[OT] some weird GPL licensing questions

[Andreas Pour]

Thiago Macieira wrote:
> 
> Andreas Pour wrote:
> >The point you miss, I think, is that a company cannot act in the real
> > world.  It takes a human to do so.  This human has rights under the
> > GPL the moment he receives a copy, which rights the company cannot
> > take away.
> 
> I see your point. You understand that a "company" may not install a
> software without human intervention, without the transferral of the
> copyrighted material from one entity (the company) to another (the
> employee). Hence, it's impossible to not distribute the software when
> you want to deploy it.

Under the GPL I wonder how a company can receive a copy in the first place.  The
GPL deals with the person who received a copy - and this is not a company. 
I.e., I don't see how you a company (as opposed to whatever employee acts for
the company) gets rights under the GPL in the first place.

> However, given that a company has certain rights like those of a person,
> it's a matter of interpretation whether an employee can act on behalf
> of the company.

Sure an employee can, but, that does not mean, as you seem to imply, that there
has been no copy made for copyright purposes.  Under copyright law you may not
make any copy of a software program w/out permission, subject to some
appropriate "fair use" exception (for US law, see 17 USC 117
(http://www4.law.cornell.edu/uscode/17/117.html).  Note that Section 117(a)(1)
even has an exception for copying the binary from the hard drive into RAM, since
that is a copy for copyright purposes.  This highlights the point that the
prohibition a/g copying is very stringent.

> My interpretation says it's possible. That way, there
> is no distribution, since the licensed software has never left the
> hands of the company.

Not to nitpick, but a company does not have hands.  Section 6 of the GPL states:

  Each time you redistribute the Program ..., the recipient
  automatically receives a license from the original licensor
  to copy, distribute or modify the Program subject to these
  terms and conditions.

Now your argument would be, assuming the company is the one with rights under
the GPL, that telling an employee to go install a copy is not a redistribution
to the employee.  But legally an employee and a company are separate persons, so
there is a distribution.  And it is pretty difficult to argue, the employee is
not a "recipient".  Since the employee is a recipient, there is this automatic
transfer of rights under the GPL.

You might say, but the distribution is with limited rights.  However, the GPL
prohibits distribution with limited rights, in the next part of Section 6:

  You may not impose any further restrictions on the recipients'
  exercise of the rights granted herein.

Note, again, the reference to the "recipients' ... rights".

> >In this case, for sure the tech deparment employees received copies
> > and the company cannot restrict them from further redistribution
> > (i.e., outside the company).
> 
> I find that there's a difference between giving someone something (thus,
> requiring transferral of GPL rights) and the "lending" of something so
> that the employees can act on behalf of the company.

Well if there is such a thing as "lending" I do not see why it is limited to a
company / employee relationship.  Maybe I modify Konqueror and "lend" my
modified version to my customer, indeed I might lease my modified KDE desktop to
my customer for $100 per year.  Do you think it is so easy to subvert the GPL?

> It's also possible that, to circumvent this kind of interpretation, a
> company just develop a deployment software, so that the original GPLed
> software can be installed without human intervention.

I am sure there are ways to strip users of GPL rights - one way of course is
web-based services.  What you suggest is perhaps another way.

> And the
> developers are usually bound by contracts which state what they produce
> at the company, during working hours and using company's hardware is
> company's properties and copyrights.

If this clause is applied to GPL software then Section 6 of the GPL is violated
and the company loses its rights under the GPL to copy and distribute the
software.  The employees however retain their rights.  In other words, that
don't work.  If it did, I could enter into a similar agreement with my
customers, and avoid them getting GPL rights.

What you seem to be missing is there is nothing magical about the employer /
employee relationship.  If you argue it works for employer / employee, why not
for government / subject, vendor / customer, contractor / client, etc.?
 
> These two are my arguments for believing what I said above of
> distributing != deploying. And it seems quite clear we are not going to
> reach a consensus here of what is legal interpretation.

:-)
 
> Therefore, anyone who's interested in this kind of intra-company
> deployment should consult with their lawyers and their local
> legislation.

Yes, that is a good idea always.

Ciao,

Dre