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.""

Comments

More dirty SCO tricks

[dtolton]

It is interesting to note that if what Ravichner is saying "the
NDA does not exclude information that the recipient obtained in
ways other than from SCO" is true, then signing the NDA could
prevent you from disclosing any information about SCO code even
if the court rules that SCO's distribution of the code (with
Linux) made it public.

So you could in theory be binding yourself to confidentiality
with regards to SCO's code even if (when?) the ruling goes
against SCO!!

As SCO has said, binding legal agreements are far more
compelling in a court of law than copyrights. I wouldn't touch
that agreement with a ten foot pole.

Unfortunately, as we knew it would be all along, this is just
another ploy by SCO. They won't give you full access to the
code, you can't talk about the specifics, they can bind you from
disclosing already public information, and to top it all off,
they can make you come to Utah to defend yourself in court.

Cringely

[LMCBoy]

Bob has some interesting thoughts this week. The column is about how, IF there is UnixWare or OpenUnix code in Linux, it was most likely Caldera itself that put it there, not IBM. This isn't a new idea, but he provides quotes from Ransom Love at the time which sound pretty damning.

SCO/Caldera's motto at the time was "Unifying Unix with Linux for Business". To the extent that wasn't just hype, how can they blame anyone but themselves for migrating their UNIX code into Linux?

There really is no way to do this right

[X]

The whole NDA thing is a pretty rediculous farce. The fundamental principle is that SCO does not want it revealed what code in Linux is in question. Since that code is already public knowledge, if they let you publish information "obtained from other sources" you can basically publish the relevant code.

SCO also doesn't want to have to turn over everything they got. They basically want to just throw down their Unix trade secrets and Linux source code, and have people draw their own conclusions. A contract with more flexibility could open them up to having to share a lot of other things related to the case.

As for the state of Utah clause, it's pretty typical for a contract to have some state governing its enforcement, and typically the home state of the company drafting the contract. Sadly, they aren't a Delaware corp. :-(

I think SCO is as evil as the next guy, and I think the NDA thing is a red herring, but I have to say I can't see how else they could have written this NDA without compromising secrets that they obviously feel they need to protect.

Re:SCO's Position: Sign it or Don't See the Goods.

[tomhudson]

Seeing part of the picture is better than none of the picture.</quote>

Really? I'm of the opinion (and I think most reasonable people would agree) that if someone wants to pick and choose what they show, htey have something to hide.

So, what are they hiding?

It's pretty obvious - the fact that they don't have a case. After all, the the code is in fact already in open-source software, it's already public.

I certainly wouldn't want to look at their piece-of-shit code, just like I wouldn't want to look at anything coming from the Beast of Redmond - to avoid future charges of infringement/theft/copying.

End result: Anyone stupid enough to go along with this qualifies for the darwin awards. They've certainly removed themselves effectively from the pool of OSS developers.

Re:courtesy of nasdaq...

[Arker]

No, it's just the gambling instinct.

Although we all know SCO doesn't have a case, most investors aren't that savvy. Plus, even without a case, you always have a chance in the US - you can pull a crazy judge after all. So the investors are figuring, maybe they win, maybe IBM settles or buys them out... if either of those things happened SCO stock could suddenly be worth a lot more. There's always a good amount of money in the stock market looking for the high risk gamble-moves that could bring a good payoff. Most of those investors, of course, are sensible enough to keep the bulk of their holdings in safe stuff, but they still budget a certain percentage for risky buys... anyway I'd figure those are the buyers. The sellers are probably the SCO executives and their pals, who presumably have a more realistic understanding of their chances.

Re:Section 8

[cshark]

They don't even want to you divuldge file extensions. Wouldn't that keep any programmer from well... programming? It would suck to sign this agreement and then find out you need to switch careers or SCO will SUE you.

Re:Beware of unilateral contracts

[AlecC]

What could the counterparty to SCO possibly gain by agreeing to this?

Money. The counterparty would presumable be being employed as an Expert Witness in the lawsuit. Fees for such witnesses are normally very lucrative. >$1000/day plus expenses for the research phase (reading the code) and more for attendance in court are the figures I have heard.

Counter suits

[Tim Macinta]

I downloaded the Linux source from SCO just yesterday at ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Serv er/CSSA-2003-020.0/SRPMS (their server did not respond a minute ago when I checked to see if it was still there). Wouldn't the fact that they are strongly implying that it is not OK for others to distribute Linux in it current form make their distribution illegal since they lose their right to distribute it when attempting to add conditions to the GPL?

Could somebody who has contributed to the Linux kernel explicitly revoke SCO's license to redistribute it and then counter-sue to get them to stop? It would seem that SCO has lost their right to distribute the kernel by attempting to add restrictions on top of the GPL (which the GPL forbids) and that as a result somebody who owns part of the kernel could enforce a revokation of their ability to use the GPL'ed code. Wouldn't it be great if all the kernel contributors did this at once? SCO would quickly be drowning in countersuits. (Maybe we could even see the headline In Soviet Russia, Linus sues SCO!)

