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Caldera Software Linux

SCO NDA Online at LinuxJournal 441

Posted by CmdrTaco from the stacking-the-deck dept.
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.""
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SCO NDA Online at LinuxJournal More

SCO NDA Online at LinuxJournal

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  • Section 8 (Score:5, Funny)

    by Waab ( 620192 ) * on Thursday June 05, 2003 @02:41PM (#6126428) Homepage

    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?

    • Re:Section 8 (Score:4, Interesting)

      by cshark ( 673578 ) on Thursday June 05, 2003 @03:07PM (#6126660)
      They don't even want to you divuldge file extensions. Wouldn't that keep any programmer from well... programming? It would suck to sign this agreement and then find out you need to switch careers or SCO will SUE you.

    • Re:Section 8 (Score:5, Insightful)

      by Lumpy ( 12016 ) on Thursday June 05, 2003 @05:33PM (#6127729) Homepage
      it doesnt matter. their NDA is 100% worthless.

      their ENTIRE sourcecode will be revealed in court to professional witnesses under court order, not under some fantasy bullcrap SCO's lawyers dream up.

      SCO is doomed, their NDA is proof that they have nothing and the whole thing is nothing more than a scam that the CEO and other company officials are trying to pull.. I put these guys lower than the scumbags at Enron.

      I'd tell everyone I know to avoid SCO, but nobody has used their products cince 1990.

      the response I get is S C Who? that company that went to hell in the early 90's that had the crappiest Unix on the market?

      SCO has been a running joke in the Unix market for decades... their NDA is just further proof.

      • Re:Section 8 (Score:5, Insightful)

        by munro ( 265830 ) on Thursday June 05, 2003 @06:20PM (#6128029)
        They didn't have the crappiest UNIX on the market back in the day - it was awesome to be able to run UNIX on cheapo 386 hardware, and it worked really well.

        I feel sorry for the excellent engineers and businessmen who made that happen (more than twenty years ago), their ancient and respectable company name has been turned into shit by a bunch of dot-com bubble idiots with a hangover and a patent lawyer.

      • This "SCO" is really Caldera. (Score:3, Informative)

        by Anonymous Coward
        Caldera bought the SCO name and properties, and then changed their name. These shots are being called from the former Caldera's headquarters.

      • I'm sorry--- you say that US' tort system changed? (Score:5, Insightful)

        by MickLinux ( 579158 ) on Friday June 06, 2003 @01:16AM (#6129954) Journal
        Last I knew, it was always possible to buy professional witnesses to say whatever you want them to say. And you think that MSCO won't be buying witnesses?

        Quite seriously, a major reason for America's economic troubles, according to the Harvard Global Competitiveness Report, [harvard.edu] 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 [harvard.edu], 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] [harvard.edu], 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 [cato.org], and you can find documents [cato.org] [or this] [cato.org] 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.

  • Beware of unilateral contracts (Score:5, Informative)

    by zptdooda ( 28851 ) <deanpjm AT gmail DOT com> on Thursday June 05, 2003 @02:41PM (#6126430) Journal
    "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.

    • Re:Beware of unilateral contracts (Score:5, Funny)

      by PD ( 9577 ) * <slashdotlinux@pdrap.org> on Thursday June 05, 2003 @02:51PM (#6126522) Homepage Journal
      And the facts are going to come out during the trial anyways, so all you'd gain by signing the NDA is a small amount of time to look at the code before everyone else does. Not unlike subscribing to Slashdot.

      • Re:Beware of unilateral contracts (Score:4, Insightful)

        by budgenator ( 254554 ) on Thursday June 05, 2003 @05:53PM (#6127858) Journal
        IANAL but the way I read it is if you sign, you cannot disclose anything that SCO relieved to you, even if you've seen it before. Particaly speaking if SCO stole or devised independently YOUR code, placed it in the relieved code, you could no longer distribute the code that they stole or devised independently without breaching the NDA. Nothing to gain, every thing to lose.

        • Re:Beware of unilateral contracts (Score:4, Interesting)

          by mkldev ( 219128 ) on Thursday June 05, 2003 @06:56PM (#6128266) Homepage
          Which is 100% unenforceable. By law, an NDA becomes null and void if the material it covers becomes public, regardless of how it becomes public or when it became public... unless you made it public while under the NDA. If you have distributed the code previously, the NDA cannot cover it, regardless of language to the contrary.

