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June 13, 2003

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Munich Court Rules SCO Anti-Linux Statements FUD

Tarent Seeks Contempt Order Against SCO

By Mike Angelo -- 13 June 2003 (C) -- Page 2

SCO-Caldera Could Find Itself in a Nightmare of Anti-SCO Lawsuits

Article Index

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!

SCO-Caldera & the GNU/Linux Community:

Court Says SCO Claims Are FUD

According to a Tarent announcement:

"The Munich I regional court justified this [preliminary injunction] by the fact that by SCO could not make a convincing argument, that SCO's core rights had been hurt by Linux", said attorney Dr. Till Jaeger of Jaschinski, Biere, Brexl Chambers, who represents Tarent GmbH, a medium-size software provider who focus on free software.

(Translation from German to English by John Holroyd, Demos Technosis.)

Apparently, SCO-Caldera tried to head off the Tarent preliminary injunction after Tarent notified SCO to stop its anti-Linux FUD. However, SCO-Caldera failed to show the Munich Court that its anti-Linux campaign was not FUD.

Till Jaeger told MozillaQuest Magazine that:

SCO had submitted to the court a so called writ for protection (Schutzschrift), prior to Tarent's motion for preliminary injunction. Notwithstanding this writ, the District Court Munich I decreed the order. The District Court found, that SCO did not show, that the Linux kernel does infringe upon SCO's rights. After the decree of the preliminary injunction, SCO has not submitted any statement to the court, so far. Yet SCO is not obliged to do so. (Emphasis added.)

Are More Anti-SCO Lawsuits Coming?

These preliminary injunctions against SCO-Caldera granted by the German courts apply only to Germany.

However, if others follow the German Linux community's example and start filing similar court proceedings in their countries, SCO-Caldera could find itself embroiled in a lawsuits nightmare. In the United States at least fifty such suits could be filed, one in each of the fifty states.

Actually, it is likely that every company, organization, and individual affected by SCO-Caldera's anti-Linux war could file similar suits. However, if thousands of lawsuits were to be filed against SCO-Caldera it is likely the courts in various states might join similar suits filed in the same court together.

SCO-Caldera's Response to the Counterattack

We asked SCO's Director of Corporate Communications, Blake Stowell, about the German preliminary injunctions.

MozillaQuest Magazine: What is your response to these German preliminary injunctions?

Blake Stowell: This applies to us under German law only in Germany. We have free reign to circulate this outside of Germany. We are complying with this until we can have it removed in a court of law in Germany.

MozillaQuest Magazine: As I understand the German injunction process, you have six-months to appeal the imposition of the preliminary injunctions. Will SCO be appealing these preliminary injunctions (or whatever the process is to have the injunctions dissolved)?

Blake Stowell: Yes.

Summary and Conclusions

The German Linux community is taking SCO-Caldera head on and winning. The German penguins have called SCO-Caldera's, and its CEO Darl McBride's, bluff -- and so far SCO-Caldera and McBride have come up short. Moreover, the Munich Court found that SCO did not show, that the Linux kernel does infringe upon SCO s rights.

Perhaps even worse, SCO-Caldera and McBride face contempt of court proceedings if they violate the preliminary injunction orders, which could result in fines up to 250,000 Euros and confinement in a German jail.

Apparently a letter Darl McBride and SCO-Caldera sent out to at least 1,500 companies, including Fortune 500 and Forbes 1000 top companies, precipitated the German Linux community counterattack against SCO-Caldera. That letter, dated 12 May 2003, states in part:

Linux is, in material part, an unauthorized derivative of UNIX . . . We have evidence that portions of UNIX System V software code have been copied into Linux . . . legal liability that may arise from the Linux development process may also rest with the end user . . . We intend to aggressively protect and enforce these rights . . . we are prepared to take all actions necessary to stop the ongoing violation of our intellectual property or other rights.

SCO-Caldera's CEO Darl McBride started attacking the GNU/Linux community last summer, shortly after he took that job from Ransome Love. Initially, it appeared to be more of an attack on Red Hat Linux.

