Theft as Distribution of Software

Question

I recently posed a hypothetical to a lawyer who deals with software licensing (His role is to protect a company from accidentally misusing FOSS software) and got a startling response. My hypothetical was this: "If a thief breaks into your house and steals a floppy disk from you desk, is that considered 'distribution' under the GPL?" I was rather surprised that he answered yes to that question. For obvious interpersonal reasons I didn't challenge him on that, but I was pretty shocked.

So I'm curious if there is actual case law to support this view? Or is this view possibly due to an abundance of caution and a lack of case law? Lawsuits are expensive, one can understand not wanting to be the 'test' case.

It sure seems crazy to me (not a lawyer) that one could be obligated to release source code for an internal application that utilized GPL software one worked hard to protect and hide it from the world when someone (possibly someone with capability to access but specific contractual obligation not to remove the software [or other sensitive data] such as technical administrators at a cloud service provider) accesses your server and illegally copies it.

One parallel I've thought of is that the fact that it's illegal for someone to copy music off a file server doesn't protect someone who puts the music on an unprotected file server. However, that seems different from forced entry to a building, hacking into a server or direct contravention of an explicit agreement between parties.

I'm not really interested in "opinions" as "answers" here unless you are a professional lawyer in this area or otherwise have real world experience on the matter. I'm full of opinions, what I need is evidence to affirm or contradict my opinions. Therefore I'm more interested in actual precedents or cases where courts have ruled for or against the idea that stolen software (or other property) has been distributed. FWIW, I'm not about to take this back and fight with the lawyer, since that would be non-productive, It's his job and his call, end of story. I am interested in this for my own knowledge going forward.

I did see a question here about copyright that implied that "make available" was a critical concept but it's not clear that that applies here.

Answer 1

Your problem arises from the question that you asked, in particular the fact that you didn't ask if actual theft is theft, you asked how GPL treats a particular act. GPL says absolutely nothing about "theft", indeed "theft" when it comes to copyright is a metaphor.

Copyright law restricts copying and distributing "literary works" which includes software. The rule is that the copyright owner is the only person who can authorize copying and distribution. Software licenses granted by copyright owners then purport to give permission to do certain things – perhaps to copy, perhaps to distribute, it depends on the license. It is possible (imaginable) that a license could stipulate that "you can distribute copies of this software only if you are personally handed a floppy disk with the software, from the author". That is not what GPL says.

It is imaginable that a license could be written so that no license is granted if the "source" medium is actually stolen, as defined under ordinary laws or California that define "larceny" (taking without permission with the intent to permanently deprive of possession). GPL does not say that. The attorney is thus correct that GPL does not address "theft".

GPL does not impose a special definition on "distribution". The ordinary meaning of "distribute" is to "transfer from one person to another". In physically taking an object, you have (unlawfully) transferred it from one person to another. GPL grants permission to distribute. The analysis stops there, unless you are also interested in whether actual theft is a crime (which GPL says nothing about).