|
|
| About "The Second Australian Complaint" - by Brendan Scott, Esq. |
 |
|
Wednesday, February 25 2004 @ 09:48 AM EST
|
Brendan Scott is the attorney who designed the strategy behind the most recent Australian complaint against SCO by Open Source Victoria. He kindly offered to explain a bit about the case, and he reads Groklaw, so he saw our comments and questions on the article about the case being filed with the Australian Competition and Consumer Commission, and he has addressed some questions raised. It's a good explanation of how a lawyer looks at a law and strategizes so as to form the complaint to fit the law he has to work with.
The article highlights some things I didn't know: specifically, that the ACCC has discretion to act or not to act. They decide based on the harm they perceive to consumers. Presumably, knowing a great many people in Australia would be affected by SCO's conduct if they don't act and are interested in them doing so might influence the decision. Also, they are asking for a remedy I didn't notice. In fact, none of us here did. "The complaint also suggests that if the GPL is invalid, then SCO should be required to grant a valid licence on terms which have substantially the same effect as the GPL." Bear in mind that they spell things somewhat differently in the UK and Australia than in the US, although we share a common tongue. I Americanized one word and then decided to leave the article as is. Groklaw is read internationally, and we have many readers in Australia and the UK, and GNU/Linux is international software as well. I decided there is no reason it has to be American spelling. I'm just explaining so you won't think there are mistakes.
*******************************************************
About "The Second Australian Complaint"
by Brendan Scott, Esq.
I was responsible for constructing the legal arguments behind the most recent complaint by OSV to the ACCC. When I saw that there was some discussion of the complaint on Groklaw, I offered to write a short article setting out some of the context of the complaint and the relevant Australian legislation. This is that article. I am an Australian attorney and I run a legal practice called Open Source Law based in Sydney, Australia. The OSV complaint has been mirrored on Groklaw but if you want the original from OSV get it here.
The ACCC and the Trade Practices Act
The complaint was filed with a statutory authority called the Australian Competition and Consumer Commission ("ACCC") . The ACCC describes itself like this: "The Australian Competition and Consumer Commission is an independent Commonwealth statutory authority... The ACCC promotes competition and fair trade in the market place to benefit consumers, business and the community. It also regulates national infrastructure services. Its primary responsibility is to ensure that individuals and businesses comply with the Commonwealth competition, fair trading and consumer protection laws."
While the complaint does not reference it explicitly, it relies on a piece of legislation called the Trade Practices Act 1974 (Cth) ("TPA"). This is the main piece of legislation administered by the ACCC. The object of the TPA (s2) is: "to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection." It is broken into a number of parts, the two most notable being Part IV -- provisions relating to the maintainance and promotion of competition in markets -- and Part V, consumer protection. If you were to describe it in the vernacular you might say that Part V of the Act is designed to keep vendors honest. For example, it has a broad prohibition against engaging in misleading or deceptive conduct in trade or commerce (the famous (at least in Australia) "section fifty-two")).
Part V is useful for consumers because it is specifically designed to overcome a number of deficiencies with contract law. For example, contract law requires privity (i.e., you need to be a party to the contract to sue on it) or some form of standing (e.g., that you are directly affected by the facts in question) and proof of loss. The TPA has a broad notion of standing and the ACCC (even though it is not a party to any of the transactions) has explicit powers to take action against vendors to enforce compliance with the Act. It is not necessary to prove loss or damage in order to secure a remedy under the TPA. The law also has a broad concept of what is misleading or deceptive. For example, information can be completely true, but still be misleading. This might occur where it is presented out of context or not presented with all relevant qualifiers. Finally, intention or good faith is irrelevant to determining whether a company has engaged in misleading or deceptive conduct. A company can "really, truly" believe a representation to be true and not misleading and have no intention to mislead or deceive and yet still fall foul of the Act if their conduct does in fact mislead or deceive.
The Act treats all misleading or deceptive conduct as bad but considers some such conduct as being worse than others. Thus "mere" misleading or deceptive conduct under section 52 can result in an injunction or an order for corrective advertising, but other specific types of such conduct can result in pecuniary penalties being imposed. One of those more serious forms of conduct is in relation to representations as to "the ... effect of any ... right" (sections 53(g) and 75AZC(k)).
