Open Source Victoria claims that by demanding Australian organisations pay a licensing fee to the company before a decision has been reached in the current SCO vs. IBM lawsuit in the US, the company is on the wrong side of Australia's trading laws. In particular, Open Source Victoria is claiming the invoicing of Australian organisations for Linux licences violates section 53 of the Trade Practices Act.
"Our group's position is that if SCO has not proven ownership to the UNIX IP, nor proven that any of this IP is now in Linux, then to make the representations ... [that] Linux users need to acquire a licence from SCO, would be a false representation," a statement issued by Open Source Victoria read. The group further claims the SCO invoices lead recipients to believe they will be breaking the law if they do not pay, which is a false representation "about the effect of a condition".
While he concedes he is not a lawyer, Open Source Victoria's convenor, Con Zymaris, said as an interest group it seemed appropriate to make a complaint to the ACCC.
"We're an advocacy and industry forum, not a legal group, but it's our understanding that this is the type of activity that interests the ACCC," he told ZDNet Australia. "In Australia there are laws to protect consumers from companies like SCO, trying to pass off a need ... that organisations need to have a licence from SCO to run Linux. That's utter rubbish."
"As yet SCO have not proven at all ... that there is any of their intellectual property in Linux and also ... they haven't proven they own the IP to UNIX. At the moment it looks like the rights are with Novell, not SCO," he added.
Zymaris equates the practice of invoicing Linux users to domain name scams, where companies are sent what appears to be an invoice for a domain name which is in fact a solicitation for business.
The ACCC has been "very receptive" in light of the complaint, Zymaris said.
YES! Section 53 of the TPA has caught out bogus fax directory invoicers and other scamsters. You can't invoice for something that you don't own and haven't supplied. What SCO is doing fails under Law of Contract. There was no offer nor acceptance so there cannot be any claim for consideration. And as the article highlights, once there is a "proven" ownership of IP, only then can SCO issue a cease and desist demand and if that fails then they would have to seek an injunction to stop the damaging behaviour and possibly file for damages and other remedies in civil courts.