[linux-elitists] teleconference

Mikael Pawlo mikael@pawlo.com
Wed Jun 4 23:25:07 PDT 2003

Professor Zittrain agrees with Mr Ravicher (see below).

Your legal system is dangerous .-)


>X-Sender: zittrain@law.harvard.edu@pop.law.harvard.edu
>Date: Wed, 04 Jun 2003 17:51:05 -0400
>To: Mikael Pawlo <mikael@pawlo.com>, wendy@seltzer.com
>From: Jonathan Zittrain <zittrain@law.harvard.edu>
>Subject: Re: [linux-elitists] teleconference
>Cc: linux-elitists@zgp.org
>Mime-Version: 1.0
>Ravicher isn't speaking for SCO, of course, and is just going on what the
>agreement literally says rather than on whether the courts would enforce
>it.  As a purely academic matter (rather than in a legal advice-lending
>way), I wouldn't sign it if it failed to exempt public domain or
>prior-known stuff.  Whether a court would refuse to enforce that aspect of
>it it strikes me as an open question, but it wouldn't be sensible to put
>one at the mercy of that uncertainty, especially if this isn't in exchange
>for employment, i.e. a livelihood.
>At 05:42 PM 6/4/2003, Mikael Pawlo wrote:
>>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?
>> >> 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
>>   ICQ:35638414                              mailto:mikael@pawlo.com
>>   +46-704-215825                              http://www.pawlo.com/
>Jon Zittrain
>Harvard Law School
>Jack N. & Lillian R. Berkman Assistant Professor
>   of Entrepreneurial Legal Studies
>Faculty Co-Director, Berkman Center for Internet & Society


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