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| Is SCO in Violation of the UK's Competition Act? |
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Monday, November 10 2003 @ 05:33 PM EST
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A Groklaw reader has informed us that he has today emailed the UK Office of Fair Trading inquiring as to whether SCO has violated the UK's Competition Act of 1998, which is explained like this: "The Competition Act 1998 is designed to make sure that businesses compete on a level footing by outlawing certain types of anti-competitive behaviour. The OFT has strong powers to investigate businesses suspected of breaching the Act and to impose tough penalties on those that do.
"All businesses, no matter how small, need to know about the Act - to avoid becoming a victim, and to avoid breaking the law.
"The Act should not be viewed in isolation. The Enterprise Act 2002 among other things introduces a cartel offence under which individuals who dishonestly take part in the most serious types of anti-competitive agreements may be criminally prosecuted.
"In addition, as a result of amendments to the Company Directors Disqualification Act 1986 under the Enterprise Act 2002, company directors whose companies breach competition law (including the prohibitions in the Act) may be subject to Competition Disqualification Orders, which will prevent them from being concerned in the management of a company for a maximum of 15 years."
You can read more about the referenced
Enterprise Act, which is the law regarding unfair competition and misleading advertising and which is enforced by the Competition Commission. I have no knowledge of UK law, so read on at your own risk and verify everything with your attorney, if you decide to do something similar. Here is the email he sent the Office of Fair Trading: "The subject of my enquiry is The SCO Group, whose UK office is at Titan Court,
3 Bishop Square, Hatfield, Herts, AL10 9NA.
"We are a small company that since its inception in 1986 has worked in the area
of the UNIX operating system. In more recent years we have developed and sold
software for the Linux operating system.
"UNIX was originally developed by Bell Laboratories in the USA, then it was
sold to Novell, then to the Santa Cruz Operation, and then to Caldera, who
now call themselves the SCO group.
"Linux, as you may know, was developed and is distributed under an 'Open
Source' policy. This means that the whole of it, including the source code is
in the public domain and can be obtained for minimal cost.
"In recent months, SCO has been engaged in a campaign to discredit Linux, which
is clearly displacing much of the return on the investment they have made in
UNIX, by saying that Linux is an 'unauthorised derivative of UNIX'. I have
attended presentations at which SCO have explicitly said that as a fact
without qualifying it as 'we allege that...', as well as reading it on their
website at http://www.sco.com/scosource/linuxlicensefaq.html
"SCO have said that all commercial users of Linux will have to pay them a
licence fee for use of Linux. The above-mentioned web page gives details. . . .
"I am aware that there are lawsuits pending in the US Federal Courts in Utah
and Delaware against IBM and Red Hat respectively over many of these issues.
However, with due respect to those courts, they are not the fastest-moving
institutions in the world, a hearing not being expected before the middle of
2005, and in the meantime damage is being done to companies such as mine who
have chosen to make their business with Linux software and services by
putting 'Fear Uncertainty and Doubt' in the minds of potential customers over
the legality of the software being used.
"I would draw your attention to the fact that the German courts have prevented
SCO from making these allegations in Germany and have imposed a fine of
€10,000 on SCO for breach of an injunction to stop doing so. However that
only applies to Germany.
"A situation where a company might threaten to invoice (and they have clearly
stated that they would back it up with litigation) another company's
customers on the basis of totally unsupported allegations of copyright
infringement by the second company is surely without precedent.
"I should therefore be grateful if you would investigate whether SCO's
activities in this matter constitute unfair competition as proscribed by the
Competition Act." Here is part of what is prohibited under the Act: "The prohibition "Agreements etc. preventing, restricting or distorting competition.
"2. - (1) Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which-
"(a) may affect trade within the United Kingdom, and
"(b) have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom,
"are prohibited unless they are exempt in accordance with the provisions of this Part." You can find more websites that carry information about the Enterprise Act of 2002 here. One thing I notice is that any false information provided can be sanctionable against the one reporting it, so proper wording would be important, and that, of course, is what lawyers are for. Here is contact information for the Office of Fair Trading: The Office of Fair Trading
Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX
Switchboard (020) 7211 8000
Web Site: http://www.oft.gov.uk
Our informant has agreed to keep Groklaw up-to-date on developments on his case. I know from my email and from comments that a lot of you have been wondering when someone might do something like this in the UK, and now you know. UPDATE To keep my email manageable, this is to let you know I do know that Linux is licensed under the GPL, and it's not public domain. However, I am reporting on the email. It is what it is, and I can't change his email. It was sent already, before it arrived in my inbox. If you live in the UK and are positive you know what the expression "public domain" means legally in the UK, by all means write a more precise letter, if you wish. This person took the initiative, figured out a strategy, and wrote an email to get the ball rolling in the UK. To the best of my knowledge, he is the first to do so in that country. That is news that matters. Another reader sends this information on the EU: "The EU has laws about competition as well; they should be similar to those in the UK. There is an EU Commissioner specifically appointed to deal with competition matters, a post currently held by Mario Monti. The address listed on the competition website is:
European Commission
Directorate-General for Competition
B-1049 Brussels
"There is also a Consumer Affairs Commissioner too (David Byrne... no, not that one, another one). It looks like he may be more interested in unfair trading practices whereas the Competition Commissioner is concerned with market abuse and anti-trust stuff."
