Subject: Re: JBoss aquired by Red Hat
From: Thomas Lord <>
Date: Mon, 01 May 2006 10:11:58 -0700

Russ Nelson wrote:
> Thomas Lord writes:
>  > Distribution of a derived work (even as patches) of a GPLed
>  > program is only permitted on GPL terms.   If Consultant
>  > distributes a derived work to Customer without satisfying those
>  > terms, she has violated the conditions imposed on her by the GPL.
> If I understand the case under discussion, it is the *Consultant* who
> is agreeing not to distribute, not the Customer.
Sort of.  I am pointing out that even a one-way NDA comes with
two-way obligations and that some of those obligations place
conditions on Customer's right to redistribute.

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.

Yes, Consultant has promised under the NDA not to distribute the
program but, at the same time, Customer is promising to distribute
it only under certain conditions and to take special actions to make
sure those conditions are met.

> If you sell a GPL'ed product to people for $1,000 to non-ideologues,
> which one of them would be willing to give it away?  You could very
> reasonably expect them to say "Hey, I paid for it, why should I expend
> my own resources to give it away for free?  Go get your own copy!"
> The GPL is nowhere near as communistic as some people think.  It just
> says that you can't stop *recipients* from giving it away.  It doesn't
> require any contributor to give away their intellectual property.  It
> also says that *recipients* have to have access to the source

Of course but, when it comes to someone forming a derived work
and distributing it, the Author of the original work -- from which
the derivation is derived -- has given only specific permissions.  
Part of those permissions require the derived work to be distributed
(from Consultant to Customer) under the GPL.   Section 1 of
the GPL says the Customer may distribute verbatim copies.   The
NDA says Customer may distribute verbatim copies *only if* he
releases Consultant from the NDA.    So, once Consultant has signed
the NDA, he can no longer simultaneously satisfy his obligations under
the NDA and the GPL and has no right to distribute the modified work
to Customer.   He can't satisfy those obligations because if he creates
a new trade secret for Customer and distributes that secret to Customer,
he is obligating Customer to only redistribute in certain ways.

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


p.s.: the situation is very different if the work is entirely original
or its copyright otherwise entirely owned by Consultant and/or Customer.
In that case, distribution between Consultant and Customer doesn't
require staying within the boundaries of GPL permissions.