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The Status in Australia
Saturday, May 21 2005 @ 11:08 AM EDT

Recently, SCO spokesman Blake Stowell mentioned some legal matters in Australia, and indicated that they had been resolved:

"About two years ago, there was some initial legal activity in Germany and in Australia," said SCO spokesman Blake Stowell. "Because of that, for about the last six quarters or so, we have put those exact words in our quarterly SEC filings."

Both cases involved SCO's ability to make public comments about Linux, Stowell said. "In Germany there were some temporary restraining orders, that prohibited SCO from talking about Linux issues within Germany," he said. The Australian case involved an unspecified open-source organization, which was seeking similar restraints.

Neither case is currently active, according to Stowell. "To my knowledge, I believe they're resolved," he said.

Groklaw has already published its research findings, SCO's recent quarterlies, which show that Mr. Stowell is mistaken and that the exact wording did not appear in the prior 6 quarterlies.

And here is what the curent status is in Australia. I contacted Con Zymaris of Open Source Victoria, because they filed the two [PDF] different complaints regarding SCOsource with the Australian Competition and Consumer Commission (ACCC). "Neither of them have been 'settled'", Zymaris told me. The ACCC's official position is that this case is very complex and that they can't take action until the SCO vs. IBM case is settled."

However, in the interim, if SCO tries to sue or bill anyone for using Linux or tries to sell a SCOsource license by sending a demand or an invoice, the ACCC wants to know about it. So, it's "resolved" only if SCO doesn't go forward in Australia with a SCOsource push. Perhaps that is what Mr. Stowell meant, that the company will not aggressively pursue anyone in Australia. Alternatively, if they are dreaming of a SCO v. IBM victory, after which they will feel free to go forward, then would it not be misleading to say the matter is "resolved"?

Here's an excerpt from the ACCA letter to the Society of Linux Professionals WA (SLPWA) on their current position:

The Commission has been monitoring SCO's actions in Australia and developments in the ongoing case in the United States between the SCO Group and IBM.

Given the current court case in the United States of America and that to the best of the Commission's knowledge no Australian Linux users have been invoiced by SCO or had legal proceedings instituted against them by SCO, the Commission proposes to await the outcome of the American proceedings.

In the interim period, should the Commission become aware of any Australian Linux users being invoiced or directly contacted by SCO with demands of payment, the Commission would be likely to reconsider its position.

SLPWA encourages anyone receiving such, to contact the ACCA and the SLPWA attorney:

SLPWA also encourages any Linux user who is subject to demands from SCO or receives an invoice from SCO purporting to licence the Linux operating system to contact Jeremy Malcolm; SLPWA Vice President and a lawyer with a special interest in intellectual property law and it's application to Open Source Software.

Mr. Malcolm, who is a lawyer and a Debian developer, has written a paper on SCO's claims. And here is Open Source Industry Australia, the national industry body for Open Source in Australia. Contact information to file a complaint with the ACCA, should you ever be contacted by SCO or sued by them, here. UPDATE: Media coverage here.


  


The Status in Australia | 117 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here
Authored by: sandelaphon on Saturday, May 21 2005 @ 11:10 AM EDT
Just a bunch of mixed nuts


---
I hate sigs!

[ Reply to This | # ]

Corrections here
Authored by: sandelaphon on Saturday, May 21 2005 @ 11:12 AM EDT
becuase teh mistaks shoudl eb esay ot ifnd.

---
I hate sigs!

[ Reply to This | # ]

They should keep their mouth shut.
Authored by: Stumbles on Saturday, May 21 2005 @ 11:33 AM EDT
This has really got to irritate the folks at TSG. They cannot hardly utter
a word without it being disected and anlayzed indepth.

Serves them right though. Had they been forthcoming with their
evidence, not attempted to manipulate the media, not declared
copyright law invalid and not changed their story 3 + times now. They
might have gotten away with this innocent statement.

As it stands everything thing they say and do demands a microscopic
analysis.

Keep up the good work PJ.



---
You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

The Status in Germany?
Authored by: Anonymous on Saturday, May 21 2005 @ 11:42 AM EDT
What have we heard about Germany? Any progress on that briefcase? What company
did Mr. B work for, anyhow?

[ Reply to This | # ]

The Status in Australia
Authored by: urzumph on Saturday, May 21 2005 @ 11:47 AM EDT
"To my knowledge, I believe they're resolved,"

One could argue if they never intend to sue / charge Australians, the issue _is_
resolved. That's probably reading too much into it.

