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Merit Of SCO's Lawsuits Against AutoZone, DaimlerChrysler Questioned

SCO details charges while critics -- including Linus Torvalds and attorneys -- question the validity of the suits.
SCO Wednesday launched copyright infringement and contractual violation claims against two Linux end users -- AutoZone and DaimlerChrysler -- but the strength of those allegations remains unclear.

On Tuesday, the Lindon, Utah, Unix company filed a copyright infringement claim against Memphis-based AutoZone, a Linux user and former SCO customer, for allegedly using one or more versions of Linux that infringe on SCO's rights to Unix System V.

AutoZone was previously identified in SCO's legal case against IBM filed last March. In that filing, SCO claimed the auto part supplier was in breach of its OpenServer License Agreement for allegedly using OpenServer shared libraries to permit legacy applications to run on Linux.

According to the eight-page lawsuit filed at the United States District Court in Nevada, SCO is now suing AutoZone directly and seeking damages for broad copyright infringement of SCO-owned documentation, manuals and "protected expression of code, structure, sequence and/or organization in many categories of Unix System V functionality."

"Defendant uses one or more versions of the Linux operating system that infringe on SCO's exclusive rights in its proprietary Unix System V operating system technology," the lawsuit claims. "Parts or all of the copyrighted material has been copied or otherwise improperly used as a basis for creation of derivative work software code, including one or more Linux implementations, including Linux versions 2.4 and 2.6, without the permission of SCO."

According to the filing, AutoZone infringed upon Unix System V code including System V static and dynamic shared libraries, inter-processor mechanisms including semaphores, message queues, shared memory, reliable signal processing, the System V system switch interfaces, virtual file system capabilities, process scheduling classes, including real-time support, asynchronrous input and output , file system quotas, support for Lightweight Processes (kernel threads), user-level threads and loadable-kernel modules."

During a conference call Wednesday, SCO CEO Darl McBride dismissed suggestions from opponents -- including Linux creator Linus Torvalds -- that the end-user lawsuit is based simply on AutoZone's old Unix licensing contracts with SCO, and not serious copyright infringement claims.

"The case is not specific to SCO's shared libraries [as some] mentioned," said McBride, under intense questioning during the conference call. The code in question is based on "structural components that tie to pieces inside Linux," he added. "This case is very general to anyone using the operating system."

Still, McBride declined to discuss the broader copyright infringement issues related to Linux 2.4/Linux 2.6 mentioned in the lawsuit. Instead, he and other SCO attorneys declined to be specific and cited an order by the court magistrate not to discuss the exact code in question.

SCO confirmed that AutoZone was a former customer but it's unclear which version of Linux will be under the legal microscope when this case is heard -- if at all -- in a Nevada courtroom. AutoZone, for instance, was once a SCO customer and a Red Hat customer. SCO confirmed its past relationship with AutoZone. Red Hat confirmed a past relationship with AutoZone, but noted the auto-parts supplier is no longer a paying customer.

While the Unix company insists it will prove its allegations in court, one open source leader said the copyright claims against the end user are unjustified.

"They seem to be reiterating those [shared] library issues," said Linux creator Linus Torvalds. "And then they go crazy and claim to own the notion of things like kernel threads."

SCO also announced on Wednesday the filing of a lawsuit against another Linux end user -- DaimlerChrysler Corporation -- for its alleged violations of its Unix software agreement with SCO. The suit was filed in the Oakland County Circuit Court in Michigan.

Under questioning, however, SCO executives freely admitted that the company is suing the automobile giant because it hadn't yet certified its compliance with its Unix System V contract with SCO -- not because it had any proof that DaimlerChrysler in any way, violated the contract.

"It's separate from [the IBM] litigation. The requirement in our agreement with DaimlerChrysler is that they certify to us they're living up to the obligations in the agreement. We have many companies that have fulfilled [the requirement]," McBride said. "You need to confirm [compliance] one way or another."

One IP attorney said the charges are vague but will be played out in the courtroom and in the open-source community.

"This is the first concrete suit against an end user. They're not getting anywhere from IBM so they had to sue someone," said Philip Albert, partner in Townsend and Townsend and Crew, in San Francisco. "SCO is saying anyone who has Linux owes us a royalty. There is granted, some uncertainty, because they never said what they were asserting as what code it is being copied and whether or not they have copyright to it, but there seems to be credible defenses [against SCO's claims] by the open-source community."

SCO said Novell's challenge to its copyright ownership will not interfere with this case. However, at least one IP attorney disagreed.

"The problem is that Novell has disputed that the copyrights were transferred to SCO. Without that copyright, SCO may only bring suit under the licenses which SCO purchased from Novell under the Asset Purchase Agreement," said Mark F. Radcliffe, an attorney with Gray Cary Ware & Freidenrich, Palo Alto, Calif. "The ownership issue may prove a powerful defense for AutoZone and will probably prevent the issuance of a preliminary injunction."

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