The Open Source Alternative: Understanding Risks and Leveraging Opportunities

Chapter 16. Defining Distribution

Second to the "derivative works" question (see Chapter 14), the most important unresolved legal question in open source licensing is the question of what constitutes distribution. Recall that under U.S. law distribution is what triggers the hereditary requirements of the General Public License (GPL). Thus, using and modifying a program are allowed under the GPL without restriction, but when distribution occurs, the requirement to provide source code and license under GPL terms adheres.

Distribution, though one of the enumerated rights of copyright under U.S. law, is not defined in the Copyright Act (Title 17) (the Act). Title 17 grants a copyright owner the exclusive right "to distribute copies...of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."^[277] Note that the distribution right is limited to the distribution of copies and distribution to the public. Courts generally look to the 1976 House Report^[278] on the Act, its primary legislative history, to interpret the Act. While distribution is not defined in the Act, "publication" is defined. The 1976 House report states that "any form of dissemination in which a material object does not change hands—performances or displays on television, for example—is not publication."^[279] This is in contrast to the public performance right—a separate right of copyright—which can include broadcast transmission.^[280] Courts have equated distribution ...