          In effect, that means that the NDA is probably not worth the paper it is printed on, assuming that we're all correct that the code in qustion was just stuff AT&T stole from Berkeley back in the 80s.... That having been said, I wouldn't want to test that theory by signing the NDA and then publishing their source code.... :-)

    • Re:Beware of unilateral contracts (Score:5, Interesting)

      by AlecC ( 512609 ) <aleccawley@gmail.com> on Thursday June 05, 2003 @03:11PM (#6126686)
      What could the counterparty to SCO possibly gain by agreeing to this?

      Money. The counterparty would presumable be being employed as an Expert Witness in the lawsuit. Fees for such witnesses are normally very lucrative. >$1000/day plus expenses for the research phase (reading the code) and more for attendance in court are the figures I have heard.

      • Bullshit. (Score:3, Interesting)

        by twitter ( 104583 )
        You don't think that:
        1. The experts are already known.
        2. The experts must know the evidence and be unrestrained in what they say.
        3. The courts will provide the evidence to the experts so that the above condition is met.
        4. SCO just wants to make trouble and this whole case is propaganda?

        That the NDA would be unacceptable was so predictable [slashdot.org] 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

    • Re:Beware of unilateral contracts (Score:5, Informative)

      by captnjameskirk ( 599714 ) on Thursday June 05, 2003 @03:15PM (#6126730)
      IAAL, and this is not a "contract" until the other party signs it. Unitl then, it is just words on paper. No one is being forced to enter into this agreement, and in fact most have decided not to. A "unilateral contract" is the acknowledgment of one party to do something for (or to) another party, without requiring that party's consent or consideration on their part. Calling the draft of a proposed contract "unilateral" simply because it was drawn by one party is misleading. There is, in fact, mutual consideration here for those that sign, regardless of how limiting it may seem.

  • More dirty SCO tricks (Score:5, Interesting)

    by dtolton ( 162216 ) * on Thursday June 05, 2003 @02:42PM (#6126437) Homepage
    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.

    • Re:More dirty SCO tricks (Score:5, Funny)

      by Anonymous Coward on Thursday June 05, 2003 @02:51PM (#6126516)
      I wonder if SCO is run by Scientologists...

    • Re:More dirty SCO tricks (Score:5, Insightful)

      by floppy ears ( 470810 ) on Thursday June 05, 2003 @03:32PM (#6126870) Homepage
      Not only that, but in theory, even if a court ordered you to disclose the "Confidential Information" you would not be allowed to do so under this agreement.

      I have seen hundreds of NDAs in my career, and practically every one of them that I have seen has an exception allowing you to make disclosures if ordered to do so by a court. This is very important; if you don't follow a court order, you could go to jail.

      And if this happened and you did follow the order, then you'd screwed under this agreement. Talk about putting yourself between a rock and a hard place ...

      • Re:More dirty SCO tricks (Score:4, Informative)

        by hughk ( 248126 ) on Thursday June 05, 2003 @04:23PM (#6127262) Journal
        No contract can prevent you from disclosing information in court. No contract can oblige you to do anything against the law. This is about as basic a contract law as you can get. An NDA that didn't give an execption about testimony is in itself on dubious legal grounds which is why it is explictly permitted.
      • like everyone else, IANAL.

        if your legally obliged to do something for the court, and their contract keeps you from doing it- hence the contract forces you to break the law- doesn't that make the contract itself null and void?

        I seem to remember somewhere that contracts can't be enforced if it requires a partymember to break the law.

  • Ha! (Score:4, Insightful)

    by krisp ( 59093 ) * on Thursday June 05, 2003 @02:42PM (#6126438) Homepage
    7. No Obligation to Disclose. SCO has no obligation under
    this Agreement to disclose to RECIPIENT any Confidential
    Information which SCO elects to withhold.


    In other words, we can show you only what makes us look as if we have a case
    • Question ...

      If their case is "there is code we own that is copied in linux", then wouldn't they have to show you the code that was copied? I mean, either they show it or they don't. If they show it, they make their point. If they don't, they don't make their point. How can you show a piece of code that makes their point while excluding other code which would negate their point?

      • Re:Ha! (Score:3, Insightful)

        by The_K4 ( 627653 )
        If i'm reading this correctly IANAL but I think that you sign it, they show you the linux code, and then say end of show. IF you say ANYTHING you breach the contract. You can't even tell people that they didn't show you anything. This NDA is a smokescreen.

        • Re:Ha! (Score:4, Insightful)

          by haystor ( 102186 ) on Thursday June 05, 2003 @03:21PM (#6126775)
          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.

          • Re:Ha! (Score:4, Informative)

            by Malfourmed ( 633699 ) on Thursday June 05, 2003 @04:46PM (#6127417) Homepage
            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.
            So the NDA is a marketing tool.

