Unsure of GPL privilege to distribute

[Joseph Heenan]

Hendrik has already given you some good answers, but let me add my piece.

Note: I am not a lawyer. I have some awareness of UK law and experience 
of licensing, but that may not be applicable in your case.

Stephan wrote:

> Original situation
> ------------------
> A software engineer (author) who works at a company develops a software
> application. This author writes 'Copyright 2006 Company name' on one
> line and 'Copyright 2006 Author name' on the next line of each source
> file. Each source file references the GPL v2, and a 'license.txt' file
> states that the GPL v2 applies. He made the copyright and license
> decisions himself, after asking his boss for directions and receiving
> no response.

Assuming the author had a contract that involved him writing software 
and it was done in work hours (unless there was an explicit statement to 
the contrary) then you are quite safe to assume that the company owns 
the copyright and the author has no rights to the code.

As for the GPL license, unless there was an explicit statement by the 
company that the code was to be developed as open source software, then 
I would doubt that the author had the authority to license the code 
under the GPL. Without an indications to the company, management at the 
company are likely to expect that any code written for them is owned by 
them and not to be distributed unless they authorise.

(I am assuming the software was not based on any existing GPL works.)

> Software operation
> ------------------
> The source files were stored in a company internal CVS repository
> where ten other coworkers had access. The author compiled the source
> files and copied the resulting binaries to several company owned
> computers for testing and then for production use.

That does not count as distribution. Only if it was *legally* made 
available to someone who was not an employee/contractor of the company 
would it be distribution.

> Current situation
> -----------------
> The author was layed off and is now unemployed. Because he wrote some
> of the sofware from home, he still has access to the source files. He
> has no documents that previously authorized him to place copyright
> notices in the software or place the software under the GPL v2.

Was he authorised and doesn't have the documents?

> Questions
> ---------
> 1. The software contains one organizational 'Copyright Company name'
>    copyright and one personal 'Copyright Author name' copyright to
>    protect the life of the software. Who owns the software now that
>    the author no longer works at the company?

As above, unless their was some indication to the contrary, the company 
always 100% owned the software.

> 2. Assume that due to contractual text the author does not own
>    the software and rather the company owns it entirely. May
>    the author distribute the software now anyways?

No, not without authorisation from the copyright holder (the company).

> 3. It seems that the key to answering #2 is determining if the
>    software was 'distributed' under the terms of the GPL v2. How
>    can the author know if the software he wrote was 'distributed'?

Assuming the situation I outlined above, the author really has little in 
the way of rights. If any third parties (not employees or subcontractors 
of the company) received the software under the GPL license, they could 
return a copy to the author under the GPL.

> 4. If it comes to a civil lawsuit in the U.S. or europe, which
>    party has the burden of proving the other party wrong?

I don't know the answer for sure. I'd suggest any professional software 
developer probably wants to avoid any situation where he's accused of 
this kind of thing.

> 5. Is there any chance of a criminal lawsuit in the U.S. or europe
>    if the author distributes the software?

Pass.


Joseph