Heise: NVIDIA’s new NDA attacks journalistic work

[mohit9206]

GTX 960 review coming soon!

Yeah still waiting for that in depth Anandtech GTX 960 review!

 

[bystander36]

None are this broad and this long lasting and I'm not even talking purely about the computer hardware businesses.

This seems specifically crafted to prevent signers from being able to EVER talk about GPP or the similar bullshit they will undoubtedly do next.

You should watch the video that explains all your concerns. Basically, it is designed to be broad and long lasting, only so they don't have to keep writing up new ones for each and every product. The end result is exactly the same. They can't talk about trade secrets ever (they never give anyone but people making them trade secrets, so this means nothing to most people involved), and they can't reveal info on a new product until they the given date they specify. They can also opt out of the NDA when ever they choose.

The only difference between now and previous NDA's, is they don't have to create new NDA's for each product they give out ahead of release.

 

[William Gaatjes]

I personally think NDA should only be used to prevent reviews popping up about new hardware before the designated release date by the manufacturers.
Everything else, the journalist should be able to write about. In positive or negative way.
It is aways up to the reader to think critically about it.
Technical stuff and IP protection fluff is just nonsense.
It is not as if a journalist writes an article into the little details such that a reader is able to design their own chips.
It is not they are going down up to the RTL design level to describe how a SIMD unit works or how the deferred rending algorithm works in RTL together with the driver software code in C++ being explained.

It is obvious that Nvidia got some scrutiny about GPP and other issues like telemetry without opt out. And that the marketing department is making sure that that does not happen again.
I think this is the forefront to prevent negative journalism about the upcoming products.
That might implicate that the huge jumps Nvidia made in graphics power on the lower level before might not happen anymore.
I think they optimized their graphic design as much as possible over the years. Removing every bottleneck that may be present.
Now, it might just be adding more cores and more memory bandwidth.
No more extreme clockspeed jumps.
And no more extreme architectual jumps.

 

[Guru]

You should watch the video that explains all your concerns. Basically, it is designed to be broad and long lasting, only so they don't have to keep writing up new ones for each and every product. The end result is exactly the same. They can't talk about trade secrets ever (they never give anyone but people making them trade secrets, so this means nothing to most people involved), and they can't reveal info on a new product until they the given date they specify. They can also opt out of the NDA when ever they choose.

The only difference between now and previous NDA's, is they don't have to create new NDA's for each product they give out ahead of release.

How convenient? Why not make it 1000 years NDA then? Why sign new NDA every 5 years? Why not every 1000 years? Why not an NDA for EVERYTHING that lasts for INFINITY? I mean after all its to get away from the boring new NDA's, right? Who likes writing new NDA's every few years, hah?

 

[antihelten]

This is 100% for GPP and future similar anti consumer, monopolistic policies.

If this is genuinely the case, then Nvidia has some shitty lawyers, seeing as the whole situation surrounding the reporting about GPP wouldn't actually be covered by the terms of this new NDA.

The NDA only covers confidential information that the recipient receives directly from Nvidia (see below), not confidential information that they receive from third parties. HOCP (who broke the GPP story) didn't receive their info on GPP from Nvidia, but instead from a third party (AMD to be specific).

Directly from the NDA (My bolding):

This Non-Disclosure Agreement (the "Agreement") is made and entered into as of the date of execution (the "Effective date"), by and between NVIDIA Corporation, a Delaware corporation, on behalf of itself and its Subsidiaries (collectively "Disclosing Party"), and recipient identified below ("Recipient")

...

1. Confidential Information. "Confidential information" shall mean any and all technical and non-technical information disclosed or made available to Recipient from time-to-time by the Disclosing Party

 

[coercitiv]

If this is genuinely the case, then Nvidia has some shitty lawyers, seeing as the whole situation surrounding the reporting about GPP wouldn't actually be covered by the terms of this new NDA.

The NDA only covers confidential information that the recipient receives directly from Nvidia (see below), not confidential information that they receive from third parties. HOCP (who broke the GPP story) didn't receive their info on GPP from Nvidia, but instead from a third party (AMD to be specific).

All they had to do was mention the GPP existence to those under NDA and it would have been covered.

From my previous post:

I would also love to read a legal opinion of what would have happened during the GPP scandal if such an NDA were in effect at the time, considering news outlets only had rumors to work with - all their official sources were under NDA. What would have happened if they asked NVIDIA about it or were previously given info on GPP and told it was confidential information?

