[Talk] Re: LinuxTag.de sicks lawyers on SCO Gmbh. over Linux code claims

[Greg 'groggy' Lehey]

On Tuesday, 27 May 2003 at  9:41:15 +1000, Chris Samuel wrote:
> On Monday 26 May 2003 6:08 pm, Greg 'groggy' Lehey wrote:
>
>> Can anybody recall where SCO defended their refusal to say where the
>> stolen code was, and how exactly they defended it?
>
> A very interesting development found via slashdot. LinuxTag have decided to
> set their lawyers onto SCO by issuing an "Abmahnung" - basically a legal
> warning to stop doing something that they feel is banned under Germanys
> unfair competition laws. For more details see [1] at the end of the email.
>
> Quick question - what's an ex-parte injunction ?  I know "ex-parte" means "for
> one party" in Latin, but what does it mean in legal terms ?

Probably nothing.  It's the *translation* of a legal term.  All legal
terms are only relevant in their context.  That's why the term
Abmahnung can't be translated in legal context, because the concept
doesn't exist in English or Australian law (I believe; IANAL).

The original German term is "einstweilige Verfügung", which means,
roughly, a temporary decree.  The intention here is to stop people
from doing something which could be detrimental to the interests of
one party until the case can be handled in court.  Contrary to what
the reference implies, German courts are *very* slow, and the
einstweilige Verfügung is intended to defuse this problem by providing
immediate relief for the interim.  Einstweilige Verfügungen can,
indeed, be issued within hours.

So what does ex-parte mean?  In legal terms, that means made or
executed on one side only.  I assume in this case it's the judge who
acts alone without more than a modicum of proof.  I'll leave it to
others to decide whether this is a good translation.

> The LinuxTag.de "Abmahnung" requires SCO to either withdraw the
> claims about copied code, or make the evidence public, or face the
> court, with a deadline of the 30th May.

Interestingly, you don't have to be an involved party to issue an
Abmahnung.  There's a lawyer in München (Munich) who lives off issuing
Abmahnungen to people who use names in "inappropriate" ways.  Some
years ago there was an Intel processor chip set called Triton.  As I
commented in the zeroth edition of "The Complete FreeBSD", 

   Triton is not a trade mark of Intel Corporation.  It is a trade
   mark of some other company which, to the best of my knowledge, has
   nothing to do with computers.  Unfortunately, an overly zealous
   German lawyer has taken to suing people who use this name to refer
   to the chipset.  Sheesh.

This was done with Abmahnungen.

Getting back to my original question, I have since spoken with Kieran
O'Shaughnessy about the matter.  The results, some of which are
interesting, are in the latest revision of
http://www.lemis.com/grog/sco.html.

Greg
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