Posted by: Anonymous Coward
on May 19, 2003 11:20 PM
Apparent or ostensible authority... In SCO v. Linux... This might very well benefit everyone who is doing anything with Linux now.
Since SCO was, before now, not restricting innocent 3rd party use of any LINUX related IP... then the innocent 3rd party users/customers of LINUX distributors could be free from any financial responsibility that could otherwise, if the courts hold that SCO's IP is extended to all of LINUX, be OWED to SCO. LINUX could still live and users of LINUX could still use LINUX (in it's currently acquired/purchased state for as long as they want...) without SCO being able to do anything about it. This is because of apparent or ostensible authority "agency" Law (mixed in with the content and meaning of the LINUX GPL that SCO is still party to)!
In the absence of any yet ruling from the court as to the current status of SCO's IP claims against IBM or any ruling from any action directly against LINUX... the status quo concerning LINUX may continue to exist when you combine "apparent or ostensible authority" with the fact that SCO has had extensive involvement with LINUX (exposing them to the LINUX GPL)... then, by the virtue of fact that SCO having distributed LINUX and with SCO still a contract member of the LINUX GPL governed UnitedLinux, MAY mean that any and all LINUX users are free to use LINUX (as downloaded or distributed by any LINUX distributor) because of apparent or ostensible authority granted by SCO via SCO's involvement in LINUX (thus freeing any user of a need to comply with the rumored 15,000 letters that SCO may have sent out to some corporate users of LINUX).
It could be implied that any web site or distributor of LINUX acted with apparent or ostensible autority (as an agent) granted by the LINUX GPL, and thus SCO, freeing the innocent 3rd party customer (any LINUX user) of any financial liability owed at any time to SCO by the nature of the LINUX GPL and any license governed by the LINUX GPL... as the fact is that SCO contributed to GPL LINUX for many years (as a knowing and willing party to the LINUX GPL)! SCO and the LINUX GPL may be now one and the same because of the history of the deep SCO relationship with LINUX (and her GPL)!
This conclusion appears valid, and if so... it would mean that it would be very difficult for SCO to enforce any liability or any premium from any innocent 3rd party user of LINUX (to date - until the court could rule on their IP claims whereupon the situation could or might not change, depending). Apparent or ostensible authority may have been the reason why SCO has been sending threatening letters to companies that may or may not be using LINUX (who would be innocent 3rd parties in this SCO v. LINUX scenerio). AND when thoughts of defensive action by these innocent 3rd parties is contemplated to an extreme... these innocent 3rd party users of LINUX could maybe find cause, and maybe be a valid cause, for the receivers of such threatening letters from SCO to sue SCO for harrasment).
This is a mouthful but read up on apparent or ostensible authority AND read the LINUX GPL and what conclusions are then reached.
From: http://www.crmlaw.com/articles/agency.htm
"However, there is a doctrine in the law known as “apparent agency” which can defeat those expectations and impose liabilities where none were anticipated or intended. The doctrine was defined most recently in a significant decision by the Illinois Supreme Court in Petrovich v. Share Health Plan of Illinois Inc., 188 Ill. 2d 17, in the following excerpt:
“Apparent authority, also known as ostensible authority, has been a part of Illinois jurisprudence for more than 140 years. … Under the doctrine, a principal will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give. … Where the principal creates the appearance of authority, a court will not hear the principal’s denials of agency to the prejudice of an innocent third party, who has been led to reasonably rely upon the agency and is harmed as a result".
