Subject: Re: JBoss aquired by Red Hat
From: Thomas Lord <lord@emf.net>
Date: Mon, 01 May 2006 16:59:01 -0700

Russ Nelson wrote:
> Thomas Lord writes:
>  > If the program were not a trade secret, that would be the end of
>  > the story.   Because the program *is* a trade secret, upon receiving
>  > notice from Customer, these third parties can have their GPL rights
>  > revoked.
>
> They don't have any GPL rights.  They did not properly receive a copy
> of the program.  If I steal a proprietary program and give a copy to
> you, you don't have any rights to that program.  
As far as I can tell, if I am an innocent third party, then that outcome
depends on the copyright status of the work and its trade secret status.
For example, if the work is public domain but generally not known,
and I come to know of it only via a theft wrt which I am an innocent
third party, nevertheless, I now possess a public domain work with
all attendant rights.

In the case of a program distributed under both GPL and an NDA,
the GPL and the NDA are in conflict.   That means that yes, I
probably don't have any rights to that program.  Therefore, by
failing to cause the license under which she distributed it to apply
to me, the first distributor of this derived work has failed to satisfy
clause 2b of the GPL and therefore had no right to distribute it
in the first place.

> If I break a trade
> secret agreement for a piece of software, and give a copy to you, it
> doesn't matter what license the code is under; the license is not
> applicable since I don't have the right to redistribute the code.
>
>   
Even the FSF agrees that that is not, in general, true.

Yes, you had no right to steal the code or distribute it.

No, I do in fact have rights unless the code is under a restrictive
copyright, or is a trade secret, or embodies a patent or trademark
(presuming that I am an innocent third party).   The same applies to
others to whom I might further distribute it.


>  > > Every branch of your concern ends up with "and X screwed up and hurt
>  > > himself." 
>  > No.  One argument (about Customer's rights) says that nobody
>  > screwed up but Customer received a GPL distribution with
>  > forbidden extra conditions attached.
>
> Whoever imposed the conditions screwed up.  It's too bad that Customer
> didn't receive a copy of the  code they could redistribute, but hey
> everybody wants a pony, too.
>
>   

Ah well, yes we agree that whoever imposed those conditions screwed up.
That is pretty much my point.   One of them screwed up in the specific
way of violating the GPL.

Those conditions are intrinsic in trade secret law -- no NDA which relies
on trade secret law is without those conditions.

The conditions were in part imposed by Consultant in the act of distributing
a modified version of a GPL program where they got the original from
somebody else.  By 2b and 7 of GPL, Consultant violated the GPL with
that first distribution to customer -- before any improper leak took place.

-t