Subject: Re: Possibly stupid GPL question
From: Richard Stallman <rms@gnu.org>
Date: Tue, 5 Oct 1999 00:37:20 -0600 (MDT)

It isn't a stupid question, but our lawyer says he doesn't see a real
danger.  Here's the discussion I had with him.

----------------------------------------------------------------------
His words:

      ...  Let me make
      sure I know what I am commenting on.  Abel is in possession of GPLd
      software.  He says to Baker, "I won't give you this software unless
      you have an NDA with Cain."  Cain's NDA says Baker promises not to
      give that software to anyone else.  What should happen next?  Of
      course, Baker could simply get the software from someone other than
      Abel, but perhaps that's too simple.

My words:
  
  There may be no one else to get it from.  Suppose that Abel improved
  GCC and nobody has this improved version of GCC aside from Abel.
  
        If Cain sues, what damages can he possibly recover?
  
  I don't know.  What if the NDA has an artificial penalty clause?

His words:

Probably it's not enforceable.  I can't say that for sure, because
places and circumstances differ.  But such an arrangement plainly
amounts to the one below.
  
  What if Cain was getting paid by Abel each month for assuring that the
  software did not become publicly available?  When Baker releases it,
  Cain ceases to get paid by Abel.  Can Cain claim that as damages
  stemming from Baker's release?

In this case, Cain is Abel's agent for violating the GPL.  So we can
enforce the GPL against Abel just as thoroughly as we can if Abel
himself were charging people to exercise their rights under the
license.