Of course, I'm not a lawyer, so I don't know how realistic of an approach this would be.

Re:Be nice you guys..

[cshark]

Yeah. I was reading an article at news.com.com where mcbride was saying how they haven't finished assessing the scope of their case yet. Which seems odd to me bacuase companies usually know what the scope of your complaint is before your go around suing people. I mean, otherwise, how do you know what you're complaining about?

Not so simple. Really.

[EdgeShadow]

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.

All right. Let's say SCO does have a legit claim and does want to collect royalties. Even so, at one point or another, they'll have to reveal the "code in question" to, at the very least, the parties involved in the lawsuit, if not to the general public as well. If they never reveal said code, then how the hell can they prove that it was copied? That would be akin to accusing someone of stealing without even specifying that which was stolen.

Now, even when they do reveal said code, they are claiming that damges have already taken place. So, even replacing the code with "clean" code will not suffice to pay for past damages, though it would prevent future infractions. If SCO wins, the judge would likely rule that either the code be removed or end users of Linux pay royalties to SCO. Again, this is only a speculation; I am certain, however, that SCO will be unable to force Linux users to keep their "illegal" version of Linux so that they would have to pay royalties.

In any case, I and many others feel that SCO's claims are bogus and that they've no chance in court. Even if the code is, in fact, copied, it still remains unclear whether or not SCO really has the rights to it and, even if they do, whether or not average Linux users are in violation.

Re:nda my heart

[ninewands]

Quoth the poster:

I mean you'd think someone on slashdot had paid for it before. They have much more to gain, and little to lose. They'll drum up business no matter what you, or Linus, think.

You forgot your </i> tag after the quote, but that's not the point of my responding to your flamebait instead of modding you down. Modding down stifles discussion, while responding stimulates it.

I have official boxed sets of several Linux distributions. I pay for them with my employers' money in order to support free software companies. (I'm a *n*x admin at a large university). My employer supports me in this practice. However, in truth, when I install a new Linux box, I boot up from the CD and install the distro over the 'net so that it comes up with the most up-to-date packages already installed.

That being said, I've never bought a SCO (nee Caldera) distro because I've never thought they had anything to offer over and above the base Debian distro they built from. Their recent behavior has put me in the frame of mind that even if they DID offer a significant improvement over the base Debian distro I would not buy their product, so, yeah, there ARE slashdotters who pay for Linux and who will NOT ever buy from SCO as a result of this lawsuit.

Just my $0.02

This is all getting out of hand...

[Demerara]

I have followed this story since it broke. Right now, I'm none the wiser. The publication of the NDA is not really revealing - it's what you'd expect given the rhetoric.

Nor is SCO's suit against Novell the real issue. IMHO, what's needed is for one of the 1,500 leading companies to whom SCO sent their "Stop Using Linux Or Else" messages to pony up, get some quality IP attorneys and throw it right back at SCO.

Picture it. Acme Widgets Inc respond to SCO with a clear message that they will NOT stop using Linux unless SCO can provide evidence of their claim.

Now, bluff firmly called, SCO have to put up or shut up. Acme Widgets Inc have to convince a judge to force SCO to identify the code they claim (not trivial). And somehow (and IANAL) this has GOT to get into the public domain - not SCO's code but the GPL's Linux Kernel sections claimed by SCO.

Once this happens, the uber-geeks who gave us Linux can replace the SCO sections with newly-developed code and we can all go about our business. Given the community's sparkling record on patch turnaround time, this could be concluded rapidly enough to offer Acme grounds for a dismissal.

C'mon Acme - go for it!

I believe SCO are trying to protect their IP - it's their methods which are truly offensive. Even if this case blows over, does the Open Source community want contributions from people like this?

The same might be said for IBM's silence on the issue - as Edmund Burke (IIRC) put it "evil will prevail when good men do nothing".

Re:Beware of unilateral contracts

[mkldev]

Which is 100% unenforceable. By law, an NDA becomes null and void if the material it covers becomes public, regardless of how it becomes public or when it became public... unless you made it public while under the NDA. If you have distributed the code previously, the NDA cannot cover it, regardless of language to the contrary.

In effect, that means that the NDA is probably not worth the paper it is printed on, assuming that we're all correct that the code in qustion was just stuff AT&T stole from Berkeley back in the 80s.... That having been said, I wouldn't want to test that theory by signing the NDA and then publishing their source code.... :-)

Suggestion:

[the_real_tigga]

In order to reduce bandwidth usage of both the Slashdot infrastructure
and Slashdot readers' internet conections, when replying to articles covering
anything legalese, just leave out the ubiquitous "IANAL, but", and only
in case you are a lawyer, use "IAL, therefore" or "IAL, hencewith".

Thank you.