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| More on the SCO-Tarent case in Germany - It Wasn't Their Fault, Won't Pay Damages |
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Wednesday, November 21 2007 @ 01:16 PM EST
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Here is the next installment of the Tarent/SCO story I told you about a week ago. Now SCO appears to be haggling a bit about the amount of money they should pay. They claim it wasn't their fault that the anti-Linux statements reappeared on the SCO Germany website. It was the web host's fault, and that it was a link to the US site, not originating from SCO Germany, so they say they won't pay damages, but they will pay Tarent's legal fees, in the amount of 1780,20
Euro. I wonder if that is the end of the matter?
Tarent has now posted all the correspondence up on its web site about SCO's recent violation of the terms of the 2003 preliminary injunction, forbidding SCO from making certain anti-Linux remarks that in the US we have been obliged to endure since 2003. In Germany, you can't say things against a competitor unless you can prove them, and SCO didn't try, when Tarent gave them a choice of accepting the injunction or proving their claims. So in Germany, SCO is not allowed to say that Linux contains SCO's intellectual property, that Linux end users could be sued for using it, or that Linux is a derivative of Unix.
What is truly fascinating is that there is a letter [PDF] back to Tarent from SCO signed by Michael Olson [PDF], and the date is November 15, 2007. Since SCO has told the US Trustee and the Bankruptcy Court that Mr. Olson had gotten another opportunity in September and would hence be leaving SCO, as of October, although staying on as a contractor for a brief length of time, one can't help but wonder if he is still on the payroll as CEO, or one of them, at SCO Germany. I say one of them because there is now a new letter from SCO lawyers to Tarent [PDF], the first paragraph informing Tarent that Jean Acheson is the new CEO of SCO Germany, as of Novembe 14, which we reported a week ago. Tarent's original letter to SCO was sent to Olson as CEO. Now, as I earlier explained, under German law there is personal liability for CEOs, I can't help but wonder who is the responsible party there? If Olson is not, and his letter is not signed as CEO, then do his representations have the necessary weight? Is this a personal letter, then, with regard to the threat of personal liability? Or are there multiple CEOs in Germany? If she is the CEO as of the 14th, by what authority does he send Tarent a letter on the 15th? I don't know, but I know that is the right question.
To complete the collection, there is a cease and desist letter [PDF] sent to SCO to agree to, and the November 8 lawyer letter agreeing to the cease and desist terms [PDF], in addition to the Tarent cease and desist letter (Abmahnung) I showed you earlier. However, now the new letter is haggling over the terms, so stay tuned. It would be grand if someone could translate at least the November 21 letter from the SCO lawyers for us. We have the November 8 letter and the Olson letter is in English. Bottom line to me? They aren't saying that they are free to make such statements, are they? Olson does say that he represents that he won't make the three statements in Germany "unless or until there is evidence that such statements are true." So, if there is no evidence currently, what would a York entity be buying from SCO in the way of "Linux litigation" rights? I see this as just haggling about who allowed the statements to reappear on SCO Germany's website when they should not have, and positioning for the future in the remote chance that Darl McBride's impossible dream might someday come true in the great by and by. That says it all. And if I were Tarent, I'd inquire as to who admins the German site. Last I looked, it
was SCO US.
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| Authored by: sumzero on Wednesday, November 21 2007 @ 01:24 PM EST |
please be somewhat specific in your titles.
thanks.
sum.zero
---
48. The best book on programming for the layman is "alice in wonderland"; but
that's because it's the best book on anything for the layman.
alan j perlis[ Reply to This | # ]
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| Authored by: ais523 on Wednesday, November 21 2007 @ 01:28 PM EST |
I'm an avid Groklaw reader, although I've never posted. So I may as well help
out by creating one of these.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 01:31 PM EST |
| And right they are. [ Reply to This | # ]
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| Authored by: Pogue Mahone on Wednesday, November 21 2007 @ 01:39 PM EST |
After the mistake in the "Members Only" post, I'll try again.
Please put the Newspick itme in the title.
---
(c) 2007 Typo, Inc. All rights reversed.
I'm not afraid of receiving e-mail from strangers - see bio[ Reply to This | # ]
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| Authored by: montana on Wednesday, November 21 2007 @ 01:41 PM EST |
SCO (Germany) seems to be claiming that the offending page is actually a link
from the SCO USA website and therefore SCO Germany is not responsible for it.
---
Oro Y Plata[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 02:01 PM EST |
SCO can pay damages and recover them from whoever
they can prove is
responsible. After all, they are a
litigation company. Should be right up their
street.