The ACCC has a discretion to act (or decline to act) on complaints it receives and will do so based on the harm it perceives to consumers. Typically, where the ACCC considers that there is a breach of the TPA, they will contact the company involved, explain why, and get that company to agree to give an undertaking to carry out remedial action. If such an undertaking is given, it can be enforced in court. If the company disputes the breach or the proposed remedies, then the case can end up in court.
Where a breach of the TPA has been established, a court has the power to order the payment of damages (to a person who has suffered loss as a result of the breach), to grant an injunction (including a mandatory injunction) requiring the corporation to do or refrain from doing certain things, and, for certain breaches, the court can also impose pecuniary penalties (similar to a fine) as a result of the breach. For example, for a breach of section 75AZC the pecuniary penalty can be up to (a little over) AU$1 million for a corporation. As a component of protection of consumers involves making consumers aware of their rights, it is usual for corrective advertising to be a requirement of an undertaking or court order.
The Complaint
I have looked at a number (but not all) of the comments on Groklaw in relation to the complaint. In the aggregate they tease out most of the key elements in the complaint.
When developing the argument, some of the relevant key elements were that:
(a) it should be independent of who holds copyright in the kernel;
(b) as far as possible it should rely only on official SCO documents and SCO actions and statements;
(c) it should be reasonably evident on its face and comparatively straightforward;
(d) it should admit of effective remedies; and
(e) should be commonsensical.
The common sense element of the argument is that a person should be bound by their own past conduct. This should be self-evident as a general proposition, but is especially so in relation to third parties who acted in good faith on that conduct.
The complaint does not relate to any element of the SCOSource initiative to the extent that that initiative relates to copies of the Linux kernel which can't be traced back to a valid licensee of SCO (sorry for the multiple negatives). It therefore only seeks to require SCO to be bound by its own past conduct and, subject to this qualification, does not prevent SCO from any future conduct, including selling licences to new customers. However, if upheld, it ought to prevent SCO from representing that a licence over these kernels was required from SCO as, technically, such a licence could also be obtained from the resellers that SCO established with its earlier Linux distributions (i.e., any licensee that can trace their copy back to a valid licensee of SCO's). If corrective advertising was also ordered it is conceivable that that advertising could be required to refer to this fact.
The remedies sought under the complaint are basically that where SCO has purported to licence the Linux kernel on a certain basis (and, in particular, on the terms of the GPL), then they should be held to that. The complaint also suggests that if the GPL is invalid, then SCO should be required to grant a valid licence on terms which have substantially the same effect as the GPL (the comments on Groklaw may have missed this element of the complaint). If this was the case, then establishing that you are a valid licensee of the kernel from SCO would allow you to license others on the terms of the GPL - as was the explicit intention of Caldera (as evidenced by its contemporaneous SEC filings) at the time it licensed the kernel. Not only would this protect consumers (and, in particular, those consumers who wished to acquire the Linux kernel from an existing Caldera/SCO licensee), it also has competition benefits by preserving and promoting competition in the Linux market and so fulfills another of the objectives of the TPA.
Note on Copyright Holding
SCO is engaged in other cases in which copyright in parts of the Linux kernel is disputed by them. The existence of a dispute over copyright holding muddies the waters in discussions over SCO's conduct. However, in this instance copyright holding in the Linux kernel seems to be irrelevant. If, for the sake of the argument (only!), we assume that SCO does hold copyrights in parts of the Linux kernel, that copyright holding would not of itself allow them to deny, vary or retract an earlier licence grant. Indeed, they might be in a better position if they did not hold the copyrights, because they could then argue that they have no capacity to grant the licence sought in the remedies (however, even then, that could leave them open to damages claims).
For example, if a company sold pencils which it did not own, an appropriate remedy would be for them to perfect the ownership of the persons who bought the pencils (e.g., by buying them from the person who did in fact own them) if they were able to. Imagine if a company sold pencils which it did in fact own and later said, "Well, I didn't realise they were mine. If I had known I owned them, I wouldn't have sold them to you/you have to pay me more money/I am changing the terms of sale". In these circumstances it would be surprising if the original terms of sale were not enforced.
Conclusion
As I mentioned above, the various sites which have analysed the complaint have done a good job at dissecting it. If successful, it would give peace of mind and security to people who, perhaps years ago, purchased a licence from SCO in good faith.
Orthography note: Around here "licence" is a noun, "license" is a verb.
Other papers I have written on open source are available from the Open Source Law website: www.opensourcelaw.biz.
