Re: GPL and NDA

Re: GPL and NDA

[dewar]

<<I think maybe that your intent was that "that license" should read "that
derivative work"?  I mean what you are saying is that you create a
derivative work for your own use, and don't distribute it, then there is
no requirement that it be licensed under the GPL, and this is what you
go on to say in the rest of your email.   And, AFAIK, this is correct.
>>

NO, I meant what I said, the work is covered by the GPL, only if you, as the
copyright holder of the modifications in the deriviative work, decide to 
license your work this way. Of course if you *don't* license it using the
GPL, then any distribution is a copyright violation, but there is never
any automatic GPL'ing of anything.

<<However I have a concern that this creates a loophole -- not a legal
loophole, an illegal loophole (AFAIK), but a loophole nevertheless.
Let's say I create such a derivative work, and I don't GPL it.  But I
leave it somewhere (accidentally, with no malice aforethought) where
somebody else finds it, with no copyright or GPL notice.  Now they take
it and use it as is or create a derivative work, and distribute it as a
>>

Don't invent law! The fact that something has no copyright notice or GPL
notice in no way affects its copyright status. If you find something, it is
your responsibility to determine its copyright status. Even if there is
a notice, that's no legal guarantee that you can rely on that notice.

For example, if someone manages to find a copy of the source of Power Point
from Microsoft, and puts in GPL headers on all sources and then leaves the
sources "somewhere", then if a third party finds these sources they may assume
that they are free software which can be freely copied, but they assume wrong,
and would be liable for action on the basis that they had violated the
copyright.

You can't copy any copyrighted material unless you have a license to do so.
It is entirely up to you to take the responsibility to determine the copyright
status of anything you copy, and to determine that there is a correct license
that allows you to copy it. If you copy something without having a proper
license, then you are strictly liable for the copyright violation.

Sorry that this thread has gone on so long, I am the guilty party in starting
this, with my question about ia64, but it is hard not to respond to
misinformation.

Re: GPL and NDA

[dewar]

<<Or the person that used the copy that had no license can license it using
the GPL: the original authors can not stop that.
>>

What do you mean by "had no license", are you talking about whether there
was a license notice on the source? If so, this is entirely irrelevant. There
is no binding legal significance to copyright and licensing notices that
appear as part of the document. They are useful information in tracking
down and verifying the exact copyright and license status, which is why
it is good practice to put them in, but it is not necessary to have suchg
a notice for the copyright to be valid, and licensing conditions are also
not required to be placed into the product itself.

Re: GPL and NDA

[Carlo Wood]

On Sat, Jul 21, 2001 at 11:44:17AM -0400, Randy Kramer wrote:
> However I have a concern that this creates a loophole -- not a legal
> loophole, an illegal loophole (AFAIK), but a loophole nevertheless. 
> Let's say I create such a derivative work, and I don't GPL it.  But I
> leave it somewhere (accidentally, with no malice aforethought) where
> somebody else finds it, with no copyright or GPL notice.  Now they take
> it and use it as is or create a derivative work, and distribute it as a
> closed source program.
> 
> What is the status in a case like that?

In that case the (last) derived work is indeed NOT GPL-ed.  But it falls
under the normal copyright laws.  Any of the previous authors can execute
their copyright and demand the closed source to be taken from the market.

Or the person that used the copy that had no license can license it using
the GPL: the original authors can not stop that.

-- 
Carlo Wood <carlo@alinoe.com>

PS  IANAL either, but it's pretty logical how this works imho.
PS2 Me thinks we need to start to cut into the CC list.

Re: GPL and NDA

[Randy Kramer]

dewar@gnat.com wrote:
> This sort of claim is just plain wrong. The GPL is a license that the
> owner of the copyright provides to another person. If you create a
> deriviative work, then this work is covered by the GPL if and only
> if you as the creator decide to issue that license.

IANAL

I think maybe that your intent was that "that license" should read "that
derivative work"?  I mean what you are saying is that you create a
derivative work for your own use, and don't distribute it, then there is
no requirement that it be licensed under the GPL, and this is what you
go on to say in the rest of your email.   And, AFAIK, this is correct.

