Nordic Journal of Commercial Law
issue 2009#1

Reciprocity under the GNU General Public Licenses

by Pessi Honkasalo



Nordic Journal of Commercial Law
issue 2009#1

2

1. Introduction

Forming the Question

The GNU General Public Licenses are the most widely used open source software licenses
worldwide. According to a license breakdown statistics from freshmeat.net, one of the largest
software repositories, some 70 percent of applications that are released under an open source
license carry that of GNU1. Here, the reference to the GNU General Public Licenses is made in
plural, for there are in all three GNU software licenses:

a) the GNU General Public License (GPL),
b) the GNU Lesser General Public License (LGPL) and
c) the GNU Affero General Public License (AGPL)2.

Of  these,  the  GPL  is  far  and  away  the  most  popular.  The  prevalence  of  the  LGPL  is
approximately one tenth thereof, and the latest entrant, AGPL, is still rather marginal, albeit
increasingly used latterly.3 Each of the licenses has, however, its intended use and, in that
regard, particular contractual provisions and effects, which naturally influence the potential
penetration. Such elements form the very research problem of this study, so that at this stage it
suffices  to  say  that,  on  average,  the  GPL  is  used  for  programs,  the  LGPL  for  libraries  and  the
AGPL for software that is commonly run over a network.

Notwithstanding the fact that most projects licensed under the GNU software licenses are
unquestionably of minor importance or intended for a limited audience, the great social
significance  of  these  licenses  stems  from  the  other  fact  that  some  of  the  most  widely  used
computer software is GNU-licensed, as well. Examples of such programs include, among others,
the Linux kernel, the GCC compiler collection, MySQL database server, Perl programming
language, OpenOffice.org productivity suite, Java development kit, Samba file and print
services, Qt development framework, iptables filter control tool, the CVS concurrent versioning

1 Freshmeat.net  2008b.  By  the  time  of  writing,  the  exact  number  was  70.88%  equalling  31,538  branches  out  of
44,539.
2 Hereafter, the abbreviated versions of the names are used when referring to any separate license. Due to the
technical nature of the subject matter, this study includes quite a few abbreviations and acronyms, all of which are
explained in the list of abbreviations on p. 119 supra. Furthermore, unshortened names are used where the terms
are figured for the first time in the text.
3 Palamida 2008.



Nordic Journal of Commercial Law
issue 2009#1

3

system  and  Launchpad  code  hosting  platform,  which  are  all  licensed  under  a  GNU  software
license4.

Many factors can drive a decision about technology architecture, information management,
systems integration or software licensing in general. History, legacy systems, internal politics and
the location of key people within an organisation may all be relevant, as well as other
commercial motives, such as cost considerations and offerings of competing vendors. What
tends to be on a lower level of priority, if indeed is properly considered at all, is the legal or
regulatory impact of such a decision.5 However, since various contractual restraints contained in
proprietary and open source licenses, respectively, may at a later time be proven to mean a
significant effect on the contemplated use or even the dilution of the whole investment, judicial
risk analysis ought to constitute an essential part of the planning work of a licensing strategy.

Now, therefore, the purpose of this work is to interpret the reciprocity clauses included in the
GNU software licenses, viz. which  obligations  they  impose  on  the  licensee  and  what  sort  of
activity triggers such commitments. Looking at prior studies, one can find many general
statements in the literature that characterise the GPL as possessing something called the ‘viral
effect’6, the LGPL as being ‘persistent’7 and  the  AGPL  as  offering  a  plug  for  the  ‘application
service provider (ASP) loophole’8 in the ordinary GPL. However, the more precise meaning of
such effects and the demarcation between various forms of combinations and modifications—as
well as defining which acts constitute derivatives of functional relevance with regard to
reciprocally licensed software—have been subject to unfortunately diminutive analysis in our
jurisdiction9.

My aim is to systematise the mechanisms of reciprocity under the doctrine of GNU software
licenses. First, I seek to offer, from the legal point of view, the intellectual readiness for making
strategic licensing decisions in relation to the GPL and its derivatives for undertakings that are
directly or indirectly conducting business in the computing industry. It is fundamental for
developers to appreciate how the licenses affect the extent to which they can adapt the licensed
software, and under what restrictions. Nevertheless, secondly, the factual audience is much
wider.  According  to  the  statistics  from  a  recent  survey,  more  than  half  of  the  enterprises  are

4 Freshmeat.net 2008a; Canonical 2009.
5 Millard 2008.
6 See Manner 2001, 15; Dixon 2004, 24–25.
7 See Lerner and Tirole 2005, 23; Ghosh and Soete 2006, 930.
8 See Välimäki 2002, 854 fn. 27; Babcock 2007, 42.
9 Välimäki’s seminal research being a welcome exception. The perceptions built into his doctoral thesis have
proffered fertile ground for this author’s further interpretations and systematisations. See Välimäki 2005, 123–
138.



Nordic Journal of Commercial Law
issue 2009#1

4

using open source applications in their organisations today, and an additional ten percent plan
to do so during this year10. Further, by 2012, research firm Gartner, Inc. believes that 80
percent of all commercial software applications will include open source components11.
Inasmuch  as  the  GNU  software  licenses  hold  the  lion’s  share  of  the  open  source  market,  it  is
highly probable that one wishes to be conscious of one’s risk position in such arrangements to
eschew being legally exposed for violations of the license requirements.

Exclusions

As  stated  above,  this  study  focuses  on  the  reciprocity  obligations  contained  in  the  GNU
software licenses, also known as ‘copyleft’12. Such reciprocity can be further divided into three
more precise, albeit not exact, categories, depending on the terms of the license agreement13:

a) Standard reciprocity obligation means that the distribution terms of the source code must
be maintained so that, should the program be further developed, the license terms cannot
be changed or the program made proprietary. Nonetheless, should the source code be
combined  with  another  source  code  in  order  to  create  a  new  work,  standard  reciprocity
obligation does not apply to the combined work.

b) Under strong reciprocity obligation, the same basic rule applies, but also adaptations and
compilations of any kind whatsoever must keep the license terms intact. In spite of all, the
obligation is not triggered preparatory to the time of distribution of the software.

c) Network reciprocity obligation is an augmented version of strong reciprocity, as far as the
mere use over a network of a piece of software covered by such a license is interpreted as
distribution, whereas in the former two brands the interpretation of the term encompasses
only a downloadable or fixed software package.

For the purposes of research, it is not the core areas of provisions that are especially interesting
but, rather, fringes and overlaps; their interconnection. In order to be able to particularise the
pith and functionality of each category within the set-down limit for the number of pages with

10 CIO 2008.
11 Ars Technica 2008.
12 All the technical terms used herein will be explicated in the respective sections of text, where their meanings are
further elaborated. For example, as regards ‘copyleft’, see ch. 0 infra.
13 Välimäki  2005,  117–119.  Välimäki  uses  only  notions  of  standard  and  strong  reciprocity,  while  considers  the
third class merely as a modification of the latter; he speaks of a ‘network use obligation’. I deem it appropriate to
make a clearer distinction, for the functional difference is rather significant, and there are also three separate GNU
software licenses, respectively.



Nordic Journal of Commercial Law
issue 2009#1

5

an adequate precision, I have delimited the research task into the above-mentioned specific
form. In that regard, this study contains the following exclusions.

At the time of writing, there are overall 62 open source licenses that have undergone the
approval process of the Open Source Initiative (OSI), and several more are currently seeking
approval14. Many of them share common characteristics and functionalities, differing only in
some nuances. Some, for one, are clearly aimed for special purposes15. However, because the
GNU  software  licenses  constitute  a  block  possessing  over  two  thirds  of  the  market,  I  have
deemed it well-grounded to limit the dissection hereunder to the member licenses of the GNU
phalanx. But on the other hand, I consider the inclusion of the AGPL in this work, in spite of
its relatively low penetration, justifiable inasmuch as the license in question forms together with
the GPL and LGPL a coherent system, which is expedient to be studied en bloc. In addition,
according as the demand for the ASP model increases, there is a strong possibility that the
AGPL’s significance will rise accordingly.16

Further, within the system of GNU software licenses, all but the latest versions of the licenses
have been excluded. Hence, this study discusses the reciprocity obligations under versions 3 of
the GNU General Public Licenses, namely GPLv3, LGPLv3 and AGPLv3 for short. The final
versions  of  the  former  two  were  released  on  29  June  2007  and  that  of  the  latter  on  18
November 2007, each preceding a thorough revision process and several draft versions. The
previous version of the GPL, GPLv2, originates from June 1991; the predecessor of the
LGPLv3, LGPLv2.1, is effective as of February 1999; and the original AGPL, AGPLv1, is dated
March 2002. Each of these, and indeed even the more antecedent versions, can still be referred
to  in  the  license  grant  but  the  Free  Software  Foundation  (FSF),  the  publisher  of  the  GNU
software licenses, recommends using the latest versions17.  Thus  far  some  3,800  projects  have
explicitly converted to version 3 and nearly 6,900 projects are licensed under a certain other
version of the GNU software licenses ‘or any later version’ of it18.  Pursuant  to  s.  14  of  the

14 OSI 2006.
15 See, e.g., the Educational Community License (EPL), the NASA Open Source Agreement (NOSA) and the Open
Group Directory Test Suite License (OGDTSL).
16 For more information regarding the AGPL, see ch. 0 infra.
17 Stallman 2007.
18 Palamida 2008.



Nordic Journal of Commercial Law
issue 2009#1

6

GPLv3, in that event the licensee has the option of following the terms and conditions either of
that numbered version or of any later version19.

The older versions of the GNU software licenses are similar in spirit to the present ones, but
differ in detail as the later editions have addressed some new problems and concerns. All text
has completely been rewritten for versions 3; used terms have been altered widely and new
definitions  are  given.  In  view  of  these  facts,  I  find  it  consistent  not  to  analyse  the  legal  state
against  two  contractual  subtexts,  but  that  of  the  more  recent  one.  That  being  said,  it  is  still
probable that the comments provided hereafter will apply mutatis mutandis to the prior versions
as well, for the updates did not remarkably affect the reciprocity proper20.

The third contextual exclusion is the express concentration on the provisions of reciprocal
nature. The GNU software licenses are thoroughbred licensing agreements containing terms
with regard to, among others, the rights of the contracting parties, acceptance, downstream
licensing, patents licenses, the warranty disclaimer and limitation of liability. This study covers
only the first-mentioned. Thus, emphasis is laid not so much on the licensing issues of a new
system that is devised from scratch but rather on matters related to the use and distribution of a
product that includes source code covered by the GNU software licenses, version 3.

In consequence, the perspective adopted here is that of copyright law. Copyright is—for the
moment, at least—both nationally and internationally the predominant form of protection for
computer programs21. As regards patent protection, s. 1(2)(3) of the Patents Act (550/1967) and
art. 52(2)(c) of the European Patent Convention (EPC; SopS 8/1996) exclude software from
patentability to the extent that a patent application relates to a computer program ‘as such’.
However, although a literal interpretation might suggest on the contrary, patents have been
granted to software also in the European patent practice, insomuch as the invention makes a
contribution in a technical field22. As an answer to this trend, s. 11 of the GPLv3 provides an

19 Consequently, if the new license version gives additional permissions, those permissions are available
immediately to all users of the program, but if the license imposes tighter requirements, it will not restrict the use
of the current version of the program, because the program can still be used under the present license version.
Developers, for their part, are not obliged to release subsequent modifications of their programs under any later
license version. Moreover, the additional permission users may have does not require the licensor to fulfil any
corresponding terms herself, since no additional obligations are imposed on any author or copyright holder as a
result of the licensee’s choosing to follow a later version (GPLv3, s. 14, para. 4).
20 Compare, e.g., GPLv3, s. 5 with GPLv2, s. 2.
21 See s. 1(2) of the Copyright Act; art. 1(1) of the Council Directive 91/250/EEC; art. 4 of the WIPO Copyright
Treaty (WCT); art. 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). On
the history of the legal protection of software, see WIPO 1985, 147–149.
22 PRH 2003; EPO 2008.



Nordic Journal of Commercial Law
issue 2009#1

7

explicit patent license23. The whole patenting scheme, however, would require plenty of space
for a profound analysis, whereupon it is not covered here.

