Free Culture

NC, Use and Distribution

The GPL concerns Use of software but is triggered by Distribution. Use is not the same as Distribution. In particular Distribution is not a form of Use. It is common to confuse the two, but this is a mistake similar to confusing use value with exchange value in economics. Strictly speaking only users of software have the right to distribute it (well, receive its source).

If you receive a piece of music and listen to it (or remix it, or cover it, or…) you are a User of that music, and are free to distribute it. If you do not listen to a piece of music you are not a User, and do not strictly speaking have the right to Distribute it.

A recent survey showed that music users regarded sharing music that they have purchased with their friends as acceptable but that they regarded large-scale commercial copying without paying the original musician unacceptable. That is they supported Distribution by Users but not Distribution in the absence of Use. This is the difference between Use and Distribution as a social norm.

NC may seem to reflect this norm, even in its tolerance of peer-to-peer filesharing (which is Commercial Use under US law). Peer-to-peer filesharing between individual users of music allows them to share music that you have bought with their “200,000 closest friends” as Lessig puts it.

But the mechanics of a peer-to-peer service, or a repository site, amount to Distribution without Use. The GPL 3 draft has been modified to reflect this, allowing distribution of GPL licensed binaries through peer-to-peer systems. The personal use of a peer-to-peer network or a repository does not break the norm of Distribution by Users. But the monetization of such systems, the only hope Web 2.0 has of turning a profit, does.

9 replies on “NC, Use and Distribution”

Your intro sounded good until…
“Strictly speaking only users of software have the right to distribute it (well, receive its source).”
Only those to whom software is distributed have the right to use and distribute it.
I know there are a heck of load of folk who believe that simply because they enjoy the use of something they have a right for it to be given to them free-of-charge, but this is not how property works.
The whole point of the GPL is that you should be completely free to use that which has been given or sold to you in any goddamn way you like (and not have that liberty suspended by copyright, obfuscation/DRM, patents, or the DMCA/EUCD).
You only get this freedom once you have obtained a copy. The GPL makes no stipulation that copies must be given to you free of charge – even if you happen to enjoy the use of a copy in someone else’s physical possession.
So, the liberties granted by the GPL are conferred via distribution NOT use. When you get a copy you are free to use it. You do not have a right to get a copy simply because you use someone else’s copy.
I was trying to address this in my blog post Right to Get S/W I Use vs Right to Use S/W I Get.

What is this nonsense? The GPL concerns Use and Distribution, but is triggered by Copyright, which is not the same as Use or Distribution. Trying to replace Copyright with Use or Distribution leads to the silly arguments put forwards by supporters of some contradictory licence developers.

MJR, we are talking about how the liberties restored by the GPL propogate to people to whom they’re granted. This propogation occurs through the process of making copies (aka distribution). The liberty provided by the GPL is granted to those who have come into legitimate possession of a copy and who are consequently given a GPL license.
The GPL is NOT given to users who are NOT in possession of a copy.
In this way liberty is communicated by distribution of copies, and not use.
Find me the clause in the GPL that says all users of GPL software must be given a copy of the software free of charge. NB Where ‘user’ is not defined as someone who is already in possession of a copy.

Crosbie – Yes I wasn’t entirely comfortable with my description. Yours is much better. Someone to whom the software has been distributed is however a User, and has the right to share the software with other “users”. Distribution explains how we bootstrap Users. 😉
MJR – By my understanding copyright is not what triggers the GPL. I can create a derivative work of a GPL licensed work that is original enough to qualify for copyright and use it privately (e.g. within my company) without having to provide the source to the binaries to any other user. It is only when I distribute the software, a term that GPL-3 is taking some pains to define, that I must provide the source to those individuals that binaries are distributed to.
That said your point that we shouldn’t get hung up on artefacts of a particular licensing approach is one that I do take. Ben Mako Hill made a similar comment during the discussion about my comments on the Affero Clause at libre-discuss. The private use permission may simply be an exception to the general rule that the GPL is triggered by copyright, not a matter of principle. And I get driven to distraction by BSD zealots confusing economic exploitation with “mere use” as a result of their “definition” of Freedom. So if thinking of things primarily in terms of copyright is clearer then I’m all for it.
I was just interested in the overlap between NC and a study of attitudes to music sharing, and in how that relates to the ideas (or artefacts) of Use and Distribution, and how the comparison breaks down. This was more a provisional academic post than a definitive political one, possibly I should add some extra category tags. 😉

