Trade Practices Act Is Basis for Australian Complaint Against SCO

by Con Zymaris

Open Source Victoria has filed a complaint with the Australian Competition and Consumer Commission against SCO. The tactic of using unsubstantiated claims and extortive legal threats to extract money from millions of Linux users may well be illegal in many countries, including Australia.

Darl McBride, CEO of The SCO Group, spun his company's latest attack on Linux this way: "SCO has found a way to give Linux users a legal way to run Linux." As if SCO has found a way to do Linux users a favour!

SCO's latest action was the recent registration of copyright to the legacy UNIX SYSTEM V source code, on which the company's already claimed copyright publicly. Regardless, this in no way affects Linux. Copyright registration is a simple filing procedure that formally registers a claim and does not in any way constitute proof of ownership.

Although this particular salvo from SCO seems to be one more round in a possibly long and tedious legal affair, what SCO has done finally is given average Linux users a chance to raise a serious legal objection. Here's why.

In many countries there exists consumer protection legislation that prevents any organisation from running schemes that try to convince consumers they owe that organisation something when they clearly do not. This type of consumer protection generally is called Misrepresentation of Need. For example, it prevents domain name registration scammers from hitting up hapless consumers for money, offering these consumers renewals on their domain name registrations made to look like the consumers have no choice but to comply and pay. In Australia, quite a number of these firms have ended up in court, taken there by the Australian Competition and Consumer Commission. It is to this Commission that Open Source Victoria, along with many other Australian Linux users, have filed complaints.

When Linux users use their countries' laws to protect against SCO's latest actions, SCO backs off from trying to use this suspect tactic. The German organization LinuxTag already has forced SCO to remove its claims from the sco.de web site, and SCO has not been able to make the so-called licensing offer there.

SCO has yet to prove the existence of any disputed source in the Linux codebase. With its insistence on withholding public disclosure of any worthwhile evidence in this case, SCO gives the impression that a recent piece by Bryan Taylor refutes the major claims that SCO has made. SCO stopped offering source code access under NDA to qualified C programmers after Ian Lance Taylor, author of much open-source and proprietary software, reported, "The code is fairly trivial--the kind of stuff I wrote in school. The similar portions of the code were some 80 lines or so. Looking around the Net, I found close variants of the code, with the same comments and variable names, in sources other than Linux distributions."

SCO will find it extremely difficult to cement its claims in court, and until it does, the company is spreading fear to extract money from innocent and unsuspecting users. It is this fact that we are now taking advantage of to raise action against SCO itself.

So, what can you do? You can try and locate your local version of the consumer laws that prevent misrepresentation of need scams. In Australia, we have the Australian Trade Practices Act. Here's some of the snippets from that Act.

  • TRADE PRACTICES ACT 1974 - SECT 52

    Misleading or deceptive conduct

    (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

  • TRADE PRACTICES ACT 1974 - SECT 53

    False or misleading representations

    A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

    (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

    (Specifically, SCO seems to be claiming that the purchase of a UnixWare license grants the benefit of permitting legal use of Linux, which is not the case. Thanks to Andrew Pam for this)

    (f) make a false or misleading representation concerning the need for any goods or services; or

    (g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

    (Specifically, SCO seems to be claiming that Linux users need to purchase a license from them, a license that has not been proven in court to be a constituted requirement.)

You can use this emphasis and language content to help you find the equivalent laws in your legal domain. Next, you need to prepare a complaint to file with your consumer watchdog, and some background information on this whole subject for their watchdog investigators to ruminate on.

SCO has offices in numerous countries. See if your country has one. If so, provide your watchdog with local company information. Filing a complaint against the local representation will have a chance of working. Filing it against an off-shore concern probably will not.

SCO's latest press release, which elucidates the protection money request, is here. You should alert your consumer watchdog that you believe that SCO is entering into conduct both misleading and deceptive to all Linux users in your country. SCO has no verified claims whatsoever on Linux, and the company is using the press to scare Linux users into forking over money for protection.

Remember, you may be well versed in IT, Linux and this whole fiasco, but the watchdog groups likely are not, so any help you can offer works to speed up their investigations.

To see why The SCO Group has no claims to any such money, read this detailed analysis and the recommended articles it cites.

If we raise enough of a tsunami, SCO may think twice about pursuing this action against Linux users in countries that have consumer protection. We, the community, are using this style of defense as a signpost of warning to any others who attempt such unjustifiable acts against Linux or other open-source software in future.

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