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there's been a lot of discussion lately about an Nvidia NDA that was published by hyzer de which read it has since run with and gone crazy with to rather than resorting to armchair lawyers online we spoke to an actual lawyer about the Nvidia NDA to discuss whether or not it's legitimately problematic problems are raised or issues raised by commenters online have primarily indicated a concern that Nvidia is trying to strong-arm only positive content out of media outlets we've reviewed the NBA we've spoken with a couple of lawyers about it and we disagree with this sentiment however we decided to speak with as I said a lawyer who agreed to be on audio call in for this and talk about the NDA so we could get someone who's actually a legitimate source to talk about what they think of the specific language herein and this is primarily a phone call so it's got some video it's just screenshots of questions from reddit you can tab away and just listen to this if you like because it's mostly our legal correspondent speaking about his thoughts on the whole matter before that this video is brought to you by us and the gamers Nexus anti-static mod map the GN anti-static mana is a four foot by two foot service two millimeters thick of high-quality industrial grade anti-static material and it includes a common ground point for earth a grounding wrist strap and it has on its electrical wiring diagrams that may prove useful a GPU silhouette and grid for your teardown efforts and other useful items go to store documents nexus dotnet to pick up a GN mod mat today hey everyone so today we're gonna go over a leaked and Vidya NDA that was posted on Heiser de and I have with me at GN legal correspondent Jack who is a US attorney Jack how's it going pretty good Steve how are you I'm doing well we have we have an interesting one here we have a bit of irony with this docket because the NDA can be discussed because it is in the public domain so so the NDA right again that is correct and so this one there's been a lot of conversation online for everyone watching we don't I'm going to do my very best here to focus on so the comments we've seen you all post on or elsewhere go through them without injecting too much of my own opinion unless it specifically pertains to how a reviewer or reporter would interact with this document and I'm going to allow a jack to take all the legal questions and hopefully we can answer some of this stuff as neutrally and accurately as possible from a legal standpoint so Jack that sounds good to you I think think we can get started yeah of course so I think the main thing we should start with here is anyone who hasn't seen the document it was posted by german website isaac de and that's the specific version of the stock and we're talking about in the document we first need to define the word confidential information so this comes up a lot and it has a very specific meaning so Jack let's let's go over what this is so in any contract like this which is that's all an NDA is they always have certain terms of art which are just defined in the document goes somewhere else that may mean something else so in this document that the phrase to pay attention to is confidential information paragraph one defines it as any and all technical and non-technical information disclosed made available to recipient which would be GN or some other outlet from time to time by disclosing party that's Nvidia including but not limited to terms the agreement assets materials etc basically it covers whatever they tell you that they deem confidential information at the time they tell you what it is a good example would be a release date of a product so if they say Turing is going to be released on on September 1st that would be covered or some other type of technical information how many cores it runs what it clocks to whatever memory it uses things like that right and this is so far this is all pretty standard a lot of the from the reviewer side a lot of the time when products come out I'd say probably about ninety percent of the time we don't sign a literal NDA companies like case companies that cooler companies they just they don't care worst case scenario you break the embargo they say you weren't supposed to do that and then either there's an apology exchanged or the reviewer might say I know I wasn't supposed to I did it anyway in which case they stopped sampling the reviewer but in the instance of a company like Intel occasionally we'll get NDA's from Intel's partners or nvidia and AMD z' partners it tends to be these larger big three vendors that get involved with the written agreement of some kind and vidya to date i can say we have not had to deal with a specific document like this before typically the agreements are a company will send an email and the company might say you are under embargo until date do you agree and you say yes or no so that's typically how it works now next term to define so the disclosing party who specifically is that and does it include obviously on videos in there but does it include on videos partners so i one of the other terms it needs to be defined is the disco so the disclosing party so there are a few parties in clay in this agreement as there is with anyone there is the agreement which is the document itself there's the effective date which is whatever they agree on there's the disclosing party which is defined specifically as in video corporation delaware corporation on behalf of itself in any its subsidiaries so that would not include in a board partner would be just nvidia or whatever other companies in my own and then the