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Here Come the Australians -- A Second Complaint Filed
Thursday, February 19 2004 @ 04:43 PM EST

As you know, a complaint against SCO was filed last summer in Australia with the Australian Competition and Consumer Commission (ACCC) by Open Source Victoria (OSV), and now comes news that a second complaint has been filed by them. CRN has a statement from OSV:

"In a statement issued on Thursday, OSV said: "'SCO’s press release, and representations made on SCO’s website, raise a number of issues of concern for OSV, because SCO appears to be saying some of SCO’s existing licences are not effective.

"'If SCO’s initial licence grants were not effective, both the initial takers and anyone to whom they have on supplied the kernel could be affected. . . .

"'Any such uncontested reversal of the previously stipulated licence has the potential to be very damaging both to consumers and to businesses who acquired the kernel from SCO for the purpose of on supply.'"


The first complaint asked for an investigation into SCO's "unsubstantiated claims and extortive legal threats for money”. At the time of the first complaint, a spokesman for OSV said:

"'They're basically saying "you owe us money". But if someone asks "why do I owe you money", they reply, "we can't tell you why, but you have to pay us anyway",' he said."

Now they have added new allegations in the complaint filed last week.

The second complaint alleges that SCO may be “making a false or misleading representation ... that people who have already acquired a licence for Linux from SCO are required to acquire an additional licence”:

"It goes on to allege that SCO 'made a false or misleading representation ... in that ... when [it] granted licences over Linux in the past it wrongly stated the scope of rights granted under the licence.'

"OSV member, Con Zymaris, said that SCO’s claims were 'bogus'. 'They were shipping the full Linux kernel with the full general public licence [GPL] in December last year,' he said.

"OSV states in its complaint that the GPL requires the disclosure of the source code of the Linux operating system. 'SCO can’t renege on that agreement by claiming a new licence,' Zymaris said."

A Groklaw reader informs me that he too contacted the ACC and received a letter back, saying in part this:

"This matter raises a number of complex issues involving the interaction of intellectual property rights and the provisions of the Trade Practices Act that cover misleading and deceptive conduct.  At this stage the matter is being evaluated by the ACCC and a decision has not been made as to what, if any, further action might be taken.

"You may be contacted at a later date in relation to this issue."

CyberKnights, an Australian consulting company wrote to SCO in January, threatening legal action. Director Leon Brooks was quoted at the time as saying that it was time to bring things to an end:

"'As a director of CyberKnights, I personally know and trust several contributors to the Linux kernel, including the original author, Linus Torvalds. As of three days ago, Linus told me that he knows of no substantial code in his Linux kernel source code tree which could possibly be subject to ownership claims by The SCO Group.'

"Brooks said that several people at last week's Adelaide conference on the use of open source software in government had indicated that they were holding off on adoption or testing of software of this genre for public sector use until the case which SCO has filed against IBM is resolved.

"'So it is incorrect to say that all this talk has had no effect. Surveys may have been done and come up with the conclusion that the case has had no effect on Linux adoption but they are wrong - they asked the wrong questions of the wrong people,' he said.

"Brooks said he would first go to the ACCC if SCO did not reply to his letter by February 1. 'If that does not resolve things, I will take advice from my lawyers about direct legal action,' he said. 'This thing has gone on too long; someone has to bell the cat.'"

A second letter was sent on February 2 asking that SCO provide specifics:

"'If you know that . . . I'm using any of your code, copyrighted material, patented processes or anything of the kinds, please send me an invoice for those but only if you can accompany the invoice with precise specification of the rights you can prove are being used.'"

ZDNet has more:

"'SCO has already licensed different versions of the Linux kernel to consumers and resellers and now appears to be saying those licenses are not effective according to their plain terms,' said OSV member Brendan Scott. He pointed out the complaint put to the ACCC is not dependent on whether SCO's claims of copyright infringement are legally proven, and the ACCC can therefore act without waiting for the outcome of the court cases.

"OSV said it had expressed the view that if SCO had previously offered to license versions 2.2 and 2.4 of the Linux kernel on the terms of the general public licence -- which grants the licensee specific rights with regards to supplying the software to another party -- then:

"SCO should be required to be held to those licence terms in respect of existing licensees. Those licences should be declared to be valid and effective. . . .

