Subject: Re: Possibly stupid GPL question
From: DJ Delorie <dj@delorie.com>
Date: Wed, 29 Sep 1999 16:37:05 -0400


[cc list trimmed]

Here are my personal opinions...

> 1) I don't see in the GPL anything that rules the following scenario out.
> 
> A proprietary company sees a GPLed project, notices a useful feature, and
> writes it.  They then start shipping their modified version with a written
> offer, good for 5 years from initial release (not just the 3 listed in the
> GPL) that anyone who wants can request source, and have their name be put
> immediately into a public list of people who will receive the source-code
> at 5 years from initial release.

I'd argue that the time spent waiting is unreasonable, and is therefor
a "cost" beyond mere copying fees.  It also forbids the recipient from
having the freedom to change the software, which is what the GPL is
all about, so one could argue that the vendor is in violation between
the time the request is made and the time the request is satisfied.

> OK, so 2.b. says that you have to license it for free.  But that is
> no problem.  One of the modifications makes the GPLed program
> useless unless you happen to have another program available - a
> program that was independently developed, is not linked into any
> GPLed software, and which is completely proprietary.  That
> proprietary program is copyrighted under a proprietary licence.

The GPL talks about works, not programs.  If the two binary
executables are not independently useful, they are one work, not two,
and the GPL applies to them together as a unit.  They are not a "mere
aggregation".

> How well do NDAs and the GPL interact?

Very easily.  The key is to get the NDA *before* distributing the
GPL'd code.  The GPL does not preclude other agreements the recipient
has made, nor does it require that you give away your work.  If you
refuse to give the work to someone without an NDA, that's OK with the
GPL (because you haven't given them a binary, either).  If you give
the work to someone who has signed an NDA, the NDA stops them from
redistributing, not the GPL, and not you.  Recipients must obey all
legal agreements they have entered into, not just the ones they
choose.

> However what if some modification to currently useful GPLed software were
> available under NDA, but you could get the NDA by paying for it...?

If nobody gives you the software (neither binary nor source), the GPL
simply doesn't apply.  If you have signed an NDA, it doesn't matter
what the GPL says - you have agreed not to redistribute it anyway.

Money is irrelevant, except for the license fee clause in the GPL
which precludes it.