Another risk factor in respect of open source software in general, and that covered by the GNU
software  licenses  as  well,  has  to  do  with  the  division  of  risks  among  the  contracting  parties
pertaining to infringements on intellectual property rights (IPR) by third parties24. It differs
radically from the liability distribution applied commonly in the licensing of proprietary, closed
source software. Whereas the suppliers of conventional software engineering normally agree to
indemnify the customer and hold it harmless against claims made by infringed third parties, the
GNU software licenses start from the premise that the liability for IPR infringements is shifted
onwards in the licensing chain onto the licensee. This stems from the general endeavours of
OSI and the related licenses to promote the distribution of software; they aim to lower the
threshold of a licensor for granting rights to the source code it has developed.25 Without proper
intellectual preparedness as to the functionalities of the licenses, the risk position of a licensee
may become substantially insecure where she affiliates a software component licensed under
one of the GNU software licenses to her own end product. Again, this study tries to set up that
informational framework, but to the questions related to warranties and liabilities only cursory
references can be devoted in respective chapters.

Finally, I shall make a remark about the adjective exclusions: Some software packaging systems
require the would-be licensees to click through or otherwise indicate assent to the terms of a
GNU software license. In the legal literature, these kinds of arrangements are called ‘click wrap’
agreements. Such agreements and their corporeal predecessors, ‘shrink wrap’ agreements, have
been subject to wide-ranging academic debate26.  No  Finnish  legal  praxis  is  on  hand,  but  in  a
United States (US) case ProCD, Inc. v Zeidenberg27 such contracts were held enforceable and, at
any rate, one can argue that since the methods have been utilised in software licensing for

23 In this author’s view, the said provision means—in all but mere pass-through distribution, where no patent
license  is  granted—that  in  the  distribution  of  a  GPLv3-covered  work,  the  copyright  of  which  one  owns  in  part,
patent license is granted to the work on whole, not just to the particular component. However, the license does
not cover the changes made by subsequent actors in the chain of distribution.
24 For further classification to that effect, see Anniina Huttunen’s laudable master’s thesis Lähdekoodin lisensointi
GPL-lisenssillä ja lisenssinantajan vastuu kolmansien patenttioikeuden loukkauksista [Turku] 2007, where the licensor’s
liability for infringements of patent rights by third parties is discussed.
25 The open source definition and the philosophy of the free software movement are pinned down more in chs. 0–
0 infra.
26 See Gringras 1996, passim; Germanowski 1998, passim; Rowland and Campbell 2002, 28–32; Hemmo 2003a,
156–157.
27 86  F.3d  1447  (7th  Cir.  1996).  There  is  a  line  of  cases  that  follows ProCD, Inc. v Zeidenberg, see, e.g., Brower v
Gateway 2000, Inc., 676 N.Y.S.2d 569 (N.Y. App. Div. 1998).



Nordic Journal of Commercial Law
issue 2009#1

8

decades28, they have become in accordance with the customs of the trade. Therefore, the
problem of accession and other issues with regard to the standard conditions of contracts are
not in focus hereafter, but are taken for granted29.

Furthermore, except for this mention, virtually nothing will be said on the advantages and
weaknesses of software development itself based on open source software vis-à-vis the traditional,
proprietary model of software development. It is certain that open source does under no
circumstances guarantee comprehensive documentation, especially as regards the origins of the
software30. Collaborative development also generates technical challenges in respect of revision
control and compatibility of systems31,  so  that  each  actor  must  decide  against  or  in  favour  of
open source on the grounds of individual needs; this work is merely an objective description of
the prevailing legal status.

Source Material

The jurisdictional starting point for this study is that of the substantive law of Finland.
However, as the subject matter is distinctively universal, it seems justifiable that also
observations about other jurisdictions are made to the appropriate extent. There are at least
three valid reasons for this.

First, the GNU software licenses have been released by an American organisation, the FSF. The
interconnectedness of the licenses and title 17 of the United States Code (USC), which in its
chapters  1  through  8  and  10  through  12  contains  the  US  copyright  law,  were  writ  large
especially regarding the terminology of the previous versions32. During the last license revision
process a more globalised approach was taken by defining more terms in the license texts, and
comments were welcomed from all ready quarters so that, consequently, altogether four
discussion drafts of the GPLv3 were framed on the grounds of the received feedback.

28 Välimäki 2009, 145–146.
29 However, it should also be noted that the GNU software licenses do not require anyone to accept them in order
to  receive  and  run  software  so  licensed  (GPLv3,  s.  9).  Hence,  the  licenses  do  not  have  to  be  accepted  until
modification or redistribution of a covered work takes place. Since these actions would infringe copyright, were no
permission to the contrary granted in the license, the argument of indicated acceptance is arguably extraordinarily
plausible with regard to GNU software licenses.
30 Bradbury 2004, 6.
31 Fogel 2001, 10–12.
32 Välimäki 2007, 15. The GPLv2 uses terms such as ‘distribution’ and to ‘use’ that are defined in 17 USC 101,
whereas the corresponding terms in the GPLv3 are to ‘convey’ and to ‘propagate’ that carry no such linkages.



Nordic Journal of Commercial Law
issue 2009#1

9

Nevertheless, the interpretation of the licenses is still ultimately conditional on the national
copyright law33.

Second, the GNU software licenses have not yet been subject to any legal proceedings in
Finland. As a matter of fact, even worldwide there is very little case law in this area34. Therefore,
one has to utilise all the available trial documents in order to discover, to the appropriate
extent, the underlying principles and common denominators35. I have worked on the basis that
systematisations, no matter how consistent or coherent they are, must also be justified, and that
justification is only achievable by building it upon legal usage as well36. In respect of theories
regarding the sources of law, the said approach is trouble-free for if an applicable legal principle
can be derived from foreign case law, it is practicable unless certain contraindications exist.
Comparative legal arguments may suggest feasible constructions for the problems of
interpretation and are, as a result, permitted sources of law.37

Third, the bulk of the earlier research has been carried out in other jurisdictions, notably under
the Anglo-Saxon legal order. Hence, most of the literature addressing the subject matter is of
foreign origin. However, it is important to take cognisance of the quality of the Copyright Act
(404/1961) related to the private international law, according to which only works of Finnish
origin are under s. 63 thereof protected by the Act. Protection for other, non-Finnish works is
granted by means of international treaties, to wit the Berne Convention for the Protection of
Literary and Artistic Works (SopS 79/1986); the Rome Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations (SopS 56/1983); the
WIPO Treaties (823–824/2005) and the TRIPS (SopS 4–5/1995). In an industry extremely
global, the significance of this is that if an open source software project were on the grounds of
jurisdictional basis deemed to be of foreign origin—as the case often might be—the secondary
sources referred to at the beginning of this paragraph turn out rather relevant.38

33 GPLv3 Process Definition.
34 See Welte 2008.
35 The situation is comparable with the principles of interpretation under the law of transport. See Selvig 1986, 7–
19; Sisula-Tulokas 2007, 42–46, 55–56.
36 Cf. Pöyhönen 2003, 68–69.
37 Aarnio 1989, 235–236. See also Tolonen 2003, 126–132.
38 An example: The copyright holders of GPLv3-licensed software file a suit against a Finnish company in Helsinki
District Court for copyright infringement. If the court finds that the program in question is not of Finnish origin,
the  judgement  will  be  passed  by  virtue  of  the  law  that,  according  to  the  connecting  factor  rules  of  the  private
international  law,  is  deemed  bound  up  with  the  software,  the  programmers  of  which  each  might  hail  from  a
different country.—Art. 3 of the Berne Convention includes the principle of ‘national treatment’ and TRIPS, art. 4
the clause of most favoured nation (MFN).



Nordic Journal of Commercial Law
issue 2009#1

10

This study is a contribution to the ongoing scholarly debate concerning the GNU software
licenses. It is founded on the theoretical frames of reference and the phrasing of questions
expressed in pre-existing studies and leads up to offer a disquisition as to the essence of the
reciprocity obligations under versions 3 by charting the functionalities as they are represented at
present moment in a Nordic judicial system.39 The object is achieved by making the most of the
available sources of law, including the legislative history. In this context the content of
substantive law is predominantly reduced to national legislation, European Union (EU)
directives and international conventions governing copyright.

Nonetheless, because the research problem pertains to the interpretation of the terms and
conditions of civil licensing agreements, the very text of the licenses is of considerable relevance
to  the  matter  where  mandatory  legislation  related  to  the  law  of  copyright  does  not  provide  to
the contrary. In private law, dispositions made by the parties within the limits of discretionary
legal provisions constitute the prevailing legal relationship between them. The form of the
arrangement is thus mainly for the contracting parties to decide. In this respect, if the meaning
of a contractual clause is not obvious but necessitates interpretation, the interpreter must
attempt to discover the purposes of the parties on the grounds of preliminary works and other
relevant circumstances.

As mentioned above, the revision of the latest GNU software licenses involved a public
comment process with two to four discussion drafts and an accompanying rationale document
for each license. Ordinarily we cannot know in retrospect the foundations or the raison d’être of
any solution opted in an agreement, but these preliminary works that are open and accessible to
all on the web make an exception. The interpretative effect of such transparent material is
deemed analogous to the role of a bill in the interpretation of the corresponding law and,
accordingly, is brought hereunder to bear on if needs be40.

Methodology

Methodologically this study follows the approach of legal dogmatics. For the reasons stated
above, in addition to sheer scientia iuris also the methods of comparative law are utilised on the
appropriate connections. As to dogmatics, I have assumed an ideology of interpretation that
applies the prevailing law in a manner of speaking the viewpoint of a judge. Thereby, the focus

39 In  order  for  readers  influenced  by  other  legal  traditions,  mainly  Continental  and  common  law  systems,  to
actually understand the contents, I have chosen to write this thesis in English, which has been the lingua franca of
science, too, since the end of the Second World War.
40 Hemmo  2003a,  583–590.  See  also  art.  5:102  of  the  Principles  of  European  Contract  Law,  art.  4.3  of  the
UNIDROIT Principles of International Commercial Contracts and art. II.–8:102(1) of the Draft Common Frame
of Reference (DCFR).



Nordic Journal of Commercial Law
issue 2009#1

11

is hereunder the analysis of the semantic meaning of stipulatory texts, both legislative and
contractual, the purposes and intentions of the draftsmen and the established practices of the
case law.41

The rationale behind such an approach is the informational interest to find out, what is the
stand of the substantive law on various ways of exploiting computer programs that have been
published under a GNU software license. I find that eliciting noteworthy matters with regard to
those circumstances is best done by using said methods and being objectively disposed towards
the research subject.

The progression of the study is as follows: This first chapter provides an overview of the work’s
thematic structure. It is followed by a concise chapter offering the relevant background
information, which presents the statutory frame of reference and conventions regarding
software licensing, the open source software development method as an antithesis of the first-
mentioned as well as the fundamentals of the philosophical outlook behind the FSF and how
this historical baggage has influenced the formation of the GNU software licenses.

Thereafter, attention is paid to the rôle that the GNU software licenses have in the exchange of
software. In the conflict of assignments, licenses and pledges with regard to IPR, time priority
forms the basis for collision resolution; protection provided by good faith is not thinkable in
this area42. However, as the GNU software licenses are of non-exclusive nature, more important
than cogitating erga omnes principles is defining the rights and obligations in the contractual
relation. This is done in the third chapter by interpreting the contractual stipulations contained
in the GPLv3, LGPLv3 and AGPLv3 as to reciprocity.

Basing on the findings and prima facie risk  analysis  of  the  preceding  part,  the  fourth  chapter
then expresses the system of various forms of modifications under this doctrine. The GNU
software licenses rely heavily on the functionalities and characteristics of copyright law,
whereupon the guidelines for decision-making bestowed by such institutional support
ultimately constitute the definite legal statuses. The idea–expression divide that prevails the
reasoning related to the law of copyright provides for the test of substantial similarity, which
can be utilised in demarcating the territories of independent, combined and modified works.

The last chapter contains a précis of the arguments and discusses matters that especially ought to
be taken into account where decisions relating, directly or indirectly, to the GNU software
licenses are made. Full texts of the terms and conditions contained in the licenses have been
appended at the back.