"Where a consumer acquired a copy of the relevant Linux kernels from SCO prior to the commencement of SCO's SCOSource initiative, then that consumer should be entitled to the grant of a licence by SCO on terms which are of the same effect as the GPL.

"Any marketing conducted by SCO in relation to its SCOSource initiative should explicitly state that existing licensees of OpenLinux and SCOLinux products are not required to acquire any additional licences and that such existing licences are valid and enforceable according to their terms.

"SCO should correct its existing advertisements and advertise those corrections."

 


  


Here Come the Australians -- A Second Complaint Filed | 153 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Here Come the Australians -- A Second Complaint Filed
Authored by: gnutechguy99 on Thursday, February 19 2004 @ 05:23 PM EST
Will the ACCC in Australia act faster then the courts in the US?

[ Reply to This | # ]

Here Come the Australians -- A Second Complaint Filed
Authored by: rand on Thursday, February 19 2004 @ 05:24 PM EST
I'm almost ashamed to be A Merkin; furriners seem to get this legal stuff lots
faster than us Yanks.

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

Here Come the Australians -- A Second Complaint Filed
Authored by: Nick_UK on Thursday, February 19 2004 @ 05:25 PM EST
I knew there was reason for us Limeys to send criminals to Australia all those
years ago!

Go on yer Oz!

Nick :)

[ Reply to This | # ]

Actually...
Authored by: badqat on Thursday, February 19 2004 @ 05:40 PM EST
...the argument makes a lot of sense, especially to anyone who winds up in court
with SCOX (unlikely), of course, not considering the very fact that SCOX need to
settle their difference with Novell first.

Just imagine how SCO will have to spin in court how they sue any end user
utilizing Caldera or United Unix...not pretty ;)!

[ Reply to This | # ]

Seeking reference to claim that letters are in effect invoices
Authored by: gdt on Thursday, February 19 2004 @ 05:42 PM EST

Nice letter Con.

There was a quote in the trade press from Kieran O'Shaughnessy stating that the letters SCO Australia were sending to Australian companies were, in effect, invoices. That's sure to impress the ACCC. Does anyone have a reference?

[ Reply to This | # ]

American OS Organizations
Authored by: kberrien on Thursday, February 19 2004 @ 06:16 PM EST
Can we list out the American OS organizations, and what they have done regarding
SCO?

Why is it foreign organizations have the stomach to bring forward legitimate
questions to the proper authorities (Germany, Czh, Spain?, Autrailia) while
American organizations offer legal theories and nothing else? I can understand
parties involved in litigation are quiet, but OS think tanks, advocacy or
lobbying groups ought to be standing up regarding SCO.

[ Reply to This | # ]

Descendents of SCO's distributions are GPL'd
Authored by: Thomas Frayne on Thursday, February 19 2004 @ 06:23 PM EST
By terms of the GPL, anyone who receives a GPL'd distribution from SCO can
modify and distribute it. The children, and grandchildren, and so on, of an SCO
distribution are also GPL'd.

Anyone who receives one of these descendents has a GPL license from SCO.

[ Reply to This | # ]

Anonymous posts may have to go
Authored by: jmc on Thursday, February 19 2004 @ 06:25 PM EST
If these idiots have decided to attack Groklaw with their spewage.

Probably upset a spammer or some such bottom-feeder.

(sigh).

[ Reply to This | # ]

OT but still worth the read
Authored by: pfusco on Thursday, February 19 2004 @ 06:32 PM EST
Here is a very interesting article

http://www.theregister.co.uk/content/4/35689.html

---
only the soul matters in the end

[ Reply to This | # ]

Here Come the Australians -- A Second Complaint Filed
Authored by: Anonymous on Thursday, February 19 2004 @ 06:47 PM EST
It is a bit of a technical argument which doesn't come across as all that
exciting in the media, but this is very serious for SCO. It is a pretty
fundamental principle that once a deal is done and a contract is signed, you
cannot go back and try to change its terms and try to charge a second fee.