[ Reply to This | # ]
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| Authored by: ggiedke on Wednesday, November 21 2007 @ 02:29 PM EST |
I can't mimick the lawyer-German used in the letter which sounds rather formal
and unforthcoming. But here's a shot at the translation of the first page. Next
one to follow. Feel free to correct and amend. In square brackets some technical
terms.
regards
Geza
Dear colleague Jaeger,
we refer to your letter of Nov 14, 2007 in the matter referenced
[Tarent GmbH vs The SCO Group GmbH] and let you know that Mrs Jean
Acheson is the new CEO of The SCO Group GmbH, Bad Homburg since Nov
14th. Mrs. Acheson is currently not yet registered as CEO in the trade
register [Handelsregister], the corresponding documents are however
already at the notary.
Beyond this, our client sees no need to give more information. Rights
to information [Auskunftsansprüche], which would support the demands for
further
information by your client are not apparent. Such rights would come
into consideration at best, if demands for damages by your client
against our client according to par. 9 UWG [law against unfair competition]
would be conceivable. But
this is not the case:
The web pages used in your argument (english language "SCOsource web
pages") are web pages available under http://www.sco.com which --
clearly recognizably from the outside -- are solely controlled and
published by The SCO Group Inc., the parent company of or client. Our
client is not responsible for the web site of the parent company at
http://www.sco.com. The entry page of the internet offerings of our
client at http://www.sco.de does not contain any links to the
Scosource web pages.
[ Reply to This | # ]
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| Authored by: stcm on Wednesday, November 21 2007 @ 02:33 PM EST |
The "meat" of the letter.
(sorry I've been almost 30 years away from Germany)
1.To stop, in commercial operation declaring, that the software “Linux” is
illegality using the IP of SCO.
2.To stop, in commercial operation declaring, that users of the software “Linux”
are injurious to the IP of SCO, and could be penalized and/or
3.to stop in commercial operation declaring, that the software “Linux” is a
unauthorized derivative of UNIX.
---
stcm
Linux (only) user since '94[ Reply to This | # ]
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| Authored by: Sique on Wednesday, November 21 2007 @ 02:50 PM EST |
Of course this needs some polishing in english, I am German after all and make
easy mistakes and sometimes don't even know the correct english legal terms.
But here we go:
---------------------------------------------------------
v. BOETTICHER HASSE LOHMANN
society of attorneys
v. BOTTICHER HASSE LOHMANN
POSTBOX 221453, 80504 MUNICH
MUNICH
DIETRICH von BOETTICHER LL.M.
attorney at law (USA)
DR. BODO HASSE, LL.M.
DR. ANGELIKA HOCHE, M.C.J.
DR. JOACHIM GUENTZER
DR. STEPHAN RETTENBECK
DR. CLAUDIA BOEHM
DR. JULIA MATTES*
DR. HOLGER KESSEN
JENS HORSTKOTTE
DR. KRISTINA PLANK
DR. NINA FREIBURG*
DR. KATJA HERBERG*
DR. OLIVER STOECKEL*
WIDENMAYERSTRASSE 4
80538 MUNICH
TEL 089/22 33 11
FAX 089/21 21 59 59
E-MAIL: info@boetticher.com
BERLIN
DR. ULRICH BLOCK, LL.M.
DR. ANSELM BRANDI-DOHRN
Maître en Droit
special attorney for legal protection in trade
DR. ERNST LUDWIG GANZERT*
DR. MAXIMILIAN SCHENK*
DR. MARTIN HECKELMANN, LL.M.*
ORANIENSTRASSE 164
10969 BERLIN
TEL 030/61 68 94 03
FAX 030/61 68 94 56
E-MAIL: info@boetticher.com
FRANKFURT AM MAIN
DR. ULRICH LOHMANN, LL.M.
DR. BURKHARD RINNE, LL.M.
attorney at law New York
DR. CORNELIA SUMM
FREIHERR-VOM-STEIN-STRASSE 1
60323 FRANKFURT AM MAIN
TEL 069/71 71 29 80
FAX 069/71 71 29 81 0
E-MAIL: info@boetticher.com
* not a member of the society
ex ante per telefax (030 443 765-22)
number of pages: 2
Munich, November 21 2007
Our signature: 1066/07-57/dle
Tarent GmbH ./. The SCO Group GmbH (your signature: 0910/07)
Re: your letter from November 14 2007
Dear colleague Dr. Jaeger,
we refer to your letter from November 14 2007 about the case above and tell you,
that since November 14 2007 Mrs. Jean Acheson is the new CEO of The SCO Group
GmbH, Bad Homburg. Mrs. Acheson is at this point not registered yet in the
Commercial Registry as new CEO, but the paperwork is already with the
solicitor.