41 Siltala 2001, 121–123.
42 Tuomisto 1993, 118–119; Millqvist 2006, 129.



Nordic Journal of Commercial Law
issue 2009#1

12

2. Background

Conventions of Software Licensing

Legal Protection of Computer Programs

In accordance with s. 1(2) of the Copyright Act, computer programs are protected by copyright
as literary works. Copyright does not protect the mere ideas and principles, which underlie any
element of software, but the protection applies to the expression of a computer program, be it
in  any  form  whatsoever43. Article 1(3) of the Council Directive 91/250/EEC on the legal
protection of computer programs (hereinafter referred to as the ‘Software Directive’) further
provides that a computer program is protected if it is original in the sense that it is the author’s
own intellectual creation; no other criteria are to be applied to determine the eligibility for
protection.  By  virtue  of  s.  43  of  the  Copyright  Act,  protection  is  granted  for  the  life  of  the
author and for 70 years after her death or after the death of the last surviving author44.

As to the authorship of computer programs, the Copyright Act starts from the premise that the
person who has created a work has copyright therein (s. 1[1]). In consequence, the author of a
computer program is the natural person or group of natural persons who has created the
program. However, in accordance with s. 40b(1) of the Copyright Act, where a computer
program is created by an employee in the execution of her duties or following the instructions
given by her employer, the employer is exclusively entitled to exercise all economic rights in the
program so created, unless otherwise provided by contract (s. 27[3])45.

Subject to certain exceptions, the exclusive rights of the copyright holder include the right to do
or to authorise, first, the permanent or temporary reproduction of a computer program by any
means  and  in  any  form,  in  part  or  in  whole.  Accordingly,  insofar  as  loading,  displaying,
running, transmission or storage of the computer program necessitates this kind of
reproduction; such acts are subject to authorisation by the copyright holder. In the second
place, without prejudice to the rights of a person who alters the program, the translation,
adaptation, arrangement and any other alteration of a computer program and the reproduction
of the results thereof are restricted acts as well. Thirdly, the copyright holder has the exclusive
right to authorise any form of distribution to the public, including the rental, of the original

43 Strömholm 1970, 88 ff.; Haarmann 2005, 96–98.
44 Where the computer program is an anonymous or pseudonymous work, the term of protection is 70 years from
the time that the computer program is first lawfully made available to the public (s. 44[1]).
45 HE 161/1990 vp, 54.



Nordic Journal of Commercial Law
issue 2009#1

13

computer program or of copies thereof46. (Copyright Act, s. 2; see also Software Directive, art.
4.)

As mentioned above, however, the protection provided by copyright is not absolute by any
means but is subject to various limitations included in c. 2 of the Copyright Act. Sections 25j
and 25k therein provide special provisions concerning computer programs. To begin with, in
the absence of specific contractual provisions, the reproduction of software does not require
authorisation by the copyright holder where it is necessary for the use of the computer program
by the lawful acquirer in accordance with its intended purpose, including for error correction47.

Moreover,  the  making  of  a  back-up  copy  by  a  person  who  has  a  right  to  use  the  computer
program cannot be prevented by contract insofar as it is necessary for that use. Also, the person
having a right to use a copy of a computer program is entitled, without the authorisation of the
copyright holder, to observe, study or test the functioning of the program in order to determine
the ideas and principles which underlie the elements of the program, if she does so while
performing any of the acts of loading, displaying, running, transmitting or storing the program
that she is entitled to do. In accordance with s. 25j(4) of the Copyright Act, any contractual
provision on the contrary is automatically null and void.

In  addition,  detailed  rules  in  respect  of  decompilation  exist.  Decompilation  is  a  term  for  the
process of obtaining source code from compiled, machine-readable object code48. In this
respect, the authorisation of the copyright holder is not required where the reproduction of the
source code is indispensable to obtain the information necessary to achieve interoperability of
an independently created computer program with other programs. However, decompilation is
permitted only provided that the following conditions are met:

a) the decompiler must have a license to use the program to be decompiled,
b) the information necessary to achieve interoperability must not previously have been readily

available in the public domain and

46 Subject to the first-sale doctrine. See s. 19 of the Copyright Act, according to which the first sale in the European
Community (EC) of a copy of a program by or with the consent of the copyright holder exhausts the distribution
right within the EC of that copy, with the exception of the right to control further rental of the program or a copy
thereof.
47 As regards error correction, however, recital 18 of the Software Directive provides conversely by stating that ‘[…]
the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and
the act of correction of its errors, may not be prohibited by contract’ (emphasis added). Välimäki (2009, 52–53) argues
that  a  technical  error  has  occurred  in  the  finishing  of  the  Directive  and  that  the  user’s  right  in  that  regard  was
intended non-discretionary. Cf. Takki 2002, 182.
48 Rowland and Campbell 2002, 35 fn. 39. See also Freedman 2000, 43–44.



Nordic Journal of Commercial Law
issue 2009#1

14

c) the decompilation process must be confined to the parts of the target program relevant to
interoperability.49

It should be noted that by virtue of s. 25k(2) of the Copyright Act the above-mentioned
provision does not permit the information obtained through its application to be (1) used for
goals other than to achieve the interoperability; (2) to be given to others; (3) to be used for the
development, production or marketing of a computer program substantially similar in its
expression or (4) to be used for any other act that infringes copyright.

In general, property is composed of interests having a net asset value50. Common law countries
make use of a concept called the reification of relations, which means treating rights as if they
were things by applying, as far as possible, the same principles and terms to intangible assets as
to corporeal things51. For example, in the United Kingdom (UK) goods are defined by s. 61(1) of
the Sale of Goods Act (1979 c. 54) as personal chattels other than things in action and money,
whereas the Finnish Sale of Goods Act (355/1987) applies, under s. 1(1) thereof, to the sale of
property other than real property.

Such conceptual definitions and divergences therein amount, however, functionally very little
to the subject matter. Whilst it is not semantically valid under the Finnish legal system to speak
of an ‘owner’ of a copyright, in our jurisdiction copyright as an IPR constitutes a form personal
property that enjoys protection relating to the law of property; pursuant to s. 15(1) of the
Constitution of Finland (731/1999), the property of everyone is protected. The Government
proposal regarding the revision of the basic rights and liberties contained in the constitutions
provides that, in addition to proprietary rights, the constitutional protection of property
encompasses for instance limited rights in rem, rights to a claim, delinquent obligations for
money payment by government officials and IPR having a net asset value as well52.

In a computer program, the copyright is concentrated particularly upon its source code, which
is a collection of statements and declarations written in a computer programming language that
allows the programmer to communicate with the computer using a reserved number of
instructions. Once the source code has for processing purposes been converted into an

49 See HE 211/1992 vp, 10–11.
50 Kartio 2004, va111.33149.
51 Lawson and Rudden 2002, 81–82. E.g., s. 655 of the Civil Code of the State of California provides that ‘[t]here
may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic
animals;  of  all  obligations;  of  such  products  of  labor  or  skill  as  the composition of an author,  the  good  will  of  a
business, trade marks and signs, and of rights created or granted by statute.’ (Emphasis added.)
52 HE 309/1993 vp, 62.



Nordic Journal of Commercial Law
issue 2009#1

15

executable object file by a compiler, the file is encoded in binary form and is composed merely
of sequences of two symbols, 0 and 1.53

Decompilation of an executable program in order to generate source code, where the copyright
holder has wanted to keep it secret, constitutes an infringement of copyright, except for when it
is necessary to achieve interoperability54. Therefore, the computing industry has traditionally
appreciated  the  intellectual  property  contained  in  code  modules  and  subroutines  to  be  their
biggest competitive advantage and asset, which must be kept out of the reach of outsiders at full
stretch in order to prevent adaptation of the program. This, for its part, has had a significant
impact on the used licensing practices.

Standard Patterns

A unique thing connected with computer programs, which differentiates them from other
literary  or  artistic  works,  is  the  fact  that  each  and  every  time  a  program  is  being  used,  copies
thereof are unavoidably made along with it55. Pursuant to s. 11a(1) of the Copyright Act,
temporary acts of reproduction are exempted from the exclusive reproduction right of the
author56. However, subsection 2 of the same section provides that such an exemption does not
apply to computer programs57, whereupon for all practical purposes the use of software
necessitates a permission derived from the copyright holder58, which normally occurs in the
format of a license agreement.

Retail  software  is  hence  sold  as  licensed  products.  Software  licensing  means  the  utilisation  of
the exclusive rights of the copyright holder, that is to say the right to copy, distribute and alter
the software59. The pecuniary value underlying a computer program is thus actualised by

53 Takki 2002, 61–63; Elo and Hasu 2003, 2–6; Oksanen 2004, 28–29. Cf. Kemppinen 2006, 235–236.
54 Castrén 2006b, yj111.48303.
55 Bainbridge 1999, 90–93.
56 The provision further requires the reproduction in question to (1) be transient or incidental, (2) be an integral
and essential part of a technological process, (3) have as its sole purpose the enabling of a transmission in a
network between third parties by an intermediary or a lawful use of a work to be made and (4) have no
independent economic significance.
57 Article  1(2)(a)  of  the  Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  on  the
harmonisation of certain aspects of copyright and related rights in the information society (hereinafter referred to
as the ‘Copyright Directive’), which is the legal basis for the national provision at issue, provides that the Directive
leaves the existing Community provision relating to the legal protection of computer programs, i.e., the Software
Directive, intact (HE 28/2004 vp, 84–85).
58 See KKO 1998:91; software offered using an ASP model being a remarkable exception. That model of software
deployment and its relevance to the subject matter are elaborated in ch. 0 infra.
59 In terms of information technology (IT), also the right of correction and further development.



Nordic Journal of Commercial Law
issue 2009#1

16

offering a copy of the work to quarters taking an interest therein60. In accordance with s. 27(2)
of the Copyright Act, the transfer of a copy does not constitute a transfer of the copyright.
Thereby,  the  foundation  of  the  licensing  of  both  open  source  software  and  its  antipode,
proprietary software, is that in neither case does the granting of a—more or less permissive—
license  to  a  licensee  mean  an  assignment  of  the  copyright  as  a  whole  but  rather  limited
components thereof. The authorisation is normally effective only insofar as the licensee adheres
to the terms and conditions of the license61.

It is a common practice that the licenses of proprietary software restrict the rights of a licensee
to  the  fullest  extent  permitted  by  the  peremptory  provisions  contained  in  the  legislation.  To
that end, the licensee is typically granted a non-exclusive, non-transferable limited right to make
a certain amount of copies and to use the program within internal business operations, without
the right to correct errors, develop the program and further distribute it. Moreover, most such
license agreements include an express prohibition to decompile the program or otherwise cause
or permit reverse engineering or disassembly that aims at disentangling the source code, unless
required by imperative law for interoperability. 62

The potential for allocation as to proprietary licensing agreements is often very small: a license
belongs  to  a  certain  person  to  whom  it  is  initially  granted.  The  prohibition  of  transferring  a
license without a prior written assent by the licensor stems from the commercial patterns of
conventional software development and is built into the licenses in order to avoid price
erosion.63 Therefore, the right to transfer a license even within a consolidated corporation, in
context of business assignments or in case of contemplated outsourcing or subcontracting must
be reserved, if possible, by means of additional negotiations.

Finally, irrespective of the cause of termination, proprietary licensing agreements generally start
from the assumption that the user is in that event obliged to destroy the copies of the software
currently in its possession. This means in practice that in case the licensor of the computer
program, inter alia, is declared bankrupt, closes down its operations or is a target of a corporate
acquisition, the availability of the source code or an extension of the contract is not a foregone
conclusion.64 In order to avoid such a compulsory replacement of the product and to assure the
possibility to purchase substitutive maintenance from another supplier, licensing agreements
may contain an escrow provision where the licensor agrees to hold a copy of the application,

60 Välimäki 2009, 143–150.
61 Takki  2002,  96–97,  169.  Provided  that  the  breach  of  contract  is  substantial,  the  licensing  agreement  can  be
dissolved also without a specific stipulation thereof (Hemmo 2003b, 349–350).
62 See Adobe 2008; Apple 2008; Corel 2007; IBM 2008; Microsoft 2008; Oracle n.d.
63 Takki 2002, 106–110, 168.
64 Morgan 2007, 89.