Copyright 2004 Brendan Scott
|
|
|
|
| Authored by: seanlynch on Wednesday, February 25 2004 @ 11:06 AM EST |
Thank you for taking the time to write this explanation Brendon.
-Sean[ Reply to This | # ]
|
| |
| Authored by: Nurseman on Wednesday, February 25 2004 @ 11:16 AM EST |
| The remedies sought under the complaint are basically that where SCO has
purported to licence the Linux kernel on a certain basis (and, in particular, on
the terms of the GPL), then they should be held to that
One of the first
things that jumped out at me was this. Didn't someone from SCO (Blake Stowell ?)
Just say that they want to be taken seriously ? How can you be taken seriously
when you try and change your liscense midstream ? TY for the comments. It makes
it clear companies are held to a higher standard down under. ---
I'd rather
have a bottle in front of me, than a frontal lobotomy [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 11:22 AM EST |
My compliments to Brendon Scott and GROKLAW for an informative explanation.
My question...
Where does this leave other flavours of Linux (i.e. Red Hat) in Australia?
Could they hypothetically be targeted by SCO.
It seems that the Australian action relates to SCO's flavour of Linux.
-------------------
Night Flyer at work
My Clan Motto: Veritas Vincit: Truth Conquers[ Reply to This | # ]
|
| |
| Authored by: rsteinmetz70112 on Wednesday, February 25 2004 @ 11:25 AM EST |
This complaint is very cleverly drawn. It seems to seek only to get SCO to stand
by what that have done in the past. Something bureaucrats the world over can
support.
It seems very narrow, but the effect would be to get any code SCO actually has
copyright to released under the GPL or a GPL like license, thereby allowing it
to be reincorporated in Linux.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 11:30 AM EST |
> They decide based on the harm they perceive to consumers.
I hope the reality of that statement lives up to the promise.
The far-too-common alternative would be for them to decide the way it appears
the U.S. DOJ did (regarding Microsoft's punishment), i.e. based on the political
pressure they receive, which is in turn based on campaign contributions.
Let's keep our fingers crossed, and root for justice.
[ Reply to This | # ]
|
| |
| Authored by: Jude on Wednesday, February 25 2004 @ 11:35 AM EST |
It seems like such a nice, simple and logical argument.
What amazes me is that such arguments are apparently useless here in the U.S.
[ Reply to This | # ]
|
| |
| Authored by: the_flatlander on Wednesday, February 25 2004 @ 11:37 AM EST |
Imagine if a company sold pencils which it did in fact own and later
said, "Well, I didn't realise they were mine. If I had known I owned them, I
wouldn't have sold them to you/you have to pay me more money/I am changing the
terms of sale". In these circumstances it would be surprising if the original
terms of sale were not enforced.
lol.
Yep. That is the
SCOundrels' argument in a nutshell. Everything must really be upside down, Down
Under. I had believed lawyers were supposed to make things
less clear. ;^)
Thank you, I really appreciate your taking
the time to illuminate this for us.
The Flatlander [ Reply to This | # ]
|
| |
| Authored by: ka6sox on Wednesday, February 25 2004 @ 11:39 AM EST |
Is Australia a signatory to the Berne Convention and if this case were to go
against SCO would the U.S. not also be able to use these findings?
Tom
---
Tom[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 11:51 AM EST |
This complaint is based on "consumer protection".
How do the laws of AGENCY play down under?
Do actual, apparent or ostensible authority play there as well (where
distributors appear to have the blessings of SCO to distrubte LINUX is not being
challenged by SCO)?
What about the words acquiescence or estopple, how do these mix into the down
under versions of consumer protections laws?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 12:01 PM EST |
<i>The common sense element of the argument is that a person should be
bound by their own past conduct. This should be self-evident as a general
proposition, but is especially so in relation to third parties who acted in good
faith on that conduct.</i>
<p>So if SCO has been conducting business in Wonderland with Alice and her
friends as past conduct, does this mean that through common sense, we hold them
to a non-sensical standard? The Chewbacca defense makes perfect sense, and they
can argue anything they want contri-wise, as long as they keep up with this
conduct.</p>
<p>Just feeling precocious, smile. ;-)</p>[ Reply to This | # ]
|
| |
| Authored by: Peter Smith on Wednesday, February 25 2004 @ 12:04 PM EST |
I don't know whether to be amused or bemused by your apology for spelling
mistakes but it deserves a big grin :)
We have for a long time considered American spelling to be less than adequate so
it is only fair that you return the favour.