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| Authored by: tazer on Monday, November 10 2003 @ 08:04 PM EST |
Not sure how if the wording matters, but I might change the public domain bit to
something like 'available to the public'. I'd hate to see a potentially
valid complaint have the air let out of it due to a technicality.[ Reply to This | # ]
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| Authored by: brenda banks on Monday, November 10 2003 @ 08:13 PM EST |
excellent
and if this can move faster and really get answers then tally ho
-:)
br3n
---
br3n[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 08:30 PM EST |
Well, that should get up their shorts, what?
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 08:32 PM EST |
I wonder if SCO has already achieved their principle objective. They sure are
quiet these last few days.
They've got additional capital (the best part of $50m).
Perhaps the remaining issue is to extract themselves from the law suits within
the minimum amount of fall-out both from the other side (IBM and Red Hat) and
from the investment community?
1. http://lwn.net/Articles/35523/
Morgan Keegan was retained by the company "to act as an exclusive
financial advisor to assist the Company in its analysis, consideration and if
appropriate, execution of various financial and strategic alternatives
available
to it including, but not limited to, securing additional equity and/or debt
capital and potential strategic transactions including mergers, acquisitions
and
joint ventures" (2002 annual report).
2.
http://www.sec.gov/Archives/edgar/data/1102542/000110465903023055/a03-4160_18k.h
tm
"The SCO Group, Inc. (“SCO”) has received a
$50,000,000 private investment from two investors, including BayStar Capital
II,
LP (“BayStar”)."
"SCO will pay its investment banker, Morgan Keegan & Company, Inc., a
fee equal to 4 percent of the gross proceeds."
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 08:40 PM EST |
Please, I would really like to see:
1. The Addendum to IBM's Reply Memo to SCO's Response, for IBM's first motion
to compel discovery.
2. Exhibit F for IBM's memo in support of IBM's second motion to compel
discovery.
PDFs would be fine,
Any chance? PJ? Anybody?
Thanks in advance[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 09:18 PM EST |
The EU has laws about competition as well; they should be similar to those
in the UK. There is an EU Commissioner specifically appointed to deal with
competition matters, a post currently held by Mario Monti. The address listed
on the competition
website is:
European Commission
Directorate-General for
Competition
B-1049 Brussels
There is also a Consumer Affairs
Commissioner too (David Byrne... no, not that one, another one). It looks
like he may be more interested in unfair trading practices whereas the
Competition Commissioner is concerned with market abuse and anti-trust
stuff.
The EU Commission can theoretically act on behalf of all member
states, currently 15 of them, to protect the EU's interests and laws. They
have, however, been investigating Microsoft's for some time now with no sign of
an actual resolution, so I wouldn't hold my breath.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 09:22 PM EST |
Part of this is WRONG! VERY VERY WRONG!
""Linux, as you may know, was developed and is distributed under an
'Open Source' policy. This means that the whole of it, including the source
code is in the public domain and can be obtained for minimal cost."
NO! Linux is GPL! If it were public domain, anyone could just walk off with it
and never contribute anything back! That Linux is public domain is one of
SCO's arguements! :(
Under the GPL, Linus and others have copyright interests still--this is WHY they
can force others to adhere to the GPL! Otherwise, it'd be under the BSD
license, which is *almost* public domain (it only requires that you keep the
copyright notices intact).
PLEASE don't confuse this issue! :( This is probably how they got so many
folks to buy into SCO's sham :/[ Reply to This | # ]
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- WRONG! :( - Authored by: Anonymous on Monday, November 10 2003 @ 10:22 PM EST
- Not wrong Charles - Authored by: Anonymous on Monday, November 10 2003 @ 10:30 PM EST
- Not wrong Charles - Authored by: Anonymous on Monday, November 10 2003 @ 10:36 PM EST
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| Authored by: Anonymous on Monday, November 10 2003 @ 09:27 PM EST |
I am concerned that the reader submitting this article has specified that SW
released under the GPL is public domain. My understanding of public domain is
that all rights are vacated by the copyright holder, and this is simply not true
for code released under the GPL. There has been discussion recently that SCO's
strategy could be to have all GPL code classed public domain (in the US at
least). This would prevent Linux coders from sueing SCO for breach of their GPL
licence agreement, which I don't think is a good thing.