The GPL essentially says “If you ever come into legitimate possession of a copy or derivative of GPL software, then you have 3 choices: 1) not infringing copyright, 2) infringing copyright, 3) becoming a GPL licensee.”
A surprising number of people don’t realise there’s a lot you can do with GPL software (use it, sell it) without having to become a GPL licensee.
The GPL never ‘kicks-in’, nor is it ever ‘triggered’. It is simply there as an option should you want it.
But, remember, the GPL only grants you liberties to do things with the copy you have in your possession.
You can’t unilaterally become a GPL licensee in order to wave some kind of GPL license certificate at someone else and demand they surrender copies of all their GPL software to you free of charge – even if they’ve let you borrow their computer or try out the GPL game they’ve been working on.
The GPL is not like 007’s license to kill. It is a license to liberty, not a license to sequester other people’s private property.
The NC clause is a sign that the licensor hasn’t given up hope with proprietary privileges, but fancies a bit of free viral promotion. Essentially “I’m a traditionalist – I’m happy to use copyright, but I don’t dig this new craze of suing one’s fans”.

If one’s use is private, what other users are there? I’m not convinced about use inside your company, unless your company is itself a legal person (a corporation).

“If one's use is private, what other users are there?”
Good point. I’m not sure how this use of the software relates to other use. Ethically it’s a bit mean to fix a problem and not help others, but users shouldn’t be slaves to other users, and the split between private and public life is an important one.
“I'm not convinced about use inside your company, unless your company is itself a legal person (a corporation).”
It’s in the GPL. Whether it is a matter of principle or of pragmatics I don’t know, I’ll have to take another look. Use & distribution is a useful split when considering DRM and why BSD inspired economic use privileging is silly though.

Private use is use that the general puplic do not see, be it you in your home or your company on their employee-only internal network.
Public use in the past was only possible by distributing binaries. With the Internet, public use is now possible over a network, without distributing binaries.
Thus, Allegro GPL.

The GPL may be a bit vague concerning internal distribution within a private entity, but then issues of copyright’s restraint don’t seem to be a big issue here. How many times have you been denied permission to reproduce/re-distribute a software utility produced by another department? If it was a GPL utility, would you demand the source code and the right to publish it on your personal website?
This is more a matter concerning the moral right to have a choice to publish private information to which one is privy. It may be legitimate to make non-disclosure a condition for continued employment, and aside from the possibility of an equal share in production costs, I wouldn’t class this act as as a crime.
To some extent, it is irrelevant whether the liberty for team members to publish private GPL works is granted by the GPL or not. This is because the GPL is primarily concerned with the need to restore liberty to members of the public in their use of copies of published works. That does of course still preclude contracting purchasers into privacy as a means of circumventing the GPL.
Private distribution/circulation of ‘not-yet-ready-for-publication’ material is generally a matter of trust – trust that those who you make privy to your private work will respect your confidence.
Non-disclosure contracts can be made, but only as long as either they do not infringe copyright or they do not violate the GPL.
For example, do hosting providers consequently have the liberty of disclosing any private GPL derivatives you run on their servers? Do they have a right to the source code of any GPL binaries you install on their servers? No, because you are renting the private use of their servers – you are not giving them or selling them any of your software.
Interestingly, there is similarly nothing stopping Google renting your PC in order to host their private GPL software on it – however, this would require a rental contract in your favour (that couldn’t be contingent on particular software or users being served). For example, Google might pay you $40 a month all the time you leave a colour LCD screen showing continuous adverts (and you wouldn’t be entitled to the source code if it ran on GPL software).
There is a slightly different issue with an outsourced GPL s/w dev contractor who can sign an NDA. They aren’t signing it in order to receive a copy of a GPL derivative, so they are not a GPL licensee of the derivative they will produce. Their client pays them for delivery of their original work – not a copy. So the client doesn’t need to be a GPL licensee of the derivative work either. Even after the work, the contractor remains unlicensed to the derivative (though they may be licensed to the GPL work upon which they built their derivative). The GPL doesn’t say “You may not surrender your liberty to make copies of your private derivatives”, it only says “You may not suspend the liberty of those to whom you distribute GPL derivatives.”.
It all gets very complicated.
It would be far easier if we simply abolished copyright (and patents).

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