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The Status in Australia |
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Saturday, May 21 2005 @ 11:08 AM EDT
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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.
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Authored by: sandelaphon on Saturday, May 21 2005 @ 11:10 AM EDT |
Just a bunch of mixed nuts
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I hate sigs![ Reply to This | # ]
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- Look back at DOJ vs MS in NY Times - Authored by: Anonymous on Saturday, May 21 2005 @ 11:48 AM EDT
- Putting 'technical contribution' to the test in the UK or in the EU - Authored by: Anonymous on Saturday, May 21 2005 @ 01:20 PM EDT
- About Microsoft's email patent in their own words or not. - Authored by: Anonymous on Saturday, May 21 2005 @ 02:01 PM EDT
- SBC + AT&T = - Authored by: Anonymous on Saturday, May 21 2005 @ 05:25 PM EDT
- Enderle "analysis" on Linux vs. Microsoft - Authored by: vruz on Saturday, May 21 2005 @ 06:53 PM EDT
- Big week coming up - be on the look out - Authored by: Anonymous on Saturday, May 21 2005 @ 11:53 PM EDT
- MOG in LBW - August 22nd 2003. - Authored by: Anonymous on Sunday, May 22 2005 @ 01:38 AM EDT
- Linux Is Here, Windows Is Not Going Away and Heterogeneity Is the Order of the Day - Authored by: Anonymous on Sunday, May 22 2005 @ 01:55 AM EDT
- Today's UserFriendly - Authored by: fudisbad on Sunday, May 22 2005 @ 03:12 AM EDT
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Authored by: sandelaphon on Saturday, May 21 2005 @ 11:12 AM EDT |
becuase teh mistaks shoudl eb esay ot ifnd.
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I hate sigs![ Reply to This | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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?
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MS holds the patent on FUD, and SCO is its licensee....[ Reply to This | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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- Triple Damages - Authored by: Anonymous on Sunday, May 22 2005 @ 07:36 AM EDT
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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 | # ]
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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 | # ]
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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 | # ]
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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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