I think the UK reader (an we all) needs keep this in mind and possibly follow up
their complaint in the UK with this clarification.
Thanks for listening[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 10:25 PM EST |
Dictionary
Reference.com
An extract:
Public domain means no copyright -- no
exclusive rights. In fact the phrase "public domain" has no legal status at all
in the UK. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 11:01 PM EST |
| The full quote from the earlier post:
"The phrase "public domain" is often used
incorrectly to refer to freeware or shareware (software which is copyrighted but
is distributed without (advance) payment). Public domain means no copyright --
no exclusive rights. In fact the phrase "public domain" has no legal status at
all in the UK."
Perhaps if our own Library of Congress Copyright Office
co-mingles copyrighted shareware and public domain software together in the
"Computer Shareware Registry" the term public domain merits very little
distinction here in the US either.
US Title 37 section
201.26:
Recordation of documents pertaining to computer shareware and
donation of public domain computer software.
(a) General. This section
prescribes the procedures for submission of legal documents pertaining to
computer shareware and the deposit of public domain computer software
under section 805 of Public Law 101-650, 104 Stat. 5089 (1990). Documents
recorded in the Copyright Office under this regulation will be included in the
Computer Shareware Registry.
Recordation in this Registry will establish a
public record of licenses or other legal documents governing the relationship
between copyright owners of computer shareware and persons associated with the
dissemination or other use of computer shareware. Documents transferring the
ownership of some or all rights under the copyright law of computer
shareware
and security interests in such software should be recorded under 17 U.S.C. 205,
as implemented by Sec. 201.4...."
It seems if the Government doesn't like
your donated software they can simply destroy it! (WOW! to think some people say
the GPL is viral or Unconstitutional)
(g) Donation of public domain
computer software. (1) Any person may donate a copy of public domain computer
software for the benefit of the Machine-Readable Collections Reading Room of the
Library of Congress.
Decision as to whether any public domain computer
software is suitable for accession to the collections rests solely with the
Library of Congress. Materials not selected will be disposed of in accordance
with usual procedures, including transfer to other libraries, sale, or
destruction. Donation of public domain software may be made regardless of
whether a document has been recorded pertaining to the software.
(2) In
order to donate public domain software, the following conditions must be
met:
(i) The copy of the public domain software must contain an explicit
disclaimer of copyright protection from the copyright owner.
(ii) The
submission should contain documentation regarding the software. If the
documentation is in machine-readable form, a print-out of the documentation
should be included in the donation.
(iii) If the public domain software
is marketed in a box or other packaging, the entire work as distributed,
including the packaging, should be deposited.
(iv) If the public domain
software is copy protected, two copies of the software must be submitted.
(3) Donations of public domain software with an accompanying letter of
explanation must be sent to the following address: Gift Section, Exchange &
Gift Division, Library of Congress, Washington, DC 20540-4260.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 10 2003 @ 11:52 PM EST |
Now if SCO were part of the Royal family, would we be able to talk about this if
anything comes of it? <grin>
Headline - "SCO claims liniage in Royal blood line."
"We have millions of examples of DNA code which prove our corporate entity
is of royal stock." - Sir Darl[ Reply to This | # ]
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| Authored by: sam on Tuesday, November 11 2003 @ 12:35 AM EST |
I.B.M. Helps Promote Linux
By STEVE LOHR
Published: November 11, 2003
Linux is a rising star in the geeky back office of computing. Its gains have
come as an operating system for the data-serving computers that run corporate
networks and serve up Web pages. On the desktop, Microsoft's Windows still
reigns supreme.
More............
http://www.nytimes.com/2003/11/11/technology/11blue.html?ex=1069131600&e
n=1e3ad86d7fbf68fc&ei=5062&partner=GOOGLE[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 11 2003 @ 04:16 AM EST |
| Flew by the the Yahoo SCOX board this morning and noticed this where an eagle-eyed poster saw SCOSOURCE SYSTEM V FOR LINUX LIC PK for sale.
I thought it was
intruiging since it's using the new SCOSource brand, mentions Linux and has a
price - but no details. It's indeterminate if this is 'just' related to the SCO
LKP or if it's the real thing. I'd bet on the former, anyone know more?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 12 2003 @ 08:11 AM EST |
He's not the first to mail the the OFT. I have done so already and I'm sure
lots of other people in the UK have too. My complaint was that SCO's "Sco
Source" programme is breaking the following laws:
Unfair Contract Terms Act 1977
Unfair Terms in Consumer Contract Regulation 1999
The OFT are very slow to respond though and they mis-uinderstood the complaint.
I have written again with more explanation.[ Reply to This | # ]
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