Now if only Americans could be persuaded to pronounce Leenux correctly.[ Reply to This | # ]
|
| |
| Authored by: kcassidy on Wednesday, February 25 2004 @ 12:05 PM EST |
Thank you for an insider view on the complaint, and from someone who is actually
involved in the complaint as opposed to just a news story which, although
Australian reports seem to give more factual information than our North American
ones, still miss out on all the points. It will be interesting to see where this
will lead in the future, and whether or not the ruling that SCO must abide by
their previous licenses will be admissible over in North America in
court.
Is it possible that, if SCO is found to have to abide by their
previous license, then anyone can obtain a copy of Caldera or SCO Linux due to
the argument that the GPLd version of the code is valid?
One other quick
thought: If the GPL is held to be invalid and SCO must create a similar license
to distribute their product, what would then happen to all of the other code
that is GPLd? SCO would have no license whatsoever to distribute that at all,
since the GPL would be invalid and, if it was not a derivative work at all (ie
not related to the kernel but was, in fact, a standalone application), could SCO
legally still distribute other software with their product or would they have
the rights to only distribute the kernel and their own products? (I hope this
question was clear, or at least will be understood... this is something I have
been wondering about for a while, should the GPL be tossed out.)[ Reply to This | # ]
|
| |
| Authored by: tb789 on Wednesday, February 25 2004 @ 12:13 PM EST |
I'm not trying to troll here (honest!), but if Caldera released the kernel under
the GPL and SCO didn't, wouldn't SCO only have to distribute the older kernel
versions that were available when Caldera existed? [ Reply to This | # ]
|
| |
| Authored by: kberrien on Wednesday, February 25 2004 @ 12:27 PM EST |
Thanks for the background to the complaint! One question:
How's the efficiency of the ACCC? Do they have a record of acting fast, or are
they like many other agencies and take their time? I suspect the later.
It is important however that the complaint get on the record. I notice how
SCO's various *theories* seem to get them in trouble, everywhere, in different
ways. Its like lying, you get yourself deeper and deeper. The moment SCO
decided to ignore their GPL history they began down that slippery sloap.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 12:29 PM EST |
I don't agree with SCO, but there may some validity in one of their arguments,
and I'll use an analogy to explain...
You're at a party, a friend gives you a small package, and tells you it's a
present for John. You walk over to John and give him the package, "Hey
John, this is for you."
John opens it, and inside are YOUR car keys. "Thanks", says John and
drives off in your car. And when you complain everyone says that you DID give
him the present.
SCO would argue that they didn't know that their copyrighted code was inside.
And GNU does not transfer copyrights.
Maybe this is a "Get out of GNU free" card for SCO.
M.
[ Reply to This | # ]
|
- One point SCO do have (GNU = GPL) - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:34 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:36 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:36 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:36 PM EST
- Hmmm - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:38 PM EST
- One point SCO do [not] have - Authored by: ericthecat on Wednesday, February 25 2004 @ 12:44 PM EST
- One point SCO do have - Authored by: phrostie on Wednesday, February 25 2004 @ 12:45 PM EST
- Much too much - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:54 PM EST
- Much too much - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:58 PM EST
- Much too much - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:01 PM EST
- Much too much - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:10 PM EST
- Much too much - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:41 PM EST
- Much too much - Authored by: phrostie on Wednesday, February 25 2004 @ 01:10 PM EST
- Much too much - Authored by: PJ on Wednesday, February 25 2004 @ 01:17 PM EST
- Much too much - Authored by: Newsome on Wednesday, February 25 2004 @ 01:24 PM EST
- One point SCO do have - Authored by: Jude on Wednesday, February 25 2004 @ 01:04 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:19 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:22 PM EST
- RE: One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:24 PM EST
- One point SCO do have - Authored by: seanlynch on Wednesday, February 25 2004 @ 01:29 PM EST
- One point SCO do have - Authored by: minkwe on Wednesday, February 25 2004 @ 01:32 PM EST
- SCO was selling the "enterprise-class" box - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:35 PM EST
- One point SCO do have - Authored by: DrStupid on Wednesday, February 25 2004 @ 01:48 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 02:20 PM EST
- But if YOU wrapped the package? - Authored by: Tsu Dho Nimh on Wednesday, February 25 2004 @ 05:36 PM EST
- One point SCO do have - Authored by: blacklight on Wednesday, February 25 2004 @ 06:31 PM EST
- One point SCO do have - Authored by: Anonymous on Wednesday, February 25 2004 @ 10:58 PM EST
- A better analogy ... - Authored by: Anonymous on Thursday, February 26 2004 @ 06:43 PM EST
| |
| Authored by: phrostie on Wednesday, February 25 2004 @ 12:53 PM EST |
" The remedies sought under the complaint are basically that where SCO has
purported to licence the Linux kernel on a certain basis (and, in particular, on
the terms of the GPL), then they should be held to that. The complaint also
suggests that if the GPL is invalid, then SCO should be required to grant a
valid licence on terms which have substantially the same effect as the GPL (the
comments on Groklaw may have missed this element of the complaint)."
