[License-discuss] Trigger for licensee obigations

[Christine Hall]

I would think that software being accessed only by employees, whether 
through SaaS or by installation on a workstation, constitutes private 
use by the licensee. I would extend that to public access, if that 
access is limited to hardware that is under the control of the licensee, 
such as a kiosk for in store ordering or for security purposes within an 
office building.

Christine Hall
Publisher & Editor
FOSS Force: Keeping tech free
http://fossforce.com

On 7/2/19 12:35 PM, Smith, McCoy wrote:
> *>>From:*License-discuss 
> [mailto:license-discuss-bounces at lists.opensource.org] *On Behalf Of *VanL
> *>>Sent:* Tuesday, July 2, 2019 9:21 AM
> *>>To:* license-discuss at lists.opensource.org
> *>>Subject:* Re: [License-discuss] Trigger for licensee obigations
> 
>>>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.
> 
> But if they are acting on the behalf of their employer, are they not 
> simply the “licensee” in this case?  Hence the definition of “you” and 
> “licensee” to encompass organizations.
> 
>>>This is because the AGPL does not have any concept of an affiliate, only 
> of someone who participates in a network interaction.
> 
> Many of the OSI licenses don’t encompass the concept of Affiliate.  And 
> most licenses I have seen that do encompass this concept definite it as 
> a controlled, or controlling entity, not an employee.
> 
>>>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.
> 
> Only if you assume that AGPL’s definition of “you” and “licensee” would 
> separately encompass employees acting on behalf of their employers.
> 
>>>Note that in the earlier discussion on L-R, Rick Moen also confirmed 
> that this was how he analyzed the AGPL as well.
> 
> I would think the FSF’s opinion on this point would be more persuasive. 
> Or, perhaps some case law that states that unless a license separately 
> articulates that employees acting on behalf of their employer are not 
> covered by the license rights to their employer.
> 
> 
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