Groklaw points to this Computerwoche article (in German) about a settlement (original German PDF file) between a small German company (Univention) and SCO Germany. There was already an injunction against SCO in May 2003.
What this settlement does not say: SCO agrees not to allege A, B, C, D...
What it does say: SCO agrees not to allege A, B.... unless they have evidence for it. And they agree not to announce having evidence unless they hand over such evidence to Univention within one month after the announcement.
The legal basis for Univention's claims against SCO Germany is Article 1 of the Act against Unfair Competition (UWG). In patent attorney Ralph Beyer's translation:
"Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from these acts and held liable for damages."
Relevant caselaw is a decision of the Hamburg Higher Regional Court (OLG) of August 31, 2000 (3 U 272/92, WRP 2001, 956-964) and a decision of the Federal Court of Justice of July 7, 1954 (Johann Maria Farina, BGHZ 14, 282). Under that caselaw it is an "act contrary to honest practices" to assert intellectual property rights in public without actually having them.
Now, what exactly would happen if SCO Germany tomorrow started to make all the assertions mentioned in the settlement again in public?
In that case, Univention could sue them under the terms of the settlement for 10.000 Euro.
However, they could sue them under the above Article of the Act against Unfair Competition and caselaw anyway. All the settlement gives Univention on top of that is an easy way to put a number on their damage claims.
That number however is rather low, compared to what is at stake here. I doubt that this will have much of a deterrent effect on SCO Germany. They can always say that they have evidence now, even under the terms of the settlement.
And this settlement is only between SCO Germany and Univention. Every other Linux company in Germany is free to start their own lawsuit based on unfair competition law.
Slashdot thread here.
Posted by Karl-Friedrich Lenz at March 2, 2004 10:42 AM | TrackBack