26

Let's say a company modifies a GPLv3 software. All it's employees can use the modified software and have access to the modified source code. The company's employees don't have the right to distribute the modified software outside the company because it violates some employee contract or an NDA.

Is this modified work considered a "private" copy of the company or is it a violation of GPL freedom number 4: "the freedom to distribute the modified software"?

47

The FSF believes, in the jurisdictions they have considered, that the transfer of GPL-licensed software by an employer to an employee, for the fulfillment of their responsibilities as an agent of the employer, does not constitute distribution, so any conditions that GPL imposes on distribution do not apply:

Is making and using multiple copies within one organization or company “distribution”? (#InternalDistribution)

No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.

However, when the organization transfers copies to other organizations or individuals, that is distribution. In particular, providing copies to contractors for use off-site is distribution.

If the employee's responsibility is to modify or use the software, I see that as being covered by this explanation. (But I'm not lawyer and don't know much about employment law; I can only relate the opinions of the FSF's lawyers.)

3
  • In many jurisdictions (I'm sure about Poland, but afaik it's fairly common) the copyright for whatever an employee creates is automatically transferred to the employer. May 17 at 16:35
  • 2
    @JanDorniak Not directly relevant. The question is just as relevant for right holders of software outside the company, when the company uses GPL licensed software.
    – Taemyr
    May 18 at 10:01
  • @Taemyr it is an additional point for the modification part, even if not directly relevant. May 18 at 10:09
9

If you receive an open source application from your employer, it hasn't been distributed to you, but to your employer, so you haven't received any rights through that distribution. (However, I have been told that handing software to contractors might be different, so the employer should be careful).

Even if you had rights, you don't have the source code. Even if you are physically capable of doing so, you are not allowed to just take someone else's source code. You might have the right to ask for it, but until you get it, you don't have it. And if you don't have the source code, you are incapable of legally distributing the software under the GPL license because you cannot possible fulfil your obligations.

Only if you are in a position in the company where you could legally take the company's source code and hand it to someone, only then can you legally publish anything under the GPL license. Even then you could be fired if you are acting against your obligations as a paid employee.

“Exactly which law” - first, copyright law. Second, anti-hacking laws. Third, employment contracts. Fourth, you don’t have any rights to the code, so you can’t legally give it away under GPL license. In summary you will get fired, they will get you for unauthorised access to a protected computer, and everyone will go after you for copyright infringement.

7
  • "you are not allowed to just take someone else's source code.". Exactly which law forbids that? Because if you think that's forbidden by copyright law, then the situation is complicated. You're not "just taking" it when you have a license, such as the GPL license. Still, an employer has wide discretion to make rules for its employees, and can forbid behavior that would otherwise be allowed by law.
    – MSalters
    May 17 at 15:01
  • @MSalters: But indeed GPL forbids them from distributing the software at all if they make rules that forbid things that would otherwise be allowed by the GPL. I agree the employment scenario is somewhat gray and probably not distribution, but in the case of external contractors, as a copyright holder of software under GPL, I would definitely deem distribution to contractors to be distribution covered by the terms of the GPL and would seek to have the company responsible make it right by releasing full source under the terms of the GPL. May 17 at 16:29
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    @reirab: "Distribution" is not defined by the GPL, it is defined by the local jurisdiction's copyright law. If local copyright law says you need a license to give a piece of software to your contractor, then the GPL attaches. In general, copyright law contemplates distribution as a private action, such as when a bookstore sells you an individual copy of a book (or to be more pedantically correct, when the publisher manufactures and sells a copy of the book to the bookstore). So including contractors is a very colorable argument.
    – Kevin
    May 17 at 22:29
  • 1
    MSalters, you don’t have a license. And you don’t have any rights to the source code. You have the right to tell the copyright holder that you asked for the source code and didn’t get it. The copyright holder might then accept a payment from the company instead of GPL compliance.
    – gnasher729
    May 18 at 10:18
  • 1
    @reirab: Disclosure under patent law is an entirely different animal, applicable to a different class of IP, and intended to cover a different set of activities. It happens to have a similar name to "distribution," and that's about it. In the context of copyright law, distribution is (roughly) "providing any number of copies to any number of people, with or without remuneration or other contractual terms."
    – Kevin
    May 18 at 17:24
3

GPL allows any use, as long as you (or the company) complies with the conditions. They state, in t nutshell, that you can do as you please, but if you distribute (outside the company, in this case) they must distribute full source. In your scenario, there is no outside distribution, they'd be in the clear.

Note IANAL, don't even play one here.

In any case, this is a very unlikely case. The risk and probably hassle going forward (say they later might want to build a commercial, closed product, on the "internal tool", or share it with e.g. a collaborating entity -- a provider or a client), they get a lot of trouble cleaning it up.

0

The GPL gives you no rights at all when you receive source code. The only one who can grant you any rights is the person giving you the source code. If this person hsa been given the source code licensed under the GPL, it means that they got it under the condition that they may only distribute it to third parties under the conditions of the GPL.

You cannot, on your own, assume that they intended to give it to you under the conditions of the GPL and passing the source code on may put you in breach of your contractual obligations/conditions with them.

You have no right to demand they comply with the GPL: only the person holding copyright to the code can enforce compliance. You may choose to tell on them to the copyright holders and those may take legal steps for enforcing compliance. It may not leave you in good standing with your contractual partners. Whether they have legal avenues against you for exposing their behavior will very much depend on jurisdiction.

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  • 1
    "The only one who can grant you any rights is the person giving you the source code." That is totally wrong. The only one who can grant you any right to do anything that would otherwise be prohibited under copyright law is the owner or assignee of the copyright. May 19 at 20:34

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