German SCO injunction wouldn't fly here: IT lawyer

It is very unlikely that the latest tactic used in Germany in the SCO Linux war would work in a New Zealand or Australian court, says Wellington IT specialist lawyer Michael Wigley.

It is very unlikely that the latest tactic used in Germany in the SCO Linux war would work in a New Zealand or Australian court, says Wellington IT specialist lawyer Michael Wigley.

A group of open source enthusiasts, led by lobby group LinuxTag, last month sought an injunction to force SCO to disclose the specific parts of Linux which it claims contain code lifted from the version of Unix marketed by SCO.

They appear to have changed tack, however, and the ex parte injunction eventually granted them in a German court is one that orders SCO to stop claiming that the Linux operating system is an illegal derivative of Unix. SCO has shut down its German website in response to the restraining order.

The company has only been silenced in Germany, and since the injunction was granted ex parte, that is, without giving SCO an opportunity to make its case, the company could well overturn it. LinuxTag and its collaborators will have to face SCO in court to get even a temporary injunction until the substantive matter of the allegedly copied code has been proved or disproved.

“I don’t believe that such an injunction could be obtained in New Zealand, unless it were proved that SCO’s action had some underlying motive, such as to cause bad press for Linux," Wigley says.

“If it could be shown that they were making the allegation for no cause [other than to damage Linux’s reputation], an injunction could possibly be obtained here under the Fair Trading Act,” says Wigley.

Despite SCO’s refusal to release information on where it alleges the copying has occurred, “it’s likely that they have the evidence sitting there” or believe they have, he says. Disclosing it only to certain parties under a non-disclosure agreement, as SCO has done, is not unusual, says Wigley; in Commonwealth and US courts this is normal in the process of “discovery”, where one side makes its evidence known confidentially to the other.

And in view of the ease with which any alleged copying could be fixed up by open source developers, it’s hardly surprising, he says.

“It’s crystal-ball gazing, but I believe there will eventually be a solution in the form of an agreement, with perhaps some money changing hands,” Wigley says.

With its unsubstantiated claims, SCO is hurting competitors, intimidating Linux customers and inflicting damage on the reputation of Linux as an open platform, says LinuxTag spokesman Andreas Gebhard.

Industry analysts in the US say SCO has begun to release the suspicious code to them, though under the terms of the non-disclosure agreement (NDA) they cannot give details.

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