Beyond that our client doesn't see any cause to give more information. Pretense
for disclosure which supports further demands of information is not apparent.
Such Pretense for disclosure would only be considerable if there would be
thinkable reason for claims for damages according to §9 UWG against our client.
This is not the case:
The webpages you advanced ("Scosource-Webpages" in english language)
are webpages available under the address of http://www.sco.com, which - obvious
also to outsiders - are solely operated and published by the mother company of
our client, The SCO Group Inc., in her own initiative. For the webpage of the
mother company under http://www.sco.com our client is not responsible. The start
page of the internet presence of our client under http://www.sco.de doesn't
contain any links to the Scosource-Webpages.
It is correct that for some time by directly entering the URL
"https://www.sco.de/scosource/letter_to_partners.html" in a webbrowser
the english Scosource-webpagges of the mother company The SCO Group Inc., were
available, which were stored under www.sco.com. The URL
"https://www.sco.de/" pointed to the server in the U.S. where the
internet presence of our client was hosted. During a software changeover it
happened, due to an error of the hosting provider, which operates this server,
that a webserver default configuration for https-URLs was activated, which lead
to the forwarding to the domain www.sco.com with incriminating contents.
From the homepage of our client no links lead and have lead to the
Scosource-webpages. Moreso the exact https-URL had to be entered into the
webbrowser, to get to the Scosource webpages. Because our client doesn't
communicate any https-URLs of its homepage towards third parties, but only
http-URLs, the at most accidentally discoverable reference, not even known to
our client, was innately objectively not capable to influence the competition.
Moreover our client didn't act culpably. Our client didn't initiate the
activation of the server default configuration at the Internet service provider,
she didn't even know about. Our client don't have and didn't have influence to
the actual processes during the software changeover at the Internet service
provider. Our client did not cause neither deliberate nor negligent the
availability of the Scosource webpages, nor are the actions during the software
changeover attributable to our client.
Claims for damages according to §9 UWG and thus also the assertion of Pretense
for disclosure according to § 242 BGB are thus to reject.
Concerning the cost for the cease and desist letter of EUR 1,780.20, our client
will pay this before long by bank transfer to a bank account of your office.
With collegial greetings
Dr. Oliver Stoeckel
Attorney[ Reply to This | # ]
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| Authored by: billyskank on Wednesday, November 21 2007 @ 02:54 PM EST |
that it mattered not whose fault the infraction was but that SCO had the
responsibility for making sure it did not happen.
---
It's not the software that's free; it's you.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 03:07 PM EST |
While the overlap between Olson and Acheson is highly questionable, I won't read
it as outright deception until more facts are available.
One explanation is due to nothing more than time zone differences between points
of origin. Utah is MST or GMT-7 while I believe all of Germany is CET or GMT+1,
a difference of 8 hours. While failing to account for such time zone issues is
bad business and bad legal practice, it CAN happen that individuals get
confused.
Picture if you will, Mr Olson drafts a letter in Utah on the 13th of November,
which is proofed and approved by the legal staff that afternoon and released for
transcription late in the day.
At the same time, they are preparing the notice that Jean Acheson will take
over, effective the 14th. The change of control notice is prepared and mailed in
Utah on the 14th.
At the same time, a fax or email copy of Olson's official reply, prepared on the
13th, is winging it's way to the German offices, to be printed, transcribed,
shared with staff, filed and mailed locally. Since 9 AM Utah time is already 5
PM in Germany, the official transcription is prepared and dated on the next
business day, the 15th, and they don't think to back date it.
Notices arrive -- one effective the 14th, one dated the 15th, but both prepared
contemporaneously. A flag on the play, a correction is due, but there is no
intentional foul.
Regarding the payment of the penalty:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCO is responsible for the contents of their site, unless they can prove
deliberate hacking and defacement.
I believe the proper sequence would be to pay the agreed penalty to the
"injured party", then seek compensation from the party they believe
made the error. I suspect that any claim that the web host is liable will be
hard to prove.
Even if the host restored the site from a backup, the SCO web master had to
approve and verify that back up copies are valid. And SCO would have received a
notice from the host if a backup occurred, giving them a chance to correct
errors in a timely fashion.
Their claim that the link referred back to the home(US based) SCO site is also
not valid. You are responsible for the contents of the site, as viewed by the
public. Verifying the physical location of a server is not typically a
requirement of web surfers. When you have a legal presence in TWO countries, you
can be bound by laws in both countries. The link on the German site should link
to a German appropriate/compliant page, wherever it is hosted, unless it's
clearly labeled that the statements on that page are not legally valid in
Germany.