recipient is going to be whoever is talking to nvidia so it would be GN or linus or whoever is talking to them right okay so now that we've got that defined let's start with the most critically examined piece of this from everyone online the biggest thing people have pointed out is this phrase use restriction recipient shall use confidential information solely for the benefit of nvidia and shall not so worth the a through age so the question is well actually let me just read you one of the comments that was uploaded very high on reddit quote holy they're basically saying NDA signers have to write positive press for them so what's your interpretation that's not even remotely true the phrase solely for the benefit of is a little bit nebulous I wouldn't have drafted it this way but for the benefit of meet something very different in legalese than it means in real life so when you say for the benefit of it that doesn't necessarily mean it's to help NVIDIA it just means on behalf of so for example you can have a bank account that you may run but it's for the benefit of somebody else so it's really the money in the account somebody else's money but you're running it it doesn't have any so judgment value I'm good or bad it just is a thing that being said we really need to pay attention to is paragraph four which talks about things which are accepted have an exemption from the confidentiality the most important of which would be I think it's letter C so if your paragraph four letter C which is independently developed developed information so presumably when you reviewing a product it's all based on data you've collected yourself it should be at least so if you were to do your own testing it wouldn't apply to a use restriction so if they put out Turing and it turns out it's a giant dumpster fire and you find that out by testing on it you can still post that that's information you found yourself that they can know that that's accepted from this so no they do not have to write a positive positive press for them you can very easily say we tested their new GPU and it's terrible that's fine as long as it's based on your information and also my correct me if I'm wrong my understanding further is that it does say shall use confidential information for benefit of blah blah so a review I don't think is covered under confidential information at this point because it has entered the public domain either by Nvidia or something like I mean is that well there's a couple different things one it confidence information is defined as something they told you if it's something you came upon yourself it's not technically confidential information two if it's a review so it's after a review embargo technically everything's gonna be in the public domain anyway that everybody's gonna know how many court what the court count is everything is gonna to know how much memory everybody's gonna know the clock speed everybody's gonna know everything about it so nothing you really say is going to be covered under this anyway this would obviously keep you from breaking a review embargo if none of this is public yet and you decide to be a jerk and just publish all your information a week early you're gonna get stung but for any reasonable use of a review this won't affect you at least I don't think it didn't seem to me doesn't seem to me to be that way the for the benefit of is a little bit odd but it's not something that should send you running for the hills and for all I know it was some you know some associated foo that anything can you look cute and it doesn't really mean anything I don't know it's not something I'd really be concerned about I'd be more concerned about the specific uses a through H in paragraph three which are very definite and I wouldn't do any of that stuff right right and so for talking about some of these I guess we kind of addressed this one does the meet does this mean the media have to write only positive reviews and I think our answer here is no to that question next one is so we saw some online speculation those restrictions are crazy any outlet that signs these essentially opens them themselves up to be sued by Nvidia if Nvidia doesn't like an article they write any thoughts on this it's the same thing as the one above I mean no okay one the restrictions aren't crazy seems to be pretty boilerplate for an NDA especially because you can do whatever you want to do with your own generated data and any out who that signs in this there's open themselves out to be sued if they don't like article later right okay that's wrong for a couple of reasons one yeah technically Nvidia can sue whoever they want but they wouldn't there they were kind of waste their time suing you for no particular reason especially if they have no case to you're not opening yourself up to anything and the agreement pretty clearly says that you're allowed to do this and frankly this isn't really all that different from any other embargo a reviewer might have the difference is this one is actually on paper otherwise you're not doing anything different you normally would do right okay so next question then is let's let's do this one so the problem also is that if they receive any information on upcoming products they being reviewers they can't write up rumor articles which effectively squelches all these touring rumor articles the vague wording allows them to expand upon what they can consider a breach of NDA aside from that with this NDA popping up torreón possible soon so ignore in the last sentence there is there a I let me provide I guess my thoughts on this first because this is very reviewer related the way I interpret this users is