although i appreciate what they are trying to do, this part worries me. you've
fallen into the trap that:
a) SCO has valid IP that should not be in the kernel.
b) none of the other kernel contributers matter.
they would have to get the consent of ALL the other kernel contributers to
accept and dsitribute under the new licence.
i hope they are working one the means of contacting everyone that has ever
contributed so much as a comment in some obscure header file back in 1997.
if not where do you draw the line without violating the copyrights of others.
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux[ Reply to This | # ]
|
- No - Authored by: Anonymous on Wednesday, February 25 2004 @ 12:57 PM EST
- Are you sure? - Authored by: phrostie on Wednesday, February 25 2004 @ 01:21 PM EST
- Yes - Authored by: Anonymous on Wednesday, February 25 2004 @ 01:26 PM EST
- No - Authored by: PJ on Wednesday, February 25 2004 @ 01:22 PM EST
- No - Authored by: Tyro on Wednesday, February 25 2004 @ 03:59 PM EST
- No - just for the part SCO owns :-) - Authored by: Anonymous on Wednesday, February 25 2004 @ 04:07 PM EST
- substantially the same effect as the GPL - Authored by: Anonymous on Wednesday, February 25 2004 @ 06:26 PM EST
| |
| Authored by: TwinDX on Wednesday, February 25 2004 @ 12:57 PM EST |
Bear in mind that they spell things somewhat differently in
England and Australia than in the US, although we share a common tongue. I
Americanized one word and then decided to leave the article as is. Groklaw is
read internationally, and we have many readers in Australia and England, and
GNU/Linux is international software as well. I decided there is no reason it has
to be American spelling. I'm just explaining so you won't think there are
mistakes.
Just a small point, but one that makes about 10%
of the population of the UK exceedingly annoyed, and it's our North American
cousins who are most guilty of it.
England !=
Britain
England is a huge chunk of Britain, but it's not the whole
thing. There's Wales, Scotland and Northern Ireland as well. Please don't use
England to mean Britain/Great Britain/the UK/the United Kingdom, because they
don't equate. It could cause a compilation error, or due to misfiling, a legal
loophole. =)
Legally speaking there are subtle differences between the
component countries that make up Britain but by and large we're the same. The
laws SCO break in England are the same laws as for the rest of us.
Thank
you for listening.
Steve
Not English [ Reply to This | # ]
|
| |
| Authored by: jbossvi on Wednesday, February 25 2004 @ 01:08 PM EST |
I have said this before and still have not gotten the final answer IANAL and
all.
but since SCOG made a big deal announcing to the world that their STUFF was in
linux. and yet continued to distribute the same material containing their STUFF
under a different license GPL, up until dec 8th 2003 at least. Darl keeps saying
you have to knowingly transfer copyright in writting.. I content they did
exactly that, they knew for some time they had IP in those files (at least they
think so) and yet continued to put a license on it that stated otherwise.
Therefor "knowningly" transfering copyright to the GPL. I think
between them stating there was a problem and changing the license was like 6
months or so. If it was 1 week or a few days, okay mistakes happen but after a
few months, how is a customer supposed to know the difference. esp. since they
wouldnt tell us which files, taking away the customer's ability to do due
diligence and check the files.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 01:54 PM EST |
| Lots of good replies to this analogy.
One point not really raised (at least
directly in terms of the analogy): Even ignoring all other flaws in the
analogy, and taking the situation as described, John is not a car thief!
You gave him the keys; he took them in good faith. There is no reasonable way
to blame him (including financially).