apparent authority n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Joe Slobovia (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Joe had authority to act for the company. Then the contract or the price quote given by Joe and accepted by a third party is binding on the company. Apparent authority may also arise when Joe works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss. See also: agency ostensible authority
agency n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she ran down the little child, got drunk and punched someone, or sold impure wheat? There is also the problem of whether the principal acted in such a way as to make others believe someone was his agent-this is known as "apparent" or "ostensible" authority. When someone who is or is not an employee uses company business cards, finance documents, or a truck with the company logo, such use gives apparent authority as an agent. See also: agent authority respondeat superior scope of employment
Glover v. Cranford/St. Paul Guardian/State Fund/UEF [4/12/02] 2002 MTWCC 22 Under Montana law, an "ostensible agency is created when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him." Youderian Const., Inc. v. Hall, 285 Mont. 1, 7, 945 P.2d 909, 912 (1997), citing §28-10-103, MCA. "Ostensible authority is that which a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." Youderian, 285 Mont. at 8, 945 P.2d at 913. Glover v. Cranford/St. Paul Guardian/State Fund/UEF [4/12/02] 2002 MTWCC 22 Where the purported principal makes no representation and takes no action which would lead a reasonable person to believe that it is in a joint venture with an individual who is attempting to subcontract for the salvage of a building, and the subcontract is extended without the belief that the subcontractor is acting on behalf of the alleged principal, the subcontractor is not an ostensible agent of the one alleged to be a principal.
Authority which has not been actually been given to the agent, but which he has been held out as having.
Arises where:
(a) Agent has had express authority which has been withdrawn, but third party has not been notified of this.
(b) Agent is in position where certain authority would be implied, but principal has limited this and third party is unaware
of the limitation. "
From: http://www.law.fsu.edu/journals/lawreview/frames/<nobr>2<wbr></nobr> 33/brosfram.html BUYERS, BEWARE: THE FLORIDA SUPREME COURT'S ABROGATION OF THE APPARENT AUTHORITY DOCTRINE LEAVES PLAINTIFFS HOLDING THE TAB FOR TORTS OF FRANCHISEES—MOBIL OIL CORP. V. BRANSFORD
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One Legal Concept that SCO has overlooked.
Posted by: Anonymous Coward on May 19, 2003 11:20 PMIn SCO v. Linux... This might very well benefit everyone who is doing anything with Linux now.
Since SCO was, before now, not restricting innocent 3rd party use of any LINUX related IP... then the innocent 3rd party users/customers of LINUX distributors could be free from any financial responsibility that could otherwise, if the courts hold that SCO's IP is extended to all of LINUX, be OWED to SCO. LINUX could still live and users of LINUX could still use LINUX (in it's currently acquired/purchased state for as long as they want...) without SCO being able to do anything about it. This is because of apparent or ostensible authority "agency" Law (mixed in with the content and meaning of the LINUX GPL that SCO is still party to)!
In the absence of any yet ruling from the court as to the current status of SCO's IP claims against IBM or any ruling from any action directly against LINUX... the status quo concerning LINUX may continue to exist when you combine "apparent or ostensible authority" with the fact that SCO has had extensive involvement with LINUX (exposing them to the LINUX GPL)... then, by the virtue of fact that SCO having distributed LINUX and with SCO still a contract member of the LINUX GPL governed UnitedLinux, MAY mean that any and all LINUX users are free to use LINUX (as downloaded or distributed by any LINUX distributor) because of apparent or ostensible authority granted by SCO via SCO's involvement in LINUX (thus freeing any user of a need to comply with the rumored 15,000 letters that SCO may have sent out to some corporate users of LINUX).
It could be implied that any web site or distributor of LINUX acted with apparent or ostensible autority (as an agent) granted by the LINUX GPL, and thus SCO, freeing the innocent 3rd party customer (any LINUX user) of any financial liability owed at any time to SCO by the nature of the LINUX GPL and any license governed by the LINUX GPL... as the fact is that SCO contributed to GPL LINUX for many years (as a knowing and willing party to the LINUX GPL)! SCO and the LINUX GPL may be now one and the same because of the history of the deep SCO relationship with LINUX (and her GPL)!
