What does "any third party" mean in the GPL
One of the most important issues related to the willingness of corporate America to adopt software licensed under the GPL -- maybe the most important issue -- is contained in Section 2 of that license. It states that if you modify GPL'd software and then distribute it, you must license the modified software "as a whole at no charge to all third parties under the terms of this license [the GPL]."The phrase "all third parties" takes on particular importance here. For example, if "all third parties" means each and every third party in the world, whether a licensee of the modified software or not, the distribution of the modified software to a subsidiary of a company could trigger the right of a competitor to get the code. (For the purposes of this discussion, let's ignore what the remedies are for not complying with a competitor's demand. Focusing on the meaning of "all third parties" is useful without talking about remedies.)
If on the other hand, "all third parties" means only those who are licensees, directly or indirectly, of the modified software, then a distribution to a subsidiary, who would have no interest in licensing it to a competitor, creates a potentially different business result.
Let me know what you think "all third parties" means and why.
10 Comments:
The thing (in FSF's interpretation/intent) is barred by
the doctrine of copyright misuse and the doctrine of
first sale. It's all in quasi public domain. Thanks RMS.
My, what a genius. ;-)
regards,
alexander.
While laywers and commercial enterprises may wish to see some degree of subtlety in interpretation, I suspect the authors of the GPL see it all as quite straightforward. That is, if an individual or a company makes modfied GPL'd code available to anyone, then that is a 'distribution' and the beneficiaries are the world. The GPL FAQ's give examples of this line of thinking. See "Is making and using multiple copies within one organization or company "distribution"? Ans. "When the organization transfers copies to other organizations or individuals, that is distribution..."///See also "The GPL says that modified versions, if released, must be 'licensed...to all third parties. Who are these third parties? Ans. "All third parties means absolutely everyone" .
So to me this says, if a company modifies GPL'd code and uses it internally - i.e. within that company for its internal purposes - no 'distriubtion' has occurred. However, if that company wants to make that modified version available to an affiliated/related company, then that other company is a 'third party' and release of the modified GPL'd code to the related company is a 'distribution'. This is the case, even though it may be commercial practice to provide 'group licenses'. It does not appear that this concept is recognised under the terms of the GPL.
One exception to the above may be dealings with GPL code by Govt (at least by Govts which can own copyright - and not have any Govt-created copyright automataically become in the public domain, like in the US). So in other countries, where copyright can subsist in Govt, then arguably it can be used throughout Govt departments(as it relies on indivisibility of the 'crown'/executive), but perhaps not for statutory authorities.
Alexander,
Thanks for your comment. I'd like to take the issue of copyright misuse up in a separate discussion string. Stay tuned in the next few days for that string.
I'm also interested in your first sale doctrine comment. Why do you think that open source is subject to the first sale doctrine? Can the same be said for all software, regardless whether open source or not? Is it the absence of an "agreement" under the GPL that makes it subject to the doctrine?
Even if the first sale doctrine applies, does that put it into the "quasi-public domain"? Can, for example, you make copies of it?
tk,
I appreciate your thoughts on this topic. The part of the GPL FAQ that you quoted reads in its entirety as follows: "Section 2 says that modified versions you distribute must be licensed to all third parties under the GPL. "All third parties" means absolutely everyone--but this does not require you to *do* anything physically for them. It only means they have a license from you, under the GPL, for your version."
It seems to me that this language creates a nexus between "license" and "distribute." In other words, all third parties being discussed in this FAQ are recipients of the code, not just anyone off the street.
I recognize that this tends to fly in the face of the "absolutely everyone" language. However, if it applies to a non-recipient, wouldn't the distributor be required to "*do* something" for them when they ask for the code?
Other parts of the FAQ are even harder to square with the notion that non-recipients have the same license rights as recipients. In fact, these other parts of the FAQ and their implications are the reason that I have (so far, tentatively) interpreted the FAQ the way I do above.
For example, in the FAQ, there is the following:
"Does the GPL allow me to develop a modified version under a nondisclosure agreement?