I know the leaked NDA does not prohibit the press to discuss information that has entered the public domain, but it seems to me GPP news that transpired from HardOCP would not be allowed to come from a news outlet that signed this NDA, and further more it may be difficult for such an outlet to even pick up this news from another source.

 

[Ranulf]

The NDA only covers confidential information that the recipient receives directly from Nvidia (see below), not confidential information that they receive from third parties.

Can you prove (give up your sources) that the CI wasn't from Nvidia and do you want to prove it in a court of law/deposition while forking over thousands in attorneys fees?

 

[Guru]

If this is genuinely the case, then Nvidia has some shitty lawyers, seeing as the whole situation surrounding the reporting about GPP wouldn't actually be covered by the terms of this new NDA.

The NDA only covers confidential information that the recipient receives directly from Nvidia (see below), not confidential information that they receive from third parties. HOCP (who broke the GPP story) didn't receive their info on GPP from Nvidia, but instead from a third party (AMD to be specific).

Directly from the NDA (My bolding):

Someone told AMD, Nvidia wants to be able to sue the redacted out of them in court the next time they tell AMD. Under this new NDA they can.

Profanity is not allowed in the tech areas.

AT Mod Usandthem

 

[antihelten]

All they had to do was mention the GPP existence to those under NDA and it would have been covered.

From my previous post:

Nvidia simply mentioning GPP does not magically make any previous info HOCP has recieved from third parties subject to the NDA.

Can you prove (give up your sources) that the CI wasn't from Nvidia and do you want to prove it in a court of law/deposition while forking over thousands in attorneys fees?

I don't have to prove anything. If Nvidia wants to sue someone (like HOCP) for breach of the NDA, then the burden of proof lies with Nvidia to prove that the info came from them.

Also for what it's worth HOCP already gave up their source from the get go (it was AMD), so that part is a non-issue.

Someone told AMD, Nvidia wants to be able to sue the shit out of them in court the next time they tell AMD. Under this new NDA they can.

AMD probably got the info from some board partner, and yes if said boardmaker signs this new NDA, then Nvidia could sue for sharing such info with AMD (or anyone else for that matter), but Nvidia cannot sue* AMD (who isn't party to the NDA anyway), nor can they sue the journalists that AMD shares the info with (since Nvidia can only sue if the info came directly from themselves).

However the board partner in question would almost certainly already have been covered by an NDA, and seeing as Nvidia to our knowledge didn't sue anyone back then, this new NDA probably wouldn't have made any difference anyway.

*Technically you can of course always sue anyone for anything, but point is that they wouldn't have a case.

 

[Thala]

I missed the Denmark part. Heise.de is German.

de is Germany.
dk is Denmark.

Lol. When using "something is rotten in the state of Denmark" - one does not literally refer to Denmark today.
In this particular context it was implied that Nvidia = Denmark.

 

[William Gaatjes]

Lol. When using "something is rotten in the state of Denmark" - one does not literally refer to Denmark today.
In this particular context it was implied that Nvidia = Denmark.

Oh,
I see...

 

[Ranulf]

I don't have to prove anything. If Nvidia wants to sue someone (like HOCP) for breach of the NDA, then the burden of proof lies with Nvidia to prove that the info came from them.

Sigh. You miss the point. I'm talking about potentials in the future, not what happened with the GPP story. The smart businessman (tech reviewer/news journalist, youtuber etc.) looks at this nda and should be worried about lawsuits that could bankrupt them. Burden of proof is nice but the current court system in the USA favors the big guy with million dollar law firms.

 

[coercitiv]

Nvidia simply mentioning GPP does not magically make any previous info HOCP has recieved from third parties subject to the NDA.

Assuming HOCP were under NDA then sure it does, all they need to do is mention it before HOCP receives info from third parties.

Sounds something like this: "Hi guys, we have some early info we'd like to share with you: we're on the verge of launching a new program with a number of AIBs called GeForce Partner Program. It's gonna be great, the next step in ensuring Nvidia powered products receive the top tier branding they deserve. We'll get back to you with more info as soon as we get details locked in with our partners. PS: We just love being able to talk to you about this stuff!"

 

[antihelten]

Sigh. You miss the point. I'm talking about potentials in the future, not what happened with the GPP story.

No you miss the point. If you were talking in generalities when you replied to my post, then you either didn't read it, or misunderstood it. My post was specifically with regards to the GPP situation.

If you simply want to talk about generalites with regards to this NDA, then be my guest, but next time please don't take my post out of context to do so.

The smart businessman (tech reviewer/news journalist, youtuber etc.) looks at this nda and should be worried about lawsuits that could bankrupt them. Burden of proof is nice but the current court system in the USA favors the big guy with million dollar law firms.

