The GNU GPL, modifications and swedish copyright law.

Yesterday, I was involved in a discussion that started with the Affero General Public
License
, a modification of GNU GPL, indented to close the ASP
loophole
in GNU GPL v2. The ”ASP loophole” referst to the fact
that a Application service provider (ASP) can make the functionality
of a GPL’ed program available, without distributing the actual
program, through a Web UI or something similar.

The Affero GPL (and upcoming
GPL v3
) intends to close this by demanding (in 2 d) that, if the
software has functionality to allow users to download the source code
of that program, you may not remove this functionality.

Now, the GPL (both Affero and GNU v2) is not a binding license. It
even says so itself in section 5: ”You are not required to accept this
License, since you have not signed it”
. It’s power derives from
the fact that, unless you accpt it, normal copyright law applies,
which forbids you to redistribute software for which you do not hold
the copyright.

However, to exploit the Affero/GNU v3 GPL, you don’t have to
redistribute the software, just remove the feature that allows users
to download the source. And if you don’t accept the license, who’s
going to stop you? Section 5 of the Affero GPL goes on to say:
”However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License.”
(emphasis
mine)

So, the whole power of the Affero GPL hinges on the fact that,
under normal law, you do not have the right to modify a program for
which you do not hold the copyright. But is that really correct? I’ve
read and re-read the Swedish copyright law, and I cannot
find where it says that personal modifications are not allowed. In
fact, it explicitly allows the modification of programs and copying
(but not redistributing) the result in 26 g §, in certain
cases. The swedish copyright law is all about making copies and
the redistribution of copyrighted material, not modification-making.

So, under Swedish law, are you allowed to modify software for which
you do not have the copyright? If so (and I think that’s the case),
the raison d’etre for Affero GPL is null and void in
Sweden. Presumably, this is different under US copyright law.

If you know (or think that you know) that I’m wrong in the above
assumption, I’d love to hear about it, preferably with a reference to
a law and section, or reference to a precedential case. Or, you know,
just with a logical reasoning about why I’m wrong. Still no talkback
system, but I check my referrer logs, so if you blog about it, I’ll
read it. Or just email me at staffan@tomtebo.org

The one thing I can think of that would make modifications of a
software program illegal, according to Swedish law, is 12 §, which states that
one may not create copies of a computer program, not even for personal
use (as opposed to most other works such as books or music, where
personal copying is allowed). Maybe it can be argued that modifying a
program is, in effect, making a copy of it?