[ Reply to This | # ]

The Status in Australia
Authored by: Bill The Cat on Saturday, May 21 2005 @ 12:06 PM EDT
The Australian case involved an unspecified open-source organization...

I would hardly categorize Open Source Victoria, who filed the case with the Australian Competition and Consumer Commission (ACCC) as "unspecified."

---
Bill Catz

[ Reply to This | # ]

The Status in Germany
Authored by: haegarth on Saturday, May 21 2005 @ 12:55 PM EDT
Even if SCO were to prevail in their IBM case, unlikely as that may be, in
Germany they are still bound to that preliminary injunction the have signed,
which they could only overcome if they offered some proof.

German judges are unlikely to just adopt a decision by a foreign judge, so SCO
would have to convince them in a seperate German case.

I have my doubts whether they have the means to do so. Still, since both SCO and
IBM are international companies with dependencies in Germany, I wonder what
would happen.

Anyway, if they lose the American case, they would hardly have any money left to
try something similar again in any other country, would they?



---
MS holds the patent on FUD, and SCO is its licensee....

[ Reply to This | # ]

Dear Linux User
Authored by: Anonymous on Saturday, May 21 2005 @ 02:13 PM EDT
In the interim period, should the Commission become aware of any Australian Linux users being invoiced or directly contacted by SCO with demands of payment, the Commission would be likely to reconsider its position.

Well this letter: Dear Linux User is still on their website. Although clearly aimed at an American audience, a lot of it is applicable to Australia (copyright infringement). There is also a subtle indication that the problem might be resolved by the exchange of money.

I have asked SCO if I can use the stated files as I have a paid for copy of Caldera Linux. No reply so far after 7 weeks.

Alan(UK)

[ Reply to This | # ]

the techweb article is misleading
Authored by: Anonymous on Saturday, May 21 2005 @ 06:05 PM EDT
having read the techweb article a couple times: i believe that "those exact
words" are the reference to SEC investigation, not a reference to the legal
actions in australia.

stowell's still being disingenuous at best when he talks about the legal
activity in australia, but let's not be incorrectly critical.

[ Reply to This | # ]

Triple Damages
Authored by: janolder on Sunday, May 22 2005 @ 01:26 AM EDT
It is worth noting that U.S. patent attorneys counsel engineers to never read patents because doing so will incur a triple damage penalty. I've witnessed that first hand.

So while Mr. Malcolm's suggestion to open source developers to do patent searches may be valid advice, it may not be a good idea in the States.

Another issue is that there are so many software patents of questionable enforcability that doing a patent search doesn't necessarily yield any useful information.

IANAL and your mileage will vary.

[ Reply to This | # ]

  • Triple Damages - Authored by: Anonymous on Sunday, May 22 2005 @ 07:36 AM EDT
Licensing status in Germany: SCO's answer
Authored by: worst-case on Sunday, May 22 2005 @ 05:32 AM EDT

Some weeks ago in april I called the german SCO office and aksed about condtions buying a Linux license being a private home user. They told me there was no such thing. I was surprised and told him, I was quite sure about it because of the the uproar in the media. He repeated that they offer no Linux license at all.

Later I insisted by mail and ponted him to http://www.sco.com/scosource/license_program.html

His answer (translated):

As you certainly know in germany there are several restaining orders which do not allow us to comment on that subject. The page you named aims at commercial linux users. In germany we do not offer the IP Licence at this time.

This was 21. April 2005. I canot see what might have changed here since then.

[ Reply to This | # ]

"User Friendly" cartoon about SCO
Authored by: seraph_jeffery on Sunday, May 22 2005 @ 05:51 AM EDT
Umm... off topic, sort of.
This is a link to a "User Friendly" cartoon
that's somewhat entertaining:

Best thing to happen to Linux

[ Reply to This | # ]

The Status in Australia
Authored by: Gerhard on Sunday, May 22 2005 @ 03:50 PM EDT
In essence I was wondering whether SCO might try to pull the SCO-Source card in Germany, and what would happen if they did, in our legal system, that is.

Well, given the facts, i.e. it is well know in the relevant market and sufficiently documented through press releases, that SCO/Caldera/TSCOG management was well aware of IBM intentions and the level/details of connections between UNIX and Linux right before Caldera acquired "certain assets" from real SCO. In addition, since about mid 2003 anybody caring at all knows that TSCOG not only can not prove any contract violation by IBM, but their management is obviously well aware of that fact - otherwise, they would not behave the way they do.

