Subject: Re: JBoss aquired by Red Hat
From: Russ Nelson <nelson@crynwr.com>
Date: Mon, 1 May 2006 13:25:48 -0400

Thomas Lord writes:
 > A trade secret remains a trade secret only as long as no proper
 > disclosure has taken place (and while the secret's owner is taking
 > reasonable steps to protect the secret).     So, if *Customer*
 > redistributes the software, he must *also* then release Consultant
 > from the NDA.

Every NDA I've ever signed has had a clause saying "If this
information becomes public through no fault of your own, you are
released from this obligation."

 > So, once Consultant has signed the NDA, he can no longer
 > simultaneously satisfy his obligations under the NDA and the GPL

Nonsense.  The GPL talks about the rights you must grant to others.
It doesn't talk about rights you must not give up.

 > Now, reasonable people (quite a few of them)  seem to disagree with me

Listen to them.

 > but I'm not convinced by their arguments which seem to boil down to
 > "Yeah, sure, the Customer winds up with that additional restriction on
 > distribution but -- hey, that doesn't count!"

Only if the NDA is written differently than any other NDA I've ever
been asked to sign.  Don't forget that a judge may refuse to enforce
an unconscionable agreement.  Requiring someone else to keep something
secret when you have published it is unconscionable.  It's very likely
that an NDA which didn't have a release could not be enforced.

Judges are *supposed* to exercise their judgement.  If they didn't, we
wouldn't need them.

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