Subject: Re: Change ot topic, back to OVPL
From: Alex Bligh <alex@alex.org.uk>
Date: Thu, 25 Aug 2005 19:08:12 +0100

Ian,

--On 25 August 2005 10:50 -0700 Ian Lance Taylor <ian@airs.com> wrote:

>> However, we were looking to change the CDDL as little as possible.
>> Neither the GPL, MPL, or CDDL define distribution - I think the OSL is
>> the only license that does.
>
> To point out what is probably obvious, the GPL doesn't define
> distribution because the GPL is intended to ride on top of copyright
> law.  For the GPL, distribution of the work means any time that
> copyright law applies.

Yes, I agree. And the same applies to other licenses that don't
define distribution but use the legal principles to provide a definition
(e.g. MPL, CDDL, OVPL).

> I'll also note that, for the GPL, distribution within a company will
> pretty much always be in terms of clause 3a--the source code is also
> available with the binary--so the GPL does not require the source code
> to be made available to anybody else.

That would be sensible, but that's not what the GPL says (the relevant part
of Clause 3 reproduced below).

If there is "distribution" (within the meaning of the term), under whatever
circumstance, one of the limbs of Clause 3 must be satisfied. Assuming
companies are commercial for the time being, that means 3(a) or 3(b).

Let's assume the IT department install a modified GPL app on their
call-center staff's platform. They chose not to accompany that by the
source. IF that is "distribution" within the terms of the GPL, then (as
they didn't do 3(a)), they MUST do 3(b), which is to accompany it with a
written offer, to give ANY third party a copy of the source. Agree? [1]

Now, I argue the reason why this isn't in practice a problem is simply
because what they are doing is not "distribution" within the terms of the
copyright act. The distribution occurred when the company originally
received the code. Since its modification, the company has not distributed
it (sent it to a third party) because it is installed in the call center
for the use of the same legal person. A court will not see this as
distribution, just like if employer X uses employee A to buy a software
license that in turn is used on employee B's PC.

[1] a subtlety is that where 3(b) is used, the offer has to be "to give any
third party" the source, but the offer has to be transmitted solely to the
recipient of the program. I read this as that the offer is made to the
world at large. I suppose an alternative reading is that only the person to
whom the offer is transmitted is capable of accepting it, but they may
require that the source code be transmitted to a third party, as opposed to
themselves. So if Alice gives Bob an executable built from modified GPL'd
code, the offer has to be transmitted to Bob only, to give "any third
party" the source code. Does that mean only Charles (or the FSF) can
require Alice to provide the source code (the normal interpretation), or
that only Bob can require Alice to provide the source code (but he could
require it to be sent to Charles (or the FSF))?

Alex


3. You may copy and distribute the Program (or a work based on it, under
Section 2) in object code or executable form under the terms of Sections 1
and 2 above provided that you also do one of the following:

    a) Accompany it with the complete corresponding machine-readable source
code, which must be distributed under the terms of Sections 1 and 2 above
on a medium customarily used for software interchange; or,

    b) Accompany it with a written offer, valid for at least three years,
to give any third party, for a charge no more than your cost of physically
performing source distribution, a complete machine-readable copy of the
corresponding source code, to be distributed under the terms of Sections 1
and 2 above on a medium customarily used for software interchange; or,

    c) Accompany it with the information you received as to the offer to
distribute corresponding source code. (This alternative is allowed only for
noncommercial distribution and only if you received the program in object
code or executable form with such an offer, in accord with Subsection b
above.