[CLUE-Talk] Put SCO behind bars

[Joe 'Zonker' Brockmeier]

On Wed, 2003-08-06 at 07:40, Randy Arabie wrote:
> On Wednesday,  6 August 2003 at  6:40:50 -0600, Joe 'Zonker' Brockmeier <jzb at dissociatedpress.net> wrote:
>  *snip*
> 
> > Having to fight off IBM, Red Hat, SuSE (in Europe) and an array of suits
> > in all 50 states could have a rather dramatic effect on SCO very
> > quickly. They've basically declared open season on all Linux companies
> > and users, the community should return the favor. 
> 
> That sounds like Mutually Assured Destruction...
> 
> "Why can't we all just get along?"

Um, cause SCO is busy trying to kill off Linux with the support of
Microsoft and Sun (behind the scenes). Inaction isn't advisable at this
point... 

> Seriously, under what guise would we suggest the AG take
> action?

Let's see. First, there's fraud -- SCO is saying that Linux users have
to have a license for their IP, when they haven't proven that their IP
is actually in the kernel. And, by refusing to give Linux users the
ability to not use this alleged IP, it's a pretty clear case of
extortion rather than a legitimate attempt to enforce IP rights. 

Second, extortion -- "buy a license, or we'll sue you." While SCO is not
threatening bodily harm, they are falsely claiming a right to charge
Linux users for the use of the Linux kernel. This does seem to meet the
definition of extortion. 

As I understand it, even if SCO's really does have a valid claim to IP
in the Linux kernel, they still cannot hold the end users responsible --
only the distributors. 

Let's say a company publishes a book which contains plagarized passages
from another publisher's book. Obviously, the publisher can sue the
author of the other book and the other publishing company -- but they
cannot go after every person who happened to buy a copy of the book.
They have to seek damages from the distributor. 

Deceptive trade practice also springs to mind.

And, I'm not a lawyer, so there may be other actions that I haven't
thought of. 

There are also several possible civil actions... 

Restraint of trade for anyone who works with Linux.

Trade libel -- alleging that Linux contains SCO's IP, not to mention all
the other erroneous allegations about how Open Source software is
"unsafe" compared to proprietary software. 

Barratry -- This may only apply if SCO actually starts filing suits
against users, but I believe that using the threat of baseless lawsuits
is also considered barratry. 

Microsoft and Sun could also be guilty of champerty or maintenance
(essentially, helping to fund a suit they have no direct interest in) if
it could be proven that their purchase of "licenses" from SCO were
really just veiled attempts to fund SCO so it could continue suits
against IBM and other Linux companies. 

> The best I can see is we suggest they investigate SCO
> because they (SCO) allege that we need additional licenses
> to use software for which we already have a license.
> 
> Would that be the appropriate tactic?

Basically, I'd write the AG and ask that they investigate SCO for
extortion, fraud and deceptive trade practices. Point out the number of
businesses and organizations (including government organizations) in
Colorado that use and support Linux. Virtually every ISP in the state,
companies like Xi Graphics and Tummy.com, TechAngle, most if not all of
the universities in the state, and countless other companies are using
Linux and/or offering products or services based on Linux. The impact of
SCO's actions on Colorado-based businesses could be very serious. 

Then point out some of the ways in which SCO may be violating the law. 

At least, that's what I plan to do. If I can, I'll post a sample letter
shortly. 

Zonker
-- 
Joe 'Zonker' Brockmeier
jzb at dissociatedpress.net
Aim: zonkerjoe
http://www.dissociatedpress.net