SCO NDA Offers Little Information, Much Risk

Full text of the non-disclosure agreement SCO has asked independent experts to accept and an interview with attorney Dan Ravicher about it.

On May 14, SCO VP Chris Sontag offered to show evidence of SCO's infringement claims against Linux, under a non-disclosure agreement, to an independent panel of experts. SCO has released the text of the agreement, and we include it below.

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.

Second, the NDA does not exclude information that the recipient obtained in ways other than from SCO. If SCO showed a patent or other public document to someone bound by the NDA, that person would not be allowed to discuss it even if he or she had been previously aware of it, Ravicher said. "The definition of confidential information is much larger than I've seen in any other agreement", Ravicher said. "It covers a lot of stuff that wouldn't be, by a textbook definition, confidential."

Finally, the NDA requires any dispute to be settled in the state of Utah, which could be "pretty onerous" for people outside the state. "They could sue me and make me go to Utah to prove I didn't disclose confidential information", Ravicher said.

Ravicher's interview does not constitute legal advice, and anyone considering signing an NDA should consult with his or her own legal counsel.

"If someone wants to enter this despite all those bad parts, it's a free country", Ravicher said. "I'm not saying someone should or should not do this, but these are things that you should be aware of."

Chris DiBona, the former Slashdot editor and Damage Studios co-founder who Linus Torvalds suggested for the panel, said he does not think anyone actively involved in kernel development or planning to contribute to free software projects should sign the NDA. But he said he wants to find out if other software experts would be interested in participating. The following are the qualifications this person should have:

  • Can sign an NDA with SCO without endangering existing open-source projects, including BSD, Linux, other kernels or other projects.

  • Experience with a large scale software project in C, with some low level systems work.

  • No business connection to SCO or any company involved in a legal case with SCO.

  • No direct connection to SCO as a licensee.

  • Not bound by an existing NDA that would prohibit him or her from expressing his or her opinion on this matter.

  • Have the time to do the work involved.

If you meet these qualifications and are interested in participating, you can contact [Linux Journal], and we will put you in touch with the right person at SCO.

[Linux Journal] publisher Phil Hughes has instructed Linux Journal staff not to accept the NDA because of concerns that it may interfere with the publication's normal work, which can involve reading and publishing Linux kernel code.

The following text is the version of the NDA we received from SCO on Wednesday, June 4, 2003:

