When is internal use internal (considering licenses and their obligations)?

Question

The usual FLOSS licenses talk about distribution of binaries and possibly the obligations to share code if I distribute the binaries in case of strong copyleft licenses (e.g. GPL).

But the question here is: when am I starting to distribute code?

The two edge cases probably are clear: I'm not distributing anything as long as I am working on my own machine for my own pleasure - as I'm not distributing anything I cannot violate any license even if I combine code which has incompatible licenses.

The other edge case clearly when I place the binary and source code on a web page for anyone to access - I'm clearly distributing it, it's not internal to anything and it is required to fulfill all license obligations.

What is the stance on a software developed internally to a company or similar institution, what about a club or group of people who share a common interest who develop and use it only internally? Where is the line drawn usually? I'm not aware of any court rulings nor actually legal paragraphs on such cases (I'm primarily interested for EU law, but will be interesting to hear more generally also for other parts in the world, especially also US)

The employees or participants/members would all have access to both binaries and code - but the code would for instance combine a GPL library with some proprietary code they don't have any further rights on than to use it.

Where is usually the line drawn between "this is still ok as internal" and "this is already distribution"? (I don't have any particular case in mind I want cleared-up, more to find better grounds for answering questions here or give advice in the future which touch these topcis)

Answer 1

Well, the GPL has some pretty good definitional stuff here. Firstly, GPLv3 doesn't use the term distributing, largely because of the historical overloading of that term. Rather, ss4-6 and others speak of obligations when you convey covered code.

They then add two definitions:

To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

To “convey” a work means any kind of propagation that enables other parties to make or receive copies.

So they define the action that triggers the licence's major obligations in terms of actions that would infringe someone else's copyright if they were not otherwise permitted. I've often found that peculiarly, and helpfully, precise.

The issue of "internal" use is covered in the GPL FAQ, which notes that the exemption, such as it is, arises from the legal personhood of a company; a company that has one employee transfer a copy of software to another employee is no more conveying it than a person who moves a copy from their left hand to their right.

Organisations that do not have legal personhood, as your local sports club probably doesn't (though it might!), cannot make such a claim, so when the club treasurer gives a copy to the webmaster, (s)he is likely conveying it.

Answer 2

Copying within your company is fine.

If a rogue employee passes a copy outside of the company, without permission, then you have no obligation due to the GPL, but that employee has. However, having an obligation to make copies of the source code due to GPL doesn't give him permission to copy your copyrighted works (if you changed the GPL licensed code, you have the copyright to all changes), so that soon-to-be-ex employee got himself into a big mess.

Giving a copy to a contractor: The FSF believes that is a distribution, and the GPL rules now catch you. Now the FSF may be biased, but unless you have lawyers who seriously tell you that isn't true, and guarantee that it isn't, it would be wiser to believe them. So if you don't like the consequences, there are two things you can do: Either not give the software to the contractor. Put it on a machine you own, and allow the contractor to use that machine. I'd say this still leaves room for an argument. Or you use the third method to pass on GPL licensed software: If you give someone GPL licensed software, together with the source code, then you have no further obligations. Nobody can ask you for the source code (including the contractor if they lose the source code). Now the contractor has your binary and source code, and can distribute it according to the GPL license, as far as copyright law is concerned. If you don't like the idea then you should get a lawyer. Overall it seems safer for your goals not to hand anything to a contractor in the first place.