Subject: Re: Possibly stupid GPL question
From: bruce@perens.com
Date: 29 Sep 1999 21:46:56 -0000

From: DJ Delorie <dj@delorie.com>
> But the GPL isn't the first agreement.

It is from the perspective of the work, and of the work's copyright holder.
The work is first distributed under the GPL by the copyright holder, then a
third party acquires a copy of the work and attmepts to apply the restrictions
of a pre-existing NDA to the work.

> It's the second.  And the two agreements aren't being concatenated,
> they're just coincidental.

If they effect the same copyrighted work, they must be considered together
in an infringement case concerning that work. Consider the argument I would
convey to my attorney to make before such a court:

	Party "B" took my work and redistributed it in violation of
	my license. An agreement that party "B" previously had with
	party "C" prohibited party "C" from redistributing my work or
	works derived from my work. However, my license to party "B"
	explicitly prohibits him from making such a restriction. Thus,
	party "B" should not have redistributed my work or a derivation of
	my work to party "C" without explicitly removing the restriction
	he had placed on party "C" with respect to it. To do so was a
	breach of my license. Since my license with party "B" terminates
	immediately upon any attempt at breach, party "B", in addition,
	redistributed my work without a license in clear infringement of
	my copyright.

> Consider a case with three parties: The vendor requires that the
> recipient have an NDA with a *third* party before they can give them
> the software.

Simple devices like "The agreement was with someone else, Your Honor, I
only _required_ it" don't have a hope of holding up in court. The vendor
is placing a restriction upon the recepient. If you can prove that the
vendor refuses to distribute software to someone who does not have this
NDA, _on_that_basis_, the third party becomes irrelevant and my argument
above applies.

> Plus, if the NDA expires or is otherwise cancelled, the recipient is
> left with the original GPL, and may then redistribute freely.  This is
> not the case with a modified license.

This, if a modification to my license expires, it's not a modification
at all?

I think you need to give up on the idea that such simple devices would get
by a court of law.

	Thanks

	Bruce