            But then, so's the entire lawsuit...

        • Re:Ha! (Score:3, Interesting)

          by LoadStar ( 532607 )

          If i'm reading this correctly IANAL but I think that you sign it, they show you the linux code, and then say end of show. IF you say ANYTHING you breach the contract. You can't even tell people that they didn't show you anything. This NDA is a smokescreen.

          The NDA allows the recipient to release a public statement regarding the materials shown - so if they screw you, you can legally release a statement that says so. Any further restraints would be infringing free speech rights and likely would be stric

    • Re:Ha! (Score:2, Insightful)

      by Pyre ( 213322 )
      Suppose the two sides of the code are exactly the same (except for comments/whitespace). There isn't any proof of its origin. If I can be unscrupulous, copy a piece of code, and change the comments and copyright notices, I'm sure more experienced people can too. (No, I've never done so...)

      Small blocks of code simply aren't very interesting; lots of programmers use similar variable naming conventions and coding styles; and many people "reinvent the wheel" when writing small utility functions (atoi(), strs

      • Re:Ha! (Score:5, Informative)

        by ebh ( 116526 ) * <ed.horch@org> on Thursday June 05, 2003 @04:10PM (#6127175) Journal
        [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.

  • NDA for the NDA? (Score:5, Funny)

    by GGardner ( 97375 ) on Thursday June 05, 2003 @02:43PM (#6126449)
    I'm surprised that the NDA isn't under NDA itself.
    • Sorry, that's a Microsoft trick. Probably pattented, and SCO isn't interested in paying Microsoft royalties for that process.

      -Rusty

    • Re:NDA for the NDA? (Score:3, Insightful)

      by Rich0 ( 548339 )
      While certainly cute, that couldn't actually fly. Well, you could have an NDA for the NDA, but that NDA could be published. An NDA isn't binding until it is signed, and prior to that point you can disclose it.

      Now, they could have an NDA for the NDA, so they will only show the main NDA after signing the smaller one. However, the first NDA you are shown could be disclosed. Then again, it probably wouldn't be nearly as juicy for amunition - it would just say something like you will never disclose anything

    • Re:NDA for the NDA? (Score:5, Insightful)

      by the gnat ( 153162 ) on Thursday June 05, 2003 @05:19PM (#6127618)
      Actually, that sounds quite a bit like shrink-wrap software EULAs, where you only get to see the license after you've already bought and opened the package.

  • Be nice you guys.. (Score:5, Funny)

    by grub ( 11606 ) <slashdot@grub.net> on Thursday June 05, 2003 @02:44PM (#6126458) Homepage Journal

    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.

    • Re:Be nice you guys.. (Score:5, Interesting)

      by cshark ( 673578 ) on Thursday June 05, 2003 @03:12PM (#6126701)
      Yeah. I was reading an article at news.com.com where mcbride was saying how they haven't finished assessing the scope of their case yet. Which seems odd to me bacuase companies usually know what the scope of your complaint is before your go around suing people. I mean, otherwise, how do you know what you're complaining about?

  • NDA to sign the NDA (Score:2, Interesting)

    by Anonymous Coward
    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.

  • Picture? (Score:4, Funny)

    by sporty ( 27564 ) on Thursday June 05, 2003 @02:45PM (#6126465) Homepage
    They're agreeing to let you see the half of the picture that they want you to see.


    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".

  • I made a copy of the NDA (Score:4, Funny)

    by Anonymous Coward on Thursday June 05, 2003 @02:45PM (#6126467)
    and sent it to them next day mail. I signed it Linus Torvalds.

  • I just saw the code... (Score:5, Funny)

    by Anonymous Coward on Thursday June 05, 2003 @02:47PM (#6126491)
    it seems like the infringing part is the following:
    // you are not supposed to understand this
    • Everyone knows [bell-labs.com] that it is

      /* You are not expected to understand this */

  • Phew! (Score:5, Funny)

    by Archangel Michael ( 180766 ) on Thursday June 05, 2003 @02:50PM (#6126511) Journal
    And to think, I was having SCO news withdrawal.

    This should fix me till Monday!

  • courtesy of nasdaq... (Score:4, Informative)

    by peterprior ( 319967 ) on Thursday June 05, 2003 @02:54PM (#6126544)
    Symbol Last Sale Change Net / %
    SCOX $ 8.48 1.88 +28.48%

    do they know something we don't ?