there saying if we reviewers receive information from Nvidia then we can't turn around and post a rumor article or debunk existing rumor articles relating to that information to which I would say that's very normal so typically if company a comes to us and says product this product has these specs we can't then try and be cute if we're under NDA and go to a news video and say we're speculating that it might have these specs that's not okay even if we say the words speculating if we've been briefed on it and we're giving information that we were briefed on that would be covered under an embargo or an NDA even if we pretend like we're speculating so if that's the concern I would say it's very standard if the concern is that I don't know let's say commenting on rumors from other people jack how would you let's say rumors or even facts are published online by someone else are we or other media outlets able to talk about those contents published by other people so if somebody there's really two circumstances here one is where somebody posts a not a fact but a rumor a normal rumor mill stuff Turing will clock to 10,000 megahertz and we'll shoot gold out of the the the the ports in the back you can't go on and say that's not true here's why you can't comment in any of the rumors which frankly you shouldn't be doing anyway you know getting involved in the rumor mill is never really a good idea but you can't do that which is pretty clearly stated you you can't this information is controlled you have to wait until embargo which makes sense you just just don't comment on it's not all that difficult just don't say anything I mean you could say I can't say anything about this or just like you may have in the past or somebody else but no you couldn't talk about those rumors to quote-unquote squelch them just leave them alone it's not a big deal with respect to information that is disclosed so let's say somebody is under this NDA or for whatever reason and they decide you know what spirit I'm just going to polishes information anyway consequences be damned well if becomes public information it's not it's not covered if you look at paragraph four you look at a you look at so a says what's in the public domain at the time is communicated to recipient or into the public domain subsequent to her time was communicated okay so if somebody so if somebody this post the information online and becomes public knowledge you can talk about that that's fine this is a reason we can talk about this right now it's public information it's sitting right here in front of us everybody has it right right next one here is so here's some some more online speculation this person said I've signed the NBA's before and this is definitely much more overreaching than your typical NBA NDA's are typically focused on specific products while this is basically about everything we tell you moreover NDA is typically have an expiration date such as a product release where as this does not have an expiration date so how do we want to look at this question I this seems very simple it's only two pages you know I've seen settlement agreements that are or dozens or hundreds of pages long this is really not all that long it's two pages it's not all that complicated normally NDA's are focused on specific products that's true but while this is kind of an everything we tell you now they may tell you a lot of stuff which they say this isn't confidential you can go and release it but some of it may be that's true however I don't really see the difference and what does it matter whether they have they have to print out a new agreement every time they give you a new product or they just have an overarching one that covers whatever comes up in the future it doesn't really matter frankly and with respect to the final comment about the expiration date all there is I think some I've seen a lot of comments online and I don't think people are reading this very closely so there are two timeout dates on this agreement one is the agreement itself it says on paragraph 5 it shows up as for that it will continue until terminated by either party in writing so any party whether Nvidia or the reviewer or the recipient I guess it would be contaminated writing at any time so Steve you could you could sign this and say a week later this is BS I don't want to do this anymore and notify them in writing its terminated you're done you're not bound by this agreement anymore however anything they told you while the agreement was in effect has a five-year it's this Agreement sticks to it for five years so if during the week where you were bound by this they gave you a launch date for some product whatever it is that is considered would be bound that would be held under this agreement as confident information and all this stuff would apply for five years from the date they told you regardless of whether or not you cancel the agreement or not so the cancellation is more of a looking forward cancellation so I'm canceling from this moment forward I'm not abiding by this but anything that happened prior to it it's still covered which would make sense otherwise they could tell you all kinds of information which they would not want to get out into the public and then you go ha ha and pull the rug out from underneath them and say I've cancelled it now I can tell them whatever I wanted I should also note that a five year so this five year number as you were saying a lot of the comments basically say it lasts for five years well it lasts until someone terminates correct and the data is pretty I should say the confidential information is protected for five years unless otherwise released