          Confidentiality and Nondisclosure Agreement
      This  Confidentiality and Nondisclosure Agreement is  dated
June ____, 2003 and is by and between the following Parties:
          SCO:      The SCO Group, Inc.
                    355 South 520 West
                    Lindon, Utah 84042
          RECIPIENT:     ______________________________
                    ______________________________
                    ______________________________
      WHEREAS,  The  SCO  Group, Inc. ("SCO")  possesses  certain
Confidential  Information,  including  source  code   and   other
proprietary information, and
      WHEREAS,  RECIPIENT  desires  to  review  the  Confidential
Information,  and thereafter to generally summarize  portions  of
the  Confidential Information without revealing the  confidential
source  code  itself,  or  its design methods  and  concepts,  or
specific comparisons of code;
      NOW THEREFORE, IN CONSIDERATION of the mutual promises  and
agreements   made   herein,   and   other   good   and   valuable
consideration,
THE PARTIES agree as follows:
      1.    Disclosure  of  Confidential Information.   RECIPIENT
desires  that  SCO  disclose  to RECIPIENT  certain  Confidential
Information  relating to SCO's Unixware and SCOsource  businesses
and  certain  statements  SCO has made publicly  regarding  SCO's
property  relative  to  the  Linux operating  system.   RECIPIENT
acknowledges  that it will receive access only to  a  portion  of
information relevant to these issues.
      2.    Purpose.   RECIPIENT warrants that  the  Confidential
Information disclosed by SCO to RECIPIENT shall only be used  for
the  purposes of (a) evaluating SCO's public statements regarding
its  UNIX source code and attendant rights and the ways in  which
those UNIX rights affect one or more distributions of Linux,  and
(b)  evaluating  whether  RECIPIENT's or  other's  use  of  Linux
violates  any of SCO's UNIX-related source code or other  rights.
Following RECIPIENT's review of the Confidential Information,  it
may  publicly  offer its general opinion on and a general,  brief
summary  of  the Confidential Information it has seen.   However,
RECIPIENT  shall  not  divulge details or  specifics  as  to  any
Confidential  Information with respect to specific  source  code,
files,  derivative  works, modifications or  design  methods  and
concepts  it  has  seen,  nor shall it divulge  any  third  party
information  it  has  seen,  either  in  source  code,  products,
contracts or in other third party Confidential Information.
     3.   Definition of Confidential Information.  " Confidential
Information"  means  any  and  all  data,  technology,  research,
inventions,  intellectual  property,  trade  secrets,  know  how,
computer  programs,  source  code,  file  names,  file  trees  or
extensions,  works  of authorship, products, processes,  methods,
customer  names, plans, forecasts, prices, business  information,
financial information, and other information shown or relayed  by
SCO to RECIPIENT  on _______________________ [date].
      4.   Protections.  RECIPIENT shall not disclose or transfer
any  Confidential  Information to any  other  person  or  entity.
RECIPIENT shall not use Confidential Information except  for  the
purpose  and by the methods described in Paragraph 2.   RECIPIENT
shall  use  its  best efforts to ensure against  any  disclosure,
transfer  or  use  of Confidential Information  not  specifically
authorized by SCO in writing.
      5.    Employees.   Access  to Confidential  Information  by
RECIPIENT's employees shall be limited by RECIPIENT to  employees
having  a  specific need to know.  RECIPIENT shall be responsible
for its employees and their compliance with this Agreement.
     6.   No License.  SCO is not obligated to grant to RECIPIENT
any  license or right under any patent, trade secret,  copyright,
trademark or other intellectual property right of SCO.
     7.   No Obligation to Disclose.  SCO has no obligation under
this   Agreement  to  disclose  to  RECIPIENT  any   Confidential
Information which SCO elects to withhold.
      8.    Injunctive Relief.  It is understood and agreed  that
damages  are  an inadequate remedy in the event of  a  breach  or
intended or threatened breach by RECIPIENT of this Agreement  and
that  any  such  breach by RECIPIENT will cause  SCO  irreparable
injury  and damage; accordingly, RECIPIENT agrees that SCO  shall
be  entitled, without waiving any additional rights  or  remedies
(including monetary damages) otherwise available to SCO  at  law,
or  in  equity,  or  by  statute, to  preliminary  and  permanent
injunctive  relief  in  the event of  a  breach  or  intended  or
threatened breach by RECIPIENT.
      9.    Severability.   In  case  any  one  or  more  of  the
provisions contained herein shall, for any reason, be held to  be
invalid,   illegal,  or  unenforceable  in  any   respect,   such
invalidity, illegality or unenforceability shall not  affect  any
other  provisions of this Agreement, and this Agreement shall  be
construed   and   enforced  as  if  such  invalid,   illegal   or
unenforceable  provision(s)  had  never  been  contained  herein,
provided that such invalid, illegal or unenforceable provision(s)
shall  first  be curtailed, limited or eliminated to  the  extent
necessary    to    remove   such   invalidity,   illegality    or
unenforceability with respect to the applicable law as  it  shall
then be applied.
     10.  Final Agreement.  This Agreement constitutes the final,
complete  and  exclusive  agreement  between  SCO  and  RECIPIENT
concerning  the  subject matter of this Agreement and  supersedes
all    prior   agreements,   understandings,   negotiations   and
discussions,  written  or oral, between SCO  and  RECIPIENT  with
respect  thereto.  Any modification, recission  or  amendment  of
this  Agreement shall not be effective unless made in  a  writing
executed by SCO and RECIPIENT.
      11.  Waiver.  Any waiver of, or promise not to enforce, any
right  under  this  Agreement shall  not  be  enforceable  unless
evidenced by a writing signed by the Party making said waiver  or
promise.
     12.   Construction.  The headings in this Agreement are  for
the purpose of convenience only and shall not limit, enlarge,  or
affect  any of the covenants, terms, conditions or provisions  of
this  Agreement.  This Agreement represents the wording  selected
by  the  Parties to define their agreement and no rule of  strict
construction shall apply against either Party.
      13.  Governing Law, Jurisdiction and Attorney's Fees.  This
Agreement shall be governed and enforced in accordance  with  the
laws of the state of Utah, without regard to its conflict of laws
principles,  and  RECIPIENT  hereby  consents  to  the  exclusive
jurisdiction  and venue in courts (whether federal or  state)  in
the  state  of Utah.  RECIPIENT waives all defenses  of  lack  of
personal jurisdiction and forum non conveniens.  In any action to
enforce  any right or remedy under this Agreement or to interpret
any  provision  of this Agreement, the prevailing party  will  be
entitled  to  recover its reasonable attorney's fees,  costs  and
other expenses.
      14.   Authorization.  The persons signing  below  represent
that  they  are authorized to execute this Agreement for  and  on
behalf  of  the Party for whom they are signing and to bind  said
Party to the terms of this Agreement.
AGREED TO AND ACCEPTED BY:
("RECIPIENT")
                           Authorized                  Signature:
                               Name                      (print):
                                                           Title:
     The SCO Group, Inc.  ("SCO")
                           Authorized                  Signature:
                               Name                      (print):
                                                           Title:

Don Marti is Editor in Chief of Linux Journal.

______________________

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Why Share the Cow When...

Anonymous's picture

Wow.

I am a well seasoned Tech-Sect citizen, and I would not have a problem signing this NDA.

I can, however, see how every previous commenter was reading it: backwards.

Now, now, don't get riled up; what I mean is, I read it as follows, which, undoubtedly, will be the opposite of you:

First, SCO is looking for well informed individuals that can speak intellectually about the position they are taking in this case. An NDA can NOT be used as a vehicle to provide a person with information that they already have in their possession (albeit provable), unless, it is proven that they obtained it illegally, which would be the result that SCO is looking for in this case, not in the distribution of this NDA. So, if they do win, everyone that wishes to work in future on the Kernels, not just the signer's of the NDA, will be bound by a whole new set of rules. In this case, people that did sign and help, may have the advantage.

What does that mean? SCO does not need Linux Kernel dev's to sign this NDA, they need unbiased individuals that will be able to understand the nature of the "information" shared, and digest it along with what is "publicly" available (Linux), and then ascertain if SCO's claims do have merit.

What does this do for SCO? It is two-fold; first, they receive more backing. This is obvious. The second is not so obvious; they may receive unbiased criticism, either way, it's unbiased. Yes, "negative feedback" would help them focus their angle away from what does not seem to have merit, and therein strengthen their case within the legal forum.

Reading this NDA I get the sense that SCO wants to prove to the public that they do have proof, and that they need the help of the professional (not general) public to do a prelim.

But the thought that they are only going to show you the half of the information that they want to and only that which works in their favour, well, yes, of course. If I have the rights to the alphabet, and I want to prove that Sesame Street USA has stolen my proprietary work, I am only going to show the public the English Alphabet that they stole; they did not infringe on my German, Italian, Japanese, or 700 other full or sub works (derivatives).

OR

Why share the Cow when only the tit is needed? Got M.I.L.K.?

Mommy's
Intellectual
Linux
Kernel

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

This contract is nonsense.

It would not stand as a valid NDA in any European Country, because it would prevent the "disclosed" from further using even trivial or publicly available information.

I wonder if even proposing it does amount to a crime in some jurisdiction.

Nonetheless, as a Lawyer, my sound, accurate and professional advice would be: "avoid it as hell!"

Carlo Piana - Italy

Diminishing business, looming death...

Anonymous's picture

An independent Finnish review panel concludes after going through (in a hurry in a 2 weeks timescale) two versions of SCO Unix, one version of RedHat Linux and one version of SCO Linux:

1) some of the claimed copyright infringements are in fact caused by SCO itself. It seems to us that SCO has purposefully tried to contaminate Linux source code; naturally having this particular law suit in mind

2) some of the claimed copyright infringements are in fact interpreted backwards by SCO; SCO Unix contains source code unlawfully extracted from GNU/Linux source tree, which is easily proved thanks to millions of public Linux CD-ROMs

Good Luck. And Good Night.

FoL

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

SCO's gotto stop eating those Utah mushrooms or let us all have them!

