Brussels / 30 & 31 January 2016


When is Distribution not Distribution?

Triggering the copyleft condition in FOSS licences - what use cases are 'distribution'?

When is distribution not distribution?

‘Distribution’ triggers copyleft obligations, and accurate interpretation of copyleft licences is dependent on an accurate determination of 'distribution'. In the course of other research, we developed a model containing a spectrum of software use-cases illustrating what activities may result in distribution, as defined in law, and which therefore trigger the copyleft conditions in FOSS licences. This talk explains the model, and the use-cases, and explores, from a European Copyright Law perspective, when software can be considered to have been distributed, and what the consequences are for copyleft in each case, with reference to the GPL, AGPL and other FOSS licences.

In researching a wide range of contracts which Swedish schools require their students to enter into to enable the students to access school computing facilities (including the provision of FOSS), it became clear that a key issue, in the case of each contract, was whether the specific item of FOSS had been ‘distributed’ to the students in question, so as to trigger the copyleft condition of the relevant FOSS licence.

Accordingly, we hypothesised a spectrum of cases covering scenarios when distribution definitely occurs (A provides B with a copy of GIMP on a CD), to when it definitely doesn’t occur (A looks over B's shoulder while B is using GIMP and following A's instructions). In between are less clear cases such as: A lends B a phone containing FOSS code; A leases a phone containing FOSS code to B for a year; A allows B to access GIMP on a virtual machine under A’s control; A hands over administrative access to the VM to B. It is not obvious, legally, whether in each of these cases ‘distribution’ has occurred.

The EU case of Peek & Cloppenburg KG v Cassina SpA suggests that distribution can only take place in connection with the transfer of a physical object: a literal reading would suggest that downloading software and transferring it between VMs does not amount to distribution. This case was discussed in UsedSoft GmbH v Oracle International Corp, which approves Cassina, but also considers digital transfer.

It has been argued (under German law) that software is distributed when its functionality is accessed on a SaaS basis (thus making GPL not only equivalent to AGPL, but actually going somewhat further)?

This talk (25 mins) explores the spectrum of use cases, and considers which, under European copyright law, are likely to be considered as triggering copyleft provisions. It also considers whether the result is likely to differ depending on the (copyleft) licence employed, and what some of the practical implications of this analysis may be.


Photo of Andrew Katz Andrew Katz
Photo of Björn Lundell Björn Lundell