and if we're being real here five years to me just seems kind of like a number they picked and said yeah that seems good because any product we talked about once it gets to me and press it's gonna launch within probably a year yeah I was thinking about that when I was just talking about this thinking oh wait a second five years seems really weird it is a weird timeframe considering anything they're gonna give you is gonna come out within a year at most then I'm not gonna tell you about five years from now we've created Skynet and they're not gonna do that then it doesn't mean I'm sure it's the unit timeframe they picked which seems well this will cover everything without having to read without having to tweak it so I don't think it really matters honestly I would be surprised if anything lasted the five years without going into the public domain just because they released a press statement about it or somebody leaked it or something happened that would be very surprising to me so I don't view that as being honest at all in fact the the simple fact that you can just terminate it at will for any reason okay you terminate it say I don't want to deal with deal this anymore I'm gonna go buy my own product and review it I don't need your samples anymore okay okay no one's making you sign this thing right so then going back to the specific product naming do you have a personal opinion on should a specific product be named or a specific time line be given versus this kind of blanket agreement not really I think it depends on the situation it's definitely more efficient to do it this way because that way you have one agreement you're done you sign it you never have to do another one because you know although people might believe invidious pockets are bottomless I assure you they're not and spending wasted money on lawyers do redraft this thing it's a waste of money a waste of money is a waste of money so why do it more than once when clearly this seems to work and any party can cancel anytime so I don't really see the point of doing a new one for every single product although I guess if they wanted to do that that's fine but they both seem to work to me sure so let's do a couple more here there's one that said they were pointing out that the document defines confidential information as follows and I quote it then they say that this covers information from an Nvidia as well as from engineers or partners which I think we've discussed already and the answer is it does not seem to cover partners no it says this agreement is actually quite specific that despite popular opinion and it says the units between disclose between the disclosing party which is Nvidia and any other subs and you or whoever the recipient is it doesn't include anybody else so if let's say a sous or MSI or gigabyte we're to tell you one of their engineers were to tell you something about an upcoming GPU or whatever they want to tell you about that's not covered under this this agreement doesn't apply to stuff that somebody else tells you it only applies to something in video or tell you which makes sense considering it you can't force somebody else into an agreement if they're not a party to it so right and then last year so oh this we should mention this so one of the comments was and video could decide GPP or whatever is a trade secret or confidential information prevent journalists from speaking about it so trade secret and confidential information or two different things I suppose we should know yeah there yeah I don't and there's a lot of things wrong with that comment but we can kind of unpack that in a second sure so trade secret can nvidia just decide theoretically this this specific thing that makes us look bad is actually a trade secret so first off either impact the phrase betrayed secret treats you good as a specific legal term that were that refers to certain things which are covered but they aren't covered under copyright patent or copyright patent or trademark they would cover other random things a good example of trade secret be the coca-cola formula that's coveted in a trade secret it's something they have to keep secret like really secret in order for it to have certain protection it's done at the state level so you've heard the kind of this old story that uh no one really knows the formula to coca-cola like two people know half the formula you got a that's kind of the idea so if it was a true trade secret they wouldn't be telling you because then it wouldn't be a trade secret anymore so that's got to unpack that now with respect to confidential information yes technically whatever they tell you they could say this is confidential information don't tell anybody but here's a problem with something like GPP when it becomes public knowledge you can tell anybody you want so when somebody breaks the story of GPP it's free it's fair you know it's open it's open season for that you can do whatever you want to do on GPP or whatever it else face they say sure I should note that GPB specifically no one had any communication with Nvidia about this so it's it's not like there was official information that would have been embargoed anyway right this would kind of go back into the prior question of if a board partner tells you something is it covered no it's not so if there was another GPP GPP - and it was something super horrible and Zeus told you hey Steve there's this horrible thing in videos making us do and sacrifice our children well you could talk about that because that board partner told you NVIDIA didn't tell you so that's fine uh so it wouldn't really cover something like that I mean yes technically you could say they