    • Re:courtesy of nasdaq... (Score:5, Interesting)

      by Arker ( 91948 ) on Thursday June 05, 2003 @03:06PM (#6126642) Homepage

      No, it's just the gambling instinct.

      Although we all know SCO doesn't have a case, most investors aren't that savvy. Plus, even without a case, you always have a chance in the US - you can pull a crazy judge after all. So the investors are figuring, maybe they win, maybe IBM settles or buys them out... if either of those things happened SCO stock could suddenly be worth a lot more. There's always a good amount of money in the stock market looking for the high risk gamble-moves that could bring a good payoff. Most of those investors, of course, are sensible enough to keep the bulk of their holdings in safe stuff, but they still budget a certain percentage for risky buys... anyway I'd figure those are the buyers. The sellers are probably the SCO executives and their pals, who presumably have a more realistic understanding of their chances.

        • Although we all know SCO doesn't have a case, most investors aren't that savvy.

        I'm just curious how many slashdotters have shorted SCO's stock. I've been told it's a bad idea for stock market newbies to jump right in with shorting, but this seems like a good bet...

    • Re:courtesy of nasdaq... (Score:5, Funny)

      by n0ano ( 148272 ) <n0ano@arrl.net> on Thursday June 05, 2003 @03:11PM (#6126684) Homepage
      Maybe the market is reacting to the news that Microsoft can't innovate [msnbc.com], most innovation is coming from Open Source and since SCO is a big defender of open source then....


      On second thought the more likely answer is that people who buy stocks are idiots

    • Nah - it's just that they've finally settled on the NDA, which gives investors the sense that they're serious about the lawsuit.

      As soon as the early investors figure the stock has moved enough, they'll bail out again.

      Besides, what else are they to do with all the cash they pulled out of Big Blue after the SEC investigation story?

    • Re:courtesy of nasdaq... (Score:5, Insightful)

      by Jason Earl ( 1894 ) on Thursday June 05, 2003 @03:33PM (#6126883) Homepage Journal

      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.

    • They are getting ready for the lawsuit against SCO when the stock collapses :D

  • Red Flag (Score:5, Insightful)

    by killmenow ( 184444 ) on Thursday June 05, 2003 @02:57PM (#6126569)
    RECIPIENT acknowledges that it will receive access only to a portion of information relevant to these issues.
    One would think only a moron would sign an NDA that didn't guarantee access to ALL information relevant to these issues.

    I didn't even read beyond the first section because that quote says it all right there.
  • fork.c, line 272 [linux.no]

    module.c, line 54 [linux.no]

    module.c lines 153-155 [linux.no]

    and most potentially damning, signal.c, line 430 [linux.no]

  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Thursday June 05, 2003 @02:58PM (#6126575)
    Comment removed based on user account deletion
    • "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"

      If I were to pay them (or anyone else for that matter) royalties, wouldn't I get to see what I'm paying for?

      z

    • Re:Simple Really (Score:5, Insightful)

      by dmaxwell ( 43234 ) on Thursday June 05, 2003 @03:15PM (#6126733)
      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.

      Which the basis of another lawsuit itself. In effect, SCO would also get to charge royalties for the work the community did. Every other contributer to kernel (and whatever other software they want to extort money from) would probably have good reason to sue SCO. They would be committing a theft far larger than the one they allege was committed against them. If they don't step carefully, they're already staring the barrels of multiple countersuits for GPL violation. Attempted royalty collection would just throw more fuel on the fire.

    • Re:Simple Really (Score:5, Funny)

      by waynemcdougall ( 631415 ) <slashdot@codeworks.gen.nz> on Thursday June 05, 2003 @03:16PM (#6126743) Homepage
      Dear SCO

      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.

    • Not so simple. Really. (Score:4, Interesting)

      by EdgeShadow ( 665410 ) on Thursday June 05, 2003 @03:21PM (#6126783)
      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.

  • The final line (Score:5, Funny)

    by egoff ( 636181 ) on Thursday June 05, 2003 @02:58PM (#6126576)
    This NDA will self-destruct in ten seconds.
  • First they claim that open source developers could not possibly be smart enough to make Linux as good as it is, and then they expect people to accept their obscene NDA.

  • Cringely (Score:5, Interesting)

    by LMCBoy ( 185365 ) on Thursday June 05, 2003 @03:02PM (#6126608) Homepage Journal
    Bob [pbs.org] 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?

  • There really is no way to do this right (Score:4, Interesting)

    by X ( 1235 ) <x@xman.org> on Thursday June 05, 2003 @03:03PM (#6126625) Homepage Journal
    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.
    • if they let you publish information "obtained from other sources" you can basically publish the relevant code.

