[linux-elitists] teleconference

Mikael Pawlo mikael@pawlo.com
Wed Jun 4 14:42:44 PDT 2003


At 13.59 -0700 03-06-04, Don Marti wrote:
>begin Jonathan Corbet quotation of Fri, May 30, 2003 at 11:39:11AM -0600:
>> They'll show their evidence next week to people who sign NDAs.  I'd kind of
>> like to see it, but, if I do so, am I forever tainted and unable to
>> contribute to the kernel?  Or write driver books, for that matter?  Hmm...
>> I fear it may be lawyer time.
>Full text of the NDA with warnings from Dan Ravicher:
>http://linuxjournal.com/article.php?sid=6923

Quote from the article:
'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.'

Is the legal analysis provided by Mr Ravicher accurate? His conclusions
seem very strange from this corner of the world. Sure, the agreement tilts
immensely in the direction of SCO, and it lacks the fundamental three
excemptions from confidentiality (non-fault (i e disclosure done by
third-party without any participation of the parties), prior knowledge and
prior publicly available information). I also miss the fourth one -
mandatory disclosure by court order, but then again, most lawyers forget
about including it because it is self-evident. However, my question is -
would the State Court of Utah enforce this agreement, should SCO try to
file a complaint regarding information that is publicly available or known
facts the way described by Mr Ravicher?

You can agree to anything in Sweden, but the courts would not enforce the
terms should they be made out of sheer stupidity (or be against the law).
If SCO - under this agreement - tells me that the sun rises every morning -
would that mean that I can not disclose this to anyone? In Sweden such an
agreement would not stand a chance in court and the party trying to enforce
it would probably be liable for breaching labour law or competition law
(depending on the situation and parties involved).

I am copying Professor Zittrain on this. He should be able to provide som
insight. Jon - what's your two cents on this?

Wendy (also copied) - can you beat Jon to it? .-)

...and for the love of God, the information contained in this message
provided by Mikael Pawlo is not legal advice. Mikael Pawlo has attempted to
provide the information contained within this email as a service to the
Linux-Elitists subscribers. It is my belief that the public should be
informed of their rights. When the public is better informed as to their
rights, they are better able to create and protect (or not!) their
intellectual property. If you need help understanding your rights, I advise
that you consult an attorney who is versed in the field.

Best Regards,

Mikael Pawlo

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