Thus, the only issue that is worth further discussion is about lawyers tactics and legal procedures. And, kudos to PJ, preparing proper, easy to access, real public documentation.

There is a basic rule on how to succeed with malicious false accusations like the ones spread by TSCOG management: In any case: make sure to keep control of the whole process in order to do so, you have to attack first. That is what TSCOG did in the US, but failed to do in Germany - thus they lost and can not successfully start again.

It would be a pity if IBM would not finish the destruction of TSCOG (xref GvG in MS vs Symicron-Explorer if you are net yet aware why they might do so and how that even works in Germany - not that I would expect IBM to act like that), but one would have to change the passed history of Linux for TSCOG to have a chance in Germany.

In short: if IBM does not win its case against TSCOG, that would be because of quite complex issues that are only valid for IBM in USA but pointless to Linux companies and users in Germany.

Sometimes it's difficult to express one's thoughts in a foreign language...

Natuerlich. Das Schoene an Groklaw ist aber, dass aus einem kleinen Missverstaendnis nicht gleich ein sinnloser "Flamewar" entsteht. Das liegt, ausser an der bewunderswerten Hausherrin, nach meiner im echten Leben gemachten Erfahrung auch an dem gemeimsammen Verstaendnis, dass, was man selbst im Moment in der fremden Sprache meint zu verstehen, nicht unbedingt das ist, was der andere auszudruecken versuchte und er hoechstwahrscheinlich nicht so dumm ist, wie man anderfalls meinen koennte.

(I like to use English for this kind of conversation, because most people are well aware that, what a certain wording means to them on reading may not match the authors intent - even if he is not stupid - giving room to the required amount of tolerance.)

[ Reply to This | # ]

The Status in New Zealand
Authored by: so23 on Sunday, May 22 2005 @ 06:58 PM EDT
is similar. The commerce commission would be responsible for initiating legal action against SCO should it be found in breach of the fair trading act which is the legal hand grenade that SCO has been toying with.

The commission has received numerous complaints and there has been much speculation as to when it planned to take action. The following are quotes from the head of New Zealand's commerce commission in response to questions about when they planned to take action against SCO.

"... no one should pay an invoice unless they are clear on the obligation to pay".

"it is not clear that SCO are entitled to charge end-users who have downloaded a product on the condition they understood the product was free".

"A person or a company falsely claiming to have ownership of a product or service or the rights to payment could breach the Fair Trading Act"

The commission is at this stage not clear what if any representations have been made in NZ, but says it is aware that the ACCC in Australia and FTC in the US "are dealing with [SCO's licensing demands]".

In the opinion of most observers, these comments should be interpreted as suggesting that the only thing that saved SCO from immediate legal action by the NZ commerce commission, (which is not usually afraid to take companies to court), is a question as to the extent to which SCOs activities occurred in New Zealand.

Sadly the speculation within New Zealand as to when the commerce commission would take action seems to have given SCO just enough warning to put the pin back into the hand grenade and run away, although it must have been a close thing. I suspect the only thing that saved them was that no real harm had yet been caused in the New Zealand market, and the commerce commission judged that others would deal with SCO making it not worth their while to pursue it.

Note that New Zealand's fair trading legislation is extremely rigorous, and the commerce commission charged with enforcing it has real teeth and a very sensitive nose.

It is worth noting that even if SCOs claims about bits of unix gratuitously being copied into linux had been completely valid, their linux licensing program would still breach the fair trading act and would almost certainly have brought them into conflict with the commerce commission. You simply cannot trade in that manner in New Zealand - invoicing people for material they may have received inadvertently - refusing to identify with specificity which material you are talking about - refusing to provide evidence to back up your claim when challenged - the commerce commission would absolutely grind them into hamburger if they tried any of that stuff over here. They wouldn't get away with intimidating a small company with a legal threat - at the first sniff of such behaviour they'd be tangling with the government.

SCO is well aware of this, and just as in Australia, knows that any attempt to invoice New Zealanders or even to publicise its claims in a way that could be construed as being within New Zealand, would likely result in immediate legal action by the commerce commission. Hence, just as in Australia, SCO has effectively stopped all activity. The watchdog growled, and they ran away.

[ Reply to This | # ]

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