Nordic Journal of Commercial Law
issue 2009#1

17

with the source code, that the client can access should the vendor fail to perform its contractual
obligations.65

Open Source Software

Already since the 1970s computer software has also been licensed under models where the
copyright holder waives a part of the entitlements belonging to it on the grounds of copyright;
as opposed to for example the record industry the maxim of reserving all possible rights was
proven not always to be the most successful method in the computing industry66. Exponents of
the open source development method argue that making human-readable source code available
to all licensees exploits the possibilities of distributed peer review and transparency of process,
which ultimately leads to more powerful, reliable and inexpensive software67.

Nevertheless, open source does not merely mean access to the source code. OSI has published a
ten-clause open source criteria that the distribution terms of an open source license must meet
in order to gain their quasi-official approval. The definition contains sine qua non as follows:68

Table 1. Open source definition

# Criterion Specification
a) Free redistribution The license cannot restrict the licensee from either selling the software or

giving it away for free
b) Access to the source

code
The source code of the program must be readily available and must not
impede subsequent development by being intentionally obfuscated

c) Modified versions The license must allow adaptation of the work and allow modified
versions to be redistributed under the same license

d) Code integrity The license may require modified versions to be distributed as the original
base source code plus separate patches in order to ensure that
modifications are readily distinguishable from the original

e) Non-discrimination The license cannot discriminate against any group or individual
f) Commercialisation Fields of application, such as commercial use, cannot be restricted
g) License distribution The license rights automatically apply to anyone to whom the software is

redistributed without requiring another license
h) No product

restrictions
The license cannot make the rights depend on the software remaining a
part of a particular software distribution

i) No co-distribution
restrictions

The license cannot restrict what software it is allowed to be distributed
with

65 Vapaavuori 2002, 1068–1070. In Finland, for instance the Helsinki Region Chamber of Commerce acts as an
escrow agent for source code deposits; see Helsinki Region Chamber of Commerce 2005.
66 Välimäki 2009, 146.
67 Raymond 2000, passim.
68 OSI 2004. Cf. Rosen 2004, 8–11.



Nordic Journal of Commercial Law
issue 2009#1

18

j) Technology
independence

The license cannot require gestures like click wrap to establish a contract
between the licensor and the licensee

Open source licenses use the essence of copyright law—the power to exclude and its inherent
analogue, the equally large power to authorise69—by not focusing on how to prohibit others
from using works so licensed but, instead, granting the licensees some of the copyright holders’
exclusive powers. That is to say, they subtract from copyright rather than add to it.70 Open
source licenses that contain reciprocal obligations further refine the perspective by laying stress
not merely on prima facie freedoms but also on preserving the subsequent open distribution of
works. Thus, it seems that the fundamental purpose of this so-called doctrine of copyleft, which
allows others to modify and redistribute ‘copylefted’ works, is to deny anyone the right to
exclusively exploit the results of a creation71.

Lack of exclusive powers, however, does not render any party’s economic possibilities unfeasible
since pure open source products can be capitalised either offensively by providing value adding
support, training and consultation services or defensively by means of cost avoidance. The
trade-off between the decision to disclose technology and the ability to appropriate the returns
from that technology is ultimately a managerial issue, for which the science of law can only offer
the juridical case.72

GNU Software Licenses

Free Software Foundation

The FSF publishes the GPL, the LGPL and the AGPL. Whereas open source in general can be
seen  as  a  pragmatic  development  model  free  from  moral  attitudes,  the  FSF  is  a  political
movement, equipped with ethical and social values, that campaigns for computer users’
freedom. Their idea of free software is not sold strictly on business-case grounds but it builds
upon the notion of unrestricted freedom to run, to study and to change computer programs, as
well as to redistribute copies thereof, with or without changes.73

69 See s. 27(1) of the Copyright Act.
70 Working group on Libre Software 2000, 20–21.
71 Laurent 2004, 4. See also Vaidhyanathan 2001, 153–159.
72 See Deek and McHugh 2008, 265–293, and the references therein, for an analysis concerning the economics of
open  source.  West  (2003,  1278–1280)  provides  a  discussion  as  to  shifting  from  proprietary  to  open  source
strategies. Cf. COM (88) 172 final, 173.
73 FSF 2008b. The philosophy of open source considers proprietary software as a suboptimal solution; as against
for the free software movement, proprietary programs are a social problem, if anything.



Nordic Journal of Commercial Law
issue 2009#1

19

In 1984 the FSF launched the development of the free operating system GNU, which is
nowadays  used  by  millions  and  known  by  the  name  of  GNU/Linux.  The  first  version  of  the
GNU  General  Public  License  was  written  for  use  with  programs  released  as  part  of  the  GNU
project.  It  was  designed  specifically  to  protect  freedom  for  all  users  of  a  program.74 It  is
important to notice, nonetheless, that distributing copies of a program for a fee is by no means
restricted either in the open source definition or under the GNU software licenses, the point
being that whilst charging is permitted, users are according to their freedom not obliged to pay
the distribution fee in order to use the software75.

GNU General Public License

Initially each GNU program was licensed under its own general public license mentioning the
name  of  the  program  it  applied  to.  Version  1  of  the  GNU  General  Public  License  was
published on February 1989 in order to allow any program to refer to it without the need for
separate modifications.76 The GPLv1 provided that any vendor distributing binaries must also
make the human readable source code available under the same licensing terms and that
modified versions, as a whole, had to be distributed under the terms and conditions thereof77.

The GNU General Public License, version 2 was published on June 1991, introducing fairly
small  changes.  Arguably  the  most  significant  innovation  was  the  new  section  7,  according  to
which a licensee who is imposed by circumstances contradicting the conditions of the GPLv2
may not, as a consequence, distribute GPL-covered software at all78.  The  following  17  years
witnessed the increasing popularity of open source software and the GPL becoming the
principal license in that regard. Nevertheless, also the technological and legal environments
were naturally evolved by leaps.

To that end, in order to respond to various development trends, the latest version of the GNU
General Public License addresses three challenges in particular that are, according to the FSF,
facing the ecosystem of open source79. First, s. 6 requires the distributor to provide the licensee

74 FSF 2008c.
75 GPLv3,  s.  4.  As  always,  the  pricing  strategies  are  dependent  upon  the  characteristics  of  the  marketplace.  It  is
often so that enterprise software itself is free and customers pay for ongoing support, maintenance and integration
assistance. See Kotler, et al. 1999, 678–709 and more specifically McAllister 2006, 36.
76 FSF 1989.
77 GPLv1, ss. 2(b) and 3.
78 For instance, should a patent license not permit the royalty-free redistribution of a program by all parties
receiving  copies  directly  or  indirectly  through  the  patent  licensee,  the  only  way  she  can  satisfy  both  it  and  the
GPLv2 is to refrain entirely from distribution.
79 Smith 2007; Stallman 2007.



Nordic Journal of Commercial Law
issue 2009#1

20

with whatever information or data is necessary to install modified software on a device running
programs licensed under the GPLv3. Second, in accordance with s. 3, no covered work is
deemed part of an effective technological measure under any applicable law fulfilling
obligations under art. 11 of the WCT80. Third, s. 11 provides that along with the distribution
of  software  covered  by  GPLv3,  the  licensor  must  provide  every  recipient  with  any  patent
licenses necessary to exercise the rights granted in the present license, and should a licensee
institute patent proceedings against other users, the license of the former is automatically
terminated81.

GNU Lesser General Public License

In computing, collections of standard programs and subroutines, which are stored and available
for immediate use by means of a technological procedure known as linking, are called software
libraries82.  They  basically  provide  a  range  of  modules  to  serve  as  building  blocks  in  new
programs83.

The LGPL is a set of additional permissions on top of the GPL, originally intended specifically
for software libraries84. In accordance with ss. 2 through 4 of the LGPLv3, the license places
reciprocal obligations on the program itself but does not apply those restrictions to other
software that merely links with the program. Modification of the portions of the LGPL-covered
component contained in the combined work and reverse engineering for debugging such
modifications, however, must not be effectively restricted. As a consequence, libraries licensed
under the LGPL may rather freely be combined also with proprietary applications85.

80 Examples of such legal provisions being on the domestic front c. 5a of the Copyright Act, which implements c.
III of the Copyright Directive, and in the US s. 103 of the Digital Millennium Copyright Act (DMCA) 112 Stat.
2860 (1998).
81 The formulation of the patents clause is largely caused by the patent cooperation agreement between Microsoft
Corporation and Novell, Inc. regarding patent coverage for their respective users, which was announced on 2
November 2006; see Microsoft 2006.—By contrast, Red Hat, Inc., a major Linux and open source technology
provider, entered on 6 June 2008 into a patent litigation settlement agreement with DataTern, Inc. and Amphion
Innovations PLC that protects not only the company but also the upstream and downstream members of the Red
Hat community, as defined in the agreement. The whole text of the settlement is made publicly available. (Red Hat
2008.)
82 WordNet 2006.
83 Jaeger and Metzger 2006, 38–39.
84 Stallman 1998. Additional permissions contained in the LGPLv3 except some of the requirements of the host
license, viz. the GPLv3, by virtue of s. 7 thereof.
85 Turner 2004.



Nordic Journal of Commercial Law
issue 2009#1

21

GNU Affero General Public License

In the past few years there has been a rising interest in on-demand software, which is provided
by an ASP to customers over a network, a model also known as ‘software as a service’ (SaaS).
From the perspective of a SaaS consumer, IT-related capabilities provided as a service mean
access to technology-enabled facilities without knowledge of, expertise with or control over the
very technology infrastructure that supports them.86

The ordinary GPL does not require anyone to accept it in order to acquire, install, use or
inspect software. It obliges the licensee only if the latter distributes software made from GPL-
covered code and needs to be accepted only when redistribution occurs.87 However, as regards
‘distribution’ of application programs through web services or computer networks, no factual
publication in the sense related to the law of copyright occurs, since the interaction happens
only  over  a  network,  with  no  transfer  of  a  copy88. The GPL thus permits making a modified
version  and  letting  the  public  access  it  on  a  server  without  releasing  its  source  code.  To  that
end,  s.  13  of  the  AGPLv3  expressly  requires  the  operator  of  a  network  server  to  provide  the
source code of the modified version running there to the users of that server.

3. Reciprocity

Theoretical Bases

Anglo-Saxon jurisdictions draw a clear distinction between a copyright license and a contract
concerning a copyrighted work; licenses are unilateral permissions to use someone’s property,
whereas contracts are exchanges of obligations89. In the US, a license is enforced under
copyright law at the federal level but a contract, instead, is enforceable under contract law,
which varies from state to state90. Furthermore, with regard to licenses, provisions contained in
the legal document and thus forming the essence of a transaction may under common law be
either conditions or covenants. Conditions are based directly on copyright, but covenants are

86 Ford 2007, 15; Kaiserwerth 2008, 2–9.
87 Moglen 2001.
88 Vedenkannas 2002, 866–867. See also, a more theoretical approach, Kivimäki 1948, 256–259.—The earning
logic of SaaS is not founded on making and administering copies of the work but on controlling the access to the
service (Kulmala 2003, 58).
89 Collin 2004, 68, 179–180.
90 See  Jones  2003.  The  remedies  available  are  not  the  same.  In  the  event  of  copyright  infringement,  the  relevant
possible devices for redress are (1) actual or statutory damages and (2) an injunction prohibiting infringing
distribution. Cf. Kumar 2006, 24–35.



Nordic Journal of Commercial Law
issue 2009#1

22

added above and beyond any such conditions—i.e.,  they  are  merely  contractual—and  only  the
violation of the first-mentioned constitutes copyright infringement.91 The US Court of Appeals
for the Federal Circuit recently ruled in Jacobsen v Katzer92 that open source licenses create
conditions  on  the  scope  of  the  license,  and  failure  to  comply  with  those  conditions  may
amount to a breach of copyright. The ruling denotes in practice that also the reciprocity
obligations contained in the GNU software licenses can hardly be characterised as mere
contractual covenants, for the subject matter thereof and language therein are similar to what
was upheld by the court as conditional.93

In our jurisdiction, no such subtle separation of concepts exists, but licenses are simply
contracts. Available remedies, however, vary depending on whether copyright infringement or
breach of contract is the case. There are special legal provisions concerning the systems of
contractual (s. 26 of the Copyright Act) and forced licenses (ss. 17 to 19a of the Copyright Act),
but when it comes to the voluntary agreement on authorising use of copyright to a licensee, any
specific sources of law governing them are not available. Domestic legal literature represents
licensing agreements as a sui generis type  of  contract  that  is  being  administered  mainly  by  the
standard theories of law of obligations and that can case-specifically also be influenced by the
analogical interpretation of the special regulation regarding other types of contracts94.