could they can call anything confidential information that's fine it's up to them but at the same you know if the reduce but think of it this way if you're writing this agreement you're too specific you need to rewrite it again if it's something that comes up that you can't think of and again there are plenty of ways you can get out of this there are you know a through e of different ways that this doesn't apply the best of which is public information or it's not from or if it's not even from an Nvidia so that's really not something I'd particularly worry about right and also to be fair here if Nvidia is doing something truly awful they're not gonna tell us exactly you know I feel like people always assume lowest common denominator like they're like the brain-dead they're not brain-dead if there was something really horrible they wouldn't tell you I read this NDA that's simple it's not really all that onerous and you can always say no so general discussion likelihood of enforcing what is realistic enforcement I can speak to this a bit so if we let's say we break this NDA let's say there is something like GPB - and for whatever reason Nvidia says hey gamers Nexus confidentially we're actually screwing over all of our board partners but don't tell anyone - you know to some extent one people can find ways to get that information out without implicating themselves if we're being real here and obviously you always have to be careful that kind of thing you don't know who else they've told maybe they've only told you but if there's something truly awful I believe from our standpoint media you have an obligation to 1 validate that and make sure it's true with a lot of sources and 2 if it is true you find a way to publish it whether it's directly or indirectly and you worry about figuring out how this NDA may or may not apply in that specific circumstance rather than just fabricating the scenario and planning forth way ahead of time because again they probably are gonna tell us we're doing awful things so that's more like they come from a third party so likelihood of enforced in what is enforcement I think typically the most realistic breach of this would be so impulsive you a day early and they might say oops it was an accident timezones I'm sorry sir always configured wrong whatever realistically Nvidia will probably as long as the publication takes that article down as soon as possible they're probably not going to sue them they might stop sampling them or my delay sampling in the future or something like that but an actual lawsuit just speaking in terms of what we've seen in the industry is incredibly unlikely for an honest mistake for a for a dishonest mistake maybe they publish it early just because they want the views in the clicks the most likely mode of enforcement for this kind of thing is always going to be pulling sampling not suing everybody on the planet so I think that's probably the the most likely scenario of something being breached is that that person will no longer be in the loop on future product developments and also as we mentioned early don't have to keep this agreement you can walk out at any time tell them I don't want it don't have to sign it to begin with and I really don't personally speaking I don't see a huge problem with it the way it's presented the only kind of Hanner on that we've kind of discussed was the specific phrase or was it to the benefit of Nvidia for the benefit of solely for the benefit of Nvidia and who knows what that means I don't like it because I am Who I am but you know I in reading this I wouldn't be terribly concerned about it because it seems like that's really focusing more on here are seven different reasons or whatever a through H reasons that sixty situations where you're not allowed to do this I'd focus way more on that than solely for the benefit of but you know right and which has potential neutral yeah yeah I think is whenever you're looking at something like this there's always a chance that somebody's gonna interpret it differently than you do if you're looking at as a reasonable person and will coming from the perspective of an attorney I look at this and go okay whatever it doesn't seem it makes me go maybe they shouldn't have used that word but it's not something where you know I have a ton of red flags go off and you'll don't don't sign this it's horrible I don't know it doesn't Simek a big deal to me right and we should also a final note here whenever any of these contracts come across desks keep in mind that there's a good possibility that people receiving them will make changes so the one that Heiser has published isn't necessarily the same that everyone has agreed to because one Nvidia sometimes will send out documents with changes for specific regions and to the receiving outlets could request changes as well so so these can be slightly modified depending on who you talk to but I think that pretty much covers it well I don't know any any closing thoughts or you think we got it all I think we pretty much got at all I mean I'll be honest this kind of seems like making a mountain of a molehill I don't really see the big deal about all of this I mean I guess it makes for more interesting news day but it seems like a pretty boring NDA to me but what you know what do I know okay well that's that's Jack our legal correspondent Thank You Jack for joining me of course and I suppose if any of you want to discuss this further sound off in the comments though I'm not sure what we're gonna see at this point so as always subscribe for more patreon.com/scishow and razaaq's outside directly thank you for watching we'll see you all next time