What a pathetic display. They will go down with little credit.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Why would somebody even think of signing an NDA (for whatever purpose) if the subject matter is known to anybody already anyways ? Isn't this what the whole f..... claim is about ? This is like Martha Stewart asking you to sign an NDA for a Turkey recipe.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Paragraph 13 requiring the licensee to waive any claims of lack of jurisdiction is not valid because one of the standard provisions of law is that a claim of lack of, for example, subject matter jurisdiction 'may be raised at any time, in any forum, by either party or by the court on its own motion, and cannot be waived by the defendant.

Paul Robinson postmaster@paul.washington.dc.us>

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Doesn't a contract require consideration?
Where is the consideration in this case?

Legal tactic = eliminate informed viewers?

Anonymous's picture

So... the primary purpose of the NDA would be to keep any actual programmers from seeing the code in question? Then perhaps SCO feels they'd be able to BS their way past lawyers & judges who can't tell the difference between code snippet A and code snippet B in the first place?

--Jay H.

Tarent says SCO should pay fine

Anonymous's picture

The drama continues. Tarent says SCO violated the court order in Germany and should have to pay the 250,000 Euro fine. See more at http://worldwatch.linuxgazette.com/article.php?sid=49

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

One part of section 3 stands out as seeming to be a bit silly:

"3. Definition of Confidential Information.

Means any and all data, technology, research,
inventions, intellectual property, trade secrets, know how,
computer programs, source code, file names..."

Non-disclosure of source code and trade secrets are certainly understandable. But file names? God forbid anybody discloses the name of the files! ROFL!

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

I would really like to know the details of the agreement between Novell and SCO. It seems to me that Novell has the right to demand that SCO furnish them the proof of the offending code with out having to sign the NDA. If they could do that that could realy blow SCO's case out of the water.

Re: SCO NDA Offers Little Information, Much Risk

achitnis's picture

It is interesting how SCO is actually tring to use this whole process to yank stuff behind closed doors.

Their whole argument is based on their claim that IBM (and others) took proprietory code and made it public (by integrating it into Linux, which is about as public as you can get ;).

Let's say I hold the patent/copyright for a process to tie Linus' shoelaces via the Internet. And let's say I license this thing out to various people for a financial consideration.

Now let's say that one of these people (say Bruce Perens) takes the process and describes it in great detail on his personal website, thereby making the details of the process public, robbing me of further revenues.

I would send my lawyers after him, pointing at his website, saying "See that stuff he wrote there? That is the thing I am complaining about!"

That makes sense and would bolster my argument, because I can clearly show what he had done. Any court would now look at his page, and my patented/copyrighted stuff and agree that he violated the terms of the contract.

But it wouldn't make sense to say "He violated the contract by making public something he shouldn't have, but I cannot tell you what that is". If in fact it was made public, what would I gain by hiding what it is? If I had to hide it, it would mean that it wasn't made public to begin with, or what was made public wasn't my stuff at all.

I know I haven't got all the legal stuff right here (INAL), but the gist of it is - if the complaint is about making something public (by incorporating it in Linux), then trying to hide *what* it is totally insane, and undermines SCO's case completely.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

And what is to prevent the Linux community from claiming that the code was ripped from Linux and inserted into SCO source, thus violating the GPL?

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

The entire copyright system needs to be reviewed. Defending what is, or is not to be found between the covers of a "sealed book" is idiotic.

If the countries largest styrofoam cafe cup maker can live without a patent on its procees, they don't want to reveal their manufacturing secrets, then the software industry should either encode or publish the source code and recieve a copyright for that published code only.

While I am on my rant, copyrights should convert to some type of freeware whenever the supplier is unable or unwilling to furnish replacement media at a equivalent cost of current media. The holder of the license should still get paid a royalty, but he should have no control over duplication restrictions.

RE: What do I gain by hiding?

Anonymous's picture

UH, you gain time, that's what.

If SCO was pointing out each and every "infringing" line, by the time they went to court, they would be rewritten, and if the judge ever enjoins company X from using kernel version Y, everybody will be using kernel Y+n, where n can be a VERY large number.

Judge: ... and you want to enjoin defendant from distributing exactly which kernel versions?

SCO: X.4.2.1, X.4.2.2, X.4.2.3, X.4.3.1,.... X.17.4.5

Judge: And you can offer proof that all these kernel versions are actually infringing?