SCO is going to have to invalidate its own contract to prevent the court from
enforcing the strict letter of the GPL on SCO linux; very hard for them to
argue, since they continue to use the GPL! And SCOs version of linux includes
the kernel and all files claimed by SCO in the IBM case. Under the letter of the
GPL a SCO linux owner is quite free to pass these on to whoever they like. It
doesn't help the IBM case, but it pretty effectively kills `scosource'.

We'd all love to see SCO brought up on charges of fraud and extortion because
they deserve it. However this less exciting technical charge has a much greater
chance of success, and would quickly put SCO into an impossible situation. The
Aussies have picked their battleground pretty effectively. Yet another legal
argument which SCO just cannot afford to lose.

[ Reply to This | # ]

Here Comes Summer...OT minor niggle.
Authored by: Anonymous on Thursday, February 19 2004 @ 06:57 PM EST
Just which summer do you mean by "last summer"? Do you mean the last
Australian summer or the last northern hemisphere summer? Just for reference, it
is actually summer in the Southern hemisphere right now, although you wouldn't
think so if you saw the amount of rain we have had in NZ this week. Pays to use
less ambiguous time markers on a global list.



[ Reply to This | # ]

OT - THE SCO NAME
Authored by: Anonymous on Thursday, February 19 2004 @ 07:05 PM EST
The sco name is already being use to describe other ip based legal issues...
Pretty Funny.

From CNET

"When it comes to VoiceXML, developers are not entering this
risk-free," said Dan Miller, an analyst with the Zelos Group in San
Francisco. "There's always the chance that the originators are going to
pull an SCO on them."

http://news.com.com/2100-1032_3-5162070.html?tag=nefd_lede

Here's the full read so you find out how important the software patent battle
has become... Open sources users, supports and developer should start to pay
attention to patents because when it is all said and done the sco group really
does not mean much. When companies like IBM, MS, APPLE have collectively over
10000+ patents. And smaller companies that don't even invent or sell anything
gets a patent and sits on it until someone tries to sell an infringing product.
Just look at the case history. Eolas, British Telcom, SBC Corp.. SBC claimed to
have a patent on framed pages, part of the HTML 3.0 specifications, British
Telcom claimed they have a patent on the hyperlink. Sued Progigy what a joke.
Eolas, a one man show that claims to have invented the browser plugin
technology. Sounds to me like he looked at some of the newest technology,
applied for a patent and sat on it.. They, Eolas, never produced one line of
code as far as I know. You don't have to to aquire a patent. So the patent is
broad and covers all aspects of the invention.

Additionally, if the University of California, developed that patent on state
property, state and taxpayer funded shouldn't that patent be owned by the people
of california. I mean they used, again, public monies, for research and
development, no matter how you look at it, it's publc monies. So here the
taxpayer of Cal made the one man show at Eolas a rich man with a 531 million
dollar verdict. Something seem wholly unfair about that............

Now emerging technologies, are patented.! Try to open source you way around
that. Copyright allow you to create something similar, with a patent claim you
can't even touch that.

So VoiceXML, open source locked out.

Here is an example of how bad it has gotten. Most electricians pull cable to
make runs in a building.. There are many different method used to do the task,
except if you blow cable down conduit instead of any of the other methods you
run afoul of one company's patent.... So no one on the planet, countries which
repects our ip laws, can blow cable down a conduit, commerical use or not...
That's pretty lame.

PJ and the group great job and thank you for all of the hard work and labor that
you have put into this..

After the fiaSCO maybe the groklaw community could focus on other important
issues that need attention before they become the next fiaSCO....

[ Reply to This | # ]

Uh ... would this work?
Authored by: Tomas on Thursday, February 19 2004 @ 07:29 PM EST
Just a thought from a non-Linux user (sorry, I'm BSD UNIX).

Is there enough commonality between the files specifically listed by SCO to be
infringing in copies of Linux not released by SCO and those same files in the
version(s) of Linux released on a continuing basis by SCO on it's publicly
accessible servers for someone to simply download the GPL'd SCO versions from
SCO's servers and distribute those "legitimate" files for use in all
the other flavors? *

(I suspect those particular files are actually identical between recent flavors,
and right up front, near the start of the SCO/IBM case, they said users of their
flavor were NOT doing anything wrong ... )

Now with those fine folks in OZ again poking at the seams of the GPL'd SCO Linux
releases, can't "we" just distribute SCOs "clean" version of
those files to "the world" so everyone else is "clean,"
too.

