[License-discuss] Trigger for licensee obigations

[VanL]

Hi McCoy, great question.

On Tue, Jul 2, 2019 at 11:05 AM Smith, McCoy <mccoy.smith at intel.com> wrote:

> >>For example: I am a corporation, running modified AGPL software, in a
> way that is only accessible to my employees. Per the AGPL, I must give my
> employees code and rights to the modified version, even though the analysis
> relative to every other license is that this would be a private use.
> Further, I cannot in any way prevent my employees from exercising all
> rights under the AGPL, because that would be a further restriction. Thus,
> the AGPL has no private right of use for any modified version.
>
>
>
> I’m curious how you arrive at this conclusion given that AGPL says “**Each
> licensee is addressed as ‘you’**. ‘Licensees’ and ‘recipients’ may be
> individuals **or organizations**.”
>

Let's work it through: The licensee in this case is the corporation: it is
the one exercising the rights under the license. I assume that all the
employees downloading, modifying, and running the AGPL software are doing
so at the direction of their employer and, as is typical, their
copyrightable output (in the modifications) is assigned to the employer as
either a work for hire or under the employee works doctrine.

Per section 13, every possible licensee, must be offered/given a copy of
the source under the AGPL when they participate in a network interaction.
Thus, when the employee participates in the network interaction with the
modified AGPL software, that employee *individually* receives a license,
just as they would if the were external to the corporation. This is because
the AGPL does not have any concept of an affiliate, only of someone who
participates in a network interaction.

As soon as the employee has an individual license to the modified work, the
game is up; no other restrictions can be placed upon that employee's
further distribution of the AGPL software lest the imposition of those
restrictions place the corporation itself out of compliance.


> [although I will concede that AGPL does not explicitly state that an
> organization-licensee does not have obligations under the license to its
> own employees.  I’d consider that part of the Freedom Zero concept though,
> for that organization].
>

I could see how this would follow philosophically, but I don't believe that
it follows legally from the text of the AGPL.

Note that in the earlier discussion on L-R, Rick Moen also confirmed that
this was how he analyzed the AGPL as well.

Thanks,
Van
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