So even under this analogy, even
ignoring the other points raised, SCO has no claim against end users. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 02:07 PM EST |
Not looking too good. Could this be the start?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 02:20 PM EST |
"/Producer (Acrobat Distiller 5.0 (Windows))
/Author (Devry Arnett)
/Creator (Acrobat PDFMaker 5.0 for Word)
/ModDate (D:20040217153402-05'00')
/Title (CALDERA INTERNATIONAL, INC)
/CreationDate (D:20040217153344-05'00')
endobj
73 0 obj
<< /Type /Metadata /Subtype /XML /Length 1082 >>
stream
<?xpacket begin='' id='W5M0MpCehiHzreSzNTczkc9d' bytes='1081'?><rdf:RDF
xmlns:rdf=
'http://www.w3.org/1999/02/22-rdf-syntax-ns#'
xmlns:iX='http://ns.adobe.com/iX/1.0
/'><rdf:Description about='' xmlns='http://ns.adobe.com/pdf/1.3/'
xmlns:pdf='http:
//ns.adobe.com/pdf/1.3/' pdf:CreationDate='2004-02-17T20:33:44Z'
pdf:ModDate='2004
-02-17T20:33:44Z' pdf:Producer='Acrobat Distiller 5.0 (Windows)'
pdf:Author='Devry
Arnett' pdf:Creator='Acrobat PDFMaker 5.0 for Word' pdf:Title='CALDERA
INTERNATIO
NAL, INC'/>
<rdf:Description about='' xmlns='http://ns.adobe.com/xap/1.0/'
xmlns:xap='http://n
s.adobe.com/xap/1.0/' xap:CreateDate='2004-02-17T20:33:44Z'
xap:ModifyDate='2004-0
2-17T20:33:44Z' xap:Author='Devry Arnett'
xap:MetadataDate='2004-02-17T20:33:44Z'>
<xap:Title><rdf:Alt><rdf:li xml:lang='x-default'>CALDERA
INTERNATIONAL, INC</rdf:l
i></rdf:Alt></xap:Title></rdf:Description>
<rdf:Description about='' xmlns='http://purl.org/dc/elements/1.1/'
xmlns:dc='http:
//purl.org/dc/elements/1.1/' dc:creator='Devry Arnett' dc:title='CALDERA
INTERNATI
ONAL, INC'/>
</rdf:RDF><?xpacket end='r'?>
endstream"
Real men format their documents with nroff.[ Reply to This | # ]
|
| |
| Authored by: legal insanity on Wednesday, February 25 2004 @ 02:23 PM EST |
I want to thank you for sharing your reasoning with all of us.
I like this approach you have taken. Most want to see the SCO's building be
dropped in an eyeblink. My-self one brick at a time is fine. If one shakes a
tree long enough, something is
bound to fall out.
---
Insanity Pleadings is the only Sensible Defense[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 03:07 PM EST |
Isn't about time there was some a new filing in the SCO v Novell case? Anybody
seen anything?[ Reply to This | # ]
|
| |
| Authored by: Chugiak on Wednesday, February 25 2004 @ 03:22 PM EST |
| Waiting for something from the Hon. Magistrate Wells reminds me of the Holy
grail scene where Sir Launcelot approaches Swamp Castle to rescue a presumed MID
(Maiden In Distress).
Here's a snippet from one of the numerous versions of the
script that you can find online, I chose this one.
As Sir Launcelot
approaches the castle, time seems to stand still. That is the feeling I have
right now. I'm wondering what the outcome will be from Hon. Wells'
advisement...
SCENE 21.—SIR LAUNCELOT ASSAULTS SWAMP CASTLE
[Inside
the Great Hall of Swamp Castle, handmaidens decorate the fat bride and braid her
horse-like hair.
Wedding guests mingle near the fire. A hind is spitted.
Minstrels play. Maidens dance a Morris dance.]
[Outside, at the main gate, more
guests enter, passing by the GUARDSMEN]
GUEST: Mornin’.
GUARDSMAN: [eating
apple] Morning.
[LAUNCELOT charges across green to the sound of
drumming]
[GUARDSMEN peer out at him.]
[LAUNCELOT continues to approach.
However, he is not closer that he was a moment ago.]
[GUARDSMEN continue to peer
out at him curiously. This goes on a total of five
times.]
[Suddenly—]
LAUNCELOT: Ha-ha! [stabs one guardsman, enters castle]
OTHER
GUARDSMAN: [dimly] Hey!
