Re: [linux-audio-dev] GPL concerns

On Wed, 2005-04-06 at 14:56, Shane wrote:
> Jan,
>
> Thank you for your comments. I should clarify from the perspective of
> an independent software developer with no previous relationship to the
> company issuing the NDA that may or may not be valid or legal...
>
> First of all, the (hypothetical) NDA requires that the copyright to any
> work rendered for the company based on the codebase in question be
> retained by the company. Some parts are developed in house, some are
> GPL. The NDA also essenstially asks that I surrender my right under the
> GPL or other applicable licenses to redistribute any part of this work.
> While this company has stated that they will release the entire codebase
> under GPL into the public domain (including the parts they have
> developed as the GPL would require) once the project is completed, I
> would feel better if the agreement stated that fact in writing, perhaps
> specifying a period in which the NDA no longer applied (such as after
> the product release, project abandonment, or company dissolvement).
> Would this have any change on the legal status of such an agreement??
>

    First, IANAL. Someone else (I'm sorry I forget who) posted some
links to the GPL FAQ. After reading that it appears to me that you can
sign an NDA to work on GPL software for a company without releasing it.
I was concerned that the act of "distributing" the code to you would be
enough to kick the GPL into gear. According to the FAQ, even though
you're not an employee of the company, this is still legal.

> My understanding of the intent here is to find developers who will agree
> to the NDA, distribute protype hardware, distribute the codebase
> necessary to work with the hardware, finish the job, and release the
> entire project to the public (minus probably hardware schematics). Now
> because their project contributions are GPLed and at least I as a
> developer would receive the source along w/ binaries, that in itself is
> not a violation... but in asking someone to surrender their rights to
> redistribute through a separate agreement, does this actually violate
> the GPL? Would such a document asking one to do so even be valid in a
> magistrate (since the GPL existed before the document in question)? Or
> is it simply an individually binding agreement between the company and a
> developer?
>

The clause waiving your rights to distribute would appear to be valid as
well - until they release it under the GPL. At that point you're in the
same boat with everyone else. From what you're saying it seems to me
that the company would like to keep all of their work in-house until
release date just to steal a march on the competition. They can't
possibly prohibit you from distributing once they release it as GPL
because (I'm pretty sure) that, in itself, would violate the GPL whether
it's a pre-existing agreement or not. If they never release the code
then you would still be bound by the agreement so, if the company
dissolves before they distribute, you would theoretically be unable to
distribute the code. Since the company would then no longer exist I
have to wonder who would be trying to sue you for breach of contract ;-)

> If this is all no good, are there any revisions that might make it more
> plausible (with the intent of preserving their time to market in a
> legally binding agreement). Is there anything in particular as a
> software developer that I should request be modified in the agreement
> before getting involved myself? I have a distinct feeling that such a
> hypothetical company may not have much of a legal arm and that insights
> and suggestions might go a long way in improving their NDA policy.
>

    I believe that you could sign an agreement stating that you would
not begin, or work for, a company with a competing product after working
for this company. In that case I believe there is usually a time clause
such that after a specified number of years you could work for a
competing company. A contract of that sort would have nothing to do
with the GPL but would assure the company that you wouldn't take their
idea and your expertise to a competing company. The competition will
know about it as soon as it is released but if they don't have the
expertise on hand it would take them longer to spin up.

    Just my 2 cents worth :)

Jan
Received on Thu Apr 7 04:15:08 2005