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Contractors to Bear Burden if SCO Chases AU Govt 114

Posted by CmdrTaco from the gonna-get-messier-before-it-gets-better dept.
Peter writes "Contractors are set to bear the burden of SCO legal action if the company chases Australian Government departments. Apparently there are provisions in the Australian Copyright Act which allows the govt to assume IP rights then negotiate a "fair and reasonable" payment for those rights. This is in addition to contract provisions which state that contractors must accept liability for third party IP disputes."
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Contractors to Bear Burden if SCO Chases AU Govt More

Contractors to Bear Burden if SCO Chases AU Govt

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  • AU to SCO: (Score:2, Funny)

    by Anonymous Coward
    What part of " eminent domain " do you not understand, bitches?!!!

    • You can only sue the gov't if it lets you. (Score:4, Insightful)

      by Anonymous Coward on Tuesday April 06, 2004 @11:20AM (#8780038)
      God you mods are dim!

      It's a threat, see? The sovereign government of .au just needs to tell SCO that the interests of their Linux users outweighs any private "IP" ownership rights of some sleazy American co.

      Sounds like a good way to stick it to those 'merkins to me!

      • > It's a threat, see? The sovereign government of .au just needs to tell SCO that the interests of their Linux users outweighs any private "IP" ownership rights of some sleazy American co.

        Not exactly. Just the government can't be sued. but contractors that supplied the government /can/ be.

    • Re:AU to SCO: (Score:3, Interesting)

      by cshark ( 673578 )
      It's really not that unusual. Indiana state has something similar in their contracts. Along with the ability to ask for a complete refund for services rendered, wilst still recieving the services.

      Many states, and countries do these sort of things. Ever noticed why only a very small pool of companies are willing to work as government contractors? There's a reason for that. I'm not knocking it though.

      Of course, any liability for Linux would only be incurred if a) the government is extensively using Linux an

  • Ask your lawyer first (Score:4, Informative)

    by FunWithHeadlines ( 644929 ) on Tuesday April 06, 2004 @11:13AM (#8779962) Homepage
    Oh well, given how badly the SCO case has been going for them, and how confident IBM seems, and how many cases are looming against SCO, and how none of the evidence seems to point in SCO's favor, this is an empty threat in the long term. In the short term, however, as SCO goes through its death throes, I suppose it's possible some Aussie contractor gets hit with legal claims. If that happens, ask your lawyer for advice before you do anything (good advice any time you get embroiled in legal affairs), but don't worry. Chances are very good you won't have to pay a dime, but play things the smart way by making sure you don't do anything foolish.

    And soon this will all blow over as SCO is turned into a caldera by IBM.

    • SCO has WAY too many lawsuits out right now. I think their lawyers would get pissed if they kept coming to them to ask them first.

      Once IBM wins though, it's all over folks. None of the other cases will matter and if needed, they could all bind together for one large (many different) counter-sue on SCO. I'm sure Microsoft would have to pay off SCO's negatives once again...

    • I suppose it's possible some Aussie contractor gets hit with legal claims.

      Yes please! I'll take three!

      The instant D'ohl's minions send me such paperwork, I become eligible to spend money pounding their miserable claims into the sand. And pound I will. They'll get the legal equivalent of a FSWE from me, and their wandoo is waiting, nicely pre-splintered, in the front yard of our Albany farm. Unfortunately, they're not interested in attacking me, they want someone who'll drop trou and grab their ankles at

  • .au OSS (Score:3, Interesting)

    by tomknight ( 190939 ) on Tuesday April 06, 2004 @11:14AM (#8779965) Journal
    It's nice to see that the .au gov't are actually looking seriously at open source in the first place....

    Tom.

    • Re:.au OSS (Score:3, Insightful)

      by Travoltus ( 110240 )
      But if the contractors are too scared of being sued to implement open source solutions, what good is that?

      Why do I get the feeling that Linux is Bugs Bunny and SCO is Elmer FUD?
      • > But if the contractors are too scared of being
        > sued to implement open source solutions, what
        > good is that?

        Easy. They'll just use their public servants.

        Probably the same group who installed their PDP-8 and are just sitting around reading slash-dot waiting for their pensions to kick in.

