Distribution in Open Source

Distribution in
Open Source
Martin von Haller Groenbaek
partner, Bender von Haller Dragsted

ITechLaw European Conference
Bruxelles, 5 November 2009

søndag den 1. november 2009

– Attorney-at-law, Bender von Haller Dragsted
– Co-founder, Open Source Vendors Ass. (OSL)
– Editorial board IFOSSLR
– Co-founder, Creative Commons DK
– Co-founder, Danish Internet Society Chapter

– http://www.bvhd.dk
– http://openlife.dk
– http://www.vonhaller.dk
– http://www.linkedin.com/in/vonhaller
– http://www.23hq.com/mhg
– http://www.slideshare.net/vonhaller
– http://www.facebook.com/vonhaller

– mhg@bvhd.dk
– martin@groenbaek.net
– groenbaek@gmail.com


Agenda

- What is Distribution?
- In Copyright law
- In Licenses
- Why does distribution matter?
- From theory to cases


Intro
- You can do whatever you want
with the code, as long as you don’t
distribute it

- (if within the granted user rights)
- You will enjoy the same freedoms
- Run the application
- Access source code
- Modify it
- Make copies

Intro
- If you don’t distribute none of the
normal restrictions apply

- No Copyleft
- No preservation of copyright
notices

- No preservation of license terms
- Your patents are unaffected

Intro
- Distributions triggers copyleft
- Distribution is presumed in most
OSS license violation cases

- Distribution is both a legal and
technical concept with different
meanings under different legal
systems


Nordic Copyright Law
- Exclusive rights of the copyright
holder

- Making copies (reproduction)
- Making it available to the public
- Distribution
- Public display
- Public performance

Nordic copyright law
- Consumption within EEA
- permission when rental to the general
public

- permission when lending computer
programs

- Private copies are permitted
- Public “distribution” needs permission
- Private “distribution” is permitted

Kudos to


US Copyright law

- Distribution means...
- "distribute copies...of the
copyrighted work to the public by
sale or other transfer of
ownership, or by rental, lease, or
lending" (7 USC section 106(3))


US Copyright law
- Public performances is not
publication

- "Any forms form of dissemination
in which a material object does not
change hand - performances or
displays on television, for example
- is not publication" ("H.R. Rep.No
94-1476)


US Copyright law
- Distribution is publication (Harper
& Rows Publs., Inc. v. Nation
Enters., 471 U.S 539, 552 (1985).

- Provision of a copy from one
person to another

- Medium of transfer (CD-ROM or
the network is not important)

- Publication does not have to be for
commercial purposes

Any difference?
- US:
- Distribution is publication
- Publication is any transfer (also
private)

- Nordics:
- Distribution is publication
- But public is not private transfers

The difference

- US: Whenever a copy changes
hand, you have distribution and
you need permission

- Nordic: You don’t need permission,
if you distribute privately
(Consumption rules apply)


GPL v2
- Different terms
- “distribute”
- “redistribute” (sec 6)
- “physical act of transferring a
copy” (sec 1, 3rd paragraph)

- “distribute or publish” (sec 2,litra
b. )


GPL v2
- Transferring af copy regardless of
the medium

- ASP loophole
- Transfer from one person to
another

- To goal is to preserve the
freedoms

- The US concept of “distribution”

Other OSS licenses

- BSD license
- “Redistribution”
- MIT License
- “Publish, distribute”


Other OSS Licenses
- Apache License, Version 2.0
- “publicly display, publicly perform,
sublicense, and distribute the
Work” (sec 2)

- “reproduce and distribute
copies” (sec 4)

- Eclipse Public License - v 1.0
- “publicly display, publicly perform,
distribute” (Sec 2, litra a)

Other OSS Licences
- Open Software License ("OSL") v. 3.0
- “distribute or communicate copies” (sec 1, litra c)

- “Distribution and/or Communication: any act of
selling, giving, lending, renting, distributing,
communicating, transmitting, or otherwise
making available, on-line or off-line, copies of the
Work or providing access to its essential
functionalities at the disposal of any other natural
or legal person.” (sec 1)

- “communicate to the public, including the right to
make available or display the Work or copies
thereof to the public and perform publicly” (sec 2)


GPL v3
- To “propagate” a work means to do
anything with it that, without
permission, would make you directly
or secondarily liable for infringement
under applicable copyright law, except
executing it on a computer or
modifying a private copy. Propagation
includes copying, distribution (with or
without modification), making
available to the public, and in some
countries other activities as well


GPL v3

- To “convey” a work means any
kind of propagation that enables
other parties to make or receive
copies. Mere interaction with a
user through a computer network,
with no transfer of a copy, is not
conveying.


GPL v3
- “You may convey covered works to others for
the sole purpose of having them make
modifications exclusively for you, or provide
you with facilities for running those works,
provided that you comply with the terms of
this License in conveying all material for
which you do not control copyright. Those
thus making or running the covered works for
you must do so exclusively on your behalf,
under your direction and control, on terms
that prohibit them from making any copies of
your copyrighted material outside their
relationship with you.” (sec 2, 2nd paragraph)


EUPL v1.1
- “Distribution and/or Communication:
any act of selling, giving, lending,
renting, distributing, communicating,
transmitting, or otherwise making
available, on-line or off-line, copies
of the Work or providing access to
its essential functionalities at the
disposal of any other natural or legal
person.” (sec 1)


Creative Commons

- "Distribute" means to make
available to the public the original
and copies of the Work or
Adaptation, as appropriate,
through sale or other transfer of
ownership


Main rules
- Not distinctions between commercial
or non-commercial

- Physical copies must be transferred
- The transferee must be a third party
- All “public” transfers are distribution
- Some “private” transfers may not be
distribution


Employees

- Not distribution
- A third party but an agent
- A “private” distribution


GPL v3
• Is making and using multiple copies within one
organization or company “distribution”?

• No, in that case the organization is just making
the copies for itself. As a consequence, a
company or other organization can develop a
modified version and install that version through
its own facilities, without giving the staff
permission to release that modified version to
outsiders. However, when the organization
transfers copies to other organizations or
individuals, that is distribution. In particular,
providing copies to contractors for use off-site is
distribution.


Subsidiaries
• 100% owned subsidiaries
• Legally a third party
• US: Probably not distribution due
to unity of ownership

• Nordic: Probably not distribution
as the transaction is not
marketbased (“private”)


Contractors
- The contractor is a third party
- A physical copy is transferred (as opposed to
work on internal servers)

- US: Distribution
- Nordic: Probably a “private” transfer, thus
not a distribution

- Pay the contractor to develop your
modification on your own servers

- You cannot impose an NDA on the contractor

Outsourcing

- The contractor is a third party
- A physical copy is transferred (as
opposed to work on internal servers)

- US: Distribution
- Nordic: Probably a “private” transfer, thus
not a distribution


M&A
- Only assets, not share, sales
- The acquiror is a third party
- A physical copy is transferred
- US: Distribution
- Nordic: Distribution
- But both parties share interests!


My case
- One party is developer, the other online
service provider (client)

- Code is developed at client’s server and
site

- Developer has copyright, the client a
license

- Open source software is used without
copyright notice or license terms

• Has the OSS license terms been violated?
Escapes

Thank you for your attention

Presentation also available at

http://www.slideshare.net/vonhaller


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