An offer of indemnification is in no way an admission that a claim is plausible. If anything, it is the opposite.
In the normal course of business, one stands behind one's product by offering an indemnification. In the open source context, HP (but not necessarily Sun, given their relatioship with SCO) is sending a message that it believes that the risk of there ultimately being a problem is lower than the losses it will suffer if its customers don't trust Linux. As a business, the only way that analysis makes sense is if one believes in the integrity of open source.
I shouldn't really say that SCO is wrong; they had it right the first time: if you believe in the product you are selling, and if you believe there isn't a problem with a type of claim, you indemnify. H-P believes.
Canopy will undoubtedly request a protective order from the judge, which in all likelihood will be granted, but perhaps not protecting everything Canopy wants.
In a "normal" case (i.e., one in which every scrap of publicly available information is not being scrutinized by zealots on six continents, NTTAWWT), the parties would probably just agree ahead of time to the terms of the order, since in most commercial litigation cases it is to everyone's advantage to keep things confidential. I doubt they will agree here, however, as IBM has a big incentive to make things public, and SCO/Canopy has made its position clear on locking everything down.
Barring a protective order, however, everything revealed in discovery is fair game to be revealed to the public. That is a big caveat, though, because everything is usually covered by a protective order in these kinds of cases.
Excellent interpretation, except for the last one.
"10) Even when they (SCO) found what they say we (IBM) did wrong, they didn't try to stop it first, they just went straight to the lawyers."
Should be more like:
10) Even if we did something wrong (which we didn't) SCO isn't allowing anyone to remove its supposed code, so any damages they suffer they have brought upon themselves.
The longest IBM antitrust suit started in '69 (so under Nixon) and ended in '82 (so, under Reagan - not surprisingly given his feelings about antitrust laws).
IAAAL (I Am Also A Lawyer), but rely on advice on an anonymous internet board at your own peril, obviously.
Consideration is required in a contract, but consideration does not have to be in the form of something that is an advantage to the other side. SCO's consideration is showing the information. It doesn't matter whether the person seeing it is pecuniarily or otherwise advantaged by seeing the information. In essence, SCO is saying "In exchange for me agreeing to show you my stuff, you promise not to show it to anyone else." Companies do this all the time in the context of giving information to potential vendors, for example.
In law school the example given is the young man who agrees to forgo wine, women and song until he is 25 in exchange for a promised large payment from his rich and straightlaced uncle. The nephew's pious life does not materially benefit the uncle in any way, but it's still consideration, and the contract is enforcable.
That being said, this is an extremely restrictive NDA. I wouldn't hand it out with a straight face. I sure wouldn't sign it, at least without some serious modifications, including exceptions to the restrictions for publicly available information, disclosures required by law and a venue change to somewhere more convenient than Utah.
No, the California law looks at the question of whether data is encrypted on a post-hoc basis. That is to say, if the encryption system is broken, then the notice requirement is triggered. A low level encryption is fine - unless it is broken. DoD level security systems don't get you out of the notice requirement if they are in fact broken.
The more ambiguous question is whether a company "reasonably believes" a breach has occured. If there's a breach, but the data was encrypted, is it reasonable to believe that the data will not be decrypted? It'll be a hard question to answer in each potential case. (Although it'll be easy for juries to decide because court actions will only arise when someone's data was in fact stolen).
Slashdot Mirror
In the normal course of business, one stands behind one's product by offering an indemnification. In the open source context, HP (but not necessarily Sun, given their relatioship with SCO) is sending a message that it believes that the risk of there ultimately being a problem is lower than the losses it will suffer if its customers don't trust Linux. As a business, the only way that analysis makes sense is if one believes in the integrity of open source.
I shouldn't really say that SCO is wrong; they had it right the first time: if you believe in the product you are selling, and if you believe there isn't a problem with a type of claim, you indemnify. H-P believes.
IAAL,BIANYL
In a "normal" case (i.e., one in which every scrap of publicly available information is not being scrutinized by zealots on six continents, NTTAWWT), the parties would probably just agree ahead of time to the terms of the order, since in most commercial litigation cases it is to everyone's advantage to keep things confidential. I doubt they will agree here, however, as IBM has a big incentive to make things public, and SCO/Canopy has made its position clear on locking everything down.
Barring a protective order, however, everything revealed in discovery is fair game to be revealed to the public. That is a big caveat, though, because everything is usually covered by a protective order in these kinds of cases.
"10) Even when they (SCO) found what they say we (IBM) did wrong, they didn't try to stop it first, they just went straight to the lawyers."
Should be more like:
10) Even if we did something wrong (which we didn't) SCO isn't allowing anyone to remove its supposed code, so any damages they suffer they have brought upon themselves.
The longest IBM antitrust suit started in '69 (so under Nixon) and ended in '82 (so, under Reagan - not surprisingly given his feelings about antitrust laws).
Consideration is required in a contract, but consideration does not have to be in the form of something that is an advantage to the other side. SCO's consideration is showing the information. It doesn't matter whether the person seeing it is pecuniarily or otherwise advantaged by seeing the information. In essence, SCO is saying "In exchange for me agreeing to show you my stuff, you promise not to show it to anyone else." Companies do this all the time in the context of giving information to potential vendors, for example.
In law school the example given is the young man who agrees to forgo wine, women and song until he is 25 in exchange for a promised large payment from his rich and straightlaced uncle. The nephew's pious life does not materially benefit the uncle in any way, but it's still consideration, and the contract is enforcable.
That being said, this is an extremely restrictive NDA. I wouldn't hand it out with a straight face. I sure wouldn't sign it, at least without some serious modifications, including exceptions to the restrictions for publicly available information, disclosures required by law and a venue change to somewhere more convenient than Utah.
The more ambiguous question is whether a company "reasonably believes" a breach has occured. If there's a breach, but the data was encrypted, is it reasonable to believe that the data will not be decrypted? It'll be a hard question to answer in each potential case. (Although it'll be easy for juries to decide because court actions will only arise when someone's data was in fact stolen).