[OT] some weird GPL licensing questions

[Andreas Pour]

Olaf Jan Schmidt wrote:
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> [Andreas Pour, Sa 14.02. 2004 01:53:01]
> > 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.
> 
> Why not?
> 
> The GPL does not claim that only human persons can act as a recipient.
> This means that any legal person can become a recipient, being either a
> human person or a foundation or a government.

The GPL has some unique aspects to it.  I do not mean to suggest that one cannot
write a contract or a license to apply to legal entities such as corporations;
certainly one can.  But as I noted there are some unique aspects to the GPL,
namely, that it is viral in nature, and not only in terms of the code that is
subject to it, but in terms of who is granted rights under it.  All you have to
do is touch a copy, and you have the rights; even if you are only an
intermediary.  This makes it unlike virtually any other contract or license,
whose goal is to restrict carefully who has rights and make sure most people
have no rights; the GPL OTOH is written to spread rights as widely as
practicable.

Read the preamble and about the concept of "copyleft" ;-).

> If a software is licensed to a company, then this license is _never_
> refering to a particular human.

But the language used in these licenses is different.  Show me a license like
that, which grants rights to everyone who receives a copy (see Section 6 of the
GPL).

A corporation is a legal entity and as such can have and exercise legal rights. 
However it still has somehow to be granted those rights.  You can make an
argument about constructive reception of rights via an employee agent; but I
think this argument would contravene Section 6 when read in conjunction with the
Preamble.  I am not saying that this argument in par. is as clear as the main
argument I make (which is, that a Company distributing to its employees is
subject to the GPL's prohibition a/g introducing additional restrictions), but
my best interpretation of the GPL is that the actual recipient (the acting
person), rather than some constructive recipient (the company employer), gets
the rights under the GPL.

> If the human person who installed the
> software leaves the company (even if it is the boss), the license is
> still valid.

Sure, but that is b/c the license applies to everyone.  It is not like most
EULAs that only one person can hold a license or so.  It is viral copyleft ;-).
 
> This also means that as long as a GPLed work does not leave the company,
> no redistribution to another legal person happens.

I could not disagree more with that, but you can take the legal risk.  I would
sue a company who tried to restrict their employees from redistributing the GPL
software I have written (except in group situations, in those cases suing is a
question the group should decide as a whole).  Perhaps I would lose, but I
think, to the extent the GPL is enforceable, I would win.  The way I read it,
the rights under the GPL apply to anyone who receives a copy, and nobody may try
to take those rights away.

And BTW I do not like politically your implication that employees are property
of a company.  Slavery was banned long ago in most parts of the world. 
Employees are separate legal entities from their employers and have their own
set of rights, incl. under the GPL once they receive a copy (see Section 6).

> > 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.
> 
> No, because the employee is a member of the company. The company can only
> act via humans, who are each legally distrinct from the company. Your
> statement implies that humans can only legally act for their own person,
> but if this were true, no company could possible do anything.

I don't think you understand the law of agency.  It is possible for a person to
act as an agent for another, and thus to accrue rights and obligations for
another (an employee is an agent), but this does not mean the agent has its own
rights.  For example, if you work for Company X, and I give you a gift, the gift
is legally yours, regardless of what the company thinks (of course it can fire
you for accepting the gift, but the gift is not legally the company's
property).  In other words, just b/c you are an agent, does not mean you are a
slave - you still have rights which you can receive and obligations which you
can incur.  It happens that the GPL conveys rights to anyone who receives a copy
of the program.
 
> > > 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
> 
> Why that? If this were true, then all code in Linux copyrighted by IBM
> would be in violation of the GPL. It was also written by employees who
> are not mentioned as the copyright owners.

I thought you meant the developers have no rights.  Under the work for hire
doctrine the employer can own the copyright (note that the work for hire
doctrine is something specifically enacted into law, since by default, the
rights you accrue as an agent (employee) do not automatically get transferred to
the principal (employer)).  My point is, the employee would still have rights to
the code under the GPL.  I would note that this issue is not as clear to me as
the one about the company distributing software internally - on that one I have
very little doubt.

> > 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.
> 
> This would require you and your customers to set up a company or other
> foundation, and not to use the software for anything other than for the
> purposes of the company / foundation.

Not really.  The employer / employee relationship is simply a principal / agent
relationship, to the extent relevant to the GPL, so I would only need to
establish a principal / agent relationship.  These can take many different
forms, including an independent contractor.

But then you can go one step beyond that and note there is only one aspect of
the principal / agent relationship which is key to your argument, and that is,
that when the employee "receives" the Program he receives it constructively for
the employer.  So I need only make an agreement with my client that, for
example, he holds the Program constructively in trust for me, but he has the
right to use it at my discretion, and basically craft a standard EULA around
that.

And I don't see how you draw the line there.  Either "receive" means "receive",
or it doesn't.  I think the meaning of "receive" is damn clear and I don't see
the point in stretching the meaning to strip rights from the many for the
imagined benefit of the few.

To take a sky view picture:  corporatism is a nasty trend in the world in which
fictional legal entities get ever more rights and powers while humans continue
to lose them.  I find it particularly curious that this strained reading of
clear language is so prevalent in a free software community.  Remember that the
GPL is about freedom for everyone, not just the elite propertied classes that
happen to own and control corporations.  Read my sig ;-).

That said, try to understand the word "recipient" w/out some corporatist
agenda.  Everyone who receives a copy has rights under the GPL.  It's really
very simple and straightforward.[1]  If Person A sends you a program, you are a
"recipient" of the Program under any common understanding of the word, even if
both of you work for Company B and are doing so as part of your official duties
(or I imagine if there is a crime that says it is illegal to receive stolen
goods, under your reading it would not violate the law if an employee knowingly
gets stolen goods from another employee, right, since it is the Company and not
the employee which receives them?).

[ ... ]

Ciao,

Dre

[1] From Webster's New Universal Unabridged Dictionary (Deluxe 2nd Ed. 1983):

  recipient:
    (1) a receiver; one to whom or that to which anything is
        communicated or given.
    (2) a reciever (sense 2a).  [Obs.]

  receiver:
    (1) a person who receives; specifically, (a) a person who
        officially receives money, etc. for others; a collector;
        a treasurer; (b) a person who knowingly receives stolen
        goods for gain or concealment; a fence; (c) in baseball,
        a catcher; (d) in law, a person appointed by a court to
        administer or hold in trust property in bankruptcy or
        in a lawsuit.
    (2) a thing that receives; ...

  receive (v.t.):
    (1) to take into one's possession (something given, offered,
        sent, etc.); to get; accept; acquire.
    (2) to encounter; experience; as, she *received* much acclaim.
    ...

  receive (v.i.):
    (1) to get, accept, take, or acquire something; to be a
        recipient.
     ...

-- 
None are more hopelessly enslaved than those who falsely
believe they are free.
  -- Johann Wolfgang von Goethe