SCO: Can't you just take our word for it?

Judge: dismissed. next case!

A Lure: BEWARE

Anonymous's picture

I think that this NDA is specifically designed to get those involved with the development of Linux to sign the NDA, so SCO can use the NDA as a core contract against Linux in the future. *I doubt they have little to show, but they sure would attempt to sue someone in the future (judging from their current business model of sue2gain investors) for financial purposes and possibly for the ulterior motive of harming the Linux community.
*expand/repeat what is important.
What does anyone have to gain from this NDA? Nothing, it's basically a contract to go work for SCO for free.
What I would like to see is somone sign the NDA, go to Novell, breach the NDA by reviewing past System V code revisions until the code snippets are no longer present, then checking the timing of Linux's so called 'implementation' of this code. I have this gut feeling that SCO has it's history wrong.
While I'm on Novell, why don't they release the copyright forms to the public, slamming SCO right in the face. Maybe they're waiting until SCO is on the brink and *SLAM* shove it down their throats so nobody will ever consider them again as an honest company.

Location vs Content

Anonymous's picture

I'm no lawyer so excuse me if I sound ignorant, but I have done my fair share of researching and debunking NDA and other Intelectual property contracts. In the SCO NDA if prohibits the discloser of the actual content of any document etc. shown to the recipient by SCO. This does not limit the Recipients ability to give the location in where the information can be freely found. Just as with most NDAs that employees sign, there is little to uphold the rights of a company to stop a person from from revealing that the code to do a specific action is located at a particular line in a pacticular document. In most situations this loop hole in an NDA is not a major issue because the person being given the information does not have access to the document in question. In the SCO/Linux case this can very easily be pointing at publicly available source code. So the Recipient of the NDA is not breaking the contract by pointing out that the code in question is located in a specific part of the linux kernel. I happen to use a BSD derivative so this has not effected me yet, just thought I would try and help.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Sections 3 and 8 are in contradiction to each other - doing anything is a possible breach of Section 3; Sections 3 and 2 are in possible and indeed probable contradiction - if the purpose of showing confidential information to a specific individual is to shut them up, then Section 2 is self-contradictory; and lastly, Section 3 is so vague and ill-formed that it de facto constitutes a breach of Section 9 - if SCO shows you the source tree of Linux, and you consider yourself bound by the NDA, you are in breach of the non-discriminatory provisions of the GPL, if you consider yourself bound by the GPL, you are in breach of the NDA. Which would run up against the Section 11 (Non-Waiver). And since Section 9 specifically states that the NDA shall be construed and enforced as if the unenforceable provisions were not part of the agreement, it is like that old BASIC joke:
10 GOTO 20
20 GOTO 10
Wesley Parish

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Well obviously the GPL would cover any code they show you that they don't claim ownership of. However, the code you see that they do claim ownership of is being licenced to you (for viewing purposes only) by the NDA agreement.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Hey, I thought of that line of argument first! Section 6 is in contradiction with Section 2, iff and only iff you take the view, as you do, that:

However, the code you see that they do claim ownership of is being licenced to you (for viewing purposes only) by the NDA agreement.

(adopting a grave and sorrowful demeanour) Does that mean I have to sue you too?(seriously) The source tree of Linus has very many files, and some of those files have very many sections. In McKusick's testimony at the AT&T/USL vs BSDI/Regents of UC@B, he stated that yes, there were sections of Net/2 etc, that read like they had been copied from Unix 32V, however they were few in number (aside - SCO claims hundreds of lines in Linux are the same as Unixware. Linux contains at least 3 and a half million lines of code. Just hundreds?), but in a number of cases that was because there was no other way to write that particular code - because of the algorithms used and the header files. In other words, you had to understand the context.SCO appears not to understand contexts, and doesn't want anybody else to, either.10 GOTO 2020 GOTO 10Wesley Parish

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

As previously mentioned, Section 3 is a big 'red flag'. Most NDAs I have been aware of have been _very_ specific in the definition of "confidential information" and this ludicrously wide definition might be a problem if the NDA was ever to be challenged. As usual - use common sense, and consult a legal expert...

