[linux-elitists] USA Fair Trade Act and Qui Tem

David Mohring heretic@ihug.co.nz
Mon Aug 11 05:22:37 PDT 2003


I am not a lawyer, but ...

http://radio.weblogs.com/0120124/2003/08/07.html
Even IBM is publicly recognizing that the GPL license does not allow
additional terms and conditions to be added to the released binaries and
source for downstream recipients. The GPL license is only required, any
other license which attempt to add a charge is would add an unnecessary
expense. 

However SCO has demanded that government Linux users "pay up".
http://www.washingtontechnology.com/news/1_1/daily_news/21384-1.html

And Now The SCO Group have stated it would begin sending out invoices to
organizations using Linux as a step toward enforcing SCO's claim that
UnixWare System V code is used in Linux. "Invoices will be dispatched in
the "next weeks or months" a company spokesperson confirmed."
http://www.cbronline.com/latestnews/6b61a1cf114f8aa480256d7f0018bb99

Which brings us to the False Claims Act. The DOJ have charged other
corporations and executives with breaches very similar to what the SCO
Group are attempting to do.

FRIDAY, JANUARY 16, 1999 
U.S. JOINS FALSE CLAIMS ACT CASE AGAINST COMSAT CORPORATION
http://www.usdoj.gov/opa/pr/1999/January/014civ.htm
    The United States has joined a lawsuit against a Washington, D.C.,
    company based on allegations that one of its subsidiaries defrauded
    the government by charging costs incurred on its commercial
    contracts to its contracts with the Department of the Navy for the
    restoration of radar equipment used on U.S. Navy warships. 

Note
    Under the qui tam provisions of the False Claims Act, a person with
    knowledge of financial fraud against the government can file suit
    against the alleged wrongdoer on behalf of the government. Subject
    to certain statutory provisions, if the lawsuit results in a
    monetary judgment or settlement, the whistle blower is entitled to a
    share of the proceeds recovered by the government.

See
http://articles.corporate.findlaw.com/articles/file/00903/005657/title/Subject/topic/Criminal%20Law_Criminal%20Fraud/filename/criminallaw_1_400

And this article which gives a wider scope to who can file a Qui Tam
case...
http://www.qui-tam.org/false_claims_act.html
    IV. WHAT TYPES OF PEOPLE FILE QUI TAM LAWSUITS?
    
    EMPLOYEES: A current or former employee who blows the whistle on his
    or her employer is one of the most common type of qui tam
    plaintiffs. Detecting fraud is usually very difficult without the
    cooperation of a close observer of the fraudulent activity. In the
    case of a former employee, they were usually terminated or quit as a
    result of complaining about the fraud or trying to blow the whistle
    internally. Typically, the complaints fall on deaf ears.
    
    
    COMPETITORS AND SUBCONTRACTORS: Another less common type of whistle
    blower is the competitor of the company committing the fraud or an
    employee of the competitor who has direct knowledge of the fraud
    being committed. Also, companies or persons who subcontract with a
    government contractor have filed qui tam actions against the
    contractor.
    
    
    INDUSTRY EXPERTS: In a few cases, industry experts have successfully
    brought suit against multiple defendants alleging an industry-wide
    practice. Their understanding of the industry and the common scheme
    throughout helped them to be in a position to blow the whistle. Two
    recent examples include "yield burning" in public finance deals by
    underwriters, and underpayment of oil/gas royalties by major oil
    companies.
    
    
    In general, frauds like the above can be uncovered by people with
    knowledge of the requirements of the government programs involved
    and the misrepresentations made by the recipients of the government
    funds.

IANAL, but in my opinion, it would not be necessary to prove the the
kernel in question does not contain SCO actionable IP, only that the SCO
group knowingly contributed to, sold and financially benefited from, and
distributed the Linux kernel under the terms of the GPL. 

If SCO was successfully prosecuted under the False Claims Act, then the
GPL license would have even more legal weight behind it.

I wonder how many US Federal, Military and Medical Institutions will get
invoiced by the SCO Group? If the SCO choose not to invoice them then
how valid is the SCO Group's claims? 

David Mohring 
 AKA NZheretic





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