Consequently, from the Finnish point of view, the matters of form amount to very little in
respect of analysing the legal positions derived from a license in force between the parties
thereto. It is the factual content of the juristic act that is of the essence. Nonetheless, the
competence of a licensor originates from the exclusive rights conferred upon her by virtue of
copyright law. It means that copyright defines the framework against which the possibilities of
disposition are to be dissected and that the final result is the product of both contractual and
statutory factors.

The discussion hereunder follows said premises. In this chapter 3 I shall first untangle the
substance of the different categories of reciprocity contained in the GNU software licenses and
then, by implication, elucidate what the consequences of non-compliance are. This is done
predominantly by means of interpreting the license texts themselves and assessing the
justifications found in various preparatory documents, where necessary. Chapter 4 then

91 Gomulkiewicz 2009, 10–14. See also Rosen 2008, 4–5.
92 535 F.3d 1373 (Fed. Cir. 2008).
93 The case in question concerned with the Artistic License 1.0. The Artistic License uses the traditional language
of conditions by noting that the rights to copy, modify and distribute are granted provided that the conditions are
met, which the court found to be of considerable relevance. This same phrasing is contained in the GNU software
licenses; see, e.g., GPLv3, ss. 2 and 4 to 7.
94 See Vuorijoki 2004, va111.56753.



Nordic Journal of Commercial Law
issue 2009#1

23

discusses the systematic outcome of said analysis, to wit the different groups of subsequent
works based on their relationship with the original ones and how to differentiate between
them. Here the matter is examined on the grounds of national and Community legislation,
further refined by legal praxis, as well as relevant forms of legislative history, for the contents of
the classes is ultimately a question of copyright law.95

As regards definitions, it was mentioned above that the original GNU software licenses were
drafted with specific attention to the US legal order. The wordings contained several terms that
were taken directly from title 17 of the USC. By so doing, versions 2 of the licenses were by
definition  dependent  upon  the  details  of  US  copyright  law.  However,  in  the  course  of  time,
practical experiences with the international use of license texts so formulated revealed certain
variations in copyright laws that lead to substantial differences among jurisdictions in the
effective requirements and, ultimately, the consequences of the licenses. The GPLv3 Process
Definition  therefore  started  from  the  premise  that,  to  the  extent  possible,  versions  3  of  the
GNU software licenses ought to reduce the difficulties of internationalisation96.

The greatest complexity pertained to the notion of ‘distribution’, a US legal term of art (17
USC 101) and a well-established non-legal term describing commercial transfers of software.
Section 2(1) of the Finnish Copyright Act speaks of ‘making available to the public’, which is
the closest counterpart to distribution in many other countries as well97. The problem of using
terms defined by categories drawn from some particular national copyright statute in a global
license is that it easily leads to variations in meaning. Distribution, for instance, reportedly in
some  jurisdictions  would  not  include  network  transfers  of  software  but  might  include
interdepartmental transfers of physical copies within an organisation98.

To that end, versions 3 of the GNU software licenses no more contain any references to
distribution but use factually-based terminology instead. This is achieved by introducing two
new terms, ‘propagation’ and ‘conveying’, which are defined by behaviour, not by statutory
categories. In consequence, to propagate a work means to do anything with it that, without
permission, would make one liable for infringement under applicable copyright law, except
executing it on a computer or modifying a private copy (GPLv3, s. 0). To convey a work, for its
part, means any kind of propagation that enables other parties to make or receive copies (ibid.).

95 License terms themselves are contractual stipulations, but the substantive rights granted by the GNU software
licenses are defined under applicable local copyright law.
96 GPLv3 Process Definition.
97 See, e.g., ss. 2(1) of lag (1960:729) om upphovsrätt till litterära och konstnärliga verk (Sweden), lov om opphavsrett til
åndsverk m.v. (Norway)  and bekendtgørelse af lov om ophavsret (Denmark)  as  well  as  s.  18  of  the  Copyright,  Designs
and Patents Act 1988 (c. 48) (UK). Cf. s. 17 of Gesetz über Urheberrecht und verwandte Schutzrechte (Germany).
98 Opinion on Denationalization of Terminology – GPLv3.



Nordic Journal of Commercial Law
issue 2009#1

24

Propagation, therefore, includes by virtue of s. 2(1) of the Copyright Act (1) making copies of
the work and (2) making the work available to the public, with or without modification. In
other jurisdictions it may include, as a consequence of the definition, other actions as well.
Activities that constitute propagation of copies to others, then, are conveying. Argumentum e
contrario would provide that, for instance, giving a copy of GPLv3-covered software to a
colleague is propagation, not conveying, as long as the officials use the program in their work
within an organisation, rather than personally, because the organisation as a legal entity is not
making copies available to others. Other examples of propagation that does not enable other
parties to make or receive copies is making personal copies of a program or privately viewing it.

For the sake of simplicity, term propagation will be used to describe the exclusive rights of the
copyright holder to dispose of the work and transfer of copies of software will be referred to as
conveying throughout the remaining, GNU software license specific parts of this study.

Standard Reciprocity

Central Idea

The focus of reciprocity, core legal mechanism of the GNU software licenses, has been
expressed in the preamble of the GPLv3:

To protect your rights, we need to prevent others from denying you these rights or
asking you to surrender the rights. Therefore, you have certain responsibilities if
you distribute copies of the software, or if you modify it: responsibilities to respect the
freedom of others.99

Despite a somewhat belletrist manner of representation, the idea is clear: users are free to
modify and share software contributions but only under the same terms. This ensures that
improvements to software remain available to previous contributors, thus providing them an
incentive to make the initial contributions at the outset, and to future contributors alike.
Aigrain suggests that this method leads up to ensuring the sustainability of innovation in the
software, which takes place, as he calls it, in a ‘protected commons’100.

Manifestos aside, the proper reciprocity conditions of legally binding nature are set forth in s. 5
of the GPLv3, which provides that any licensee of a program covered by the GPLv3 may convey
a work based on the program contingent upon certain conditions being met. The most
important one is subsection 5c, according to which the conveyor is under an obligation to

99 Emphasis added.
100 Aigrain 2002, 3. See also Deek and McHugh 2008, 250–251.



Nordic Journal of Commercial Law
issue 2009#1

25

license the entire work, as a whole, under the GPLv3 to anyone who comes into possession of a
copy. The GPLv3 thus applies to the whole of the work and all its parts regardless of how they
are packaged. This is the very essence of reciprocity.

The reciprocity obligation contained in the GPLv3 is of strong nature, for the license does not
recognise any exceptions on the grounds of the proportion of the original program to the
material attached to it—or to which it is attached. Strong reciprocity obligation is triggered once
and for all where conveying occurs and a portion, which by its characteristics possesses
relevance related to copyright law, of GPLv3-licensed code is involved101.

By contrast, the LGPLv3 embodies a slightly more moderate form of compulsion, so-called
standard reciprocity. It loosens the obligation in respect of combined works by providing that a
licensee of a program licensed under it may convey a work produced by combining or linking
software with the program governed by the LGPLv3 under terms of her own choice. This
additional permission shall be scrutinised first.

Combining Work with Code Released under LGPLv3

Should the licensee modify a copy of a covered work governed by the LGPLv3, she may convey a
copy of the modified version under either the same license or the GPLv3 (LGPLv3, s. 2). If she
chooses the latter, none of the additional permissions of the LGPLv3 apply to that copy.102 The
provision represents reciprocity par excellence.

Combinations, instead and subject to particular conditions, are not covered by the standard
reciprocity. In accordance with s. 0 of the LGPLv3, a combined work can be produced by
means of combining or linking. In modern software development, there is a tendency of
separating parts of the software into distinct modules that can contain code and data providing
services to independent programs103. The common mechanism for achieving this is the use of
libraries, i.e., collections of subroutines and classes. The specification of the communication
between libraries and applications that use them is called an interface, definitions of which
make it possible to use the library by combining it to other programs. This combination, in
turn, can generally be achieved by either static linking, where the library is copied into a target
application at compile time and a stand-alone executable file is produced, or dynamic linking,

101 Cf. ch. 0 infra.
102 This ensues already from s. 7 of the GPLv3, which provides that a conveyor of a GPLv3-covered work may at her
option remove any additional permission, such as those contained in the LGPLv3, from that copy or from any part
of it.
103 McDermid 1991, 20/14–15.



Nordic Journal of Commercial Law
issue 2009#1

26

where the contents of the library are loaded into an application program at runtime and remain
separate files on disk.104

Hence,  combining  referred  to  in  the  LGPLv3  comes  down  to  making  some  sort  of  use  of  an
interface provided by a library module, but not being otherwise based on it105. Were the latter
provision fulfilled, it would be a question of modification, not combination, and the normal
reciprocity  obligation  of  s.  2  of  the  LGPLv3  would  apply106. Linking an external component
into a work covered by LGPLv3 is thus an instance of modification, wherefore the LGPLv3 or
GPLv3, alternatively, will override.

If LGPLv3-covered code is linked into a main program, the license terms of that main program
have  no  obligations  from  the  LGPLv3.  Consequently,  combined  works  recognised  by  the
LGPLv3 may be conveyed under terms up to the individual, if certain conditions are met. First,
s. 4 of the LGPLv3 provides that the license terms must allow any kind of modification of the
LGPLv3-covered software components contained in the combined work and reverse
engineering for the search and procurement of defects in such modifications. Second, the
conveyor must take care of attaching prominent copyright and license notices and references to
the work (LGPLv3, sub-ss. 4a–4c). Third, pursuant to subsection 4e of the LGPLv3, the
conveyor is obliged to provide the necessary installation information for installing and
executing a modified version of the combined work produced by recombination with altered
LGPLv3-covered code, if she would otherwise be required to provide such information under s.
6 of the GPLv3107.

Finally, in accordance with subsection 4d of the LGPLv3, the conveyor of combined works
must accomplish one of the two alternatives. She may either (1) use a suitable shared library
mechanism for linking with the LGPLv3-covered program or (2) convey any LPGLv3-licensed
source  code  of  the  combined  work  under  the  LGPLv3  and  the  dependent  work  under  such
license terms and in such re-linkable form that a user is able to produce a modified combined
work without any technological or legal barriers to doing so.

Subsubsection 4d1 of the LGPLv3 further provides that an appropriate shared library
mechanism is one that uses at run time a copy of the library already present on the user’s

104 Daintith 2004, 268, 298, 419. See also McDermid 1991, 46/3–8.
105 In accordance with s. 0 of the LGPLv3, defining a subclass of a class defined by the library is deemed a mode of
using an interface provided by the library. It is not obvious, however, whether this specification applies to all cases
of data type inheritance, or is merely an exception.
106 The demarcation between separate, combined and modified works is in greater detail reverted to in ch. 4 infra.
107 The requirement relates to systems that incorporate reciprocally licensed software, but use hardware to prevent
users  from  running  modified  versions  of  the  software  on  that  hardware.  The  creation  of  systems  of  this  kind  is
known as ‘tivoisation’; see ch. 0 infra and further Brooks 2007, 56.



Nordic Journal of Commercial Law
issue 2009#1

27

computer system, and will operate properly with a modified version of the library that is
interface-compatible with the particular version of the library with which the combined work
was made in the first place. Thus, in order to satisfy these requirements, the combining must
occur dynamically, and the proprietary parts of the combined work must not refuse to function
irrespective of the internal operations of the library as long as the features of the interface
remain similar to the original one.

If the conveyor chooses to link the LGPLv3-licensed library to the combined work statically, the
combining occurs at compile time and the library cannot be utilised independently on runtime
requests. Therefore, the conveyor must provide her licensees with any code, data and utility
programs needed for reproducing the combined work; any details about the internals of the
main program are not required. This corresponding application code may be in object code or
source code form, but in any event the LGPLv3 provides that it must be suitable for the user to
produce a modified combined work by editing the library and then recombining or re-linking
the result. (LGPLv3, subsub-s. 4d0.) The users’ right for this cannot be denied in the license of
the combined work, for otherwise the work might not be conveyed at all (arg. GPLv3, s. 12).

