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Re: software licensing


john@dhh.gt.org writes:
> It is obviously true that threatening to murder someone is not a violation
> of the GPL. So what?  It's a copyright license, not a code of
> criminal law.

What I was trying to suggest is that you cannot get around the terms
of the GPL by applying duress, merely because that duress is entirely
separate from the software license.  In such matters, the court will
take into account the intent of the parties as well as the effect of
their actions -- if I threaten to kill you if you copy my GPLed code,
it is plainly obvious that my actions are an attempt to circumvent the
terms of the GPL, and they will probably be interpreted as such when I
get dragged into court.

The law may be crazy at times, but it isn't entirely stupid :)

> The employer has made copies of the program, but has not distributed
> them.

Copyright law prohibits all copying except where explicit permission
is given.  The GPL only gives that permission when all of its terms
are applied to every copy of the program.  Therefore, if the GPL is
not followed, the employer cannot make even a single copy of the
program (except what is allowed in copyright law for backups, etc.)

The same argument could be used to justify commercial piracy.  Is it
okay for my employer to hand out copies of Microsoft Office in
violation of its license, because he is only copying but not
distributing them?  I dare say Microsoft would have a problem with
this, and the courts would agree.

Violating the GPL is no different under the law than ordinary piracy,
and the legal aspects of the latter are quite well established.

> He owns the copies, which his employees are using under his
> direction as part of their jobs.

The employer owns the code which he added; he most definitely does NOT
own the original GPLed code, and hence has no right to make copies
(or, for that matter, a derived work) without the explicit permission
of the copyright holder -- and that permission comes with infectious

> As the copies are his property, he gets to say what is done with
> them.

It doesn't matter who owns the physical copies.  The employer is
subject to the GPL by making a derived work, which comes even before
the question of redistribution.  If the employer doesn't follow the
GPL, he violates it *merely by creating the modified program* even
before he starts to distribute it.

> In particular, he can tell his employees not to make or distribute
> any copies without his permission.  This is a matter of property
> rights, not copyright.

Copyright *is* a property right -- and the author of the original
GPLed program is the one whose property involved.  Sure, the employer
might be able to control the disposal of the physical media, but the
software itself is a separate piece of property, with different

> Of course, if an employee does make a copy (not using the employers
> materials) and give it away the employer cannot get that copy back
> or prevent further distribution.

Indeed, but that is exactly what this hypothetical employer is trying
to do, by saying "I'll fire you if you distribute this GPLed

> The GPL is not a contract.

It is a legal agreement in exchange for consideration -- I give you
the right to use my software, and you accept my terms.  Sounds like a
contract to me... the fact that it is not signed means nothing, as
there are many kinds of contract that do not require a signature.

If the GPL is not a contract, then how exactly is it supposed to be
enforceable?  (This might be a problem in general with software
licenses... if it is, however, we have much bigger problems than these
minor GPL technicalities.)

> The employees have not been given the code.  They have temporary possession
> of copies of it which belong to the employer.

If the employer doesn't follow the GPL, those copies are illegitimate
even before the issue of their possession comes into the picture.

- --Rob

- -- 
Rob Tillotson  N9MTB  <robt@debian.org>

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