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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,
I didn't even read beyond the first section because that quote says it all right there.
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
Thank you for your letter requesting royalties. I must advise you that I have modified my copy of Linux and it now longer contains any of the code you allege is your property.
I would be happy to show you my revised code so you can verify my claim, if you wouldn't mind filling out this NDA (attached). Oh, and don't forget to let me know which lines you want to see. I have my lines of source code sorted in alphabetical order for your ease of reference.
Recycle PCs and build a wireless community network www.hillsborough.org.nz
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.
[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.
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