[LAUNCELOT lays waste to the entire wedding party,
whacking
servants, stabbing maidens, chopping the minstrels’ pavilion
support
down, kicking guests, and doing in guardsmen, even chopping at
flowers
on the wall of the stairway, laughing maniacally all the way, until at
last he
bursts through the door of the top chamber in the tall
tower.]
Now will Launcelot be played by David Marriott or Hon.
Brooke Wells?
;)
[ Reply to This | # ]
|
- Movie analogies - Authored by: Anonymous on Wednesday, February 25 2004 @ 03:55 PM EST
- Movie Analogies - Authored by: Anonymous on Wednesday, February 25 2004 @ 06:10 PM EST
| |
| Authored by: RSC on Wednesday, February 25 2004 @ 04:09 PM EST |
Thanks Brendon for a very interesting article. As an Aussie myself, it is good
to be able to get a better understanding of the laws I live under. :)
And thank you PJ for posting Brendons Article.
I hope the ACCC will act, it would be good to see some action after 11 months
FUD.
RSC
---
----
An Australian who IS interested.[ Reply to This | # ]
|
| |
| Authored by: piskozub on Wednesday, February 25 2004 @ 04:31 PM EST |
| SCOX closed today $12.39, the lowest close since August 21.
Five day
plot:
http://finance.yahoo.com/q
/bc?s=SCOX&t=5d
Enjoy! [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 05:05 PM EST |
Lets say I am an artist I make fancy paintings and sell prints for thousands of
dollars a piece. Now I go off and make a collection of royalty free prints from
all around the world but not using my own paintings of course because I want to
make $$$. So I sell this package of public domain/royalty free paintings for
several years. Now say 3 years later I realise that one of my painting is in
this collection the questions are.
1. Can I run off and charge everyone who has a print thousands of dollars?
2. Can I stop people distrubting my works for free?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 05:23 PM EST |
I really like that example with the pencils, as it is easier to visualize what
is going on. However, as someone else pointed out, that example relates
directly to cases where people bought SCO Linux, and doesn’t really address
those who bought distros from other vendors. I have a few examples of my own
which involve other vendors – how would contract law treat these situations, in
Australia or anywhere else?
If I purchase a $700 Sony television from a local store, and later it is
discovered that Phillips actually owned the patents on some (and not all) of the
components within that television, would Phillips have the right to send me a
bill for an extra $2,000 and legally enforce payment?
If I purchase a $3 bag of cookies from Nabisco, and it turns out that Nestle
owned the patent on the chocolate chips, does Nestle have the right to ask me to
pay them for the chips? Worse yet, can they alter the terms of the deal
entirely (like SCO is doing) so that I never really buy them, but only lease
them for $10 per chip per year until such time as I return the bag of cookies to
Nabisco? What if I already ate the cookies?
Finally, here is an example that speaks to SCO’s allegations that actual theft
was involved in getting their code into Linux. If I purchase a $10,000 car from
used car dealership “A” and it is later determined that the car had been stolen
the previous night from a different used car dealership “B”, does dealership “B”
have the right to send me a bill for $50,000 for that car? I never would have
bought the used car for $50,000 (or for $60,000, which is what my total payments
to both dealerships would be). Does dealership “B” have the right to force me
to pay whatever they want me to pay for something I already paid someone else
for – without giving me the right to refuse?
If SCO does in fact own something in Linux, maybe they have the right to go
after the other vendors and ask them to “perfect their ownership of the product
they sold” by paying something to SCO. But how can it be legal for them to go
after the consumer?
Thanks,
Gary
[ Reply to This | # ]
|
| |
| Authored by: Thomas Downing on Wednesday, February 25 2004 @ 05:48 PM EST |
A most excellently well written article!
I especially admire the
analytical thought that went before the complaint, the reasoning behind how the
complaint should be framed.
When hoisting an adversary on a petard, it is
particularly pleasurable to use the adversary's own petard. But it is brilliant
the demonstrate that the adversary has also done the
hoisting! ---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
|
| |
| Authored by: ine on Wednesday, February 25 2004 @ 07:04 PM EST |
OK. So I am an Australian. I once bought a copy of Caldera OpenLinux 1.3 (I
think that was the version - it is at home). It has the kernel source code in it
(2.0.3x) including errno.h, etc - all the alleged offending files that TSG claim
were copied from SysV into Linux. I bought it from a local Caldera reseller,
after phoning the then Australian Caldera representative to find out where I
could buy it (I was looking for the Caldera distribution because I especially
wanted the licensed copy of StarOffice inside - it was hard to get back then).
