Distribution in Open Source

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My presentation for the annual European Itechlaw conference in Brussels, which I unfortunate cannot deliver due to being in bed with the flue

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Distribution in Open Source

  1. 1. 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
  2. 2. – 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 søndag den 1. november 2009
  3. 3. Agenda - What is Distribution? - In Copyright law - In Licenses - Why does distribution matter? - From theory to cases søndag den 1. november 2009
  4. 4. 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 søndag den 1. november 2009
  5. 5. 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 søndag den 1. november 2009
  6. 6. 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 søndag den 1. november 2009
  7. 7. Nordic Copyright Law - Exclusive rights of the copyright holder - Making copies (reproduction) - Making it available to the public - Distribution - Public display - Public performance søndag den 1. november 2009
  8. 8. 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 søndag den 1. november 2009
  9. 9. Kudos to søndag den 1. november 2009
  10. 10. 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)) søndag den 1. november 2009
  11. 11. 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) søndag den 1. november 2009
  12. 12. 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 søndag den 1. november 2009
  13. 13. Any difference? - US: - Distribution is publication - Publication is any transfer (also private) - Nordics: - Distribution is publication - But public is not private transfers søndag den 1. november 2009
  14. 14. 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) søndag den 1. november 2009
  15. 15. 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. ) søndag den 1. november 2009
  16. 16. 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” søndag den 1. november 2009
  17. 17. Other OSS licenses - BSD license - “Redistribution” - MIT License - “Publish, distribute” søndag den 1. november 2009
  18. 18. 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) søndag den 1. november 2009
  19. 19. 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) søndag den 1. november 2009
  20. 20. 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 søndag den 1. november 2009
  21. 21. 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. søndag den 1. november 2009
  22. 22. 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) søndag den 1. november 2009
  23. 23. 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) søndag den 1. november 2009
  24. 24. 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 søndag den 1. november 2009
  25. 25. 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 søndag den 1. november 2009
  26. 26. Employees - Not distribution - A third party but an agent - A “private” distribution søndag den 1. november 2009
  27. 27. 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. søndag den 1. november 2009
  28. 28. 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”) søndag den 1. november 2009
  29. 29. 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 søndag den 1. november 2009
  30. 30. 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 søndag den 1. november 2009
  31. 31. 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! søndag den 1. november 2009
  32. 32. 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 søndag den 1. november 2009
  33. 33. Thank you for your attention Presentation also available at http://www.slideshare.net/vonhaller søndag den 1. november 2009

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