Distribution in Open Source Martin von Haller Groenbaek partner, Bender von Haller Dragsted ITECHLAW ASIA 2010 Bangalore, 5 February 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

20/80

3 questions in 20 minutes

Goal

F.U.D

FEAR

UNCERTAINTY

DOUBT

Open Source means Business

model

3 questions in 20 minutes

#1 What is distribution?

#2 Why does it matter?

#3 Show me the money!

Open source intro

All about licenses

Not contracts

Comply or don’t use

4 freedoms (or license rights)

#1 Run the object code

#2 Access source code

#3 Modify the source code

#4 Make and transfer copies

Also user restrictions!

These rights are yours…

…regardless of distribution

No distribution = (almost) No restrictions

Distribution = Restrictions

Copyright notice preservation

License terms preservation

Access to source code

Your patents are affected

Copyleft

Release your own modify code…

…under the same license

Distribution = Copyleft

Most open source caselaw…

…involves distribution

Answer Question 2

Does distribution matter in open source?

YES!

Most restrictions in OS licenses Presupposed Distribution

In particular, Copyleft

Question 1: What is Distribution?

Answers in

Copyright law

Open Source licenses

US Copyright law

"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 transfer of a copy

Nordic Countries (and the EU)

Any transfer of a copy

Exception: Private copies

Commercial and non Commercial

The text of the OS Licenses

US-centric by tradition

GPL v2

70%

“distribute” “redistribute”

“physical act of transferring a copy” (sec 1, 3rd paragraph)

BSD license “Redistribution”

MIT License “Publish, distribute”

Apache License, Version 2.0 “reproduce and distribute copies” (sec 4)

Eclipse Public License - v 1.0 “publicly display, publicly perform, distribute” (Sec 2, litra a)

Answer Question 1

What is distribution?

3 rules of thumb

#1 Physical copy must be transferred

#2 The transferee must be a third party

#3 No distinction between commercial or non-commercial

US vs. EU

All “public” transfers are distribution

Some “private” transfers may not be distribution

Grey areas

Employees

Never distribution

Freelancers vs. Contractors

A contractor is a third party

A physical copy of code is transferred

Internal servers

”Public” vs. ”Private”?

Subsidiaries

Third party

Joint ventures = Distribution

100% owned subsidiaries

US: ”Unity of Ownership” = Maybe not distribution

EU: ”Private” transfer = Maybe not distribution

Outsourcing

Third party

A physical copy of the code is transferred

US: Distribution

EU: Probably a “private” transfer

M&A

Only assets, not share, sale

The acquiror is a third party

A physical copy is transferred

US: Distribution

EU: Distribution

Copyleft is triggered

Problem?

No!

GPL is a hereditary License!

Google?

Heavy user of Open source software

Lots of modifications!

No access to source code 

ASP loophole

GPLv3: Network exception

Functionalities via Network

Browser Internet

A physical copy of the code is not transferred

Copyleft is not triggered

Controversy!

Answer Question 3

Business?

Lawyers get paid to explain!

Dual licensing

The licensor’s free choice of licenses

Choice #1 GPL

Copyleft

Company uses GPL’ed software

Makes modifications

Wants to distribute modifications

… but does not want to release source code!

Trade secrets

Choice #2

License with copyleft exemption

…and with a license fee!

MySQL AB

Database software under GPL v2

”Commercial” license with no copyleft

…and with warranties and support

Sold to SUN in 2008

More than USD!

All software open sourced!

Open source means business!

Slides at haller

Thank you!