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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.""
Under Section 8 (Injunctive Relief), if I sign the NDA and then even threaten to reveal any of what SCO showed me:
SCO shall be entitled ... to preliminary and permanent
injunctive relief
Does this mean they can send me down for the dirt nap?
"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
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.
Doug Tolton
"The destruction of a value which is, will not bring value to that which isn't." -John Galt
In other words, we can show you only what makes us look as if we have a case
I'm surprised that the NDA isn't under NDA itself.
SCO can only show you half the evidence now as they haven't made up the other half yet. Just be patient and play nice, boys.
Trolling is a art,
From what I read elsewhere, and I can't confirm it, but this is the 1st NDA you need to sign before seeing the real (2nd) NDA.
I'm not kidding.
P.S. SCO's stock is going up like crazy today. Big volume too.
Well, if a picture is worth a thousand words, and half a picture is prolly worth about 500...
I say we use those 500 words and tell sco the many ways to "get bent".
-
ping -f 255.255.255.255 # if only
and sent it to them next day mail. I signed it Linus Torvalds.
And to think, I was having SCO news withdrawal.
This should fix me till Monday!
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
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
Symbol Last Sale Change Net / %
SCOX $ 8.48 1.88 +28.48%
do they know something we don't ?
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
This NDA will self-destruct in ten seconds.
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.
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?
Liberal (adj.): Free from bigotry; open to progress; tolerant of others.
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.
sigs are a waste of space
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.
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.
-----
Free P2P Backup, Windows & Linux
4. COMPLAINING. Employee shall not, upon leaving the office, complain, celebrate, share or disclose any details of any day at work or the disposition (good or bad day) of any day. Further SCO reserves the right to alter the empoyee's view of any working day based on whether SCO believes it to be a good or bad day at work.
US Democracy:The best person for the job (among These pre-selected choices...)
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
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.
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.
Yea....it's possible that you're clinically insane.
From the article: "They could sue me and make me go to Utah to prove I didn't disclose confidential information" Speaking as someone unfortunate enough to live in Utah... *shudder* Well, at least if a case did make it to Utah, the local theocracy probably wouldn't take a "controlling" interest in the affair, and you might get a fair trial. (Hey, it's not all bad-- one advantage of living in Utah is that I at least theoretically have access to the same supply of sweet, sweet crack that the guys at SCO are apparently smoking.) - Blenderfish
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.
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.
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I agree.
Why in the world would ANYONE agree to something like this?
To gain some bizzar form of personal satisfaction?
Maybe to "take one" out of some sick sense of undying love for SCO?
It sure isn't like you can, even remotely, help get Linux "cleaned up". Indeed, if Linux were to happen to "fix" anything, even by an accidental change, SCO would like come after the NDA signitories like rabbid utonian dogs.
Anyone playing along with this whole NDA charade, in the smallest way, is simply paying homage to some scheme or other of SCO's. For NOTHING of value in return.
Why do this? SCO is a scoundrel. Don't gift any value or meaning to their cause.
BEST CASE REASON --- You agree with SCO and just want to check before you try and negotiate a license fee for your copies of Linux.
But why? Your risk doesn't even start until SCO demonstrates a case. Even then, you don't have to pay -- you have to take affirmative steps to correct the problem. Why volunteer fees, in advance of SCO even having a licenseing program available?
BEST BUSINESS REASON -- You work for Microsoft and your bonus next year is based on your offering your services under the NDA "to protect the God, Flag, and Motherhood of IP in general".
Stupid is what stupid does. That's probably the biggest risk in Free Software. Any fool can step up "on behalf of "the community"" and make claims like SCO's look good.
SCO wants to show the court that XXXX people believed enough in SCOs claims to investigate them at considerable risk to themselves. This is about a Trade Secret, after all, and if what SCO has is that awe inspiring then there must be something to it.
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
utter rubbish
To the extent this isn't moot, insofar as whoever signs this NDA and sees the disputed source code, cannot say anything about what he has seen. Then, what is up with this partial source? Why isn't SCO wanting to show all of it?
Let us now assume that someone will be sufficiently bold and/or daft so as to actually go ahead and sign this NDA, and thus get to see this fabled source code.