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Anyone signing this NDA should be aware that the GPL forbids additional restrictions being applied to redistribution of code. In that it would restrict the signee's right to reproduce the GPL code they no doubt intend to show I suspect the NDA agreement may itself be a GPL violation.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

The NDA is not a GPL violation, but distributing GPL code under one probably is. The NDA would still be valid and enforcable, but the GPL copyright holder (FSF?) would be able to sue SCO for illegal distribution.

So if SCO plans to "show" this information visually in person they can probably do so. If they mail any GPL code they are probably violating copyright.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

INAL but Since SCO is claiming ownership of the data involved, the data they will show you would be bound by this agreement and not by the GPL, since the GPL does not forbid redistrubution under different licencing if you own the copyright in the first place.

By the way, it seems to me that all the far reaching information that can't be disclosed is primariy limited by what was conveyed by SCO to the signer on a specific date.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

They only have to show their (SCO's) code under the NDA.
They can show you the allegedly offending gpls code under the gpl.

One sided

Anonymous's picture

The agreement is so one sided that it isn't even funny. From what I understand (IANAL) if there is any misunderstanding or ambiguity in an agreement then the court shall favor the party that did not write the agreement. However, in para 12 it looks like whoever signs this agreement is saying that they agree to the words and that if there is any ambiguity the agreement is to be considered written by both parties with neither side being favored. Seems like very dangerous territory.

Re: One sided

Anonymous's picture

I don't agree - the second part of the paragraph is separate from the first.

I think the reason they have the second part waiving the rule of strict construction (the rule of strict construction means that ordinary words are to be given their ordinary meaning) is to prevent you from suggesting another interpretation of the terms.

For example the term "specific" means "Explicitly set forth" as in specified or listed.

So it could be argued that the "specific source code, files, derivative works, modifications or design methods and
concepts" that you will not be allowed to disclose, doesn't actually refer to anything without a list of the items themselves.

Re: One sided

Anonymous's picture

Uhh, no. That just means that *you* can't be 'specific' when you exercise your right to "publicly offer (your) general opinion on and a general, brief
summary of the Confidential Information (you have) seen." You cannot list source code or filenames, but can give a general statement. It has nothing to do with construction of the document.But I'll agree that that paragraph 12 is complete bull*****. "This represents the wording selected... strict construction shall (not) apply..."That makes no sense. Strict construction assumes that the words on paper represent the wishes of the writer(s). The two, (run-on?) phrases in the last sentence of p12 are mutually exclusive. *Sigh*, what do people actually learn in law school these days?

Re: One sided

Anonymous's picture

How to libel and slander the linux community and leap willingly to their deaths in front of the IBM Juggernaut?

Re: One sided

Anonymous's picture

INAL either, but parargraph 12 is pretty boilerplate, at least here in the US. The gist of the paragraph is: "You can't take any legal meaning from paragraph headings. They're only there for convenience." That's it.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Interesting. Para 13 is interesting. This licence wouldn't be binding on someone in the United Kingdom. No amount of licence signing would put me in the state of Utah's juristiction if I live in the UK. This would effectively render the contract unenforceable.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Also, international treaties (treatys??) signed by UK and US governments would allow for enforcement. Arrest (warrant) and extradition could be real possibilities, but cost would likely be too high. What would more likely happen is a warrant is issued, and if you ever entered the US, you would be arrested and sent to Utah. Of course, the sound of going to Utah (ignoring the arrest) seems like punishment enough! =)

Arrest?

Anonymous's picture

Arrest? For a civil matter?
IANAL, but surely this does not happen?
They can sue, but there won't be arrests involved, it's not a criminal matter to breach a NDA...

Arrest in Imperial America

Anonymous's picture

Well, various legislation in the USA seems to have moved certain civil matters into the criminal domain, so I imagine that in the marriage of corporate America and the state, we'll get to such a ridiculous point eventually.

But yes, extradition from the UK for violating an NDA - dream on!

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Extradition treaties would apply if you broke the criminal law. I'm not sure that they apply to breaches of the civil law. However, SCO could take their chances by bringing an action for breach of contract in the British courts.

IANAL, etc.

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

In the United Kingdom we have something called "unfair terms of contract".
It's designed to stop you from getting forced into unfair contracts when you've got no other choice but to sign.