      • Re:.au OSS (Score:3, Interesting)

        by Trejkaz ( 615352 )
        Isn't it possible to implement an open source solution which doesn't involve Linux?..
        • Probably not one that doesn't infringe on SCO's IP. According to SCO, anyway, and they'll get around to showing the proof any year now.
            • Until SCO start issuing more press releases, of course. At the moment it's impossible to find any software, open or closed, that isn't potentially infringing... because the decision on what's infringing is being made by a group of litigation-happy last-chancers, with no proof being shown.

              The thing to note is that they haven't actually sued anyone (yet) that they hadn't already had a contract with -- so if that isn't a signal to run a mile from them, I don't know what is.

  • Wonder ... (Score:5, Insightful)

    by drizst 'n drat ( 725458 ) on Tuesday April 06, 2004 @11:14AM (#8779973)
    "If legal action is taken against a Commonwealth department or agency through a dispute on third party software, the agency reserves the right to withdraw, leaving the legal battle -- including all costs incurred and all penalties applied -- to the contractor." ... then how many contractors are going to be willing to recommend Linux systems ...
    • If legal action is taken against a Commonwealth department or agency...

      then the motherland brings in the SAS and we sort em out, Iraq-style.

    • Re:Wonder ... (Score:3, Insightful)

      by Pembers ( 250842 )

      ... then how many contractors are going to be willing to recommend Linux systems ...

      Couldn't this happen with any software, not just Linux? Linux seems dangerous to some at the moment, but I think that's only because no-one's currently trying to run a stock scam by claiming that they own large, under-specified chunks of Windows, MacOS or Solaris...

      • Anyone remember the Imatec patent lawsuit (dismissed [com.com]) against Apple, seeking $1.1billion for ColorSync?

        • Anyone remember the Imatec patent lawsuit (dismissed) against Apple, seeking $1.1billion for ColorSync?

          Intriguing. From the article you cited, that case has some remarkable parallels with the SCOX circus. Imatec filed their lawsuit after the technology they said was infringing had already been in use for at least five years. The court found that Imatec did not in fact own the patents they claimed to own, and even if they did own them, they were invalid anyway. Then again, if the damages are determined b

  • Threats Alone (Score:5, Interesting)

    by millahtime ( 710421 ) on Tuesday April 06, 2004 @11:14AM (#8779979) Homepage Journal
    It is truely quite amazing how far a good (by good I mean good at his/her job) lawyer can get on threats alone. I am really quite in awe.

    • Re:Threats Alone (Score:5, Insightful)

      by Maestro4k ( 707634 ) on Tuesday April 06, 2004 @11:17AM (#8780011) Journal
      • It is truely quite amazing how far a good (by good I mean good at his/her job) lawyer can get on threats alone. I am really quite in awe.
      It's not that surprising really. Businesses have to consider legal threats, even if they appear to be without merit, so they can plan for the worst-case scenarios. IIRC, publically traded companies must also report on the potential impact of lawsuits to their stockholders as well.

      • Re:Threats Alone (Score:5, Funny)

        by Trigun ( 685027 ) <evil@evil e m p i r e . a t h .cx> on Tuesday April 06, 2004 @11:26AM (#8780096)
        Yes, but public companies can sugar coat it. Nowhere in SCO's SEC Filings does it say "IBM could, and most likely will, fucking destroy us!"
        • Well, I guess it depends on how you define "sugar coat", but SCOs SEC filings pretty much say exactly that - theres not much wiggle room there really, since they're required to speculate on worst case scenarios and it's obvious to anyone that IBM can, in fact, totally fucking destroy them.
          • From the SEC Filing [sec.gov]:

            These risks and uncertainties include, without limitation: (a) risks that the Company will not be successful in its efforts to protect and enforce its intellectual property rights; (b) risks that the Company will not be able to expand and grow its core UNIX business and that such business may decline; (c) risks that the Company will face increasing competition from competing providers of operating system products and services; (d) risks that the U.S. and international economic and polit

    • Re:Threats Alone (Score:3, Insightful)

      by k98sven ( 324383 )
      It is truely quite amazing how far a good (by good I mean good at his/her job) lawyer can get on threats alone. I am really quite in awe.

      Just remember: You can fool some people all the time, and all the people some of the time, but you can not fool all the people all the time.

      SCO has managed to fool some of the people. But their time has started to run out.