A: Yes. For instance, you can accept a contract to develop changes and agree not to release your changes until the client says ok. This is permitted because in this case no GPL-covered code is being distributed under an NDA.
You can also release your changes to the client under the GPL, but agree not to release them to anyone else unless the client says ok. In this case, too, no GPL-covered code is being distributed under an NDA, or under any additional restrictions.
The GPL would give the client the right to redistribute your version. In this scenario, the client will probably choose not to exercise that right, but does have the right."
Now, if non-recipients of the code have the same license rights under the GPL as recipients, how is it that a developer could agree not to distribute software subject to the GPL to anyone other than the company that is paying for the work?
Let me know if there is an interpretation of this that I'm missing.
BTW, this is exactly the kind of discussion that I wanted to let attorneys, CIO's and other interested people have. Thanks for your willingness to participate.
> Why do you think that open source is subject to the
> first sale doctrine?
Because the stuff is freely distributed on the net,
to begin with.
> Can the same be said for all software, regardless
> whether open source or not?
I think so.
http://www.google.de/groups?selm=41B08E1A.E7830E3A%40web.de
http://www.google.de/groups?selm=41B0D6B2.BC874C33%40web.de
> Is it the absence of an "agreement" under the GPL
> that makes it subject to the doctrine?
Yeah. See
http://www.google.de/groups?selm=4180FFDB.E7B3B8B2%40web.de
and
http://www.google.de/groups?selm=41B227FE.E3B13B05%40web.de
(note that I'm located in Germany).
> Even if the first sale doctrine applies, does that
> put it into the "quasi-public domain"?
No. I meant the US penalty (imposed copyright
impotence, so to say) for copyright misuse in US.
More:
http://www.google.de/groups?selm=40FCE432.4F633F87%40web.de
http://www.google.de/groups?threadm=cdpt1p%243vo%241%40vegh.ks.cc.utah.edu
> Can, for example, you make copies of it?
Well, consider teleportation...
http://www.research.ibm.com/quantuminfo/teleportation/
I think it's ought to be legal, oder? ;-)
regards,
alexander.
--
http://groups.google.de/groups?selm=40D17715.BFC9C5E0%40web.de
On the issue of what "all third parties means" note the following information, also in the FAQ to the GPL.
Q: If I know someone has a copy of a GPL-covered program, can I demand he give me a copy?
A: No. The GPL gives him permission to make and redistribute copies of the program if he chooses to do so. He also has the right not to redistribute the program, if that is what he chooses.
Q: If I distribute GPL'd software for a fee, am I required to also make it available to the public without a charge?
A: No. However, if someone pays your fee and gets a copy, the GPL gives them the freedom to release it to the public, with or without a fee. For example, someone could pay your fee, and then put her copy on a web site for the general public.
I believe that this distinction is the key to the free speech/free beer distinction made by the Free Software Foundation.
OK,
I have just re-browswed the GPL text here:
http://www.gnu.org/licenses/gpl.txt
Note this in section 1:
You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.
And now from section 2:
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
Could we look at it like this?
You distribute a derived work. as per 2b it must be licensed as a whole at no charge to every Tom, Dick, and Harry all over the world. It does not say that you have to transfer copies to them under any conditions. It just says that you give them a no cost license to the code. It does not say you give them the code. If they can get their hands on the code some other way though, all bets are off.
Also, you cannot restrict those who you do choose to distribute to from re-distribution.
Note - if you want to try this road, it would probably be more safe for you from my understanding to not take advantage of section 3b. If you do this, you are under obligation to supply source to any third party. 3a seems safer if you are distributing object code.
This is assuming you don't particularly want the code to spread. I think that is an unwise plan, but there you go.
In short, I don't think this any third party issue is all that big. As I see it, if you distribute under 2 with no object code, or 3a with source and object code, you have no obligation to transfer to anyone you do not wish to.
