🚀 go-pugleaf

In article <03Og4.76$5A4.687@burlma1-snr2>,
Barry Margolin  <barmar@bbnplanet.com> wrote:
>In article <qhya9opagf.fsf@ruckus.brouhaha.com>,
>Eric Smith  <eric-no-spam-for-me@brouhaha.com> wrote:
[snip]
>>If the individual worked for the Coca Cola corporation, and was "given"
>>the formula for Coca Cola as a necessary part of his or her job, that
>>wouldn't give the employee any rights to the formula nor reduce the
>>formula's standing as a trade secret.
>
>But in that case, the employee was presumably under an NDA, which is
>considered sufficient to protect its secrecy.  If he were to disclose the
>formula to a third party not under NDA, it would cease being a trade
>secret, and the employee would presumably be liable for violating their
>contract.
 
  Disclaimer: IANAL, and I'm in the UK (I believe US law is substantially
 equivalent, at least in most states, but YMMV..).

 The employee need not be under an NDA - confidential information is
confidential irrespective of any specific contractual obligation, and
an employee owes a duty of confidence to their employer even over
and above the general duty of confidence owed by any random person. 
Explicit agreements can't really strengthen this significantly (at
least in the UK - the US is substantially more paranoid, and is
I believe currently dabbling in inevitable disclosure as a way
of restraining trade..), and in fact overly wide confidentiality
clauses have been known to be rejected by the courts as being 
unenforcably overgeneral.

 A general duty of confidence probably isn't sufficient, in the
absence of obvious confidentiality markers, to warrant someone 
being barred from acquiring rights to GPL'd software they happen
to find on their machine, but I'd be surprised if a duty to an 
employer wasn't.

>
>However, as we've established in other parts of this thread, an NDA cannot
>override the GPL. 

 Yes and no - it'd be a pair of inconsistent contracts. I'm not sure
what self-help actually allows you to do in this situation.

>If someone is under NDA that would prohibit them from
>further redistributing any software they receive from you, you are
>prohibited from distributing GPLed software to them in the first place. If
>you do so anyway, you're violating the GPL.

 Erm, how ? If you're barred from redistributing gcc (for example), and
I distribute it to you, in what way am I violating the GPL ? I'm not 
restricting your rights at all. In fact, as long as there's no intent
to induce a breach of the GPL, I'm not convinced there's any liability
at all here.

 AFAIK, there are two arguments:
 
  -> If the same entity gave you the software under GPL and made you
  sign the NDA, they may be in breach of contract with the copyright
  holder under clause 6.
  
  -> If A gave you the software and B made you sign the NDA, B may
   be liable in tort against either or both of you and the copyright
   holder, but I think you'd need to prove coercion (for you), or
   malicious intent (for both you and the copyright holder).

 If you're acting as an employee or an agent of the person who
gave you the software, giving you a copy doesn't count as
distribution. If you're a contractor, it probably does, AFAIK 
(though this is a UK-ism - ISTR the US differs from us in 
when and whether it will construct a contract of employment).


Richard.
-- 
Principles are things that everyone thinks everyone else should have.