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To read comments to this article, go here
LinuxTag Tells SCO to Put Up or Shut Up
Tuesday, May 27 2003 @ 04:19 AM EDT

LinuxTag has decided to counterattack SCO. The German Linux nonprofit organization served SCO Germany with the more-or-less equivalent to a cease-and-desist letter, except it's more powerful, because under German law, SCO must answer and either substantiate its claims against Linux or take back what it has said or face substantial fines for "anticompetitive behavior" which evidently Germany has a law forbidding, according to the article "LinuxTag challenges SCO -- Put up or shut up in Germany" in the UK's The Inquirer.

Update: On May 28, 2003, the Bremen, Germany Regional Court ruled in favor of Univention GmbH and issued a preliminary injunction against SCO-Caldera, according to MozillaQuest's report:
The order prohibits SCO-Caldera from circulating:
"the idea that the Linux Operating System illegitimately acquired and contains the Intellectual Property of SCO UNIX and/or that the end users of LINUX can be made liable for patent/copyright infringements against SCO's intellectual Properties."
The article goes on the discuss later events, as well:
Further, the Bremen Court Order provides for a fine of up to 250,000 Euros (around $250,000 U.S.) or jail time for every violation of the Court Order:
each case of the offence carries a fine of up to 250,000.00 Euros, or as a substitute, detention of the Managing Directors (CEO) of the defendant could be imposed. The Order also makes SCO-Caldera liable for the costs of the proceedings.
(Translation from German to English by John Holroyd, Demos Technosis.)

Then, on 5 June 2003, Tarent GmbH obtained a similar preliminary injunction against SCO-Caldera from the Munich Regional Court.

Interestingly, it appears that SCO-Caldera did not fully-comply with the Munich Court Order. So, Tarent has asked the Munich Court to take action for what amounts to SCO's contempt of the Munich Court Order....

The Tarent preliminary injunction is very similar to the Univention preliminary injunction. According to Tarent's attorney, Till Jaeger:

The Landgericht [regional court of] Munich has enjoined SCO from claiming and from distributing the assertions in the course of its business activities:
1. that the software Linux contains SCO's intellectual property that has been unlawfully obtained

2. that end users who apply Linux are liable for intellectual property infringements towards SCO, and / or

3. that LINUX is an unauthorized derivative of UNIX, as far as such assertions are not proven to be true.

Contempt of Court

Additionally, Till Jaeger said:

Tarent can counteract violations of the order by means of the usual instruments of compulsory enforcement. Accordingly, Tarent can file a motion for imposition of penalties up to EUR 250.000 or for arrest up to six months for contempt of court.
Till Jaeger told MozillaQuest Magazine that SCO did not fully comply with the Munich Court's restraining order. Therefore, Tarent took its legal action a step further than merely obtaining an injunction against SCO-Caldera. Tarent has asked the Munich Court to enforce its preliminary injunction against SCO. According to Till Jaeger:
SCO initially only removed some of the pages of its German website that contained the statements, but later on disconnected the whole German website . . .

Since SCO did not remove immediately all pages of its website that contained the statements not proven to be true, Tarent did file such a motion with the court applying for a penalty of EUR 10.000,-. So far, the court has not yet decided on the motion.

Injunction is a very interesting and powerful legal remedy. It allows a court to, in effect, make some act or conduct illegal. Once a court declares some act or conduct illegal by enjoining it, the court then can punish doing the enjoined act or engaging in the enjoined conduct much as if the enjoined act or conduct were a criminal act or conduct.

In effect, one thing Tarent and Univention have done by obtaining their preliminary injunctions is to make it illegal for SCO-Caldera, Darl McBride, Chris Sontag, and associates to spread SCO anti-Linux FUD in Germany.


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