McBride's war on Linux started to surface more when in January 2003 he announced the formation a new SCO-Caldera project, SCOsource, which would protect and enforce SCO-Caldera IP. Initially, McBride's SCOsource project did not directly attack the GNU/Linux community. Rather it sought to protect SCO-Caldera's UnixWare libraries. This appeared to be a legitimate exercise of copyright protection and enforcement.

Then in March, McBride's SCO filed its now infamous Caldera v IBM lawsuit. What made that Caldera v IBM lawsuit so controversial was that in its Complaint, SCO-Caldera needlessly and viciously attacked and insulted the Linux kernel, GNU/Linux operating system, Linux distribution, and many other free software developers.

McBride pushed the GNU/Linux community too far when he sent his 12 May 2003 letter to several thousand companies. That was the last straw for the German GNU/Linux community. Those hard-working people were sick of being pushed around and insulted by McBride and SCO-Caldera. So, they started a counter-attack against SCO-Caldera and McBride.

Two German companies, Univention and Tarent went to the German courts, and obtained court orders telling SCO-Caldera and McBride to shut-up -- or face some pretty hefty fines and/or jail time for failing to shut-up.

As Tarent's attorney Till Jaeger told MozillaQuest Magazine, SCO did not shut up. Thus SCO and McBride are embroiled in a German contempt of court proceeding.

Interestingly that German Court in Munich found that SCO did not show, that the Linux kernel does infringe upon SCO s rights. SCO may appeal that finding. However, that is the first court ruling on SCO-Caldera's claims that Linux is derived from Unix and that Linux contains purloined SCO-owned Unix code. And that Court rejected SCO's anti-Linux FUD (fear, uncertainty, doubt).

Perhaps even more interesting is that to date; McBride and SCO-Caldera have failed to show any probative evidence that Linux is derived from Unix or that Linux kernel code contains purloined SCO-owned Unix code. It also appears that SCO-Caldera has not even looked at the actual Linux kernel code for evidence of the inclusion of SCO-owned Unix code.

There are some provisos to that statement. We discuss those provisos and Chris Sontag's (SCO-Caldera Senior Vice President and manager of the SCOsource project) East Coast tour last week. That's when he unsuccessfully tried to convince some Boston technology analysts that Linux is derived from Unix and that Linux kernel code contains purloined SCO-owned Unix code. (That MozillaQuest Magazine story coming soon to a Web browser near you.)

It's rather interesting that although McBride and SCO-Caldera started this anti-Linux war, it is the German GNU/Linux community that has won the first round of court battles in the SCO-Caldera v GNU/Linux war -- preliminary injunctions ordering SCO-Caldera and McBride to shut-up until such time as they can prove their anti-Linux allegations and claims.

So far, McBride and SCO-Caldera have failed to do that. That already has placed them on the wrong side of at least one contempt of court proceeding.

Will the GNU/Linux communities in other nations follow the German GNU/Linux community's lead, join with it, and take SCO-Caldera to court too? Time will tell.

The game is afoot and the battle is joined.

Stay tuned.

(Editor's Note: John Holroyd, Demos Technosis Ltd, made the translations from German to English unless otherwise noted and he contributed to the research for this story. Till Jaeger's comments were written in English by Till

English Translation of the German unfair competition act (UWG) Section 14.

§ 14 UWG

(1) Anyone who, for the purposes of competition, makes or speads assertions concerning the business of another person, concerning the person of the director / proprietor of the business or concerning the goods or commercial services of another, which are designed to damage the operation of business or the credit of the owner, shall be liable, if the claims are not provably true, to pay damages for the injuries caused. The injured party can also ask for an injunction banning the making or spreading of such assertions.

(2) In the case of confidential reports, if the person [communicating/making] or receiving the report has a justified interest, an injunction can only be admissible if the the facts asserted are untrue. Damages can only be claimed if the person communicating the facts knew or should have known they were false.

(3) The 4th provision in Section 13 shall apply [which after a little digging says that the injunction can be placed against the proprietor or director of the infringing party -- JH.] [... if the assertion is made by an employee. TJ.]

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

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SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

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Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification

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