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Re: [epl-discuss] Source distribution and network users of the licensed work / ASP loophole

Oliver Kopp <koppdev@xxxxxxxxx> wrote on 07/06/2013 05:00:15 AM:

> While thinking about the implications of licensing a work under the
> EPL, I checked the license about "usage via network". For instance, if
> one forks Eclipse Orion, improves it significantly and makes that
> available online for a monthly fee, he is not required to publish the
> source code again, is he? If it was Eclipse and he sold an Eclipse
> variant, only the changes in the "core" (EPL-covered-part) of Eclipse
> had to be published again. This is not the case in the Orion example,
> is it?
> In other words, I'm asking for an improvement similar what Affero did
> to the GPL: closing the "ASP loophole".

Aside from the argument on whether the "loophole" is a feature or a bug, there's a practical issue that needs to be thought through.  Restricting "usage via network" isn't impossible, but generally isn't consistent with the legal approach that most open source licenses adopt.

One reason is that "usage" isn't an exclusive right of the copyright holder.  Any restriction on usage via a network would need to be hooked to an exclusive right that would be enforceable against a owner of a copy.  This is somewhat problematic since copyright law generally allows the owner of a copy to make those copies/changes necessary to use the software (in the U.S., see 17 USC 117, though there are similar concepts in the most recent EU Software Directive).

If all I'm doing is running the software on my computer, letting my friends have access to its functionality, what are you going to sue me over?  Or, in other words, what copyright right is being infringed?


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