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SCO NDA Online at LinuxJournal
shadowbearer writes "The full text of the SCO NDA is available here at LinuxJournal. IANAL, but my reading of it makes me understand all the industry "No way!" style comments. Here's a snippet:
"Dan Ravicher, an attorney who specializes in free software and open-source issues at the firm of Patterson, Belknap, Webb & Tyler, said in an interview there are three key problems with the NDA. First, Ravicher said, "SCO can pick and choose among all its evidence" to show only the parts that back up the company's claims. "They're agreeing to let you see the half of the picture that they want you to see", he added.""
"Dan Ravicher, an attorney who specializes in free software and open-source issues at the firm of Patterson, Belknap, Webb & Tyler, said in an interview there are three key problems with the NDA. First, Ravicher said, "SCO can pick and choose among all its evidence" to show only the parts that back up the company's claims. "They're agreeing to let you see the half of the picture that they want you to see", he added.""
"IN CONSIDERATION of the mutual promises ..."
This contract was created by only one side of the deal. So it's worded precisely the way SCO wants it for their maximum advantage. Usually in a dispute courts will favour the party which didn't create the unilateral contract, but it looks like they've covered off that angle by choosing Utah.
Bilateral contracts, where the parties negotiate and both have input into the final wording signed, are much safer as a rule.
This is a one-sided contract by a known litigous company.
The person signing gives up all kinds of rights, is straitjacketed legally, and doesn't even make any money on this.
All the risk with no reward.
What could the counterparty to SCO possibly gain by agreeing to this?
I usually try to be ambivalent, but can't seem to find anything redeeming here.
Esteem isn't a zero sum game
Symbol Last Sale Change Net / %
SCOX $ 8.48 1.88 +28.48%
do they know something we don't ?
But it's damn hard to collect damages when you didn't exercise due diligence to tell the infringing party that what they were doing that infringes.
Linux: Telling Microsoft where to go since 1991
With respect to your sig: I believe Linux was originated due to problems with Minix, which is not a Microsoft product. Just a thought.
I do not have a signature
CNET updated the story. SCO has a new in-house lawyer, but they are keeping the current lawyer, Boies, as well.
The new lawyer, Ryan Tibbitts, worked on the Caldera versus Microsoft suit. He's done this kind of work before.
Stock Financial Health Grade change
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Stock Profitability Grade change
The Morningstar Profitability Stock Grade has changed from Not Available to F. For details,
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Stock Growth Grade change
The Morningstar Growth Stock Grade has changed from A to A+. For details,
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I suspect this won't be a "growth stock" for very long.
[Claimer: I worked at USL and Novell doing configuration management for parts of Unix System V from 1993 to 1996. Disclaimer: I have no involvement with the development of Linux or any proprietary Unix now.]
They probably won't have to go to AT&T or Novell for historical data, except as secondary verification. SCO has the source code repository (in ClearCase and in other formats) going back to 1984 and, for some things, earlier.
IANAL, but if I were working for SCO and were asked to prove the charges, showing the matching code would only be the first step. The second step would be to show where the code was first introduced in the USL-originated repository. The third step would be to be prepare to show that the timelines in the repository were not altered (think "cleartool setevent"; this is where AT&T might come into the picture). The fourth step would be to show that the code was the IP of SCO or its ancestors from the day it was checked in (i.e., it's not itself stolen GNU code or something). The fifth step would be to show (possibly through subpoena of the AIX source repository) that the code in question was introduced into AIX as a result of a code drop from SCO or its ancestors. The sixth step would be to show (through examination of the Linux [etc.] repositories) that the code in question was introduced into Linux (etc.) as a result of a code drop from IBM subsequent to its being obtained from SCO.
That's the easy (if time consuming) part, establishing the paper trail.
The hard part is then proving that the transfer of the IP into the Linux source base was done knowingly (or whatever else would be actionable under the SCO/IBM contract), and that the Linux coders couldn't possibly have thought it up on their own (e.g., it can't be some algorithm every freshman CompSci student implements as a class project.)
I really can't see SCO's "they can't possibly have had the knowledge or resources to build and test this" claim holding up. They're going to have to present much more convincing positive evidence than that.
Good bloody luck.
