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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 other words, we can show you only what makes us look as if we have a case
I think the purpose is twofold. For one, SCO thinks they have a claim, and want people to able to back them up. Let's say Linus looks at the source and says that indeed, SCO has a case. SCO now has the re-affirmation from Linus himself that they have a case, and Linus can now publicly say "watch out, they have a case". He can't do anything more than that, but he can at least strengthen SCO's point. Also, they can then subpoena Linus in court.
The second reason is to find out if they really have a case. If Linus can prove to SCO that they're full of BS, SCO can back out now before they lose everything they have in legal fees. They'll need that money, since no one on Slashdot will pay SCO for anything ever again.
Yes, I realize that Linus has already stated that he won't look at the code, for good reasons, I just used him as an EXAMPLE.
There is no reasonable defense against an idiot with an agenda
:wq
I didn't even read beyond the first section because that quote says it all right there.
There is a constant flood of people who keep asking why SCO does not just show everyone the evidence if they really have a claim. I mean the code already exists for the public to look at in the linux kernel, so why not just point out which lines that are talking about?
(for purposes of this discussion I am going to pretend SCO really has a legit claim and is not just doing this to get bought out)
Here is why: They want to collect royalties. They cannot collect royalties if the code in question is removed and replaced with "clean" code, which is what will happen within minutes of them announcing exactly which lines of code are in violation.
My guess is they would want all evidence to be secret, and never disclosed to the public else they lose their imagined "windfall" they plan to make via royalties on future sales of Linux distributions (or just extorting users of Linux directly).
Can you just see it? "To keep our IP secret we cannot tell you what code is infringing on our property, buy we will let you keep doing it for a small fee. Don't worry, we will tell you if the code is ever removed or changed and stop charging you"
Now before you scoff at this as the stupidest thing you have ever heard, think: Is this idea any sillier than everything else that has happened in this SCO fiasco so far?
Finkployd
I would imagine that part of what they can do by putting into the NDA the option to withhold whatever evidence they wish is to reveal specific exclusive pieces to whomever signs up. Joe One gets lines 400-500 of foo.c while Jane Two gets lines 800-900 of bar.c and ne'er the twain shall meet.
That way if 400-500 of foo.c is revealed anonymously as part of the conflicting code, SCO can go back and sue Joe One knowing he is the only one they showed that particular piece of code to.
At least, if I were SCO, that's what I would do.
While certainly cute, that couldn't actually fly. Well, you could have an NDA for the NDA, but that NDA could be published. An NDA isn't binding until it is signed, and prior to that point you can disclose it.
Now, they could have an NDA for the NDA, so they will only show the main NDA after signing the smaller one. However, the first NDA you are shown could be disclosed. Then again, it probably wouldn't be nearly as juicy for amunition - it would just say something like you will never disclose anything you see on the next piece of paper to anyone for any reason...
Since the lawsuit is directed at IBM, why doesn't IBM just do a diff AIXSOURCE LINUXSOURCE and publish it? It seems to me that is all anyone has to do to bury this once and for all.
as soon as it get's into a court they cant play these stupid games.
The ENTIRE sourcecode will have to be revealed in court. or they need to just give up.
I know that judges are corruptable, but they aren't idiots.
Do not look at laser with remaining good eye.
What is this, fortune-telling through NASDAQ? You'd have better luck reading SCO's future with tea leaves than looking at a one-day stock price. If you look at the longer-term trend of their stock over the last quarter or year, that's actually useful information. A one-day rise or fall, in and of itself, is a hiccup.
!#@%*)anks for hanging up the phone, dear.
EVERYONE ELSE bought from SUN, IBM & HP before this little stunt, and everyone else will continue to buy from SUN, IBM & HP afterwards.
The fact that SCO is a sue happy little pissant isn't going to impress anyone that's potentially interested in a robust Unix server.
This might harm Linux, this might help Microsoft, there's even a slim chance that it will harm Unix in general. However, SCO is still going down the toilet.
A Pirate and a Puritan look the same on a balance sheet.
Not only that, but in theory, even if a court ordered you to disclose the "Confidential Information" you would not be allowed to do so under this agreement.
...
I have seen hundreds of NDAs in my career, and practically every one of them that I have seen has an exception allowing you to make disclosures if ordered to do so by a court. This is very important; if you don't follow a court order, you could go to jail.
And if this happened and you did follow the order, then you'd screwed under this agreement. Talk about putting yourself between a rock and a hard place
"If I could live to be several hundred
I could take a walk and really wander, really wonder."
SCO management knows that if they can keep their story in the news then people might start to believe they actually have a case.
The fact of the matter is that SCO isn't aiming their press release at members of the Linux community (or even members of the larger computing community), they are aiming these press releases at the large population of rubes that might be interested in gambling on an "insider deal." SCO's allegations are ridiculous to anyone with any knowledge of the situation, and their tactics are crude and hamhanded to any with an inkling of knowledge about the case. The mere fact that they keep issuing press releases should trigger alarm bells. Everything SCO management says is evidence, if they were trying to win they would listen to their legal counsel and do their talking in court.
In short, SCO isn't trying to win a court case; they are trying to hype their stock.
To an outsider their case looks like a bunch of poor underdogs who have are fighting an IBM Goliath. SCO's target audience doesn't have a clue about source code or NDAs, and to them the offer to prove their case almost certainly looks genuine. These people don't know about the GPL or the UC Berkeley AT&T court case. They don't even know that SCO isn't Santa Cruz Operations (the former UNIX company), but that SCO is really just Caldera (the former Linux company). They simply see that a small company claims to have rights to some code, and some journalists (and Microsoft) keep adding credence to their story.
