German Penguins Launch Successful Counter-Attack in SCO v Linux War

The German Linux community is taking SCO-Caldera head on and winning. Has the German Linux community taken a page out of the playbook that says the best defense is a good offense?

In any event, the German penguins have called SCO-Caldera CEO Darl McBride's, bluff. And so far SCO-Caldera and McBride have come up short.

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.

Penguins Counter-Attack

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.

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

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.

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.

Univention's Peter Ganten Discusses the Preliminary Injunction Against SCO

We discussed the Univention GmbH preliminary injunction with its CEO, Peter H. Ganten, via e-mail from 31 May through 6 June 2003. Please keep in mind when reading this discussion that some German words do not translate directly into English words. Same thing goes for the translations of court orders and announcements from German to English.

MozillaQuest Magazine: To what in English does "GmbH" translate?

Peter H. Ganten: My dictionary says: Limited (Ltd.), Incorporated (Inc.), Public Limited Company (PLC)

MozillaQuest Magazine: I guess this is a temporary or preliminary injunction, is that correct?

Peter H. Ganten: As I understand my lawyers, it does not really expire. SCO now has the chance to appeal the court's decision. If that happens, the court will conduct a hearing. If they do not appeal, we need to act again after some time (can't say when, yet).

-- MozillaQuest Magazine: What happens if they do not appeal and you do not act?

-- Peter H. Ganten: As my lawyers told me, the court's decision will expire after half a year. If they do not appeal, we will try to get a declaration from SCO that they will conform to the court's decision in the future. Should they not sign the declaration, we need to get a permanent court decision in a lawsuit.

Article Index Penguins Counter-Attack SCO-Caldera's Response to the Counterattack Univention's Peter Ganten Discusses the Preliminary Injunction Against SCO More Peter Ganten Discussion Summary and Conclusions Translations Injunction Order Univention Announcement Resources

MozillaQuest Magazine: Has the Court ordered SCO to respond to the (temporary) injunction? If so what is the date by which SCO must respond?

Peter H. Ganten: No, the order of the court is valid now and takes effect when the order is delivered to SCO. But SCO has the right to appeal.

-- MozillaQuest Magazine: When does the time for SCO to appeal expire?

-- Peter H. Ganten: I am not sure, but I guess also after half a year.

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