Subject: Re: External deployment / Otherwise Make Available (was Re: OVPL summary)
From: Michael Bernstein <webmaven@cox.net>
Date: Thu, 15 Sep 2005 08:57:01 -0700

On Thu, 2005-09-15 at 11:15 +0100, Alex Bligh wrote:
> 
> --On 15 September 2005 10:51 +0100 Alex Bligh <alex@alex.org.uk> wrote:
> 
> >> "Otherwise Make Available" shall, with reference to software, mean the
> >> use of that software in such a manner that it may be used by one or more
> >> parties other than You, or (in the course of their employment) Your
> >> employees, or (in the exclusive course of their duties to You) Your
> >> contractors, whether such use is achieved by means of making that
> >> software available to those parties over a computer network, or
> >> otherwise.
> >
> > (& Andrew - that's the thing from the archives I said I'd find)
> 
> In response to an off-list, I note the above (and Larry's wording)
> incorporates the word "used". That should be interpreted in a copyright law
> sense. Some people seem to be concerned about (say) the following scenario.
> The software is a burger ordering system deployed in McBurgers. McBurgers
> modified the software from an OVPL/OSL (take your pick) original work. It
> runs touch-screens in burger-bars. The touch-screens are only used by
> McBurgers employees. Customers order burgers by asking the McBurgers
> employees for what they want. Is the customer "using" the software (through
> a human intermediary in the form of an employee). I cannot see how the word
> "using" can be construed this way in law, despite some people's view to the
> contrary.

I'm skipping the other branch of this thread, since the point you missed
(or ignored) is easier to re-express here.

I am not concerned about scenarios involving human intermediaries (that
form of indirect use is pretty clearly not at issue), but software ones.

Assume, for your burger-ordering scenario, a public website with it's
own UI and functionality that interfaces (when an order is complete)
with the OVPL-licensed ordering system for the purpose of getting orders
to the employees. The customer is transitively 'using' the OVPL ordering
system, so should this be construed as 'making otherwise available'? As
I noted in my other message, this is a very, very fuzzy boundary, and
therein lies the difficulty.

- Michael Bernstein