air, and want damages for it. And they want to
prevent them from ever using Linux again EVEN THOUGH THE LIBRARIES HAVE BEEN
REMOVED!
Then they complain Autozone "...conducted its migration to Linux in an ad
hoc manner through developers who had worked and were familiar with SCO's
proprietary OpenServer code and related products, with no formal controls in
place to protect those materials."
A complete strawman, built entirely from thin air. A programmer, working with
code from multiple sources, would be expected to have controls in place to know
what code goes where. But an IT tech, working on a migration from one (legally
licensed) platform to another, would not normally have any issue there, and no
reason to think about it. (Especially since one platform is going away...) SCO
is (once again) conflating copyrights to include methods, concepts and other
non-copyrightable bits, then claiming they've been injured by someone violating
their non-existent version of "the law".
And this one... "AutoZone's breach of its contractual obligations worked
damage upon SCO, including by depriving SCO of the licensing fees that AutoZone
was required to pay SCO for each copy and installation of OpenServer and related
materials."
HUH? Seems Autozone claims they *HAD* those licenses, and so had *already paid*
those fees. So how does that breach a contract? And how does it damage SCO?
It seems SCO would have us believe that once you contract with them, you can
never leave. That the "breach of contract" is simply migrating Linux,
and that by virtue of said breach, Linux itself is now unlawful. More thin
air...
SCO Tailors: purveyors of fine attire for discerning emperors anywhere.[ Reply to This | # ]
|
|
Authored by: DMF on Monday, July 06 2009 @ 04:41 PM EDT |
When can we expect to see that? (I can already hear the sarcasm dripping from
here.)
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 06 2009 @ 09:32 PM EDT |
I suspect the copyright infringement they are trying to claim (seems like an
awfully long time to wait, to me) is in some way related to OpenServer,
considering what you said in that part of the article, PJ, though I may be wrong
about this.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 06 2009 @ 10:59 PM EDT |
I see they claim to have registered copyrights for various flavors
of Unix SVRX. Now I understand that is a derivative work, and it
doesn't matter that the code was written by Pharoah's Army
and Others. But how were those copyrights SCO's to register?
From Kimball's PSJ 10 August 2007:
CONCLUSION
For the reasons stated above, the court concludes that Novell is the
owner of the UNIX and UnixWare copyrights. Therefore, SCO’s First
Claim for Relief for slander of title and Third Claim for Relief for specific
performance are dismissed, as are the copyright ownership portions
of SCO’s Fifth Claim for Relief for unfair competition [...]
Please, why are we relitigating the wheel?[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, July 07 2009 @ 02:40 AM EDT |
PJ,
You say that this is somehow an extraordinary case, and then in effect the
Courts are not set up to deal with people gaming the system. There is no
better system, you say, one that can both offer broad access to remedy and
protect fully against abuse. Then in the comments you say that a colleague
told you he started off believing every word a client told him, 20 years later
believing nothing told to him.
I have to respectfully submit that this shows cognitive dissonance on your
part. In fully most cases that I have seen in my Career in Engineering,
someone is gaming the system to take advantage of someone else's work and
IP. Some of my friends have been nearly bankrupted by such contrived suits,
forced to sell the company they build with their own hands and loved. The
legal system is Just another attempt by fallible humans to create something to
solve a problem that has morphed (probably immediately upon it's creation)
into just another Dangerous weapon to be wielded by anyone wanting to try a
shakedown against someone else using it's flaws.
I'm not advocating anarchy, just pointing out that patents, copyrights,
courts and governments are all part of a huge system that is exploitable.
Just as any huge system is. My feeling is that it is more often exploited
as opposed to used for legitimate redress.[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, July 07 2009 @ 04:47 AM EDT |
Reading the complaint, it does seem plausible that Autozone might have
inadvertently used executables that had been linked against static libraries
belonging to SCO. Note, I don't know whether they did or not, I just find it
plausible that they might have.
But if they did, they certainly
stopped doing it, and converted/rebuilt the executables, as soon as it came to
their attention. So what's the maximum possible damage to SCO? License fees for
a part of their library for a few years?
Wouldn't that be less than the
cost of bringing the lawsuit?
Since it was surely inadvertent, penalties
beyond actual damages do not apply.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, July 07 2009 @ 09:44 AM EDT |
It appears that SCO is basing most of it's new stuff on its agreements with
AutoZone yet has not filed the Agreements as Exhibits, I suspect that they are
taking statements out of context. Without the actual agreements who can tell? [ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, July 07 2009 @ 10:32 AM EDT |
Much of SCO's case seems to depend on these two programs, licensed from unnamed
third parties. For the last few days I have noodled around the Internet
(including usenet sco archives) for any relevant mention of a these programs. I
have found nothing useful. My search skills are probably to blame.
Does anyone here have any idea where they might have come from? By the name they
would seem to be some kind of compression and decompression program.[ Reply to This | # ]
|
- Compx and Decompx - Authored by: alansz on Tuesday, July 07 2009 @ 11:15 AM EDT
- Compx and Decompx - Authored by: sk43 on Tuesday, July 07 2009 @ 05:44 PM EDT
- And what SCO code? - Authored by: Anonymous on Tuesday, July 07 2009 @ 06:17 PM EDT
- And what SCO code? - Authored by: Anonymous on Tuesday, July 07 2009 @ 06:44 PM EDT
- iBCS2 - Authored by: Anonymous on Tuesday, July 07 2009 @ 08:33 PM EDT
- iBCS2 - Authored by: Anonymous on Tuesday, July 07 2009 @ 11:59 PM EDT
- iBCS2 - Authored by: Anonymous on Wednesday, July 08 2009 @ 02:36 PM EDT
|
Authored by: The Mad Hatter r on Tuesday, July 07 2009 @ 09:59 PM EDT |
This has nothing to do with TSCOG but:SACRAMENTO - The California
Air Resources Board reached a settlement with AutoZone West, Inc. for
$90,000 in March for selling non certified aftermarket catalytic converters
from AutoZone stores in California.
--- Wayne
http://crankyoldnutcase.blogspot.com/
[ Reply to This | # ]
|
|
|
|
|