Are NDAs enforceable if they require violating copyright?

Question

As NDAs and copyright violation usually do not go together, I'll provide some background:

Suppose that a company, we'll call them Olio, created a smartwatch that uses publicly available computer code from the Linux project. Under the terms of the GNU General Public License, Linux's copyright license, it is fine for Olio to use Linux in their smartwatch, under the condition that, if Olio makes any changes to Linux's code before putting it on their watch, they make their edited code publicly available. Well, Olio uses Linux, with changes to its code, in their watch, but they never released this edited code. A few years later, Olio goes bankrupt and is bought by another company, we'll call this company Flex. As part of the acquisition, Flex requires that all of Olio's employees sign NDAs barring them from disclosing just about any information about the Olio watch, including the edited Linux code, which, under Linux's copyright license, has to be publicly available until 2020 (three years after Olio's last official use of their modified Linux code).

If one of Olio's former employees with a copy of this edited Linux code were to release it, as required by Linux's copyright license, would they be punishable for violating the NDA?

Answer 1

The requirement to make the code publicly available is binding on Olio, and on Olio's successor, Flex. Olio, by accepting the code under the GPL, had contracted with the original author of that code, one of the contract provisions being to make any modified code available publicly.

If Olio fails to abide by that agreement, it is in violation of the license, and the original author could sue Olio for copyright infringement, or sue Flex as having bought the assets and liabilities.

But the individual employees of Olio are not under any obligation to publish such modified code, as they were presumably not parties to the license deal -- Olio was. Therefore the NDA does not require them to violate any law or contract to which they might be parties. The NDA could probably not be used to prevent the employees from testifying if called in such a copyright suit.

If the NDA did require an illegal action, it would be void. If it merely required a person to violate a civil agreement that could be settled for money, it might or might not be enforceable, depending on the exact provisions, its reasonableness under the exact circumstances, and the local law.