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From this question:

Is making and using multiple copies within one organization or company “distribution”?

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.

An independent public foundation (digital education) wants to develop software for its educators. The educators are not employees of the foundation, but they are registered members of the foundation, using the foundation provided software to implement the foundation's goals and objectives.

Is that software distribution "within the same organization"?

To clarify - in this case, it is a single legal entity with international individual membership.

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The FAQ you cite is not a rule established by the GPL, but rather a reflection of the FSF's broad understanding of when transfer of a copy typically does or does not occur under copyright law. In other words: the GPL imposes copyleft obligations whenever the transfer of a new copy occurs from one legal person to another legal person, but the question of what does or does not count as distribution is not a question the GPL attempts to resolve. The conditions under which this action occurs are informed by a particular jurisdiction's statutes and case law.

When the FAQ item says the organization is "making the copies for itself," it refers to the cross-jurisdiction legal concept known as persona ficta: the law typically understands corporations to have legal personhood. Agents acting in their capacity as an agent of the corporate person don't receive the copy as a "natural person" but merely as an arm of the particular person ficta on whose behalf they act. In this way, the giver is the persona ficta and the recipient is the same persona ficta, so no transfer occurs.

Whether the natural persons to whom you give the software will receive the software as a natural person (causing copyleft distribution) or as an agent of your persona ficta (not causing copyleft distribution) probably comes down to the contractual relationship the person has with your corporation and how copyright/contract law has interpreted that relationship in past case law. I know that employment relationships generally imply membership within a corporate person, but since your relationship isn't employment, I can't speculate whether the terms of your contract imply persona membership or not. You may wish to consult a lawyer to solidify the reach of your persona ficta under your exact contractual case, and you could also ask on Law Stack Exchange with specific information about jurisdiction and contract terms.

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    I don't think employment is necessary for a persona ficta to apply. If I have a non-transferable license to use some artwork, and I send a file to a poster-printing facility for the purpose of producing a poster for my wall, I would be the entity who was "using" the artwork, and I'm pretty sure the same principle would apply if a friend has a poster printer and offers to print a poster for my wall as a favor.
    – supercat
    Aug 4, 2023 at 17:41
  • @supercat A persona ficta is a specific, registered corporate entity. While I don't claim that employment is dispositive for acting within a persona ficta, I don't think the print-shop example establishes persona ficta: the printer and I are not co-parts of common, named corporate entity. In that case, I would expect you usually just don't afford the printer rights to use your work in ways outside what is necessary for them to perform the print. In the case of GPL-licensed material, it wouldn't be legal for you to withhold such rights when transferring a copy of the printer.
    – apsillers
    Aug 4, 2023 at 17:59
  • The GPLv3 actually has a special exception explicitly to allow GPLv3 code to be transferred to contractors without full rights, only for the limited purposes of (1) making modifications and (2) remotely executing code, e.g., in a cloud context. Other kinds of client relationships aren't covered by this exception.
    – apsillers
    Aug 4, 2023 at 18:01
  • @apsillers so establishing a trivial contractual obligation is enough to classify an entity as "a contractor of the organization"?
    – dtech
    Aug 4, 2023 at 20:15
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    @dtech I do think that this question is a difficult, jurisdiction-specific legal matter, and resolving it isn't in scope for this site. This site addresses legal matters insofar as they are a concern for FOSS licenses, so I can outline how a FOSS license does rely on the concept of persona ficta, but not how to resolve the precise reach of this concept for a particular contractual/jurisdictional case. I'm happy to remove my single sentence of hedged speculation on that score, and add a reference to Law.SE, which is chartered to take on specific, jurisdiction-focused legal questions.
    – apsillers
    Aug 6, 2023 at 10:11
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Evidently, this boils down to whether the organization members fit within the local law definition of persona ficta, or in my case "jurisdictional persona" in direct translation.

According to the local law legal definition, a "jurisdictional persona" can be either:

  • countries, governments organizations and government corporations - under "public law"

  • for profit corporations and cooperatives, non profit foundations and associations - under "private law"

And I assume it is a safe bet that at least those will be valid throughout the world.

That alone doesn't indicate in the slightest that this applies to foundation members as well, it just establishes that the foundation itself has this legal status.

Disclaimer: the following is my personal interpretations of the law and its motivations, don't take that as factual legal advice.

Sadly, and as usual, law doesn't seem to say anything particular about it, and the only relevant legal information I found is this:

Representation

Article 10

(1) The non-profit legal entity shall express its will and shall conduct legal activities through its bodies. It shall be represented by its managing body.

(2) In the course of litigation between the non-profit legal entity and its managing body, members of the managing body, respectively, the legal entity may also be represented by one or several persons elected by its general meeting.

(3) A non-profit legal entity may partake in the work of a body of non-profit legal entity through its representative or a person authorized thereby.

Given that a foundation's members are its only practical operatives, if they cannot legally act on behalf of the organization, then the organization cannot practically operate. So it doesn't make sense for the legal persona to not extend to the organization's operatives.

As for the effect of internationality:

I keep track on tech subjects, and in a related context, I am aware of:

  • gdpr requirements
  • requirements to keep user / personal / private / financial data with the user's local jurisdiction
  • requirements to audit critical algorithms
  • requirements to use specific algorithms within a jurisdiction
  • instances of epic failure to comply with licensing requirements from industrial giants

I however cannot recall an instance where a tech corporation was required to open source its internal software to distribute it across branches in different jurisdiction as it expanded or jurisdictions fluctuated on the subject.

Or an instance of a split company being required to do it to distribute internal code between the two sub-companies.

But that can just be my exposure to information, so feel free to contribute such known precedents.

For the time being, I don't find evidence to suggest that internationality on its own, be that on organizational or operative level, does in some way sever the legal persona representation.

Certain jurisdictions however seem to have an attitude toward foreign operatives, particularly in the field of political non-profits, and things like informational restrictions, but that's outside the scope of the question and there's not much to do about it neither anyway.

What's more, since member registration does feature contractual obligation, including the software purpose, usage, terms and conditions, that adds additional weight to my conclusion, both in the capacity of contractors and on explicit terms that they will be receiving and using the software exclusively in the capacity of an operative of the organization implementing its goals.

It would seem that anyone under contractual obligation that includes acting on behalf of the organization or using organization software on the use terms as provided by the organization and accepted by operative can fit in the "internal user" category.

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