Consequently, it seems that linking is permitted where users are able to modify the library
themselves and are provided with the necessary source code and instructions for so doing. The
architecture  of  the  main  program  must,  of  course,  be  designed  in  a  way  that  makes  the  re-
linking with LGPLv3-covered source separately from the main program possible, and the license
terms  of  the  combined  work  must  allow  reverse  engineering  to  debug  the  new  versions  of  the
library that are linked with the main program108. The factual term for the ‘linking’ operation is
dependent upon the characteristics of particular programming languages and other
technological circumstances. Such variance, however, carries no legal relevance with regard to
the LGPLv3, for the combination that forms a single work is not limited to linking. Instead,
combined  works  are  defined  with  references  to  both  linking  and  combining  in  general,  and
these terms are used invariably together throughout the license text. For example, traditional
linking and its counterpart in object-oriented programming languages, inheritance, are both
instances of combining, and the result in both cases is a combined work, not a modification,
that can be licensed any way the conveyor sees fit.109

As a result of dynamic linking, it is also possible to combine not the entire library, but only
parts  of  it.  Pursuant  to  s.  3  of  the  LGPLv3,  the  object  code  form  of  an  application  may

108 Under the EC legal order, this requirement stems to a great extent already from the provisions of the Software
Directive, art. 6. See s. 25k of the Copyright Act.
109 Cf. Slashdot 2003.



Nordic Journal of Commercial Law
issue 2009#1

28

incorporate  material  from  a  header  file  that  is  part  of  the  LGPLv3-covered  program110. Such
object code can be conveyed under whichever license, if the incorporated material is limited to
numerical parameters and comparable quantities, or small code snippets111. Should the
incorporation cover more material, the conveyor is obliged to give prominent notice with each
copy of the object code that a program licensed under the LGPLv3 is used in it and that the
particular program and its use are covered by the present license (LGPLv3, sub-s. 3a). The
obligation is thus substantially milder than where a work that uses the library is conveyed
together with the latter, as no requirements in respect of source code, installation information
or copyright notices are set upon the conveyor.

Corresponding Source and Conveying Thereof

As regards legal instruments requiring that beneficiaries receive a program in source code form
or can obtain it in such form should they wish, the meaning and content of the very term are
an issue of great substance. In the context of GNU software licenses, the source code for a work
means the preferred form of a program for making modifications to it (GPLv3, s. 1). The
definition is not bound to technical epithets but functional convenience. Correspondingly,
object  code  is  in  s.  1  of  the  GPLv3  defined  to  mean  any  non-source  form  the  work.  Object
code, therefore, includes any kinds of transformed versions of the source code, and the
definition also means that intentionally shrouded or obfuscated source does not qualify for the
reciprocity obligation112.

All versions of the GNU software licenses require the conveyor to provide the entire source
code necessary to build the piece of software that is governed by such license, including
supporting libraries, compilation scripts, etc. (GPLv3, s. 1). Providing source merely of the latest
development code does not fulfil the requirement, but users must be offered the chance to
obtain the source code for the exact object code they have received. Thus, the definition of
corresponding source means that the provided sources must correspond precisely to the conveyed
binaries; the licensor is obliged to make sure that she possesses the source code form for each
version of the program that has been conveyed for as long as s. 6 of the GPLv3 provides.

110 This provision can be criticised for using a somewhat vague terminology, for it is not apparent what the license
means by ‘header file’; no definition is on hand. Header files are typically files that are automatically included in
another source file by the compiler, but some programming languages use different naming schemes instead.
111 With regard to the last-mentioned, to wit macros, inline functions and templates, the license text sets a limit of
ten or fewer lines in length. However, many programming languages do not constrain the length of the code lines
by any means, whereupon it would have been more consistent to have set the restriction on the number of
characters instead.
112 GPLv3-DD1, 8–9. See Deek and McHugh (2008, 241) for more information.



Nordic Journal of Commercial Law
issue 2009#1

29

However, s. 1 of the GPLv3 draws the line of corresponding source code at system libraries, so
that the provision of certain core components of operating systems is not required. By
definition, system libraries also include software that may not come directly with the operating
system, but that all users of the GNU-licensed program can reasonably be expected to possess.
The  formulation  arguably  means  that  standard  libraries  of  common  programming  languages,
also GPLv3-incompatible ones, would be included therein.113 The  preliminary  works  of  the
GPLv3 suggest that the more low-level the functionality provided by such a library is, the more
likely it is to be qualified for the system library extension114. If the library meets the criteria, the
requirement to convey source for the whole program will not include it, even if a linked
executable containing it is conveyed115.

Moreover, under the fifth paragraph of s. 1 of the GPLv3, the corresponding source need not
include anything that users can regenerate automatically from other parts of the conveyed
source code. In addition to the requirement of no manual intervention, the provision does not
contain any additional modifiers. From the process for public comment, the problematic nature
of the paragraph’s wording as it now stands emerged, for the automatic regeneration can in
some cases be extremely time-consuming or even unachievable in practice. Various techniques
that require integer factorisation of large numbers or use of external dependencies are available,
whereupon it was suggested that the text ought to read ‘regenerate automatically and
conveniently’, or suchlike.116 The concerns expressed by the commentators did not, however,
touch a chord among the drafters. It would be, therefore, still possible for a mala fide conveyor
to try to escape her obligation to provide source code by means of resorting to such
manipulation and argue that users can indeed regenerate the rest of the source automatically,
even if it took several years.

As a supplement to the terms and conditions contained in the GPLv3, s. 0 of the LGPLv3
speaks, in addition, of the minimal corresponding source for a combined work. The term is
defined to mean the corresponding source for the combined work, excluding any source code
for portions of the combined work that, considered in isolation, are based on the work that

113 Section  1  of  the  GPLv3  provides  that  the  system  libraries  of  an  executable  work  include  anything,  other  than
the work as a whole, that is included in the normal form of packaging a major essential component of a specific
operating system, but which is not part of such a component, and serves only to enable the use of the work with
such  a  component,  or  to  implement  an  interface  that  is  an  official  standard  or  that  is  widely  used  among
developers working in a particular programming language, for which an implementation is available to the public
in source code form.
114 GPLv3-DD1, 9.
115 Consequently, it is possible to use a proprietary module or one that is licensed under an incompatible license in
programs that are governed by a GNU software license, insofar as the present module can be deemed to count as a
‘system library’.
116 See GPLv3 comments in file ‘gplv3-draft-4’.



Nordic Journal of Commercial Law
issue 2009#1

30

uses  the  library,  and  not  on  the  library  proper  with  which  the  combined  work  was  made117.
Hence, depending on the way of production of the combined work118, the conveyor of a work
produced by combining material under her control with an LGPLv3-covered software
component is not necessarily obliged to provide her licensees with any of the source code that is
not based on the component in question.

How, then, should the corresponding source be conveyed and what should be the charge for
this? Section 6 of the GPLv3 specifies several manners for providing the necessary source code
depending  on  the  way  of  the  conveyance  of  the  object  code  form  of  the  covered  work.  The
available options can be summarised as follows:

Table 2. Ways of conveying corresponding source

Sub-
s.

Form of
Conveyance

Providing the Source
Code

Price Supplementary Conditions

6a Physical product
or medium

Accompanied on a
physical medium

No further
charge

6b Physical product
or medium

Written offer to give
anyone who possesses
the object code
1) on a physical

medium
2) access from a

network server119

1) Reasonable
direct costs

2) No charge

Offer must be valid for
1) 3 years minimum
2) as long as the conveyor

offers support for the
product model

6c Individual copies Copy of the written
offer

Pursuant to sub-
s. 6b

Allowed only
1) occasionally
2) non-commercially
3) if received the object with

such an offer
6d Offering access

from a
designated place

Equivalent access No further
charge

Conveyor is obligated to ensure
that the source is available as
long as the object code is being
offered

6e Peer-to-peer
transmission

Informing other peers
where is being offered
under sub-s. 6d120

No charge

117 See also LGPLv3-DD2, 6.
118 Static linking requires the conveyance of the corresponding application code (which does not necessarily have to
be in source code form) whereas dynamic linking necessitates, subject to the quantity and quality of the
incorporated material, the use of a shared library mechanism. Cf. ch. 0 supra.
119 The provision varies from the corresponding subsection of preceding license versions, according to which the
conveyor was specifically required to provide the source on physical media by mail, if any user would prefer that
method to an access from a network server; see GPLv2, sub-s. 2b.



Nordic Journal of Commercial Law
issue 2009#1

31

Irrespective of the chosen way of conveying, the corresponding source must under the first and
seventh  paragraphs  of  s.  6  of  the  GPLv3  always  (1)  be  in  machine-readable  form,  (2)  be  in  a
format that is publicly documented and (3) require no special password or key for unpacking,
reading or copying. Thus, the conveyor of object code is prevented from purporting to satisfy
her obligations under the section by providing source code in some private, locked or digitally-
restricted form.

 Measures against Circumvention

The continuous development and growing accessibility of IT have rendered copying and
distribution of data exceedingly fast and affordable121. In response, copyright holders have
begun to make use of so-called technological measures that provide access control for digital
media122. Those, in turn, have given impetus to activists to take counter-measures by designing
tools that enable hacking of different access controls. Finally the WIPO Copyright Treaty,
adopted in 1996, established the international background for the anti-circumvention
regulation of technological measures.123 The contracting parties to the WCT are pursuant to
art. 11 thereof obliged to provide adequate legal protection and effective legal remedies against
the circumvention of effective technological measures that are used by authors in connection
with the exercise of their rights under the WCT or the Berne Convention and that restrict acts,
which are not authorised by the authors or permitted by law.

The prohibition of circumventing technological measures applies, nonetheless, merely to
measures that are classified ‘effective’. Article 11 of the WCT avoids any definition in respect of
effectiveness, presumably in view of the resistance to its draft version, so that the exact content
of the class is ultimately a question of applicable national law124. In accordance with s. 3 of the
GPLv3, however, works licensed under GPLv3 are not under any circumstances to be deemed

120 Those who do not obtain the object code from the conveyor who has chosen option 6d are outside the scope of
that particular provision. Therefore, the conveyor in question does not need to give them any access to the source
code. Consequently, a licensee is in compliance with subsection 6e so long as she knows and informs other peers
where the object code and its corresponding source are publicly available at no charge. Cf. Opinion on BitTorrent
Propagation – GPLv3.
121 KM 1987:8, 25–26, 156, 195; HE 161/1990 vp, 16.
122 See Opinion on Digital Restrictions Management – GPLv3.
123 Hietanen, Oksanen and Välimäki 2007, 15–23. For more information about the legal framework concerning
technological measures, see Gasser 2006, 6–21.
124 See CRNR/DC/55, art. 13(3) and further Lai 1999, 80–81. Under art. 6(3) the Copyright Directive,
technological measures are deemed effective where the use of a protected work or other subject matter is controlled
by the copyright holders through application of an access control or protection process, such as encryption,
scrambling  or  other  transformation  of  the  work  or  other  subject  matter  or  a  copy  control  mechanism,  which
achieves the protection objective. Cf. HelHO 22.5.2008 1427 (final judgement).



Nordic Journal of Commercial Law
issue 2009#1

32

part of an effective technological measure under whichever applicable law fulfilling obligations
under the article concerned. Further, the second paragraph of the same section contains a
waiver, according to which a conveying party relinquishes the power to forbid the
circumvention of technological measures. The waiver, however, applies only to the extent that
such circumvention is accomplished through the exercise of rights granted in the GNU
software licenses with respect to the covered work.

Consequently, the GPLv3 does not prohibit the use digital rights management (DRM). By
contrast, the license allows one to use code released under the GPLv3 in order to develop a
DRM  technology,  but  if  that  technology  is  at  a  later  time  circumvented  and  the  present
software then further conveyed without any such technological measures, no remedies related
to the law of copyright are at disposal, for pursuant to s. 3 of the GPLv3 the DRM technology
that was circumvented was not such an effective measure that would enjoy protection under,
for instance, c. 5a of the Copyright Act.

The LGPLv3 instead, as a standard reciprocity license, provides that combined works may be
conveyed  without  the  need  to  be  bound  by  s.  3  of  the  GPLv3  (LGPLv3,  s.  1).  Thus,  the
conveyor of an LGPLv3-covered work has the right to assert that the work is protection against
copying without having to waive any right, which the GPLv3 would otherwise require, to forbid
the circumvention of technological measures. Moreover, she is not obliged to disclaim any
intention to limit operation or modification of the work but may do so against the users thereof
as a means of enforcing her or third parties’ statutory rights (arg. GPLv3, s. 3 i.f.).