Bottom Line: buying options contracts has a predetermined downside: the cost of the contract. On the good side there is no limit to the upside; the more the price of a stck moves in the direction that you guessed the more money that you make. On the other side of the story is that of selling contracts. There is a limited upside: the cost of the contract. There is an unlimited downside though; the more the price of a stock moves against you the more you loose. There is not really any way out of selling a contract except the expiration date. That said you can buy an options contract that is in the opposite direction from the one that you previously sold and stop the bloodletting there by essentially making money on one instrument while loosing it on another at the same time. The general rule of thumb, the reason that there are about as many people selling contracts, either puts or calls, as there are people that want to buy them is that 90% of the contracts will expire worthless.
There is a major differences in options contracts in Europe and the US: when they can be exercised. In the US options can be bought and sold at any time during the contract. In Europe contracts can only be sold on the date that they mature. Either way they are priced by a method known as The Blask Scholes method. These two economists won a Noble Prize for developing these equations and the markets have never been the same since. The price that they come up with is based on many different things: the current price, the volume of stock, the amount of stock in play, and how fast the price is moving, among others.
Back to selling stock short. The borrowing of stock is arranged by brokerage houses so you need not worry about that detail but if the price goes up the brokerage house can and will demand that you have enough cash in your account to cover the margin between the current price and that which you bought it at. If you don't have enough margin the brokerage house will do whatever it thinks is necessary to cover their ass as anything that you cannot cover is their loss. That often includes liquidating everything that you own. Just make sure that you have the required margin!!!
Restore America: Dr. Ron Paul for President!
Easy.
.sig about "democracy dies behind closed doors" has it right. So very right.)
Joe Hill.
Any Utah-hater worth his salt'd know that one!
(Actually, for the record, I don't completely hate Utah. It just can be frustrating at times. Whoever has that
- Blenderfish
No contract can prevent you from disclosing information in court. No contract can oblige you to do anything against the law. This is about as basic a contract law as you can get. An NDA that didn't give an execption about testimony is in itself on dubious legal grounds which is why it is explictly permitted.
See my journal, I write things there
But then, so's the entire lawsuit...
a world in progress...
like everyone else, IANAL.
if your legally obliged to do something for the court, and their contract keeps you from doing it- hence the contract forces you to break the law- doesn't that make the contract itself null and void?
I seem to remember somewhere that contracts can't be enforced if it requires a partymember to break the law.
Looking for Book Reviews? Check out Literary Escapism.
A small quible, but I believe it would only null and void the section that is requiring you to do something illegal. The remainder of the contract would still be in force. That is what section 9 "severability" covers.
Caldera bought the SCO name and properties, and then changed their name. These shots are being called from the former Caldera's headquarters.
a SCO system is pretty useless by Linux standards, scripting is all bourne shell, AWK, and TCL/TK; the utilities are all vintage 70's stuff like more (can't back scroll) rather than less and vi rather than emacs or vim. So what must people who actualy use or admin SCO systems do is install some modern GNU utilities, Perl, and of course GCC.
The other thing to remember is that most SCO systems aren't used for anything except running one vertical app. Ours runs Command Dental System, a cobol suite of programs that are multi-user over serial lines to wyse 60 terminals. It was ported over from xenix, and what was funny is SCO changed from curses to ncurses when they change from 16 bit xenix to 32 bit openserver and this cause bizzar characters to appear in the screen boarders and support(Command Dental) couldn't figure out that the only thing they had to do to correct it was to change the systems default font!(I didn't dare change it myself because with a support contract, if you change anything, everything is forevermore your fault.)
An other area that SCO had good penatratrion in is resturants, multiple waitress stations intputing orders with touch screens and swipe cards.
Apocalypse Cancelled, Sorry, No Ticket Refunds
Who cares if you see source?
Saying: "Looky looky! Same bits!" proves nothing.
You have to look at source tree A and source tree B and the commit history with dates, and then you at least know who included it in the source tree first... still, *that* proves nothing.
SCO must show the provenance (sp?) of the code in question, with a prerponderance of the evidence. Both A and B may have copied code from the same text book, same manufacturer's ap note, same whiteboard in a CS lecture, whatever. Unless SCO can show that they had it first, and that there is little likelihood it could have come from someplace else, only then do they have a case.
Looking at source without commit histories is pointless. Looking at commit histories does not establish where the source came from.
So, looking at source under NDA proves what, again?