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German Court: SCO Must Pay a Fine. Yes. Again. - updated
Wednesday, August 20 2008 @ 02:54 PM EDT

SCO was taken to court again in Germany, by one of the companies that got an injunction years ago, Heise is reporting, and now it must pay a fine to the company, Thinking Objects Software GmbH. Three companies took SCO Germany to court back then, and this is one of the three. I'll show you a computer translation first of the headline in Heise. It is perfection:
SCO Group Germany must check software updates of the nut/mother company message to read out

Sounds like a job for ELIZA. I'll try to explain what I understand the article to be saying, but if you have a better translation, please provide it.

SCO was enjoined from making certain claims in Germany, and it signed an agreement in 2003 not to say them there, because its alternate choice was to have to prove them immediately, so it chose silence. As a result, SCO can't say in Germany that Linux violates SCO's IP or that end users could be liable for violations of SCO's intellectual property or that Linux is an unauthorized derivative of UNIX. Unless it can prove it. Good luck with that. SCO hasn't been successful proving that anywhere, so it can't say that in Germany. But the US website makes such claims, which were apparently shown in Germany too. Naughty, naughty.

It seems that SCO pled the "we didn't see what the US was doing when it updated the page" defense, but it was told that it used that excuse once before, so now it must pay a fine to the complaining company. Here's an incident that happened in 2007, to refresh your memory. And here's a 2003 offense, for which SCO was ordered to pay a 10,000 EU fine. Are they incorrigible? Well. Let's leave that to God. However, the Heise report indicates that they are at least repeat offenders.

In human terms, it is saying that when the SCO Group -- the "nut/mother company" in the computer's inspired phrasing -- in the US updates its website, the German branch has to check to make sure nothing illegal to say in Germany appears there. Here's a snip from the article, computer-translated:

The SCO Group GmbH, a daughter of the American enterprise SCO Group Inc., has to check their InterNet appearance after software updates of the nut/mother company for errors. This applies at least if the same error already occurred in the past. This legal concept showed today the regional court Munich I, on which Jens Horstkotte, which represented the company legally, got involved in a comparison, with which the GmbH 10,000 euro to a IT Dienstleister pay must (Az. 21 O 1929/08)....

Cause procedure in Munich was now that the SCO Group GmbH expressions over alleged law breakings by Linux, because of which the enterprise was already warned 2003 and omission contracts had then locked after an interruption in the InterNet appeared again. The Thinking Objects GmbH, represented by attorney Friedrich Bernreuther, had complained because of violation of the omission contract, on which the SCO Group GmbH appointed itself to the fact that the forbidden expressions without their knowledge had been up-played inadvertently over a software update the American nut/mother company. Resident of Munich the regional court expressed the view in the negotiation that it was function of the SCO Group GmbH, which URL, under which the forbidden expressions appeared, to check at least after software updates.

When attorney Horstkotte stated the fact that the GmbH is not informed about such updates found the judges the fact that it would have been quite reasonable the enterprise to provide over such processes knowledge since generally admits was that updates could lead to such problems. Quite SCO got only in the point that the expressions in English language, callable under a com Domain, do not fall under the area of responsibility of the German GmbH, why the lawyers of the two parties agreed on suggestion of the court on a comparison, which can be recalled within three weeks.

If someone can provide a better translation, I'd appreciate it. You can't top the headline, I don't think, but if you could clarify some of the details, that would be great.

Update: Groklaw member OmniGeek offers this translation:

SCO Group Deutschland Must Review Parent Company's Software Updates

Following software updates by its parent firm, SCO Group GmbH, a subsidiary of American firm SCO Group Inc., must review their Internet presence for errors. This applies, at a minimum, when the same error occurred at least once in the past. This interpretation of the law was accepted today by the Landgericht München I [Munich state court I], whereupon Jens Horstkotte, the firm's legal representative, consented to an agreement by which the company must pay 10,000 Euros to an IT service provider.

He also offers this summation:

SCO Deutschland had been prohibited by court order in a prior case from claiming in Germany that Linux infringed Unix copyrights. (The Heise story makes a neat play on the German title of the Michael Ende book, "The Neverending Story.")

The US parent company updated the company's Web site (it seems the offending statement was the infamous SCO Partner letters), and the offending claims reappeared. One of the original plaintiffs, Thinking Objects GmbH, read of it and went to court to have SCO fined. SCO's counsel claimed it was inadvertent and resulted from a software update; the judge said SCO Deutschland was obliged at a minimum to review the Web site for prohibited statements when it was updated. SCO's counsel said they'd not been informed of the update; the judge countered that they could reasonably be expected to find out for themselves, since software updates are known to cause this problem.

SCO Deutschland did successfully argue that they could not be held responsible for English statements made on a Web site in the .com domain; for this reason, at the suggestion of the court, the parties agreed on a penalty payment to the plaintiff; SCO Deutschland has three weeks to formally object to this settlement.

Note the last detail, that SCO has three weeks to appeal. Either side can. And SCO is not responsible if the English site is viewable in Germany. Yahoo's BabelFish does a comprehensible job of translating the entire article here.

Another member, Andras, offers this further translation:

SCO gained notoriety due to the neverending tale of its two lawsuits: the one it brought against Novell regarding the copyrights and licensing issues surrounding Unix; and the one against IBM, which is about the allegation that IBM illegally published parts of SCO's proprietary source code in Linux. As far as the rights to Unix are concerned, a court ruled that SCO infringed Novell's copyright and that SCO owes Novell licence fees. Currently, SCO is operating under Chapter 11 of US bankruptcy law, but hopes to attract a new investor, in order to, among other things, be able to continue the IBM litigation about the alleged stolen code in Linux.

The proceedings in Munich were initiated because statements of the SCO Group GmbH regarding alleged infringing code in Linux reappeared in the Internet after a while, even though the company had already been ordered to cease making these statements in 2003, and even though it had signed a declaration of discontinuance with a penalty clause. It was because of a breach of this declaration that Thinking Objects GmbH (represented by Mr. Friedrich Bernreuther), brought the suit. SCO Group GmbH pleaded that the statements appeared on the web unintentionally and unbeknownst to them, due to a software update deployed by their parent company. The District Court ruled that it was the SCO Group GmbH's task to check the content of the webpage where the statements they were enjoined from making appeared, at least each time updates were installed.

Mr. Horstkotte submitted that the GmbH wasn't being notified of such updates; to which the Justices replied that it would have been reasonable for the company to make sure they learn about the updates, as it was common knowledge that they could lead to such problems. Nevertheless, the court conceded the point that the German GmbH couldn't be held liable for the statements appearing on a .com website in English(*). The counsels of the parties, urged by the court, entered a settlement rescindable within the next three weeks.

Thanks, everyone, for the help in getting a more accurate and complete picture.

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