Strong Reciprocity

Modifying Works Released under GPLv3

The  functionality  of  strong  reciprocity  is  founded  on  the  rule  that  modifications  of  software
that is governed by the GPLv3 can by all means remain private and do under no circumstances
have to be conveyed, but—this is essential—if they are in fact conveyed then the conveyance must
be done under the same license. Whilst the license explicitly precludes the inclusion of software
licensed under the GPLv3 in publicly conveyed proprietary programs, this does not affect
programs used only internally within an organisation; unless conveying occurs, the licensees are
free to make a modified version and use it in any way they see fit without ever releasing it
outside the organisation125.  Thus,  strong  reciprocity  does  not  mean  that  one  is  obliged  to
convey the modifications she has made to the software, only that if she does so, the

125 Other persons are not allowed to demand any GPLv3-licensee to deliver a copy of a program such licensed that
has  not  been  conveyed.  The  same  applies  to  using  a  program  or  a  modification  thereof  on  a  public  web  site  to
operate the said service. The AGPLv3 makes an exception in this regard, see ch. 0 infra.



Nordic Journal of Commercial Law
issue 2009#1

33

modifications and modified versions must be licensed exclusively under the terms of the
GPLv3.

The conveyance of software that is affected by the GPLv3 is stipulated in sections 4 through 6
of the license. In short, the GPLv3 requires that no one is allowed to change the license terms
of a GPLv3-covered program or a modified work thereof, otherwise conveying is not allowed;
actions to the contrary constitute an infringement of copyright. Section 12 of the GPLv3
expressly states that any conditions otherwise imposed on the licensee contradicting the
conditions of the said license do not excuse her from the provisions of the GPLv3. If one
cannot convey covered software so as to satisfy simultaneously the obligations under the GPLv3
and any other pertinent obligations, then as a consequence one may not convey it at all.

Under s. 4 of the GPLv3, the licensee is permitted to convey verbatim copies of the source code
of any work licensed under the license as she received it, provided that she (1) publishes on
each copy a copyright notice, (2) keeps intact all notices stating that the GPLv3 and any non-
permissive terms added in accordance with s. 7 thereof apply to the code, (3) keeps intact all
notices  of  the  absence  of  any  warranty  and  (4)  gives  all  recipients  a  copy  of  the  GPLv3  along
with the source code. For the avoidance of doubt, the second paragraph of the section provides
that,  for  each  copy  that  is  conveyed,  any  price  or  no  price  may  be  charged,  and  support  or
warranty protection may be offered for a fee126.

The propagation or modification of a GPLv3-covered work is not permitted except as expressly
provided (GPLv3, s. 8). Modification, in this context, is in s. 0 of the GPLv3 defined to mean
copying from or adapting all or part of the work in a fashion that requires copyright permission,
other than the making of an exact copy; the resulting work is called a ‘modified version’ of or a
‘work based on’ the earlier work. To that end, in accordance with s. 5 of the GPLv3, conveying
a work based on the GPLv3-covered program, or the modifications to produce it from the
program, is allowed under the terms of section 4, provided that certain conditions are met. Of
these, the provision contained in subsection 5c is the most significant one, as it constitutes the
legal core of strong reciprocity.

Modified versions of GPLv3-covered software must be licensed entirely under the GPLv3. The
license will therefore apply to the work as a whole, which in situ is the incorporeal aggregate
derived from the definitions contained in the license texts and the rules set out in the present

126 By  contrast,  s.  10  of  the  GPLv3  provides  that  one  is  not  permitted  to  impose  any  further  restrictions  on  the
exercise of the rights granted or affirmed under the license. The prohibition means that license fees or royalties may
under no circumstances be effectively imposed, since users cannot under the system of GPLv3 be required to pay
when  they  receive  a  copy  of  a  program.  Anyone  who  conveys  GPLv3-covered  software  for  a  fee  is  not  obliged  to
make it also available to the public without a charge, but any licensee who has paid the fee and therefore received a
copy, may under the same section release it to the public with or without a fee.



Nordic Journal of Commercial Law
issue 2009#1

34

doctrines  of  copyright  law,  as  discussed  in  chapter  4  below.  Subsection  5c  of  the  GPLv3
expressly provides that the requirement to license all the material that constitutes a work
concerns  all  parts  thereto,  regardless  of  how  they  are  packaged.  Conveyors  may  not  use  some
artificial packaging constructions of a modified work to evade the reciprocity obligation.
Similarly, a component that is conveyed separately but is designed only to be used in
combination with and as a part of a specific GPLv3-covered program should according to the
license  be  considered  a  part  of  that  program  and  not  as  a  separate  work,  whereupon  it,  too,
should be licensed under the GPLv3.

It stems from the definition of the corresponding source contained in the fourth paragraph of
s. 1 of the GPLv3 that it includes, among others, interface definition files associated with source
files for the work, and the source code for shared libraries and dynamically linked subprograms
that the work is specifically designed to require. With regard to the GPLv2, it was not
completely clear whether dynamic linkage would constitute the creation of a modified work127.
By contrast, under the GPLv3 it seems apparent that an administrator of justice may, by virtue
of the license text, start from the premise that a licensee cannot avoid complying with the
requirements of the GPLv3 by dynamically linking an add-on component to the original version
of a program, with the exception of meeting the criteria for a system library (arg. GPLv3, s. 1,
para. 3). Similarly, since the license text speaks of modules with which the program is
‘specifically designed’ to work, if one can interchange the GPLv3-licensed module for another
one, which is not governed by that license, the precondition does not appear fulfilled. In that
case, the module would not form a part of the overall work, whereupon the program itself
would not be governed by the GPLv3.

Conveying to Outside Contractors

Notwithstanding anything to the contrary, s. 2 of the GPLv3 gives an explicit permission for a
client to provide a copy of its modified software to a contractor exclusively for that contractor to
modify it further, or run it, on behalf of the client. Those making or running the software must
do  so  exclusively  on  the  user’s  behalf  as  well  as  under  the  user’s  direction  and  control.  The
position of the contractor is thus comparable with that of the user’s employees in how they are
limited to act128.

127 Rosen 2001, 2; Curran 2008, 43. Cf. Jaeger 2005, 75–76; FSF 2008a.
128 Cf. s. 2(1) of the Employment Contracts Act (55/2001), according to which employment consists of an
employee agreeing personally to perform work for an employer under the employer’s direction and supervision in
return for pay or some other remuneration.



Nordic Journal of Commercial Law
issue 2009#1

35

Nonetheless, the control permitted under s. 2 of the GPLv3 can only be exercised over each
client’s own copyrighted changes to the GPLv3-covered program. The parts of the program
obtained from other contributors must be provided for the contractor abiding by the above-
described procedure. This supplementary condition has been included in order to prevent the
exception concerning the conveyance to outside contractors to be converted into a device of
making a program available to users or customers without meeting the requirements set forth in
ss. 4–6 of the GPLv3129.

Consequently, within the limits of the provision, the users of GPLv3-covered software are
permitted to contract with non-employee developers working offsite to make modifications
intended for the client’s private or internal use130. Similarly, they are permitted to make an
arrangement with a third party to operate their data centres or suchlike. The contractor agrees
in a non-disclosure agreement (NDA) not to release the modified version developed by her
unless she is advised to the contrary by the client. Such arrangements do not conflict with the
general system of the GNU software licenses, for no GPLv3-covered code is being conveyed
under a NDA outside the relationship on assignment between the client and the contractor.
The client maintains her right to convey the modified version further, albeit she will probably
choose not to exercise that right.

Entity Transactions

Mergers, acquisitions, buyouts and other corporate control transactions inevitably entail a
certain level of uncertainty with regard to the rights and liabilities being transferred131. At
present, these transactions increasingly involve organisations with assets that are governed by a
GNU software license132. Accordingly, concerns have appeared about whether and to what
extent such transactions activate the conveying-related requirements of said licenses for
programs that previously have been used and modified internally or by outside contractors,
pursuant to s. 2 of the GPLv3133.  Versions  3  of  the  license  texts  are  now  giving  an  explicit
answer to the question.

Transfers of organisational assets as well as other types of control transactions are referred to in
s.  10  of  the  GPLv3  as  ‘entity  transactions’.  The  second  paragraph  of  the  section  in  question
automatically causes any propagation resulting from these entity transactions to have the same

129 See GPLv3-DD4, 12.
130 Cf. ch. 0 supra.
131 Lajoux and Elson 2000, 161–162. See also Howson 2003, 14–29.
132 See the statistics contained in the final paragraph of ch. 0 supra.
133 GPLv3-DD2, 23.



Nordic Journal of Commercial Law
issue 2009#1

36

effect as though conveying had occurred under the terms of substantial sections concerning
conveyance.134 The definition arguably means that, for all practical purposes, parties to an entity
transaction seem not to be able to avoid the consequences of the GNU software licenses,
irrespective  of  how  the  details  of  the  deal  have  been  structured.  For  instance,  should  an
operative  entity  of  an  undertaking  be  sold,  the  seller  that  has  been  using  GPLv3-covered
software internally is not allowed to keep control of a trade secret embodied in its
improvements  by  keeping  the  source  code  for  itself  and  assigning  only  the  binaries,  for  each
party receives automatically whatever licenses to the work the predecessor in interest had or
could give.

In practice, the licenses that are received by the successor in interest are comprised of all
upstream licenses in the chain of propagation and the license and a right to possession of the
corresponding source of the software that has been used internally, modified or unmodified.
The predecessor in interest might not, however, always be able to obtain the corresponding
source. For example, a three-year written offer to provide the corresponding source might have
expired by the time of the entity transaction135. Therefore, the right to possession of the source
code is subject to the predecessor having it or being able to obtain it with reasonable efforts
(GPLv3, s. 10, para. 2 i.f.).

Technical Barriers to Modification

The GPLv3 also introduced provisions that respond to the practice of conveying programs that
are covered by a GNU software license in devices that employ technical means to restrict users
from installing and running modified versions136.  In  accordance  with  s.  6  of  the  GPLv3,  the
right to convey object code in a defined class of user products is conditional upon providing
whatever information is required to enable a recipient to replace the object code embodied in
the product with a functioning modified version. A ‘user product’ is in the license defined to
mean (1) any tangible personal property that is normally used for personal, family or household
purposes and (2) anything designed or sold for incorporation into a dwelling.

Pursuant to GPLv3, s. 6, para. 3, ambiguities are to be resolved in favour of coverage under the
definition. Moreover, the words ‘normally used’ in the consumer product definition must be
deemed to refer to a typical or common use of a class of the product, rather than the status of a

134 The provision was introduced in Draft 2 of the GPLv3 to establish a default background rule to reduce costs
caused by the performance of due diligence investigations in connection with business transactions, where
potential acquirers evaluate the target company or its assets for acquisition (GPLv3-DD2, 23).
135 See table 2 on p. Virhe. Kirjanmerkkiä ei ole määritetty..
136 GPLv3-DD1, 9; GPLv3-DD2, 7–9; GPLv3-DD3, 9–12. See also the Preamble of the GPLv3.



Nordic Journal of Commercial Law
issue 2009#1

37

particular user, or expected or actual uses by a particular user. Finally, the existence of
substantial  non-consumer  uses  of  a  product  does  not  negate  a  determination  that  it  is  a
consumer product, unless such non-consumer uses represent the only significant mode of use of
that product.137 Under  s.  3  of  the  Consumer  Protection  Act  (38/1978),  consumer  goods  are
defined as goods that are offered to natural persons or which such persons acquire, to an
essential extent, for their private households. According to the Government proposal
concerning the amendment of the Consumer Protection Act, as regards marketing, the target
group, not the object thereof, constitutes the deciding factor of the judgement138.  As  a
consequence, the definition of user products in the GNU software licenses is appreciably
concordant with the Finnish practice of interpretation.