    • Re:Threats Alone (Score:5, Interesting)

      by The Angry Mick ( 632931 ) on Tuesday April 06, 2004 @11:28AM (#8780125) Homepage

      What's really unfortunate though, is that, after the dust has settled and its all over but the shoutin', the lawyers are very seldom ever held accountable for their actions.

      If, say, it turns out that SCO is in fact in league with the devil, and that David Boies joined SCO's cause fully aware of any lies told thus far, "justice" should demand he be punished alongside Darl McBride. What will most likely happen, though, is that Boies will only get to jack his fees by about a million bucks or so.

      • I think Boies role in this is pretty slimy. To prosecute anti-trust actions against Microsoft, and then turn around and represent a Microsoft stooge in a power play game of FUD, how much conflict of interest must there be?

        If it can be shown, via an internal memo, that Boies or his firm knew that SCO was being primarily funded by Microsoft dollars, I'd like to see him prosecuted under some provision of RICO.

        Also, maybe some news organization like PBS frontline might like to do a story on why the governm

      • Re:Threats Alone (Score:4, Insightful)

        by Haeleth ( 414428 ) on Tuesday April 06, 2004 @01:28PM (#8781659) Journal
        What's really unfortunate though, is that, after the dust has settled and its all over but the shoutin', the lawyers are very seldom ever held accountable for their actions.

        If, say, it turns out that SCO is in fact in league with the devil, and that David Boies joined SCO's cause fully aware of any lies told thus far, "justice" should demand he be punished alongside Darl McBride.

        Nonsense. Are you saying that the lawyer who defends a murderer he knows to be guilty should be executed too? Obviously not - our justice system requires that the defense lawyer does his damnedest to get his client off, even if she's clearly as guilty as hell, because that's the only way we can guarantee that someone innocent gets a fair trial even if their lawyer thinks they did it.

        Now, you might say that's different, and obviously you weren't referring to criminal trials, and the rules should be different for civil lawsuits, right?

        Wrong.

        Think about it: consider a hypothetical situation where... oh, let's say Microsoft so everyone knows who to cheer for... where Microsoft really had stolen a bunch of source code from a small company. If a lawyer who lost a case stood a good chance of being accused of knowing the case was wrong and punished for that, then no lawyer would dare go up against Microsoft, since Microsoft's own lawyers would be so likely not only to win, but also to get the little company's lawyer punished. In that situation, our little company would be screwed: who would represent them?

        Like it or not, I think you'd be hard pressed to come up with a system that both ensures justice and punishes crooked lawyers.

        • Re:Threats Alone (Score:3, Interesting)

          by gcaseye6677 ( 694805 )
          Providing a vigorous defense, where the client's interests are represented to the fullest, is much different than manufacturing evidence to be used in a baseless lawsuit which is part of a stock scam. If this can all be proven, I'd say Boies could definitely face criminal charges for helping with the fraud along with professional sanctions for legal misconduct, which would probably mean being disbarred. We can only cross our fingers and hope that this scumbag is never allowed to file a lawsuit again.

  • Actually, it's good news, if you read carefully... (Score:5, Insightful)

    by Hanzie ( 16075 ) * on Tuesday April 06, 2004 @11:15AM (#8779986)
    This is supposed to be worrisome? HA

    What this article actually says is:

    Attention Aus IT departments: GO AHEAD AND BUY LINUX SOLUTIONS, IF THERE ARE ANY PROBLEMS, OUR LAW SAYS IT'S NOT OUR PROBLEM!

    Not to mention the fact that this only comes into play if

    "Should SCO's claims on Linux be upheld in US courts."

    No Australian government agency is going to "Negotiate" with SCO. They're beaurocrats, and given the decision between "Take Action" and "Pass the Hot Potatoe to Someone Else" no sane official is going to do anything but pass it back to the contractors.

    It's not only the reasonable and intelligent thing to do, but for once, it's politically expedient.

    All the article says, in essence, is:

    There appear to be problems with using Linux in gov't, but by law, those problems belong to the contractors. Procurement agents: go right ahead, you're indemnified by federal law.

    This is actually good news, although it depresses me how often my sig has been appropriate lately...