No the court system does not favour the big guy in this kind of situation. If the leaked info didn't come from Nvidia then the defendant (be it a tech reviewer, news journalist, youtuber or whatever), would have zero problem getting a motion to dismiss approved, since the info then wouldn't be covered by the NDA, and thus Nvidia has no valid legal claim. They might as well be suing you for sharing pictures of your own cat, the NDA would be just as applicable there.

Only if the info came directly from Nvidia do they have a valid case.

Assuming HOCP were under NDA then sure it does, all they need to do is mention it before HOCP receives info from third parties.

Obviously if Nvidia gives the info to HOCP before HOCP receives it from a third party, then Nvidia would have a strong case, but since Nvidia cannot know ahead of time which info might get leaked to HOCP (or other outlets/competitors), then that means that Nvidia would in effect have to mention literally every little bit of confidential information to the outlet to make sure it's covered by the NDA, which is a laughable idea.

Sounds something like this: "Hi guys, we have some early info we'd like to share with you: we're on the verge of launching a new program with a number of AIBs called GeForce Partner Program. It's gonna be great, the next step in ensuring Nvidia powered products receive the top tier branding they deserve. We'll get back to you with more info as soon as we get details locked in with our partners. PS: We just love being able to talk to you about this stuff!"

Nvidia sharing a statement like that would only really preclude HOCP from mentioning the name of the program, everything else (i.e. having gaming brands aligned exclusively with Geforce or lose access to support, PR, launch partner status, rebate programs etc.) would still be fair game since none of it is mentioned in the above paragraph. All HOCP would have to say is something like "we've heard from third parties that Nvidia is starting a new OEM initiative which would involve all of this bad stuff..." without mentioning GPP by name, and they would be in the clear.

In other words only CI shared specifically by Nvidia would be covered. Tangentially related info would not be covered, unless it was also itself shared by Nvidia.

 

[coercitiv]

but since Nvidia cannot know ahead of time which info might get leaked to HOCP (or other outlets/competitors), then that means that Nvidia would in effect have to mention literally every little bit of confidential information to the outlet to make sure it's covered by the NDA, which is a laughable idea.

Nope, they would only have to do this for a sensitive situation like GPP and only divulge enough info as to make talking about the subject near impossible or extremely risky.

we've heard from third parties that Nvidia is starting a new OEM initiative which would involve all of this bad stuff...

That would be covered by the contents in my pretend statement. They wouldn't be able to mention the existence of the program and the fact that it's related to AIBs. Even mentioning the word "branding" might be risky.

That's the beauty with an NDA that has such a large scope in both time and covered information: it can easily lead to unforeseen ramifications and prevent people speaking about it for years. Previous NDAs, as described by the press, had very limited scope: product launch info and time restraints until publish was allowed. This new breed of NDA has the potential to be manipulated in some very interesting ways, and while this may not be the case and Nvidia may be as honest about this as possible, it was still a very bad move on them in the wake of the GPP fallout.

 

[antihelten]

Nope, they would only have to do this for a sensitive situation like GPP and only divulge enough info as to make talking about the subject near impossible or extremely risky.

Problem is that almost everything is a sensitive situation. GPP was a sensitive situation from a marketing and PR perspective, but technical CI would also represent a sensitive situation, just from a different perspective (i.e. it's not the general public they have to be worried about here, but instead their competitors).

That would be covered by the contents in my pretend statement. They wouldn't be able to mention the existence of the program and the fact that it's related to AIBs. Even mentioning the word "branding" might be risky.

No it wouldn't. My theoretical statement makes zero mention of the GPP program (instead talking about a generic "initiative"), and mentioning that the initiative is related to AIBs is also a complete non-issue, since Nvidia always have a ton of different programs going on with AIB, so in other words the fact that Nvidia has such programs is already a well known fact and is in the public domain, and thus not covered by the NDA (see section 3 (a))

Mentioning branding is also a non-issue, for the same reason as mentioning AIBs is (i.e. Nvidia having program with AIB that involved branding is already a well known fact and thus in the public domain). Only specific info regarding branding that isn't already in the public domain would be covered (like for instance that gaming brands have to be exclusively aligned with Geforce), but your statement didn't contain any such info.

That's the beauty with an NDA that has such a large scope in both time and covered information: it can easily lead to unforeseen ramifications and prevent people speaking about it for years. Previous NDAs, as described by the press, had very limited scope: product launch info and time restraints until publish was allowed. This new breed of NDA has the potential to be manipulated in some very interesting ways, and while this may not be the case and Nvidia may be as honest about this as possible, it was still a very bad move on them in the wake of the GPP fallout.

