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I am looking at open sourcing a web app and I want to make sure that any improvements made by a third party make it back into the source. Living in Europe, the EUPL seems like an attractive multilingual alternative to the AGPLv3. However, I am unable to find any information about whether or not the SaaS/ASP Loophole closed with Art. 13 of the AGPLv3 (Remote Network Interaction) persists with the EUPL. As far as the specific wording goes, the EUPL states in Art. 5:

Provision of Source Code: When distributing or communicating copies of the Work, the Licensee will provide a machine-readable copy of the Source Code or indicate a repository where this Source will be easily and freely available for as long as the Licensee continues to distribute or communicate the Work.

I would argue that "communicating copies" also includes any remote interaction, therefore closing the loophole but I am not well versed in these matters.

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Answering my own question is not ideal. However, after further research, I was able to find the answer in the official documentation of the EUPL, available here.

The guidelines, published on July 2021, contain the following paragraphs:

In addition, the licence covers all forms of distribution (including SaaS) and will be convenient for works that are combined (i.e. by linking) with other components. (p. 5)

Distribution: Most licences do not set out the way in which software is distributed. Most copyleft licences imply that when the programme is provided through a network (as a service) and not installed on a host or desktop device owned/controlled by the user, there is no distribution, and publishing the source code is not required. Only some commonly used reciprocal licences, such as the EUPL and AGPL require modified derivatives to be published, such as in the case of SaaS. (p. 5)

Licensor Obligations: [...] In order to avoid extra and unnecessary effort in distributing unmodified copies, or if a recipient provides unmodified functionalitie online via a network (SaaS), it is sufficient to provide a link to the repository where the original code is available. (p. 6)

Furthermore, the decision to cover SaaS/ASP by designating "providing access to its essential functionalities" as distribution or communication was made with license version 1.1 in the year 2009, as stated here:

A clarification worth mentioning is the modification of article 1 to improve the management of on-line activities such as “Application Service Providers” (ASP) or “Software as a Service” (SaaS). These activities have been more explicitly included in the scope of the copyleft effect: the EUPL could therefore be described as an “affero-like” licence (AGPLv3).

The EUPL covers SaaS (Software as a Service): if an internet service provider modifies the licensed software to distribute online services (as Google does), this is “software distribution”.

Edit: In summary, Art. 1 EUPL (Definitions, linked in the answer by @MadHatter) and Art. 5 EUPL (Obligations of the Licensee, linked in the OP) taken together are intended to provide coverage for SaaS/ASP. This interpretation of the law however - at least to me - only becomes sufficiently clear when consulting the guidelines (linked in this answer).

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  • But the text you quote above doesn't appear in Article 1 of v1.2 of the licence.
    – MadHatter
    Nov 4 at 11:32
  • I quoted Art. 5 of EUPL v1.2 (Obligations of the Licensee) while you quoted Art. 1 (Definitions). Both read in conjunction, the license appears to cover SaaS/ASP similar to AGPLv3, as stated in the guidelines. Nov 4 at 11:43
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    The quote immediately above my first comment doesn't appear anywhere in v1.2 of the licence, is the point I'm making. Though given how their guidelines are at variance with the text of their licence, I'm beginning to see why people steer wildly clear of the EUPL.
    – MadHatter
    Nov 4 at 13:34
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Having been through several rounds of comments with the OP (and earlier versions of this answer, for which many thanks, quadratecode) I've come to the position that the EUPL does not apply to SaaS in the way that the AGPL does. However, it's also clear that the licence authors think it does; they have so written in guidelines and other prefatory material.

The problem is that they haven't written anything in the licence text itself that clearly and unambiguously achieves that aim, in the way AGPLv3 s13 does; instead, they've tried to interpret (and to a lesser extent, redefine) "distribution or communication" in such a way that it covers SaaS, which no other free licence does. Furthermore, they use some very odd language to achieve that end ("Distribution ... is ... making available, online or offline, copies of the Work or providing access to its essential functionalities"), language which appears in no other free software licence I know, and which is itself undefined in the EUPL. New language definitions, which require courts to lay down new interpretations, are not as good an idea as using simple language that clearly covers the desired activity ("your modified version must prominently offer all users interacting with it remotely ... an opportunity to receive the Corresponding Source").

Courts have a strong tendency to read licences on their faces, that is to say, they look only to the text of the licence to determine rights and obligations. In some cases, courts have explicitly refused amicus briefs from the authors of the licences who wished to clarify the intended interpretation of their text. In short, if it's not in the licence, you can't rely on it, no matter what the licence author says about their intent.

By the OP's own admission, the issue of SaaS applicability is very unclear until the prefatory and guideline material is consulted, and on that basis, I would not expect a court to leap to the conclusion that SaaS is a covered activity. I'm not saying it wouldn't, but it seems a lot less reliable a conclusion than in the case of AGPL.

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  • Thank you for further elaborting on your position. I do agree with most of your points, excluding your conclusion. In civil law countries, the material "surrounding" a contract or a law is highly relevant if the actual wording leaves room for interpretation - as I would argue it does here. This might differ from common law countries like the US, as evidenced by the case you linked. Since I was unable to find any European cases, some uncertainty seems to remain when it comes to the coverage of SaaS/ASP by the EUPL. Nov 5 at 15:20
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It looks obvious that the definition in EUPL article 1 (unmodified in all EUPL versions so far) assimilates "communication" to "distribution" and therefore targets and covers SaaS: "- Distribution or Communication: any act of selling, giving, lending, renting, distributing, communicating, transmitting, or otherwise making available, on-line or off-line, copies of the Work or providing access to its essential functionalities at the disposal of any other natural or legal person." The guidelines published in September (dated July 2021) are totally in line with the definition and not in contradiction.

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    I'd be a lot more persuaded if they'd also defined any part of "providing access to its essential functionalities", or better still, all of it. This is novel language for a software licence, the meaning of which is not at all clear to me.
    – MadHatter
    Nov 10 at 16:18
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I can't possibly see how this could trigger in the SaaS case. You are not in any way communicating a copy of the work, that sits firmly on the servers not under your control.

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    In the license language, in the definition of the term ‘Distribution’ or ‘Communication’ it clearly states that "providing access to its essential functionalities at the disposal of any other natural or legal person" is covered. Therefore I support the interpretation that it includes SaaS to a large extent (where the SaaS functionality is mainly the functionality of the the Work. Nov 4 at 12:52
  • @quadratecode Please stop proposing an edit to this answer in an attempt to reply to it. That is not how Stack Exchange works. Nov 10 at 23:09

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