Distribution In Open Source Itech Law Asia (05 02 2010)

Distribution in Open SourceMartin von Haller Groenbaek

partner, Bender von Haller Dragsted

ITECHLAW ASIA 2010Bangalore, 5 February 2010

1torsdag den 4. februar 2010

– 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://www.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]






Questions

-What is Distribution?

-Why does distribution matter?

-Is there a business model?


Intro

- Open source gives you four rights or freedoms

- Run the object code

- Access source code

- Modify it

- Make and transfer copies


Intro

- Whether you distribute or not, you will enjoy these four freedmos

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

- (if within the granted user rights)

- But many of the normal restrictions will not be applicable


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


Modification?

•Droit moral?


-Distribution triggers copyleft

-Distribution is presumed in most OSS license violation cases

Intro


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))


Any differences?- US:

- Distribution is publication

- Publication is any transfer (also private)

- Nordics:

- Distribution is publication

- But publication 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)


OSS licenses

•“Traditional” OSS licenses are US-centric

•Notable exceptions are EUPL and GPLv3


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

- 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)

- Open Software License ("OSL") v. 3.0

- “distribute or communicate copies” (sec 1, litra c)


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.


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


Rules of thumb- 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


Subsidiaries

•100% owned subsidiaries

•Legally a third party

•US: Probably not distribution due to unity of ownership doctrine

•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!


ASP loophole

• Does Google release its modifications?

• Making functionality available via the Internet is not distribution

• A physical copy of the code is not transferred

• Copyleft is not triggered

• Network exception in GPLv3


The Business model-Dual licensing

-The copyright holder can license under different licenses

-Licensees that need to avoid copyleft provisions can buy a different license


Case study


Thank you for your attention

Presentation also available at



Distribution In Open Source Itech Law Asia (05 02 2010)

Technology

Transcript of Distribution In Open Source Itech Law Asia (05 02 2010)