SCO shows some part of the code, it is anybody's guess what or how much it will be, but there will be some nevertheless. There are two possible outcomes:
Either the code seen is discovered to be infringed, and SCO has a case, although whoever saw this cannot say so, upon his head be it.
Or the code is not infringed. The professional who has seen the code still may not tell, but this time there's really nothing to say either: some other code in there could still be infringed and the only conclusion is that time has been wasted.
Either way, this comes out slightly less than useful. No wonder not many have bothered.
SIGBUS @ NO-07.308
This whole SCO-thing reminds me of an old Gary Larson strip where a cowboy in a gunfight is told something like "If you get shot, don't just die! Be dramatic! Jump around screaming or something, then die!"
My other account has a 3-digit UID.
Since you would be the only one to sign it, even SCO could figure out who did it!
The Kruger Dunning explains most post on
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. A pact with Satan wold be subtle. this is a pact with stupid.
The Kruger Dunning explains most post on
and sent it to them next day mail. I signed it Linus Torvalds.
;-)
Well I sign all my mail "Rob Malda", especially my email - it seems to keep my own email address free of spam
Code, Hardware, stuff like that.
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
Looking at the NDA, looks like only people who are friendly with SCO will dare sign it. Then they will tell people that the Linux and IBM violated SCO's IP.
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.
Dunno. They may release a different "map"* of the supposedly infringing code to each person, so they could identify the leak. However, I didn't see anything there (correct me if I'm wrong) that said someone couldn't replace the code and then submit a patch to Linus.
If so few people are signing this, and they're only showing partials, they can probably tell who leaked by what information goes out. And then they come to take your balls...
Slashdot needs a "-1, Wrong" moderation option.
The Urban Hippie
er.
* since the code is already released, it'd basically be a map, and I guess some code from their archives to back up the claim.
That the NDA would be unacceptable was so predictable it's not even funny. Only M$ and SCO shills would sign that thing and SCO is going to say stupid things about free software advocates who refuse to put themselves at the mercy of the state of Utah. Next, they will plant chunks of code someplace and say the anarchists put it there.
Fuck you SCO.
Friends don't help friends install M$ junk.
In other words, "This Agreement means what we intend it to mean, and not what it actually says."
I wouldn't touch it with a 10 ft pole.
{Not that I actually have a 10 ft pole, and I didn't intend to imply by listing a 10 ft pole in the text that the text has anything to do with an actual 10 ft pole, and you agree that
You can't take the sky from me!
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".
Backward%20compatibility%20is%20over-rated
I agree. It is demoralizing. But Slashdot is a demoralizing site. Just about all we read here is how the MPAA, RIAA, Microsoftâ(TM)s, SCO want to take things away from us. Think about it, Slashdot is not exactly uplifting, empowering stuff is it? At best it's alarmist and reactionary and sometimes entertaining, like the posts on a poll. But I digress...
The thing is it's not about money anymore for these companies; it's about power - those who have it and those who want it. SCO is a wanna-be, Linux (yes Linux) is a wanna-be, Microsoft is (perhaps) doing all it can to hold on to it. You know what though? I don't fucking care. I don't care about Openoffice vs. Office, Linux vs. Windows, stability, or if I have to have a license to play some damn music file. I really only care about security, meaning I care if my information gets into the wrong person's hands. As long as I'm not the victim of a theft or assault I'll do what I need to do to get by in this world. And that's what most people do (read Joe Six-pack).
I just don't understand the instance that Linux should or must become the next Microsoft. That's really what this is all about, SCO is just getting in the way of that goal and it's pissing people off. So ask yourself "would the world really be that much better if it was Linux that was on 95% of the desktops?" It might be more *fun* for you, but it doesn't really matter. All you'll have is the power that Microsoft has now and will be faced with the same basic problems.
At the end of my life I won't be thinking "Damn, I wish I had fought harder to be able to use linux at work..." and I don't think you or anyone else here will be either.
Caldera bought the SCO name and properties, and then changed their name. These shots are being called from the former Caldera's headquarters.
They probably think NDA stands for No Details Available.
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.
my
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?
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