This is how I distribute all of my GPL software as I do not want to be bothered with obligaions for three years. Let me distribute what I want when I want and let the downstream people do what they like. Note - this is even given that I want the code to spread. I am happy to provide the code, I just don't want to be obligated to do so if my fortunes change and I want to take a holiday from code issues.
Also note - I have always thought that I was free to charge a fee for the physical act of transferring a copy of the derivative work as well, just that the license had to be provided at no cost.
If anyone has any insights to this latter thought, I would be happy to hear them. Especially if you are a GPL author or a lawyer. I am the former and not the latter.
A Nony Mouse
"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, " (GPL)
...So, if a company gives software to a subsidiary, just use option (a) above - give them the object code and the source, no mention of 3rd parties there. Presumably you can give "binaries and source" to anybody - they can then pass it on if they wish, but are not obliged to.
Seems like two people see this the same.
Use 2 or 3a. You just can't seek to restrict those you do distribute to from further distribution. If it is also in their interests to not further distribute, you are golden.
Still not smart in my estimation though.
A Nony Mouse
Disclaimer: I'm a programmer, not a lawyer.
Based on what I've seen in the GPL, my understanding of the purpose of the GPL, what I've seen in the FAQ, my understanding of the english language, and my limited understanding of law, here is my opinion:
In section 2b), the GPL uses the phrase "all third parties", and in section 3b), the GPL uses the phrase "any third party". My understanding is that these each refer to "everyone and anyone in the world." My undstanding that this meaning is both intentional and necessary.
Aside: any argument about whether these rights apply to nonrecipients seems kind of irrelevant. The rights provided by the GPL are the rights to modify and distribute the software. Non-recipients *can't* modify or distribute it, because they don't *have* it. (OK, section 3b does give rights to nonrecipients, but I'll come back to that later).
However, I think both phrases apply to nonrecipients.
The reason they worded it this way (again, IMO), is because if the rights in 2b) only applied to recipients, you could perhaps require someone to prove that they recieved the code in some specific line of descent from you. You could, for example, sue someone for modifying your code, and they would be required in court to prove how they came by the code, in order to prove that they have the right to modify it. This will often be impossible, and would thus put a serious legal burden on recipients.
By requiring you to give the rights to everyone, that removes the burden of proof above. Someone who has come by, via any means, a copy of the code you distributed under the GPL will know that they can safely modify and distribute it.
In section 3b, the situation is similar.
For example: person A writes original code and distributes it under the GPL to person B, giving him the binary and the source code (distribution method 3a), B now has a right to modify and distribute the code.
Person B then modifies it and distributes the new executable to person C. B also gives person C a promise to provide the source code. This satisfies section 3b).
Person C then gives a copy of the executable to person D, along with a copy of the promise from person B. This satisfies section 3c). Person D then gives the same to person E, etc. on down to person Z. Everyone in the entire chain has complied with the GPL.
All this happens in less than three years, and person Z now wants the source code. So she goes back to person B, and person B must give it to her.
If this provision in section 3b) did not specify "any third party", then person B could require person Z to prove that she is a "valid recipeint." Person Z would have to prove that, at every step along the way from person C down to person Z, the executable and promise were delivered together. This will, in general, be impossible for person Z to do. In this case, B could refuse to give the code to person Z, even though person Z really does have a right to get it.
The people writing the GPL did not want this to happen, so they specifically included the phrase "any third party" in the license. With this wording, person Z can demand a copy of the source code from person B, and person B is required to give it to her. Person Z cannot be required to prove how she came by the executable, or even that she did so at all.
In summary: without the "any third party" and "all third parties" phrases, it would be possible for people to modify GPL software and distribute it in such a way that eventual recipients of the software would not have the ability (or the right) to modify and distribute it themselves. Not only would it be possible, but the situation would likely be quite common. The point of the GPL is to prevent this situation, and these phrases are important parts of how the GPL successfully meets that goal.
Repeat disclaimer: I am not a lawyer. I was not involved in writing the GPL. Everything expressed here is my opinion, and is based on publicly available information. Opinons expressed do not necessarily reflect the opinions of any other person or entity.
-- Ken
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