"The UTCCRs can protect you from terms that reduce your statutory or common law rights and from terms that seek to impose unfair burdens on you over and above the ordinary rules of law."
search google for "unfair terms of contract" there's plenty there on different topics, but mostly British laws (both Scotish and English).
Alot of what you'll find is just consumer protection though, however you never know, that may help to defend you also!

An English court would probably throw it out and castigate SCO for wasting their time!

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

I'd love to hear the presiding judges comments on this one.. 'Pack of cards' and 'Foundation' spring to mind

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

See section 9, which states that if any sub-component be found illegal or non-enforceable, the rest of the agreeement will still be enforceable.

Oh you poor thing...

Anonymous's picture

Hate to break it to you since you're so excited, but you can't go to another country and break their laws. They will still prosecute you. And I don't think SCO would let you see their code if you were sitting safely in the UK. Sorry.

it's not breaking laws

Anonymous's picture

A contract is not a law, although SCO might want you to think so.

And you've had since '91

CompuGuru's picture

I'm just wondering why SCO jumps this now instead of when Linux was in the budding stages of becoming the world's best free OS.

Re: And you've had since '91

Anonymous's picture

The basic truth is: They're looking to be bought out by a larger concern.. forget whoever actually paid for their snake oil claims.. it not important.. Somebody in SCO just wants to cash in

Simple...

Anonymous's picture

For a while there SCO thought they stood a chance of making money in the Linux/Intel Unix business. It turns out that the market for Linux distros is somewhat saturated, and SCO isn't well positioned. So they sue, primarily to get a buyout offer from IBM I suspect, and cross their fingers.

It's a general trend in the economy right now. Everybody seems to be trying to sue themselves into a good financial position. Far easier to try to cash in on your past ideas than to make new ones.

Because SCO was actually a decent place until very late in the 9

Anonymous's picture

(just look at old copies of the Great American Piss Test)
http://mojo.calyx.com/~umacrc/library/pisslist

M$

Anonymous's picture

Because Microsoft didn't buy them off until recently.

Re: And you've had since '91

Anonymous's picture

slashdot is on it's way!

Anonymous's picture

I don't see how SCO can show that any infringement took place unless they display the allegedly infringing Linux code alongside their own in the same presentation, with enough context to establish the circumstances of its use. (Simply displaying a few isolated single lines of "CopyrightedVariableName++" surely isn't sufficient.) However, section 3 of their NDA pretty clearly lays claim to Linux as their own Confidential Information if they in fact do that.

So - will they simply show their own code with no means of comparison unless the viewer has made their Hajj to Utah with the complete printed Linux Kernel source in hand?

j

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Usually NDAs are made between groups trying to conduct business, that is, to buy or sell something to each other, and the NDA allows them to give confidential information to each other while still protecting their intellectual property. Here the NDA is offered by a group that already put its secret information out under the GPL in its versions of Linux it has provided and offered by download (and apparently still does even now). Perhaps they are hoping that if enough of the right people sign this agreement they will be able to pull back into secrecy that which they have offered publicly in their own Linux versions.

It sure looks like signing this NDA would put you in a bad position for the future of Linux.

Is there no legal mechanism by which there could be a "counter NDA"? If nobody accepts this NDA, how does that look in court?

Re: SCO NDA Offers Little Information, Much Risk

Anonymous's picture

Linux will no doubt outlive SCO. Once SCO dies, would you still be bound to that NDA? No sense being bound to a contract with a defunct company... So then, could you contribute to the kernel after that point?

SCO should say who (if it exists) submitted the code in

Anonymous's picture

I have wondered why they sued IBM and not contacted Linus Torvalds to remove the code from the kernel if any.
I guess that they can talk about trade secrets and get money from IBM.

In any case, if there really is code from SCO UNIX in the kernel, SCO should mention who submitted. There should not be a reason why they cannot say this.
This should be something straight forward, check the check in logs into the kernel.
In the assumption that there is an actual case, and they can point out to someone.
Does the person that they point out works for IBM?
If the person really used SCO code, then this he/she can sign the NDA, but it may not be needed then ...
IF the person that SCO mentions did not use SCO code, clearly he/she should not sign the NDA, but the answer to what code is in question would be answered and the community (or select team) can research on finding a prove that the code was already publicly known or replace it.

SCO should point out a person and the date of the code check-in.

EG/7eb18

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