However I have a concern that this creates a loophole -- not a legal
loophole, an illegal loophole (AFAIK), but a loophole nevertheless. 
Let's say I create such a derivative work, and I don't GPL it.  But I
leave it somewhere (accidentally, with no malice aforethought) where
somebody else finds it, with no copyright or GPL notice.  Now they take
it and use it as is or create a derivative work, and distribute it as a
closed source program.

What is the status in a case like that?

If demonstrated that this is the case, can the "genie be put back in the
bottle" so to speak?  (Can the closed source derivative work be removed
from circulation, be required to be relicensed under the GPL, and any
collected fees be required to be returned?)

Does the GPL require that the GPL licesnse be referenced even on the
private derivative work, something like "this software was derived from
a GPL product, and it, or any product derived from it, cannot be
distributed except under the terms of the GPL?

How could you demonstrate that this is the case?

Thanks,
Randy Kramer



> 
> Of course if you do NOT issue the license, and then distribute the work,
> you have violated the original copyright, but it can never be the case
> that something is automatically covered by the GPL.
> 
> Furthermore, if you create the deriviative work solely for your own use,
> and do not distribute it, then there is absolutely no reason for you to
> issue any license to anyone for the deriviative work.

Re: GPL and NDA

[dewar]

<<You say that it can work if you can atomically GPL and distribute it
but that doesn't make any sense to me.  By creating a dervied work
from a GPL work, the new work is GPL'd from the time of its creation.
>>

This sort of claim is just plain wrong. The GPL is a license that the
owner of the copyright provides to another person. If you create a
deriviative work, then this work is covered by the GPL if and only
if you as the creator decide to issue that license.

Of course if you do NOT issue the license, and then distribute the work,
you have violated the original copyright, but it can never be the case 
that something is automatically covered by the GPL.

Furthermore, if you create the deriviative work solely for your own use,
and do not distribute it, then there is absolutely no reason for you to
issue any license to anyone for the deriviative work.

Re: GPL and NDA

[Chris Sloan]

You say that it can work if you can atomically GPL and distribute it
but that doesn't make any sense to me.  By creating a dervied work
from a GPL work, the new work is GPL'd from the time of its creation.
You can't (AIUI) un-GPL it distribute it and then re-GPL it and expect
that everything is ok.  If for some reason the NDA + the GPL prevent
the distribution when both in force, then it can't be distributed
because you can't avoid the GPL in the situation described.

	Chris


On Fri, Jul 20, 2001 at 03:36:15PM +0200, Carlo Wood wrote:
> Imho, it works as follows:
> 
> anything + GPL can not be distributed unless it is first GPL-ed.
> If 'anything' disallows changing the license, then it can not be
> distributed period.  However, if the NDA allows B to perform the
> following atomic operation: distibute it back to A and GPL it at
> the same time, then there is no incompatibility with the GPL.
> However, and that is certainly an interesting legal question,
> can something like that be atomic?  If you first GPL it and THEN
> distribute it to A, then there CAN NOT be a restriction to also
> distribute it to C.  While when you first distribute it to A and
> then GPL it, you violated the GPL.  And even when the operation
> can be atomic, A can not distribute it anymore of course - if he
> does that then the orginal authors of the GPL-ed code as well as
> B can legally request a copy - which would be GPL-ed.
> Imho, this is only possible when the transfer from B back to A
> is not considered a distribution as per GPL.
> 
> -- 
> Carlo Wood <carlo@alinoe.com>
> 

Re: GPL and NDA

[dewar]

Carlo, just remember that the entire issue is about copies that possibly
violate the copyright. So in any sequence of actions you must look at all
the copies, and then verify that the GPL specifically licenses you to do the
copy.

Re: GPL and NDA

[Richard Stallman]

    Is this true even if the code is distributed to the people with wich the NDA
    was originally signed? I mean the following scenario:

	Company A provides, under an NDA, information to company B.

	Using this information, B develop, based on some GPLed code, 
	a program for A.

	B then distribute this program (which IS GPLed) to A, but is 
	prohibited to distribute it to anybody else (due to the NDA).

This is permitted, because no GPL-covered code is ever distributed
under an NDA in this scenario.  The code developed by B is distributed
only to A, and A is not placed under any NDA obligations.

