Julian Hall jules at
Fri Jul 20 15:43:34 UTC 2001

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

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


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
> the program to A with the normal GPL provision of the access to the
> code?
> Of course if A decide to redistribute the program in any form, then
> 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 at>

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