I believe a German court/arbiter would agree with that reading. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 03:08 PM EST |
We've got this "evil genius" image of SCO, but their behavior is more
consistent with "the gang that couldn't sue straight".
Or: "Never attribute to malice that which is adequately explained by
stupidity." In SCO's case, we have plenty of evidence of malice, but this
one could still be stupidity/incompetence.
Which is not to say that they should not be slapped for it. They are still
making a false public statement, even if it is by accident. But I'm willing to
cut them a bit more slack if it was a stupid mistake rather than a deliberate
act.
MSS2[ Reply to This | # ]
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- Why can't it be both? - Authored by: Anonymous on Wednesday, November 21 2007 @ 03:47 PM EST
- Slack? - Authored by: Anonymous on Wednesday, November 21 2007 @ 03:55 PM EST
- Slack? - Authored by: PJ on Wednesday, November 21 2007 @ 03:59 PM EST
- Stupidity is no excuse - Authored by: Sunny Penguin on Wednesday, November 21 2007 @ 05:48 PM EST
- Slack? - Authored by: Anonymous on Wednesday, November 21 2007 @ 08:06 PM EST
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| Authored by: dio gratia on Wednesday, November 21 2007 @ 03:10 PM EST |
Only been CEO of the German subsidiary a week and she's already under threat
of law suit. Sure hope she got a raise (and as PJ says, 'joke, joke').
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 03:19 PM EST |
Normally I'd say you aren't responsible for the content of sites you link to. I
also don't like the idea that the law in one country can be applied to a web
site in another country.
But it would seem that this is a clear attempt by SCO GmbH to circumvent the
order. The site www.sco.de is run in Utah by TSOG along with the offending
www.sco.com information -- it even has the same IP address. Both sites are
likely run by the same admins.
So, SCO GmbH can't say "it was out of our control" unless they want to
try the argument that their whole site isn't under their control and thus not
subject to the injunction against unsubstantiated claims. I don't think a judge
will buy that.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 03:27 PM EST |
SCO also believes it is someone else's fault that they do not own UNIX.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 04:17 PM EST |
Tarent has no claims based on their previous cease and desist letter, because
they waived their rights from it. Because of the new violation, they had a new
chance to demand a cease and desist letter, and they got it.
The new letter from SCO GmbH focusses on indemnification claims according to §9
UWG and on pretense for disclosure that might be based on the indemnification
claims. This is strange as Tarent has not demanded either, as far as I am
aware.
It is correct that §9 UWG applies only if SCO GmbH acted culpably (deliberate or
negligent), and only if their act was suitable to influence competition.
Contract penalties from a cease and desist letter would normally not depend on
these preconditions.
IANAL
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 04:51 PM EST |
I cannot see how their argument can fly.
SCO Germany is responsible
for the German SCO website, and if their Linux
claims appear on the German SCO
website, they have to pay.
If an intern in Germany makes a mistake,
they are liable.
If they outsource their website to SCO USA, and an
intern in the USA makes a
mistake, they are liable.
If they outsource
their website to SCO USA, and SCO USA outsources to some
third party, and an
intern at that third party makes a mistake, they are still
liable.
They knew that the US company made statements and published them that
would cause trouble if they appeared on the German website. They relied on
their technical competence to make sure that this would not happen. They
were
wrong, they must pay.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 05:15 PM EST |
It was fun while it lasted, but looks like just more of the same
incompetence from SCO and/or their outsourced webhoster.
I have in the past had to temporarily park "suspended" pages
on a box with IPnr and name based virtual hosting. I relied
on not indexing, robots.txt, and forbidden.html. Anyone who
knew the full path to those pages could still browse them.
But then I was not running ssl for account paying clients
in a litigious climate...
SCO has registered a full Class C net with 65,000 addresses.
It wouldn't cost any extra effort or money to use a separate
IP nr for each country's website. If you do a whois 132.147.63.12
you will even get an email address and phone nr. for a
technical person (as at 2006-12-11)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 06:13 PM EST |
In Germany you are responsible for the sites you are linking to. That is why
all major german sites have a disclaimer that foreign sites are out of their
control - and usually forbid users from including urls in their comments
(like ZDF does in its forum).[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 21 2007 @ 08:51 PM EST |
For any SCO case,, the only acceptable verdict must include at the end these
words:
"And may God have mercy on your soul."
[ Reply to This | # ]
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| Authored by: sylvester on Wednesday, November 21 2007 @ 09:07 PM EST |
The fact that SCO continued to host the offending material on the sco.com
website show their general defiance and continued audacity. Even if their
violation of serving it via sco.de was only an accident, they knowingly took the
risk of it happening, by continuing to serve it to the world, and only taking
one baby step to be in compliance with German authority.