    • Re:Actually, it's good news, if you read carefully (Score:5, Funny)

      by spellraiser ( 764337 ) on Tuesday April 06, 2004 @11:23AM (#8780064) Journal

      "Pass the Hot Potatoe to Someone Else"

      Well you have learned, young Padawan

      - Master Dan Quale

    • No, its bad news.

      Its says to contractors "Don't advise anyone to choose OpenSource. You could cost you big $ and major legal hassels".

      And if you don't think that government doesn't listen to contractors, you have no idea how they work.

      "How should I know that was the wrong decision, the high-paid consultant said it was correct and here is all the supporting documentation!"
      • It is my opinion that any contracter sufficiently clued in to actually install a Linux system is also sufficiently clued in to say:

        "These SCO guys are running a scam. If they weren't IBM would have simply BOUGHT SCO by now.

        "Wait and see how SCO's numerous cases are turning out. SCO is currently fighting a delaying war on all of them. Germany's high court told SCO flatly: 'Shut up liars!'

        "So we don't have much to worry about, since IBM is fighting this to the end, to kill this crap once and for all. M
        • >It is my opinion that any contracter sufficiently clued in to actually install a Linux system is also sufficiently clued in to say:

          More clued in than with Linux they are clued in to their own personal well-being.

          The contractor wouldn't even say that to the Austraian govnm becuase they wouldn't care (they are already safe.)

          The contractor would have to really believe that SCO would NEVER get close to winning any legal judgement in the courts. Not a 100% certainty. They would also risk paying a lawyer
        • lets put it this way.. if SCO wins anything in their legal battles, will you give $100,000 to charity? With no back-out options, no 'yeah, but it was only...' arguments, no excuses whatsoever.

          Will you? Of course not, even thought you think SCO's case is complete rubbish. Why would you expect anyone else to do so then?

          In the world of business, money is what matters - n-one cares what OS is used at all. The only case for Linux is the cost basis - that it is cheaper (and therefore you can squeeze higher marg
        • While I belive that SCO doesn't have a leg to stand on, I would also say that IBM would never have bought out SCO.

          The reason for this is that IBM was once themselves viewed as a monopoly...even so much as to be investigated by the US Gov't...And since SCO owns at least some portion of UNIX as well as making a variant of UNIX, it would be seen as a move to corner the market on UNIX OSes...I'm pretty sure that a few companies like Sun and HP would have something to say about that...

          What IBM would do is the
    • Add to that if SCO tried anything here the ACCC would be on them with a bunch of dobermans...

  • Make Contracts Open Source! (Score:2, Funny)

    by Anonymous Coward
    Then the brunt of SCO's impact would be absorbed by the overall community.

    Which is nice.

  • What a great system! (Score:4, Interesting)

    by Fortress ( 763470 ) on Tuesday April 06, 2004 @11:16AM (#8779992) Homepage
    Wow, the govt in AU can appropriate copyrighted material and negotiate payment later? This has a number of great uses outside of getting free M$ software.

    Imagine a govt library that has every book, newspaper, magazine, etc in its catalogue, all without paying for it! Or better yet, a govt website with mp3s of every song ever written, all free for the download...the end user might be in trouble though.

    Now, wasn't that more interesting than the obligatory SCO bashing in the other posts?

    • Re:What a great system! (Score:3, Interesting)

      by oolon ( 43347 )
      Funny you should say that, in the UK publishers of books are required to send the British Library a copy of the book (on acid free paper) without charge as part of the copyright entitlement process.

      James
      • We have a similar system for the Royal National Library of Sweden, wherein every publication (be it a book, paper, magazine or even a movie) published in Sweden, intended to reach a public audience (with a some exceptions, of course), must be deposited as several "duty copies" to one or more of the larger libraries. Which libraries that should receive a duty copy depends on the media form and type - I think a regular book has to be distributed to all six larger university libraries as well as the Royal Libr

  • uhhh... (Score:3, Insightful)

    by Anonymous Coward on Tuesday April 06, 2004 @11:17AM (#8780006)
    uhh... they keep forgetting one important part ... THEY HAVE TO PROVE IT FIRST.

    how can you seek payment on the IP if you havent been able to prove that your code is in linux.

    • Re:uhhh... (Score:3, Insightful)

      by sqlrob ( 173498 )
      You can seek payment quite easily. Whether you get it or not is another question.

