[OT] some weird GPL licensing questions

[Andreas Pour]

Brad Hards wrote:
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> On Sat, 14 Feb 2004 05:46 am, Andreas Pour wrote:
> > E.g., if Company Acme tells Employee Bob to modify a GPL program to serve
> > the company, Acme cannot tell Bob not to redistribute the resulting
> > program.  Of course Bob may on his own decide not to do so, but Acme is
> > prohibited from restricting Bob; if Acme does, it loses the right to copy
> > and distribute the software itself.
> The fundamental point is whether Employee Bob is acting for himself, or for
> the company. There are two legal entities involved - Acme, and Bob. The
> subtle point is whether Bob is acting as an integral part of Acme, or as an
> individual.

And this makes a difference how?
 
> Consider a commercial programming company (which you can assume is producing
> proprietary software if you wish, but that makes no difference to the
> situation). When a programmer produces code as an employee, that code does
> not belong to her - it belongs to the company.

That is the work for hire doctrine.  But I fail to see how that has a bearing on
this issue.  If an employee modifies a GPL'd work, it may very well be that the
copyright to the modifications reside in the company, but that does not mean,
that the employee does not have a GPL license on the copy the employee is
working on.  Indeed, I would think the employee does have this.

But the situation gets easier again when the developer employee distributes a
copy to another person.  Then the entire work must be under the GPL, under the
viral clauses of the GPL.
 
> > The conundrum you run into is that it is not possible to actually use
> > software w/out distributing it to an employee, since a corporation is only
> > a legal entity and cannot take actions in real life (such as installing
> > software).
> I don't think so. When Acme provides software to Bob, it typically only does
> so to Bob acting as an integral part of Acme, not to Bob the private person.

There is no "integral part" thing in law, you are perhaps referring to "agency"
and that Bob is acting as Acme's agent.  Nevertheless, it is still a
distribution and you have still made a copy and Bob is still a recipient under
the GPL.  If you want to bring in the law of "agency" then why can I not modify
KDE and sell it to a client but specify that whenever the client uses the
software, it is acting as my agent, and thus is not entitled to any rights under
the GPL?  The law of agency is actually pretty broad and goes beyond the
employer / employee relationship.  But the key point is that the GPL makes no
exception for agents, though of course it could do so.

> If it provides software to Bob to use on a machine at home (that belongs to
> Bob, and is used for non-work activities) then that is "distribution".

Are you making up the meaning of this word, or have you looked up the meaning? 
Note the GPL does not just use the word "distribution", it also uses words like
"transfer", "recipient", etc., and all of these words apply also to the employer
/ employee relationship.

Read carefully Section 6 of the GPL.
 
> > Of course it would have been possible to draft the GPL in a way which
> > allowed what the FSF claims; however, the FSF did not do so.
> In most countries, the person or organisation that drafts the document has
> most say in how it is interpreted. If the FSF claims that is what GPL means,
> then to a first approximation, that is what GPL means.

Actually it is not the drafter but the licensor who has the most say - the
drafter is typically a lawyer and lawyers are not typically asked their
opinion.  I.e., in some cases the subjective intent of the *parties* (not
drafters) to the contract is evaluated.

Since the number of GPL licensors are so many and varied, and since it would
somewhat defeat the purpose of the GPL if the license had a different legal
meaning depending on who elected to use it and what his or her subjective intent
was (which of course would be particularly difficult in cases like the kernel
where large numbers of people have contributed to it), the only sensible way,
IMO, to interpret the GPL is for the court to look at the objective meaning of
the language.  Anything else is pure folly.
 
[ ... ]

Ciao,

Dre