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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
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,
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.
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...)
This NDA is useful for those people that may be interested in whether these claims are true, but aren't interested in developing kernels. Consider a client wavernig on whether or not to buy SCO or Linux support. They sign the NDA, SCO shows them they are the proper owners of the ultra-secret code, then they buy gobs of stuff from SCO.
I don't believe that's the case here at all but that's not the fault of this NDA. It would be valuable and usable to someome.
t
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.
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.
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I suspect this won't be a "growth stock" for very long.
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
[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.
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.
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