Subject: Re: What's the definition of "distribution"?
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: 21 Jun 2002 14:42:09 +0900

>>>>> "Mark" == Mark Shewmaker <mark@primefactor.com> writes:

    Mark> Greg Broiles pointed out 17 USC 106, which makes it look as
    Mark> if it's a distribution either way, but that copyright law
    Mark> doesn't care about distributions of unmodified works that
    Mark> aren't "to the public": (!)

IANAL, but that looks to me to be a gloss that defines what is
_legally_ meant by "distribution", ie, "_to the public_ by sale ...".
Note that "public" here is meant to single out "everybody not
mentioned in the license" == you and me, and doesn't necessarily mean
"to all comers."  If I decide to redistribute to my siblings only,
that's still "to the public".

OTOH, if "me" is a corporation, then "my employees, acting as such"
are not part of the "public".  My employees can use my property on my
behalf as permitted by the license.  If the license permits "me" to
make copies, and use them simultaneously, it doesn't matter if there
are actually several different human representatives of "me" involved.

This is why the GPL is different from a typical Microsoft EULA in this
respect, as Jonathan Shapiro explained.  Nor is it binary (site
license vs single copy); you can give permission for an arbitrary
number of copies, but restrict the number that may be running
simultaneously, etc.  (Although I was once told that this is legally
based on the rights-holder's right to regulate your copying from disk
to RAM and thence to CPU!  Now _that_ is weird!)

    Mark> (It's still a bit weird that there's this "to the public"
    Mark> thing in there.)

Not if this is an implicit definition of "distribution".  So typically
laws and legal wording will go "a distribution in the sense of 17 USC
106 (3)", or be abbreviated to "distribution" with the understanding
that "in the sense of 17 USC 106 (3)" is meant.  I think that the
latter is probably what is happening in the GPL.

    Mark> I've always wondered how that sort of situation would work
    Mark> out legally, if it ever became a real legal issue.

I think a well-read lawyer would tell you to read Alice's conversation
with Humpty Dumpty (with the legislature in the role of Humpty-Dumpty,
of course), and then hand you the restraining order.

In any case, the GPL is the property of the Free Software Foundation,
and in court the FSF's statement as to what it means would be given
great weight, unless you and the other party to a transaction under
the GPL both agree that it means something else (and you can only do
that if it's not a derivative work).  (Cf the "Linux interpretation of
the GPL":  RMS says this is _not_ an "interpretation", which would
change the meaning of the GPL, but a separate and additional license
covering binary distributions of kernel modules, and thus doesn't
cause any problems of interpretation for other users of the GPL.)

RMS clearly intends that the GPL not treat transfers within a legal
entity as "distribution."


-- 
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