I have put this in the GPL FAQ.

Re: GPL and NDA

[Joern Rennecke]

> 
> Imho, it works as follows:
> 
> anything + GPL can not be distributed unless it is first GPL-ed.

You are confused here.  GPL is not a property of the software, but
a license you grant to the entity that you give the software to.

So to satisfy the terms of the GPL, is is sufficient for B to grant
a GPL license for the modified code to A when it delivers its work.

Re: GPL and NDA

[Julian Hall]

I think this is getting a little out of proportion.

There is no issue in this situation.  B is free to distribute under the
GPL to whoever B wishes to distribute.  The GPL does not create an
obligation to supply (other than that to supply source code to anyone
who has had binary copies), therefore in order to comply with the terms
of the NDA, B is free to refuse to distribute the GPL'd code.  Note that
the GPL requires that all 3rd parties be licensed to use it, but this
does not interfere with non-distribution.  Copyright and disclosure are
two separate issues.

The only issue I can see would be if an NDA were to exist in the same
direction as the software was being distributed.  At this point this is
restricting the rights of the receiving party in a manner incompatible
with the rights granted by the GPL.  My understanding of this area of
law is a little hazy, but I understand that in the UK at least NDAs are
considered tenuous at best, and believe that courts would generally rule
in favour of the receiving party being permitted to redistribute the
software.

I hope everyone sees the logic behind what I'm saying here?

Jules

Carlo wood wrote:
On Fri, Jul 20, 2001 at 08:02:23AM +0200, Bernard Dautrevaux wrote:
>     Company A provides, under an NDA, information to company B.
>
>     Using this information, B develop, based on some GPLed code,
>     a program for A.
>
>     B then distribute this program (which IS GPLed) to A, but is
>     prohibited to distribute it to anybody else (due to the NDA).
>
> Is this a violation of the GPL or is it possible, provided that B
distribute
> the program to A with the normal GPL provision of the access to the
source
> code?
>
> Of course if A decide to redistribute the program in any form, then
this
> must be done witout requiring an NDA to conform with the GPL. My
question is
> about the initial "distribution" of the NDA-covered code by B to A.

Imho, it works as follows:

anything + GPL can not be distributed unless it is first GPL-ed.
If 'anything' disallows changing the license, then it can not be
distributed period.  However, if the NDA allows B to perform the
following atomic operation: distibute it back to A and GPL it at
the same time, then there is no incompatibility with the GPL.
However, and that is certainly an interesting legal question,
can something like that be atomic?  If you first GPL it and THEN
distribute it to A, then there CAN NOT be a restriction to also
distribute it to C.  While when you first distribute it to A and
then GPL it, you violated the GPL.  And even when the operation
can be atomic, A can not distribute it anymore of course - if he
does that then the orginal authors of the GPL-ed code as well as
B can legally request a copy - which would be GPL-ed.
Imho, this is only possible when the transfer from B back to A
is not considered a distribution as per GPL.

--
Carlo Wood <carlo@alinoe.com>

Re: GPL and NDA

[Carlo Wood]

On Fri, Jul 20, 2001 at 08:02:23AM +0200, Bernard Dautrevaux wrote:
>     Company A provides, under an NDA, information to company B.
> 
>     Using this information, B develop, based on some GPLed code, 
>     a program for A.
> 
>     B then distribute this program (which IS GPLed) to A, but is 
>     prohibited to distribute it to anybody else (due to the NDA).
> 
> Is this a violation of the GPL or is it possible, provided that B distribute
> the program to A with the normal GPL provision of the access to the source
> code?
> 
> Of course if A decide to redistribute the program in any form, then this
> must be done witout requiring an NDA to conform with the GPL. My question is
> about the initial "distribution" of the NDA-covered code by B to A.

