distribution in open source

Distribution in Open SourceMartin von Haller Groenbaek

partner, Bender von Haller Dragsted

ITechLaw European ConferenceBruxelles, 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

– [email protected]– [email protected]– [email protected]


http://www.bvhd.dk

http://www.bvhd.dk

http://suse.groenbaek.net/openlife

http://suse.groenbaek.net/openlife

http://www.vonhaller.dk

http://www.vonhaller.dk

http://www.linkedin.com/in/vonhaller

http://www.linkedin.com/in/vonhaller

http://www.23hq.com/mhg

http://www.23hq.com/mhg

http://www.slideshare.net/vonhaller


http://www.facebook.com/vonhaller

http://www.facebook.com/vonhaller

mailto:[email protected]






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 copiessøndag den 1. november 2009

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


- 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

Intro


Nordic Copyright Law- Exclusive rights of the copyright

holder

- Making copies (reproduction)

- Making it available to the public

- Distribution

- Public display

- Public performance


- 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

Nordic copyright law


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

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distribution in open source

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