Except it isn't nearly as large in scope as some people are trying to argue. It only covers CI which is directly shared by Nvidia with the recipient. This is identical to previous NDAs. Tech outlets are still free to share any info they receive exclusively from third parties (as was the case with GPP).

The only real difference is that instead of signing individual NDAs for every piece of CI (which all of the tech outlets already did btw), they now have to sign only one. The practical difference this makes (other than less paperwork) is the general 5 year sunset clause*, where previously individual NDA's would probably have had individualized sunset clauses (and probably shorter ones on average).

*Trade secrets notwithstanding.

 

[Ranulf]

No the court system does not favour the big guy in this kind of situation. If the leaked info didn't come from Nvidia then the defendant (be it a tech reviewer, news journalist, youtuber or whatever), would have zero problem getting a motion to dismiss approved, since the info then wouldn't be covered by the NDA, and thus Nvidia has no valid legal claim.

Yes, and that would take 6-12 months and $50k+ in lawyer fees, fees that you might not get covered by the opposition when you when. And to do that the defendant will have to give up their sources.

 

[antihelten]

Yes, and that would take 6-12 months and $50k+ in lawyer fees

It doesn't really matter all that much how long it takes, only how much it costs (after all, it's not like the defendant will get an injunction against them in the meantime, and thus cannot simply go on as normal whilst the motion is being evaluated). And honestly it shouldn't cost you anywhere near $50k to have a lawyer write up a motion to dismiss, more like $10k (which is not nothing of course).

fees that you might not get covered by the opposition when you when.

Whether or not fees will be granted is very situation specific, but it is worth noting that the chances are significantly higher if the claims are frivolous, which they potentially would be if the CI in question is not even covered by the NDA.

And to do that the defendant will have to give up their sources.

Not at all. We're talking about a motion to dismiss here. The exact nature of the source (a factual matter) isn't relevant here, since motions to dismiss only deals with questions of law, not questions of fact.

If a motion to dismiss is granted, it is done so before any evidence is presented by either party.

 

[Dribble]

The american legal system is basically setup for the big guy to squish the little guy, however if Nvidia tried it the backlash would far outweigh the benefits - there would be a huge wave of negative publicity and the little guy would probably get crowd funded through it. Hence they aren't going to be throwing around frivolous law suits.

 

[Ranulf]

The american legal system is basically setup for the big guy to squish the little guy, however if Nvidia tried it the backlash would far outweigh the benefits - there would be a huge wave of negative publicity and the little guy would probably get crowd funded through it. Hence they aren't going to be throwing around frivolous law suits.

One would hope but I'm too cynical to think it is a guarantee and in most cases not worth the risk.

 

[bystander36]

One would hope but I'm too cynical to think it is a guarantee and in most cases not worth the risk.

Why get so upset with this NDA, and not all the others before that had the same restrictions, which include all rival companies? Probably because this was the first one you've read.

 

[Guru]

Why get so upset with this NDA, and not all the others before that had the same restrictions, which include all rival companies? Probably because this was the first one you've read.

Because it comes at the heels of Nvidia telemetry(spying without consent), at the heels of GPP, at the heels of GT 1030 with DDR4 memory, etc... People connect the dots and figure out they'd love to be able to prevent people from talking about this as much as they can. Obviously it's not 100% report proof, but they clearly want to prevent it as much as possible and at least from their point.

 

[Ranulf]

Why get so upset with this NDA, and not all the others before that had the same restrictions, which include all rival companies? Probably because this was the first one you've read.

No, because this one has a 5 year time limit on it just after the GPP scandal.

 

[VirtualLarry]

And to do that the defendant will have to give up their sources.

Is that NV's ultimate goal here? To quash their "leaks"?

Not at all. We're talking about a motion to dismiss here. The exact nature of the source (a factual matter) isn't relevant here, since motions to dismiss only deals with questions of law, not questions of fact.

If a motion to dismiss is granted, it is done so before any evidence is presented by either party.

Oh.

 

[bystander36]

No, because this one has a 5 year time limit on it just after the GPP scandal.

All these NDA's have permanent bans on leaking secret info. The only things they are allow to repeat are allowed to be talked about at the date given, and not before. The 5 year time, is just so they aren't writing new NDA's for new products.

It's nothing special. Of course it doesn't change your hate, but it doesn't change anything in practice, other than how often they receive an NDA from Nvidia.