SCO releases draconian NDA

APPARENTLY DESPERATE to stay in the news and thus continue its anti-Linux FUD campaign, the IP Litigation Company Formerly Known As Caldera released a copy of its Non-Disclosure Agreement (NDA) yesterday, and that's been published by Linux Journal here.

That article quotes an attorney's comments about the document, and he rightly notes that it's unusually broad, which it most certainly is:

"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...."

The lawyer quoted by Linux Journal also observes that SCO's NDA is onerous in at least three ways. First, SCO can show only what little they choose to reveal to a reviewer:

"7. No Obligation to Disclose. SCO has no obligation under this Agreement to disclose to RECIPIENT any Confidential Information which SCO elects to withhold."

Second, the reviewer is forbidden from disclosing any information they are shown, even if they may have learned it previously, since the scope of paragraph (3) is not limited in any way elsewhere in the document.

Third, any legal disputes about the NDA must be settled by a court in Utah, making such lawsuits easy for SCO to pursue and onerous for most potential defendants (reviewers who see SCO's "evidence") to defend.

That's all the attorney interviewed by Linux Journal thought to mention, but SCO's NDA features several additional legal booby traps.

Aside from the lack of exclusion for information that's public knowledge or previously known by the reviewer, the SCO NDA also fails to exclude: (a) information that the reviewer is granted permission to disclose, (b) information that is disclosed by anyone other than the reviewer, and (c) information that is legally required to be disclosed, say by a court.

If you're counting, SCO's NDA is up to seven (7) objectionable clauses or omissions of customary NDA exclusions. These glaring flaws in SCO's document suggest three possibilities:

Perhaps SCO's lawyers at David Boies' law firm aren't returning SCO's phone calls lately, or didn't want to be bothered with drafting a mere non-disclosure agreeement, so SCO cobbled up this NDA inhouse with the help of some executive's kid who's studying pre-law.

Or maybe SCO's attorneys are incompetent, and plenty of recent evidence suggests that this might be the case. See this article for an analysis of SCO's strategic legal blunders.

Lastly, it's possible that SCO wants to keep its so-called "independent" reviewers on very short leashes. Despite the attractiveness of the other possible explanations, this is the most likely reason for the flaws.

Why anyone would want to sign such a draconian NDA is a real mystery.

There might be a hint at the top of SCO's document, however. It includes the phrase "...and other good and valuable consideration,...". This does not refer to someone holding a door for somebody else. This legal phrase is typically used in contracts where money changes hands. So, unless SCO thinks people might pay for the privilege of looking at their evidence, the only other possible interpretation is that SCO has drafted their NDA in the expectation that they will be paying their external reviewers.

How about it, SCO? Are they paid shills? We think we should be told. µ