Subject: Re: JBoss aquired by Red Hat
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Fri, 28 Apr 2006 01:06:42 +0900

>>>>> "Jamie" == Jamie Lokier <jamie@shareable.org> writes:

    Jamie> This seems not dissimilar to the distribution of open
    Jamie> source code under NDA in an ordinary (i.e. not military)
    Jamie> business context.

You have to be careful with words here.  A "distribution" is a transfer
of one or more copies accompanied by a license for use.  That license
must be the GPL if the software was received under the GPL.

The kind of transfer or access for use that I think you are describing
is often called "deployment".

How about the following analogy: I have added a whizbang feature to
Emacs.  You come over to my house, and I allow you to use Whizbang
Emacs to write an email to your S/O.  This is *not* a distribution,
and I can do this under an "NDA" condition that you not take a copy of
the Whizbang module home with you on a USB memory stick.  I have
permitted you to use it, but I have not distributed Whizbang Emacs to
you, and you have zero rights under the GPL.

Similarly, within the organization, the hardware and (the physical
copies of) the software are the property of the organization.  Having
use of them as part of your employment gives you no GPL rights to
them, even if your employer received the software under the GPL.

So, within an organization, the employees can be under NDA because
they don't receive the software in a legal sense.  They are simply
required to use it as part of their conditions of employment, but
otherwise need not be allowed to take it home or use it to write
letters to the editor complaining about the war in Iraq.

    Jamie> That doesn't mean you have to allow the next person to
    Jamie> distribute the binary at all.  In other words, you can
    Jamie> distribute code to someone under NDA on the condition that
    Jamie> they distribute neither binary or source.

If it is a "distribution", you may not add any other terms to the
GPL.  Even if they are on a different piece of paper. :-)

So I think you have the facts of the situation almost correct, but
your usage of the word "distribution" is the common English meaning of
the word which is quite different from the legal meaning in this
context.

The other common use of an NDA is to bind the *author* of a
derivative.  But the derivative code is not under GPL for the author
(the GPL says so explicitly) so he can sign an NDA to not reveal it,
even if it's not a work for hire.  The client, of course, receives the
derivative as a whole under the GPL, and may exercise her GPL rights
as she sees fit.


-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory