On May 28, Univention GmbH obtained a preliminary injunction from the Bremen, Germany, Regional Court. 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.
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.
MozillaQuest Magazine has been discussing the Tarent preliminary injunction proceedings with Tarent GmbH CEO Elmar Geese and Till Jaeger, the attorney representing Tarent, via e-mail.
Unfair Competition, Trade Libel, and Barratry
Till Jaeger told MozillaQuest Magazine that Tarent's lawsuit is based upon the German unfair competition act (UWG) Section 14, which outlaws denigrations (Anschwärzung) of competitors goods or services, unless the factual assertions are proven to be true.
MozillaQuest Magazine discussed the German injunctions with John S. Ferrell. He is an intellectual property attorney and a partner in the Palo Alto, California based Carr and Ferrell law firm. He also is Chairman of Carr & Ferrell's Intellectual Property Practice Group.
He mentioned that Trade Libel might serve as a basis for similar injunctions in the United States. Trade Libel is a false writing against a business or trade that creates damage to the business.
As as an example of libel, John Ferrell mentioned during our e-mail discussion that:
Under CA law (and the law of nearly all US states):
"§ 45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."
McBride's 12 May letter and other threats by McBride and SCO-Caldera to sue Linux end-user companies and individuals might have exposed McBride and SCO-Caldera to additional lawsuit risks. In the comments section to an annotation on NewsForge, of our article German Penguins Launch Successful Counter-Attack in SCO v Linux War, an anonymous poster suggests:
Actually, you can likely sue them on this anyway. First check with a lawyer, but this might fall under the Barratry laws. Essentially suing someone in groundless legal proceedings. I think it also extends to threatening to sue and then never following through with it just as a means of harassment (sic). If this follows, then they have done just that. You have been put on notice to expect legal proceedings, which they have decided not to pursue, for now... (Links in Resources section at the end of this article.)
The Tarent v SCO Preliminary Injunction
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. If Linux communities in other countries follow the German Linux community's example and obtain preliminary injunctions against SCO-Caldera anti-linux FUD, SCO-Caldera's anti-Linux FUD campaign could become illegal world-wide.