      Good point - but what I don't understand is why they don't put a limit on the Linux side of things? Such as - keep this secret until a judge says this is over, owtte.

      I think SCO is as evil as the next guy

      So, how evil is the next guy ;-)

    • 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.

      So what would stop someone who saw the "infringing" code from publishing the rest of the kernal, etc, except for what they saw?

      Since they haven't published anything that they were shown by SCO, they aren't in violation of the NDA.

      It would then be a simpl
  • If we wanted to steal something from SCO, it should have been that good ol' text-mode version of the Steve Jackson game "Ogre" (I think that was the name of the game) that shipped with Xenix back in the day. Nothing else of theirs was particularly worth stealing.

    "Ski" from DG/UX was a pretty cute game, too...

  • Counter suits (Score:5, Interesting)

    by Tim Macinta ( 1052 ) <twm@alum.mit.edu> on Thursday June 05, 2003 @03:12PM (#6126699) Homepage
    I downloaded the Linux source from SCO just yesterday at ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Serv er/CSSA-2003-020.0/SRPMS [sco.com] (their server did not respond a minute ago when I checked to see if it was still there). Wouldn't the fact that they are strongly implying that it is not OK for others to distribute Linux in it current form make their distribution illegal since they lose their right to distribute it when attempting to add conditions to the GPL?

    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.

    • Re:Counter suits (Score:3, Interesting)

      by njchick ( 611256 )
      It is possible that the infridging code was added after version 2.4.13. Maybe it's only in the Alan's branch or only in the 2.5.x series. Think XFS or extended attributes or some ia64 code or something like this.

      As for revoking the license, it would merely deny the right of SCO to distribute Linux kernel, including security fixes. I don't think it's a good idea. Since GPL doesn't govern the use of the software and neither does the copyright law, SCO still would be allowed to use Linux internally.

  • Imagine the SCO Employee NDA (Score:5, Funny)

    by BrynM ( 217883 ) * on Thursday June 05, 2003 @03:14PM (#6126720) Homepage Journal
    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.
  • "Confidential Information" means any and all data;snip. They don't clarify that so that is all that I really need to see, if you sign the NDA you might as well never even say the word kernel, or for that matter you might as well never talk about anything relating to programming or computers. Anything you say afterwards could be used against you in a very malicious nature by SCO.

  • NDA means nothing. (Score:3, Insightful)

    by Lumpy ( 12016 ) on Thursday June 05, 2003 @03:21PM (#6126778) Homepage
    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.

  • SCOX stock rating "report card" (Score:5, Informative)

    by dcavanaugh ( 248349 ) on Thursday June 05, 2003 @03:26PM (#6126807) Homepage
    Stock Financial Health Grade change
    The Morningstar Financial Health Stock Grade has changed from B- to F. For details,
    click here [morningstar.com]

    Stock Profitability Grade change
    The Morningstar Profitability Stock Grade has changed from Not Available to F. For details,
    click here [morningstar.com]

    Stock Growth Grade change
    The Morningstar Growth Stock Grade has changed from A to A+. For details,
    click here [morningstar.com]

    I suspect this won't be a "growth stock" for very long.

  • Larson (Score:5, Funny)

    by Per Wigren ( 5315 ) on Thursday June 05, 2003 @04:10PM (#6127181) Homepage
    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!"

  • only SCO will sign the NDA (Score:3, Interesting)

    by u19925 ( 613350 ) on Thursday June 05, 2003 @05:04PM (#6127517)
    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.

  • The other half... (Score:4, Insightful)

    by Jasin Natael ( 14968 ) on Thursday June 05, 2003 @05:06PM (#6127525)
    "They're agreeing to let you see the half of the picture that they want you to see", he added.

    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 Natael

  • This is all getting out of hand... (Score:4, Interesting)

    by Demerara ( 256642 ) on Thursday June 05, 2003 @05:59PM (#6127897) Homepage
    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".

  • Damn Achronyms (Score:3, Funny)

    by r_cerq ( 650776 ) on Thursday June 05, 2003 @06:43PM (#6128191)
    They probably think NDA stands for No Details Available.

  • Suggestion: (Score:4, Interesting)

    by the_real_tigga ( 568488 ) <nephros@NOsPAm.users.sourceforge.net> on Thursday June 05, 2003 @07:46PM (#6128526) Journal
    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.

  • Have to see the comit history, too (Score:3, Informative)

    by dbc ( 135354 ) on Friday June 06, 2003 @12:08AM (#6129745)
    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?

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