Unsure of GPL privilege to distribute

[Stephan]

Hello Joseph,

An mar., déc  30, 2008, Joseph HEENAN schrieb:
>Hendrik has already given you some good answers, but let me add my piece.
>
He told me to try the FSF mailing list, which is good advice.

>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.
>
Okay.

>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.
>
Alas, there is no explicit statement by the company. The only
manager who could have done so (we talked about it) was not
competent enough to understand licenses, so I made the decision
myself.

>(I am assuming the software was not based on any existing GPL works.)
>
Your assumption is correct, the software is based on BSD licensed
libraries and not GPL licensed ones.

>>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?
>
If the gounds for authorization (a not so competent manager giving
the goahead) are met, it was done so by speaking and not written.

>>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.
>
That is an interesting idea, an author receiving his own authored
software from a third party and thereby increasing his rights.

>>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.
>
It sounds as if my fear is confirmed, one which was explained to me
by professors and previous bosses. Don't let software you write die,
instead license it freely. Although this advice was taken and carried
out with good intentions, it seems that the software will now indeed
die. The author is the only one with interest in maintaining and
distributing the software, but doesn't have the privileges to do so.

Thanks for your advice.

Regards,
Stephan