      If it's cheaper to submit than to go to court, what is going to happen with most companies that get shaken down?

    • THEY HAVE TO PROVE IT FIRST.

      WOH! WOH, THERE! This the US Court system we are talking about, not a Sherlock Holmes mystery!

  • Don't follow US Lead (Score:4, Insightful)

    by millahtime ( 710421 ) on Tuesday April 06, 2004 @11:17AM (#8780015) Homepage Journal
    This is one time where the rest of the world should not follow the US lead. Don't be sue happy. It's really no good. Look at us. Does the rest of the world really want to end up like this.

  • Presuming a contractor is most likely to use one of the main linux distributions, haven't most distros allready provided indemnity against SCOs flight of fancy anyway?

    • If **all** the business of a distro is linked to the infringing item, there wouldn't be any assets to honour the indemnity.

      Not that there is any infringing going on here.

  • This is huge (Score:5, Interesting)

    by GreenCrackBaby ( 203293 ) on Tuesday April 06, 2004 @11:24AM (#8780077) Homepage
    I'm an independant contractor, and when I sign my contracts (usually through a headhunter-type firm) there are provisions in my contract for assumption of IP violation risks and liability for my work. In other words, I agree to take responsibility for any and all IP violations that arise as a result of my work.

    Normally this isn't a big deal, as the gist of these types of clauses is to prevent contractors from plagerising existing code or assuming full responsibility if they do. However, if you are a contractor who is in a position where you have to recommend a software product or hardware vendor, this SCO shit can be a huge black market for open source adoption.

    A normal, independant contractor should not and will not assume this type of risk if they are smart. Even if they are sure that SCO's case is bunk (as I am). They probably will lose their contract regardless, and the cost to an independant contractor would be huge.

    In other words, good luck finding contractors who willingly will reccommend that a company adopt Linux now.

    Thankfully my wife is an IP lawyer, so I'm ready for a fight if need be, but I don't think most contractors are as lucky as me.

    • Re:This is huge (Score:3, Insightful)

      by millahtime ( 710421 )
      If your worried at all I would say go with BSD (specifically FreeBSD). You can do the same things and it's not getting hounded. I know it's hard for people to make that jump but it's a thought. And it's technically pretty easy to make the jump.
    • But, isn't that what business general liability insurance is for?

    • Re:This is huge (Score:3, Interesting)

      by CowboyBob500 ( 580695 )
      I'm an independant contractor, and when I sign my contracts (usually through a headhunter-type firm) there are provisions in my contract for assumption of IP violation risks and liability for my work. In other words, I agree to take responsibility for any and all IP violations that arise as a result of my work.

      I'm an independent contractor too (albeit in the UK) and I've seen things like this in potential contracts, along with all kinds of other nastyness - one particular one I often see is that if I su
      • >I'm an independent contractor too (albeit in the UK) and I've seen things like this in potential contracts, along with all kinds of other nastyness

        This isn't nastyness, its just common sense. What are you doing passing on something that you shouldn't (copyright infringment,etc) to you client?
        • That's not what I'm doing. What I'm saying is that I'm not responsible for any copyright infringement perpetrated by other people if I use/recommend their software.

          Bob
          • >That's not what I'm doing.

            Then why wouldn't you sign something to that effect?

            >What I'm saying is that I'm not responsible for any copyright infringement perpetrated by other people if I use/recommend their software.

            The have that put in. Also, if you recommend Linux knowing that SCO says they have a claim, aren't you responsible for the result of your suggestion if SCO is successful?

  • SCO defined (Score:5, Insightful)

    by RailGunner ( 554645 ) on Tuesday April 06, 2004 @11:26AM (#8780100) Journal
    barratry: The offense of persistently instigating lawsuits, typically groundless ones

    racketeering: To carry on illegal business activities that involve crimes, such as extortion.

    extortion: An excessive or exorbitant charge, such as a $600 licensing fee for a dubiously made IP claim.

    SCO's illegal activities aside, does SCO, being an American company, even have the ability to sue a foreign government? Where would the case even be tried? Any chance Darl can just get fed to a croc?

    • And today on the Crocidile Hunter, we have guest food er, i mean guest STAR Darl McBride!

