Question on OSD #5

[Matthew Flaschen]

Chris Travers wrote:
>> However, if the NSA wants to distribute outside their organization, they
>> can't put any additional restrictions on the code.  It doesn't matter
>> /how/ it is transmitted out.  Once it leaves the entity (NSA in this
>> case), it can be freely distributed by the recipient.
> 
> That is more or less the line I was drawing.  The idea is that secrets
> can be kept secret without violating open source, and that  the
> enforcement of secrecy rules is sort of beyond our discussion.
> 
> However, I would say that the entity is actually the US government in
> this case, not the NSA, and they would be allowed to distribute to
> other government agencies.

Possibly.  This is arguable.  Nevertheless, I definitely don't think
classified contractors and foreign governments would be the same entity,
though the "direction and control" exception may apply, depending on the
details.

>> That doesn't mean they /will/ distribute it, and there can be informal
>> understandings not to, but I believe any legal requirement not to would
>> be a GPL violation.
> 
> But suppose it is distributed without permission.  I.e. if I make
> private modifications of a GPL'd application and one of my employees
> steals and publishes it, it would seem to me that my employee (and all
> downstream distributors) might well be guilty of copyright
> infringement,

IANAL, but your employee would be in violation of their contract.  I'm
not sure about copyright law.

> and my employee might well be guilty of violating trade
> secret protections depending on the nature of the modifications.

They would seem to be also violating trade secret or classification
protection.

> If patents were involved, such clandestine distribution would not
> automatically license the patents, by my reading.

IANAL, but I think what happens is the company argues that licensing
patents is out of the scope of the employee's job.  Thus, a receptionist
can never successfully license something.  But the general counsel may
be able to, even against company orders.

Matt Flaschen