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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."


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