This is a pump and dump scheme, nothing more, nothing less. Think of it as a variation on the Dot Com Boomers that hyped their stock up to the moon despite the fact that they knew that they had no chance of making a profit. Everyone makes fun of the dot com management teams, but they weren't stupid. They weren't selling pet food, or medical advice, their stock price was the real product they were hawking. The guys that founded those companies generally made a big fat pile of money at the subsequent investors expense. And it was all perfectly legal.
SCO management is in a similar position. They aren't going to win their case, but that doesn't matter, because right now their stock is what they are really selling. The difference is that the "Big Lie" in this case isn't that online commerce is going to change the world. The story this time is that scrappy SCO from Lindon, Utah has got IBM by the short hairs. It's pure @#$!!, but it plays well on TV.
As long as the SCO insiders jump through SEC hoops when they sell (and they have plenty of time to sell), and as long as they don't laugh out loud while pretending they have a case, it's all perfectly legal.
Caveat Emptor.
It seems to me that a Rule 11 motion against SCO and its attorneys would be in order, if SCO didn't properly asses the merits of its case before filing suit. Methinks McBride may have said too much!
I think it's just prohibit takers from appearing in court against them. If linus looks at evidence by NDA, he can't talk about it in public. It's to stiffle the opposition with a trojan horse, more than anything else.
When you sign that NDA you give MORE RIGHTS to SCO... i.e. more ways to sue you.
Remember, according to SCO, copyright is what you use against strangers, contracts you use against partners. Now go sign the contract! (i.e. the NDA)
-pyrrho
I wonder if the other half might contain Linux code that's crept into SCO? Mod me down for the consipracy mongering if you want, but there's got to be some reason SCO is behaving this strangely.
--Jasin NataelTrue science means that when you re-evaluate the evidence, you re-evaluate your faith.
Actually, that sounds quite a bit like shrink-wrap software EULAs, where you only get to see the license after you've already bought and opened the package.
it doesnt matter. their NDA is 100% worthless.
their ENTIRE sourcecode will be revealed in court to professional witnesses under court order, not under some fantasy bullcrap SCO's lawyers dream up.
SCO is doomed, their NDA is proof that they have nothing and the whole thing is nothing more than a scam that the CEO and other company officials are trying to pull.. I put these guys lower than the scumbags at Enron.
I'd tell everyone I know to avoid SCO, but nobody has used their products cince 1990.
the response I get is S C Who? that company that went to hell in the early 90's that had the crappiest Unix on the market?
SCO has been a running joke in the Unix market for decades... their NDA is just further proof.
Do not look at laser with remaining good eye.
IANAL but the way I read it is if you sign, you cannot disclose anything that SCO relieved to you, even if you've seen it before. Particaly speaking if SCO stole or devised independently YOUR code, placed it in the relieved code, you could no longer distribute the code that they stole or devised independently without breaching the NDA. Nothing to gain, every thing to lose.
Apocalypse Cancelled, Sorry, No Ticket Refunds
They didn't have the crappiest UNIX on the market back in the day - it was awesome to be able to run UNIX on cheapo 386 hardware, and it worked really well.
I feel sorry for the excellent engineers and businessmen who made that happen (more than twenty years ago), their ancient and respectable company name has been turned into shit by a bunch of dot-com bubble idiots with a hangover and a patent lawyer.
I wouldn't sign anything SCO management gave me. The only good news is that eventually this case will either go to trial or SCO will go out of business.
Here's to hoping that the SCO management gets so greedy that they make a mistake and the SEC nails them to a tree.
Quite seriously, a major reason for America's economic troubles, according to the Harvard Global Competitiveness Report, is a failure of the court systems, especially in contract law.
Although the whole report is for sale, you can click through to some pdfs, and read them. Especially interesting is the Executive summary, in which [p. 19] they say that they are increasing the weighting of technological innovation, [p. 20] note that the US has fallen to #2 and Finland has taken #1.
Yet for the case of the United States [p.37], they note that the bubble has burst, and they say that technology is *overrated*. They also note that the major problems with the US are the undermined court system, now ranked around #14.
What that means is that they US hasn't just fallen to #2. In reality, the US has already fallen a good deal farther. And when you consider that superpowers *do* have more power, and therefore fall under the category of "more competitive" all other things being equal, that means that the US is really hurting, and is probably going to hurt more. Fallen, fallen, is Babylon and all that.
Now, flip over to the Cato Institute, and you can find documents [or this] where they point out that the fall Argentina's peso was engineered, and that this represented a major additional break from the rule of law. But what also hurt was that their court systems were completely corrupted, and their society had separated into two societies: the taxed and the government folks.
Well, hate to break the news, but it's looking a lot like what Argentina had, America is getting ready to eat themselves. Not that it will be exactly alike. I fully expect a blackmarket boom in Argentina, followed by [1% chance] them becoming the top economic power in the world if they are good to each other, or [99% chance] them turning military and conquering most of South and Central America, and sending a pressure hammer of refugees into North America. The US, on the other hand, I expect to slide into corruption, and be overwhelmed by said pressure hammer.
But back to the topic at hand, I don't think we can necessarily expect expert witnesses, truth, and Justice to prevail, in light of the American way.
So if you're into Linux, download all the source code you can right now, and put it on CDs/DVDs, and keep it. You may find that it is quite valuable for internal use, and public use after you're sure that it's clean. Don't let Linux depend on America, because America has different ideas right now.
Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's