Imho, it works as follows:

anything + GPL can not be distributed unless it is first GPL-ed.
If 'anything' disallows changing the license, then it can not be
distributed period.  However, if the NDA allows B to perform the
following atomic operation: distibute it back to A and GPL it at
the same time, then there is no incompatibility with the GPL.
However, and that is certainly an interesting legal question,
can something like that be atomic?  If you first GPL it and THEN
distribute it to A, then there CAN NOT be a restriction to also
distribute it to C.  While when you first distribute it to A and
then GPL it, you violated the GPL.  And even when the operation
can be atomic, A can not distribute it anymore of course - if he
does that then the orginal authors of the GPL-ed code as well as
B can legally request a copy - which would be GPL-ed.
Imho, this is only possible when the transfer from B back to A
is not considered a distribution as per GPL.

-- 
Carlo Wood <carlo@alinoe.com>

RE: GPL and NDA

[Bernard Dautrevaux]

> -----Original Message-----
> From: Richard Stallman [ mailto:rms@gnu.org ]
> Sent: Thursday, July 19, 2001 1:07 PM
> To: gcc@gcc.gnu.org
> Subject: GPL and NDA
> 
> 
> GPL-covered code may not be distributed under an NDA.
> To do so is a violation of the GPL.
> 
> If someone asks you to sign an NDA for receiving GPL-covered code that
> is copyright FSF, please inform the FSF immediately.  If it involves
> GPL-covered code that has some other copyright holder, please inform
> that copyright holder, just as you would for any other kind of
> violation of the GPL.
> 
> It is possible for a person or company to develop changes to a
> GPL-covered program and sign an NDA promising not to release these
> changes *to anyone*.  This is a different case.  As long as these
> changes are not distributed at all, a fortiori they are not
> distributed in a way that violates the GPL.
> 
> However, if and when the changes are distributed to another person or
> outside the company, they must be distributed under the terms of the
> GPL, not under an NDA.

Is this true even if the code is distributed to the people with wich the NDA
was originally signed? I mean the following scenario:

    Company A provides, under an NDA, information to company B.

    Using this information, B develop, based on some GPLed code, 
    a program for A.

    B then distribute this program (which IS GPLed) to A, but is 
    prohibited to distribute it to anybody else (due to the NDA).

Is this a violation of the GPL or is it possible, provided that B distribute
the program to A with the normal GPL provision of the access to the source
code?

Of course if A decide to redistribute the program in any form, then this
must be done witout requiring an NDA to conform with the GPL. My question is
about the initial "distribution" of the NDA-covered code by B to A.

TIA

	Bernard

--------------------------------------------
Bernard Dautrevaux
Microprocess Ingenierie
97 bis, rue de Colombes
92400 COURBEVOIE
FRANCE
Tel:	+33 (0) 1 47 68 80 80
Fax:	+33 (0) 1 47 88 97 85
e-mail:	dautrevaux@microprocess.com
		b.dautrevaux@usa.net
-------------------------------------------- 

Re: GPL and NDA

[Richard Stallman]

    Would you add something to the GNU web pages about this, if you haven't
    already?  This question seems to come up rather often on these lists.

I will add this to the GPL FAQ.  Thanks for the suggestion.

Re: GPL and NDA

[Mark Mitchell]

--On Thursday, July 19, 2001 05:07:10 AM -0600 Richard Stallman 
<rms@gnu.org> wrote:

> GPL-covered code may not be distributed under an NDA.
> To do so is a violation of the GPL.

Would you add something to the GNU web pages about this, if you haven't
already?  This question seems to come up rather often on these lists.

Gerald, would you mind adding a link to this message from our web-site
somewhere?  I think this is an important question to which we should have
a ready answer.

-- 
Mark Mitchell                mark@codesourcery.com
CodeSourcery, LLC            http://www.codesourcery.com

GPL and NDA

[Richard Stallman]

GPL-covered code may not be distributed under an NDA.
To do so is a violation of the GPL.

If someone asks you to sign an NDA for receiving GPL-covered code that
is copyright FSF, please inform the FSF immediately.  If it involves
GPL-covered code that has some other copyright holder, please inform
that copyright holder, just as you would for any other kind of
violation of the GPL.

It is possible for a person or company to develop changes to a
GPL-covered program and sign an NDA promising not to release these
changes *to anyone*.  This is a different case.  As long as these
changes are not distributed at all, a fortiori they are not
distributed in a way that violates the GPL.

However, if and when the changes are distributed to another person or
outside the company, they must be distributed under the terms of the
GPL, not under an NDA.