      Crocodile Hunter: Now Darl, what I want you to do is take this steak, walk right up to charlie (big croc) over there, and put it in his mouth when he opens up. OK?

      Darl: Ok. (walk walk walk, SNAP!)
      • ...for eating D'ohl's steak. And then claim that since he couldn't identify which parts of the crocodile were made from his particular steak, he owns the entire crocodile.

        Fortunately, a six-meter saltie wouldn't care. The "wookie argument" pales into insignificance alongside the "saltie death-roll argument".
  • From the Article:
    It is not clear how the Commonwealth's special treatment under the Copyright Act will be applied should SCO's claims on Linux be upheld in US courts.

    Could me a moot point very soon.

  • Standard IANAL disclaimer: (Especially in Australia)
    I would guess that it is possible for contractors to band together and get some sort of class action status if SCO starts harassing them?

    Realistically, I don't think it would be worth their time for SCO to try and identify small fry overseas contractors using Linux and file claims against them. And larger gov't contractors would have enough legal muscle to defend themselves in court. And SCO is becoming notorious for talking much and doing little.
    • Realistically, this is what they would go after. If they can fry a few small frys, this provides their case with credibility that they need to fry the big frys. That is the nature of running a patent-enforcing-business.

    • > I would guess that it is possible for
      > contractors to band together and get some sort
      > of class action status if SCO starts harassing
      > them?

      Bugger it. Its Australia.

      Get a group of contractors together and have a quiet work with SCO in the car park with a two'b'four.

  • I'm somehow not suprised (Score:3, Insightful)

    by msim ( 220489 ) on Tuesday April 06, 2004 @01:04PM (#8781305) Homepage Journal
    I'm not suprised by either

    a) those loopholes put in place by the aust-govt, as someone else said, it's to stop the goverment
    departments being responsible for any feckups of any contractors. And as such is reasonable i guess.

    b) SCO is gutter feeding like this. I mean c'mon they've already shot themselves in the foot and the shin and the .......

    c) Australia is not a state of the US, i mean why the hell are we getting so bleeding litigation happy here now?

    (o/t) I know Howard is a Blair/Bush lovechild, and wants Bush bad ;-), but do we need to go this far as a country (corporately or as people) to prove we are equal in the arse licking stakes as little Johnny?
  • Another good example of FUD...

    As a contractor you provide a GPL program of sorts. You deliver it as a CD to the agency and therefore is their responsability the rest. BECAUSE THEY are the ones that have the "rights" transmited with the software.

    The contractor has no place in the chain whatsoever. And even if he has implemented changes, those changes are of the governamental dep. responsability.

    btw... IANAL...

  • SCO in Australia (Score:3, Insightful)

    by ajv ( 4061 ) on Tuesday April 06, 2004 @08:20PM (#8787111) Homepage
    SCO has ceased making simple minded threats here due to complaints to the ACCC (competition watchdog) from various sources, including local Linux advocates.

    If found to be breaching the trade practices act, SCO can be fined millions of dollars, like the multi-vitamin industry was a few years ago.

    Extortion is an even worse crime, and if they're found to making threatening demands which are clearly illegal, directors can be sent to jail if they ever come to Australia.

    If the case is upheld (which it wont be), US results of law cases is just common law to us, not a final opinion. SCO still has to work within our copyright act, which is different (for now) than the US copyright regime.

    For example, Sony lost the 'right' to enforce regionalization on PS2 and ipso facto DVDs through an action the ACCC took against them in another copyright case as an amicus curae.

    SCO are just fudding here. Unfortunately, barratry was removed as an offence a few years ago, but realistically, it should have been left on the books.

    Andrew
  • Come on, this isn't news. Anything SCO isn't news. They're going to lose and then they'll disappear and 2 or 3 years from now, nobody will remember them, so please, can we just turn all the noise off. Contractors in New Zealand are gonna be just fine.

  • Great news for scox, bad news for redhat, and everybody else. In case you didn't know: rhat sued scox to have scox stop saying that scox has grounds to sue linux end-users. Scox filed a motion to dismiss on the grounds that scox never intended to sue anybody. That was about six months ago. Since then, scox claims to be suing at least two linux end users, and plans to sue many more. The judge said, scox can say whatever scox wants - lehman act doesn't matter.

    copied from yahoo scox board
    by: poncewattle (44/M

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