Subject: Re: JBoss aquired by Red Hat
From: Thomas Lord <lord@emf.net>
Date: Mon, 01 May 2006 12:26:21 -0700

Russ Nelson wrote:
> 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."
>   
I'm sorry, I just don't understand how your comment is responsive.   Can
you explain?

>  > 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.
>   

Am I really being that unclear?    I have argued that even though it is
Consultant who agrees under the NDA to keep a secret, nevertheless,
it is the nature of an NDA that Customer has new obligations -- new
restrictions on Customer's right to deliberately distribute -- and those
new obligations go beyond the GPL.   Consultant caused these new
obligations on Customer to arise by distributing the derived work to
Customer.   In so doing, Consultant violated the terms of his own
permission to use the GPLed work he started from.

>  > Now, reasonable people (quite a few of them)  seem to disagree with me
>
> Listen to them.
>   
Well, yes.  And, shall we please leave this as with Stephen and I and agree
to disagree?   I don't really have anything new to say but I did want to 
point
out that your counter-arguments above seem to me to be non-responsive.
I didn't *think* my argument was that unclear but here we are.


>  > 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.
>
>   
I don't disagree with anything you wrote there.  It just doesn't address my
argument at all.  Sorry.

-t