(Please excuse me while I go wash up - trying to think like an SCO being not
only makes me ill, but makes me feel somehow dirty.)

* Sorry for that hideous run-on sentence, but I did the best I could.

---
--
Tom
en.gin.eer en-ji-nir n 1: a mechanism for converting caffeine into designs.

[ Reply to This | # ]

Go get 'em Aussies
Authored by: Night Flyer on Thursday, February 19 2004 @ 07:44 PM EST
I appreciate the direct approach of the Aussies.

Those that got the Linux from SCO, based on the GPL license,
especially after SCO started SCOsource, have a legitimate complaint
dis-irregardless of ownership on UNIX copyrights and contract disputes with
IBM.

I have trouble with companies that change the conditions of sale after the fact.


Sort of like buying a car and having the car company say, "We decided to
void your warranty and, by the way, there is an invoice in the mail for a new
warranty, which you have to pay, or we will take you to court and force you to
pay."


-------------------

My Clan Motto: Veritas Vincit: Truth Conquers

[ Reply to This | # ]

Some more clue showing in Oz...
Authored by: Jude on Thursday, February 19 2004 @ 08:11 PM EST
PERSP ECTIVES: 2003: On the record; off the mark

Robert McMillan of Infoworld comments on some of 2003's most memorable wrong statements.
Guess who takes first place?

[ Reply to This | # ]

ACCC...
Authored by: radix2 on Thursday, February 19 2004 @ 09:29 PM EST
If this complaint was made 12 months ago, the then leader of the ACCC would have
acted very quickly and positively. I'm not saying that the new head of the ACCC
will not do the same, but the ACCC has in general been very quiet since this
change in leadership and us such I'm uncertain if we see anything happen as
quickly as it would.

I hope I'm very wrong though :o)

[ Reply to This | # ]

  • ACCC... - Authored by: Anonymous on Thursday, February 19 2004 @ 11:00 PM EST
Here Come the Australians -- A Second Complaint Filed
Authored by: Anonymous on Friday, February 20 2004 @ 12:46 AM EST
SCO must be feeling like the Indian cricket team

[ Reply to This | # ]

Here Come the Australians -- A Second Complaint Filed
Authored by: Anonymous on Friday, February 20 2004 @ 02:09 AM EST
I wonder if SAMs publishing should jump in as well. I bought the second edition
of "Teach yourself Linux in 24hrs" It comes with Caldera Linux
2.2...............

[ Reply to This | # ]

OT: SCO's legal notice on their FTP server
Authored by: theskilf on Friday, February 20 2004 @ 08:38 AM EST
I just saw this when connecting to SCO's FTP server. They have a legal notice up ( I don't know for how long it's been there though)

NOTICE:  SCO has suspended
new sales and distribution of SCO Linux until the intellectual property issues
surrounding Linux are resolved. SCO will, however, continue to support existing
SCO Linux and Caldera OpenLinux customers consistent with existing contractual
obligations. SCO offers at no extra charge to its existing Linux customers a SCO
UNIX IP license for their use of prior SCO or Caldera distributions of Linux in
binary format.  The license also covers binary use of support updates
distributed to them by SCO.  This SCO license balances SCO's need to enforce its
intellectual property rights against the practical needs of existing customers
in the marketplace.

The Linux rpms available on SCO's ftp site are offered for
download to existing customers of SCO Linux, Caldera OpenLinux or SCO UnixWare
with LKP, in order to honor SCO's support obligations to such
customers.

[ Reply to This | # ]

Here Come the Australians -- A Second Complaint Filed
Authored by: Anonymous on Friday, February 20 2004 @ 01:01 PM EST
Personaly I think the real thrust of most of what is going on with them is to
have legal argument about the validity of the GPL and to either kill it or break
it.

If they succeded in this it would make a certain OS company very happy, nudge
nudge wink wink Know what I mean.

waltish from OZ

[ Reply to This | # ]

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