Word to SCO: Quit whining. Pay the piper. Pull the offensive content down
entirely and be done with it.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 22 2007 @ 03:58 AM EST |
Yes, there can be multiple "Geschäftsführer" for a company in Germany.
The
translation as "CEO" is thus a bit misleading. In the legal sense,
only the
Geschäftsführer can act on behalf of the company, signing contracts and so on.
He or she is not always personally liable in the case of a GmbH. There is in
theory personal liability if he or she acted in bad faith or negligently;
however
it's rare that there is an actual verdict on these charges.
Of course, I'm not a lawyer, just a Geschäftsführer.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 22 2007 @ 06:13 AM EST |
This translation tries be as precise as possible while keeping the language
somewhat exotic for a mostly US readership. (The exotic aspect of US legalese is
one thing that fascinates me about Groklaw.) Disclaimers: IANAL, IANAPT,
IANANSE.
By the way, this was not the first letter from the solicitors Jaschinski Biere
Brexl that I have read. They are also representing Ulrich Wiesner before the
German Federal Constitutional Court. He is trying to have the use of unreliable
(i.e. currently all) voting computers declared unconstitutional.
Hans
------------------
Solicitors
Jaschinski Biere Brexl
Mr. Attorney Dr Till Jaeger
Christinenstr. 18/19
10119 Berlin
In advance by facsimile 030 / 443 765-22
Number of pages: 2
Munich, 8 November 2007
Our reference: 1066/07 - 57/dle
Tarent GmbH v. The SCO Group GmbH (Your reference: 0910/07)
Your letter of 14 November 2007
Dear colleague Dr Jaeger,
we refer to your letter of 14 November 2007 in above affair and inform you that
since 14 November 2007 Mrs. Jean Acheson is new managing director of The SCO
Group GmbH, Bad Homburg. Mrs. Acheson is currently not yet enlisted on the trade
register, but the corresponding documents already reside with the notary
public.
Furthermore, our client sees no cause to accord further disclosures. Any
entitlements to disclosure which could support the further demand for disclosure
are not apparent. Such demands for disclosure would come into consideration at
best if claims for damages against our client according to § 9 UWG [Law against
Dishonest Competition] were conceivable on the merits. This is, however, not the
case:
The internet pages advanced by you (English language "Scosource
webpages") are a matter of webpages retrievable under the address
http://www.sco.com which - as can be easily observed evenfrom outside - are
operated and published single-handedly by the parent company of our client, The
SCO Group, Inc., under their own direction. For the website of the parent
company under http://www.sco.com our client is not responsible. The homepage of
our client's internet presence under http://www.sco.de does not contain any
links to the Scosource webpages whatsoever.
It is correct that temporarily by immediate entry of the URL
"https://www.sco.de/scosource/letter_to_partners.html" the English
language Scosource webpages of the parent company The SCO Group, Inc., which are
stored under http://www.sco.com, were accessible. The URL
"https://www.sco.com" relegated to a server in the USA, where the
internet presence of our client was hosted. During a software rearrangement it
happened, by an oversight of the hosting provider which operates this server,
that a webserver default setting for the treatment of https URLs was activated,
which resulted in referral to the domain www.sco.com with the incriminating
contents.
From our client's homepage lead or led no links to the Scosource webpages.
Rather, the exact https URL had to be entered immediately into the browser in
order to arrive at the Scosource webpages. Since our client does not communicate
any https URL of its homepage to third parties, but always communicates only the
http URL, the at best highly accidentally detectable reference to the Scosource
webpages via the https URL, which [i.e. the reference], by the way, was not even
known to our client, was even innately not fit for influencing competition.
Moreover, our client has not acted culpably. Our client has not caused the
activation of the server default settings at the internet service provider's;
she [i.e. The SCO Group GmbH] did not even know about it. Our client has and had
no influence on the precise events in the course of the software rearrangement
at the internet service provider's. Our client has therefore caused the
retrievability of the Scosource webpages neither deliberately nor negligently,
nor are the events in the course of the software rearrangement at the internet
service provider's attributable to her.
Compensation claims according to § 9 UWG and therefore also the alternatively
claimed claims to disclosure according to § 242 BGB [German Civil Code] are thus
eliminated.
As far as the expenses for legal reminder to the amount of EUR 1,780.20 are
concerned, our client will compensate them rapidly by transfer to your office
account.
Yours faithfully and cooperatively
Dr Oliver Stöckel
Solicitor[ Reply to This | # ]
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