To the extent that Caldera released these headers to me, and to the extent that
the current headers are the same (I'll have to check) - does that mean I am
covered from any representation from Caldera, trading now as The SCO Group,
about the alleged misappropriation of these files?
How can they say, "We sold them to you but we didn't mean to?" It is
not my problem - it is THEIR problem. Caveat vendor![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 07:15 PM EST |
Thank you for writing this.
One thing I realised in reading this is that SCO simply CANNOT WIN in this
jurisdiction. If even statements of truth can be in violation of the act if they
are misleading then the chances of SCO being able to continue to obfuscate about
the nature of its claims here are approximately ... zero.
SCO has been like a lizard under a rock. They've been surviving by being evasive
and vague - making big general claims and refusing to back them up with specific
evidence. In this jurisdiction there is such a high premium placed on openness
and keeping consumers fully informed that SCO just isn't going to be allowed to
keep behaving like this, and will certainly lose if it tries.
This court WILL require that the license situation be made explicit and clear so
that the license conditions that SCO wants to apply to each piece of code are
precisely identified for its customers. But once the rock is lifted SCO is easy
meat for all you legal eagles out there.
Suppose they try to unGPL a specific piece of code, for example if they try to
put a SCO copyright notice on errno.h. Then Linus Torvalds, as original author
and contributor of that code now has a completely clear case against them. The
lizard will not survive long if it is forced out into the open.
I doubt SCO will win. TO even have a chance of winning they are going to have to
come completely out from under their rock and be explicit and specific. And that
by itself is going to finish them. Lizards don't survive long in the open.[ Reply to This | # ]
|
| |
| Authored by: Thomas Frayne on Wednesday, February 25 2004 @ 07:16 PM EST |
Let's assume that justice in Australia is faster than justice in the US.
If SCOG is forced to give its customers a license that is valid according to
SCOG, and will satisfy the promises SCOG made to its customers, then the
resulting license will have to be GPL-compatible.
Anyone having such a license could then use it to distribute the Linux Kernel
received from SCOG under the GPL, resulting in a GPL'd Linux Kernel that is free
of SCOG infringement claims.
That kernel could then be sent to Linus, who could reconstruct the files SCOG
claims from their "legal" equivalents, so the official kernel would be
free of SCOG claims, and everyone receiving the official kernel would also be
free of SCOG claims.
If SCOG sued anyone for copyright infringement because of use of an old kernel,
the defendent would just have to replace the kernel with a new one to mitigate
the damage.
We don't even have to know whether SCOG owns the copyrights.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 07:36 PM EST |
Not sure if anyone here cares to join the fun on /. There is a story on the
doctored photo that included Jane Fonda in a picture with John Kerry. Talk of
copyright violation, DRM violation, political intrigue and a wasted youth.
The usual disclimers about the level of discussion on /. ,but I have tried to
set them straight on some issues.
<1/2 wit>[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 08:26 PM EST |
Ok, so if I have got this right, this filing is only to prevent SCO from double
billing existing or old customers.
What about users of Debian, Redhat, and every other linux kernel based
distribution. Is there anything that will benifit them in this filing?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 25 2004 @ 09:03 PM EST |
If this is upheld by ACCC I will be handing out copies of the Caldera CD at the
next Sydney LUG meeting. This should be enough to show a link.[ Reply to This | # ]
|
| |
| Authored by: PJ on Wednesday, February 25 2004 @ 09:51 PM EST |
OK. I changed "England" to "the UK", hoping that
satisfies. ; )
Also, note that I <sigh> misspelled Brendan's name as Brendon. I have
fixed
that too, but I wanted to highlight it, as I try always to do when I goof. So
sorry Brendan and thank you so much for this article.[ Reply to This | # ]
|
| |
| Authored by: john82a on Thursday, February 26 2004 @ 12:38 PM EST |
Listening to Linus, it sure sounds like linooks.
Sorry to introduce another variant, but the "ux" sound could be
pronounced like ooks or ucks.
Pronunciation and spelling are only aides-memoires: we all know what linux is.[ Reply to This | # ]
|
|
|
|
|