This conclusion appears valid, and if so... it would mean that it would be very difficult for SCO to enforce any liability or any premium from any innocent 3rd party user of LINUX (to date - until the court could rule on their IP claims whereupon the situation could or might not change, depending). Apparent or ostensible authority may have been the reason why SCO has been sending threatening letters to companies that may or may not be using LINUX (who would be innocent 3rd parties in this SCO v. LINUX scenerio). AND when thoughts of defensive action by these innocent 3rd parties is contemplated to an extreme... these innocent 3rd party users of LINUX could maybe find cause, and maybe be a valid cause, for the receivers of such threatening letters from SCO to sue SCO for harrasment).
This is a mouthful but read up on apparent or ostensible authority AND read the LINUX GPL and what conclusions are then reached.
From:
http://www.crmlaw.com/articles/agency.htm
"However, there is a doctrine in the law known as “apparent agency” which can defeat those expectations and impose liabilities where none were anticipated or intended. The doctrine was defined most recently in a significant decision by the Illinois Supreme Court in Petrovich v. Share Health Plan of Illinois Inc., 188 Ill. 2d 17, in the following excerpt:
“Apparent authority, also known as ostensible authority, has been a part of Illinois jurisprudence for more than 140 years. … Under the doctrine, a principal will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give. … Where the principal creates the appearance of authority, a court will not hear the principal’s denials of agency to the prejudice of an innocent third party, who has been led to reasonably rely upon the agency and is harmed as a result".
From:
http://dictionary.law.com/definition2.asp?selecte<nobr>d<wbr></nobr> =2411&bold=%7C%7C%7C%7C
apparent authority
n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Joe Slobovia (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Joe had authority to act for the company. Then the contract or the price quote given by Joe and accepted by a third party is binding on the company. Apparent authority may also arise when Joe works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss.
See also: agency ostensible authority
agency
n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she ran down the little child, got drunk and punched someone, or sold impure wheat? There is also the problem of whether the principal acted in such a way as to make others believe someone was his agent-this is known as "apparent" or "ostensible" authority. When someone who is or is not an employee uses company business cards, finance documents, or a truck with the company logo, such use gives apparent authority as an agent.
See also: agent authority respondeat superior scope of employment
From:
http://wcc.dli.state.mt.us/TOOLS/Agency_Ostensibl<nobr>e<wbr></nobr> <nobr> <wbr></nobr>.htm
Agency: Ostensible
Glover v. Cranford/St. Paul Guardian/State Fund/UEF [4/12/02] 2002 MTWCC 22 Under Montana law, an "ostensible agency is created when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him." Youderian Const., Inc. v. Hall, 285 Mont. 1, 7, 945 P.2d 909, 912 (1997), citing §28-10-103, MCA. "Ostensible authority is that which a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." Youderian, 285 Mont. at 8, 945 P.2d at 913.
Glover v. Cranford/St. Paul Guardian/State Fund/UEF [4/12/02] 2002 MTWCC 22 Where the purported principal makes no representation and takes no action which would lead a reasonable person to believe that it is in a joint venture with an individual who is attempting to subcontract for the salvage of a building, and the subcontract is extended without the belief that the subcontractor is acting on behalf of the alleged principal, the subcontractor is not an ostensible agent of the one alleged to be a principal.
From:
http://www.som.hw.ac.uk/buslm1/ComLaw2/Agency.htm
"3. Ostensible Authority
Authority which has not been actually been given to the agent, but which he has been held out as having.
Arises where:
(a) Agent has had express authority which has been withdrawn, but third party has not been notified of this.
(b) Agent is in position where certain authority would be implied, but principal has limited this and third party is unaware
of the limitation. "
From:
http://www.law.fsu.edu/journals/lawreview/frames/<nobr>2<wbr></nobr> 33/brosfram.html
BUYERS, BEWARE: THE FLORIDA SUPREME COURT'S ABROGATION OF THE APPARENT AUTHORITY DOCTRINE LEAVES PLAINTIFFS HOLDING THE TAB FOR TORTS OF FRANCHISEES—MOBIL OIL CORP. V. BRANSFORD
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