tarent.com

SCO can't stop it - and again needs to do so.

Allthough they signed the prohibitive injunction, the SCO Group GmbH published again comments that are bad for business on their website - and needed to take them back right away.

In November 2007 the old allegation could be read on https://sco.de, that linux was said to illegally seize the SCO's intellectual property and that the commercial usage of linux would make licensing by SCO neccessary. But the Landgericht München I forbade the SCO to claim these untrue and unprooved allegations in august 2003. At that time, a fine of 10.000,- Euro had been imposed against the SCO and the company had signed a prohibitive injunction.

This makes it even more astonishing, that SCO spreads again untruths about alledgedly intellectual property and licensing rights despite of the binding cease and desist declaration. The reaction came prompt: On 7 november 2007, our attorny Dr. Till Jaeger warned the SCO to stop these untrue and bad for business statements. And behold: Already one day later, the statements have been erased from the SCO's website. Through their attornies, the SCO declared again to put a stop to the statements that users of Linux could be hold responsible for segmentation faults of intellectual property by the SCO.

Gerd Jan Tschöpe, spokesperson of the tarent GmbH, "SCO tries again to do business with the fear by spreading untruths at the expense of third parties. The prompt taking back of the statement on the SCO's website and the latest cease and desist declaration are showing that this is more a nervous reflex than an elaborate action.

But neither the companies that develop innovative software in the GNU/Linux field, nor the constantly increasing number of their customers are awed by this. GNU/Linux is and will stay free software. One is quite right to trust in that. If SCO had put their creative potential in the development of technology instead of claiming the ideas of others their own property, they still would have been on the market."

see also: www.groklaw.net, heise

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tarent letter to SCO (informal translation)

Munich, 7th of November 2007

Dear Mr. Olson,

In the above referenced matter, we inform you that we are legal counsel for the Tarent GmbH, [address redacted]. Attached to this letter is a copy of a power of attorney [Vollmacht] to our name.

As you may know, our client obtaind a preliminary injunction at the [Landgericht (court of the state)] Munich I on June 4, 2003 against The SCO Group GmbH, in which you were enjoined from making the following claims in the course of business:

1. that the software "Linux" contains wrongfully obtained intellectual property of SCO's.

[pg 2]

2. that end users of "Linux" can be made liable for violations of SCO's intellectual property, and/or

3. that the software "Linux" is an unauthorised derivative of UNIX,

as long as this is not proven by you to be true.

In a letter dated July 2, 2003 our client stated that they waived rights from this preliminary injunction, except rights from the decision on fees, because you made a declaration of cease and desist [Unterlassung] to a third party to the Linuxtag e.V..

Today, our client noticed that you make the claims we object to [beanstandet] again on your website. The following text can be obtained on the Website https://www.sco.de/scosource/letter_to_partners.html :

"As we have progressed in our discovery related to this action, SCO has found compelling evidence that the Linux operating system contains unauthorized SCO UNIX intellectual property (IP)."

it is stated further on the website,

"if a customer refuses to compensate SCO for its UNIX intellectual property found in Linux by purchasing a license, then SCO may consider litigation."

and

"All commercial users of any version of Linux need a SCO IP License."

[pg 3.]

These claims are identical to the statements which were online on your website before and which were subject to a preliminary injunction in the year 2003.

Our client develops among other things software for the operating system GNU/Linux and is offering services in this sector of the market. The focus of its development are databases, desktop, and web applications for companies and governmental offices. In connection with consulting services and quality management, our client offers a full service in the business sector for the operating system GNU/Linux.

The mentioned claims and public statements have had tremendously negative effects on the business of our client. Your claims defer customers of our client from continuing the usage of the software Linux and therefor also from asking for the services our client offers in the sector of software development for GNU/Linux. Your actions are considered to be a "Anschwärzung" [slander] as defined by 4 Nr. 8 UWG (Gesetz gegen den Unlauteren Wettbewerb - unfair competition act) and are [wettbewerbswidrig], as long as you can't prove these statements to be true. Also, these claims violate 4 Nr. 10 when it comes to preventing revenue [ and disruption of business. It does not matter whether you have done these things [wettbewerbswidrigen] intentionally or not. After the order enjoining such statements [enforcement procedures] in the year 2003, you should have taken any necessary measures to prevent your website from presenting the forbidden statements again. As CEO you are also personally liable for the anticompetitive action.

There is reason to suspect the danger of repetition of these actions, as they have happened before. This danger of repetition can only be removed outside court by you signing a declaration to cease and desist  which is properly agreeing to the penalty for any failure to abide.

[pg. 4] We have attached a declaration of cease and desist and ask you to sign this so as to make it legally binding and send it back to us. A determined penalty of 20.000 EUR can be explained by the fact that the money penalty  of 10.000 did not prevent you from further violations and therefore a higher penalty amount is necessary to prevent any further repetition.

You have until the deadline of Monday, November 12, 2007, 12 o'clock to sign the required declaration or alternatively to bring proof of the claimed facts. Sending it by fax is fine, as long as the original will be sent by mail afterwards immediately.

Additionally, you have the obligation to cover our legal fees according to Section 12 paragraph 1, sentence 2 UWG. We ask you to confirm this obligation by signing the declaration of cease and desist within the deadline set.

In case the declaration of cease and desist does not arrive, or proof is not presented, by the deadline in the alternative, we will advise our client to go to court immediately and without any further notice.