For products so defined, the corresponding source must be accompanied by the necessary
installation information, should the conveying occur as part of a transaction where the right of
possession and use of a user product is transferred to the recipient in perpetuity or for a fixed
term (GPLv3, s. 6, para. 5). The particular characterisation of the transaction is immaterial; it is
the subject matter, not the form that is of determining relevance. Installation information, for
its part, refers under the fourth paragraph of the section to any information that is required to
install and execute a covered work from a modified version of its corresponding source.
Installation information would therefore include, for instance, the necessitated signing keys,
with  which  the  hardware  of  a  user  product  authenticates  the  software  against  a  valid
cryptographic signature before functioning139. The information must suffice to ensure that the
continued operation of the modified object code is in no case interfered with or prevented
solely because modifications have been made140.

It is good to note that the requirement to provide installation information does not include a
requirement to continue to offer support service, warranty, or updates for a modified work or
for  the  user  product  where  it  has  been  installed  (GPLv3,  s.  6,  para.  6).  The  same  bears  upon
warranty that is being provided in accordance with s. 4 of the GPLv3. No explicit provision is
on hand, but I deem that the possibility to offer a guarantee engagement, which is voided if the
user modifies the software it applies to, is an implicit quality of the license, since the licensor

137 Until Draft 4 of the GPLv3, the draft versions of the license document contained a reference to the Magnusson-
Moss Warranty Act (15 USC 2301 et seq.), a federal consumer protection statute in the US. As a response to the
objection to country-specific legal references in the license text (see GPLv3 comments in file ‘gplv3-draft-3’), it was
replaced later on with an encapsulation of the judicial and administrative principles established over the past three
decades in the US concerning the Magnuson-Moss consumer product definition. (GPLv3-DD4, 11.)
138 HE 360/1992 vp, 45–46.
139 FSF 2008a.
140 Naturally, the requirement will not apply if no party retains the ability to install modified object code on the
user product for instance on the grounds that the work has been installed in read-only memory (GPLv3, s. 6, para.
5 i.f.).



Nordic Journal of Commercial Law
issue 2009#1

38

cannot be presupposed to provide a warranty that covers all feasible activities with regard to a
program governed by a GNU software license.

Network Reciprocity

Making software available only in binary executables is merely one way of keeping it secret.
Another variety, which is currently receiving much attention in the software industry, is simply
allowing an access to the functionality of a piece of software over a network without the
availability  of  executables  whatsoever.  Pursuant  to  ss.  2(3)(1)  and  (3)  of  the  Copyright  Act,  a
work is made available to the public, inter alia, when it is communicated to the public by wire or
wireless; or when copies of it are offered for sale, rental or lending, or are otherwise distributed
to the public. As per this definition, it is not always obvious whether a computer program has
been made available to the public141. It seems clear that copies of a work may as well be
distributed in physical distribution media as by offering access to them in a network server
(KKO 1999:115)142. However, an application that is accessed via web browser over a network
such as the Internet arguably does not meet the threshold of publication, unless a copy of the
application is transferred to the client. In other words, running web-based applications and
suchlike  programs  provided  by  an  ASP,  is  comparable  to  the  mere  use  of  a  work,  which  lies
outside the scope of application of the copyright law.143

To that end, one of the most controversial issues during the drafting process of the GPLv3 was
whether to add an obligation to make the source code available for software licensed under the
GPLv3 if an access to it was provided over a network144. Eventually, no requirements about the
public use on network servers of modified versions of programs that are governed by the GPLv3
were added in that particular license. By contrast, s. 0 of the GPLv3 explicitly states that mere
interaction  with  a  user  through  a  computer  network,  with  no  transfer  of  a  copy,  is  not
conveying under the framework of the GNU software licenses. The FSF decided to provide the
option of controlling modified network use through an alternative license, the AGPLv3.

141 See also KM 1987:8, 181–182.
142 Cf. Niiranen and Tarkela 1998, 170–171, which precedes the judgement of the Supreme Court.
143 Välimäki 2009, 41–42. See also Reed 2004, 102 ff.
144 See  GPLv3  comments  in  file  ‘gplv3-draft-1’  and  GPLv3  comments  in  file  ‘gplv3-draft-2’.  Drafts  1  and  2  of  the
GPLv3  allowed  in  their  clause  7b4  licensors  to  add  a  requirement  to  publish  source  to  users  interacting  with
modified versions remotely through a network. However, some commentators considered that requirement to be
too  burdensome  and  expressed  concern  about  the  administrative  costs  of  checking  code  for  it.  Publishing  the
AGPLv3 as a separate license made it easier to determine which code has the source publication requirement.
(GPLv3-DD2, 29–31.)



Nordic Journal of Commercial Law
issue 2009#1

39

The AGPLv3 embodies the text of the GPLv3, slightly adapted for the new name, and an
additional paragraph in s. 13 that requires people who modify the software to publicly provide
source code when users interact with the software over a network. The modified version is
obliged to ‘prominently offer’ the corresponding source, which means that anyone who
modifies the software is not compelled to assure herself that every user of the software receives a
copy of the source code, but it must be readily available to users. The requirement is
corresponding to that in GPLv3, subsection 6d.

The AGPLv3 speaks of ‘network interaction’ without any additional qualifiers. A literal
interpretation of the section therefore suggests that the method of present interaction includes
not only traditional graphical user interfaces (GUIs) that users manipulate for web applications,
but also employing other kinds of communications protocols, such as sending requests for e-
mail or hypertext retrieval. The scope of the definition encompasses any interaction now known
or  later  developed  for  use  over  a  group  of  interconnected  computers,  for  it  is  not  dependent
upon  the  technological  methods  of  implementation.  That  was  also  the  author’s  intent  in
drafting the license145. However, the interpretation of interaction cannot arguably be extended
to software that is not designed to interact with users through a network, but happens to do so
where it is being run over some network protocol. Virtually any program can be used remotely
through specialised tools that support logging into remote machines and executing commands
therein, but such environmental factors cannot be decisive rather than the design solutions
made by the author.

Section 13 of the GPLv3 grants, as an exception to the rest of its terms, licensees thereof the
permission to link or combine any covered work with a work licensed under the AGPLv3 into a
single combined work, and to convey the resulting work. The terms of the GPLv3 will continue
to apply to the part that is the covered work, but the special requirements of s. 13 of the
AGPLv3 will appertain to the combination as it is. The compatibility is one-way for works
licensed under the AGPLv3 cannot as such be reverted back to the GPLv3 (arg. GPLv3, s.
13)146. AGPLv3, s. 13, para. 1 provides that the corresponding source of the resulting work,
which must be held available to users, includes also any GPLv3-covered code that is
incorporated into it. The provision ensures that licensees cannot escape their obligations by
placing their modifications into GPLv3-licensed modules that carry no requirements
concerning interaction through a network147.

145 ‘The  [AGPLv3]  needs  to  cover  all  the  various  protocols  and  means  for  network  interaction  in  order  to  fully
achieve its purpose’ (APGLv3-DD2).
146 Naturally, if the modified version does no more support the network interaction presumed by the AGPLv3, the
obligation is not triggered in that regard.
147 See GPLv3-FIN, 19.



Nordic Journal of Commercial Law
issue 2009#1

40

As noted above, the use of a work covered by copyright, as such, is not a part of the exclusive
economic rights belonging to the copyright holder148. Therefore, it would prima facie appear that
the network use obligation would constitute, according to the common law terminology, a
covenant to, not a condition of, the AGPLv3, since the obligation would not be something that
must be satisfied in order for the licensee to be licensed at all but merely a term that the
licensee agrees to when she accepts the license. Nonetheless, ‘using’ a computer program
normally means, also in all cases that are relevant in respect of s. 13 of the AGPLv3, running it.
By definition, a computer operates by running a program that is loaded into its memory, and
every time a program is being run, a copy of it is made in the operating memory.149 That is an
instance of making copies of a work which, for one, belongs to the exclusive rights of
disposition enjoyed by copyright holders.150

In accordance with s. 25j(1) of the Copyright Act, any person who has legally acquired a
computer program is entitled to make such copies of the program as may be necessary for its
use for the intended purpose. Section 25j(5) moreover provides that any contractual provision
limiting the use of a computer program in accordance with subsections 2 through 4 of the
present section is void. However, since subsection 1 is not included in the prohibition,
contracting parties are by law free to stipulate even the right to temporary acts of
reproduction151. If the licensee oversteps the limits of use permitted by the license, the activity
constitutes a breach of contract, not copyright infringement152. Nevertheless, nothing other
than  the  license  grants  someone  who  is  not  the  copyright  holder  a  permission  to  modify  any
covered work, since under art. 4(b) of the Software Directive the exclusive rights of the
copyright  holder  include  the  right  to  do  or  to  authorise  any  alteration  of  a  computer
program153.  Moreover,  in  accordance  with  s.  28  of  the  Copyright  Act,  in  the  absence  of
agreement to the contrary, the person to whom copyright has been transferred may not alter the
work or transfer the copyright to others.

Consequently, running as an ASP an altered version of AGPLv3-covered software that does not
offer users interacting with it remotely an opportunity to receive the source code effectively

148 Haarmann  2005,  111.  In  accordance  with  s.  2(1)  of  the  Copyright  Act,  copyright  includes,  subject  to  the
limitations stated in c. 2 of the Act, the exclusive right to dispose of the work by (1) making copies of it and by (2)
making  it  available  to  the  public.  Pursuant  to  s.  2(3),  a  work  is  made  available  to  the  public  when  (1)  it  is
communicated to the public by wire or wireless; (2) it is performed in public; (3) copies of it are offered for sale,
rental or lending, or are otherwise distributed to the public; or (4) it is displayed in public.
149 KM 1987:8, 38.
150 HE 161/1990 vp, 12, 52–53.
151 See also KM 1987:8, 270–271.
152 HE 211/1992 vp, 9.
153 Section 2(1) of the Copyright Act provides in effect for the same.



Nordic Journal of Commercial Law
issue 2009#1

41

means that the modification has not occurred in accordance with the license. The entitlement
provided by s. 25j(1) of the Copyright Act encompasses only situations where the actions are
necessary for using a program for its ‘intended purpose’. If a program licensed under the
AGPLv3 has been modified by maintaining the support for remote access but removing the
possibility to receive the source code, the program is no more utilised within the scope of the
license provisions, whereupon the result is not merely a breach of contract but has to be
deemed as infringing copyright (cf. KKO 2008:45). This, in turn, possesses some significant
effects with regard to the enforcement of the license.

Enforcement of Reciprocity Obligations

Fundamentals

Since the GNU software licenses are copyright licenses in character, the copyright holders of
the software are the ones who have the power to enforce them154. Traditionally, however, the
enforcement of the license requirements has been handled privately through negotiation and
out of court agreements. The social pressure related to the consequences of non-compliance—
detrimental publicity, loss of goodwill, etc.—has assisted in reaching amicable settlements.155

However, if taking legal action becomes necessary, the licenses themselves and ultimately the
copyright law offer a somewhat solid basis for bringing a suit against the infringer156. In Europe,
the District Court of Munich I confirmed in 2004 that the GPL can effectively become part of
an agreement and is enforceable under the German law157. On the other side of the Atlantic the
first, as far as is known, lawsuits for violations of the GPL were filed in 2007158.

154 Section  6  of  the  Copyright  Act  provides  that,  if  a  work  has  two  or  more  authors  whose  contributions  do  not
constitute independent works, the copyright belongs to the authors jointly. However, each one of them is entitled
to bring an action of infringement. See KM 1953:5, 51.
155 FSF 2005; Vetter 2006, 244; Välimäki 2009, 212–213. Cf. Kumar 2006, 4–5, who sees the settling of lawsuits as
a consequence of uncertainty with regard to the legal groundwork.
156 If  a  computer  program  is  not  original  enough  (see  ch.  0 infra) to be copyrighted but still possesses a certain
amount of originality, which differentiates it from other products and expresses its commercial source, it is also
conceivable that the Unfair Business Practices Act (1061/1978) applies (Sorvari 2007, 395). In such a case, should
a  breach  of  a  GNU  software  license  incur  a  risk  of  interference  as  to  the  commercial  source,  the  breaching
entrepreneur may under s. 6(1) of the present Act be prohibited from continuing or repeating such practice, which
prohibition may be reinforced through a conditional fine.
157 Az: 21 O 6123/04; see Welte 2004. The precedent was upheld in 2006 through a judgement issued by the
District Court of Frankfurt am Main (Geschäftsnr.: 2-6 0 224/06), which confirmed the validity of GNU software
licenses in respect of German legal order (Welte 2006).
158 SFLC 2007.



Nordic Journal of Commercial Law
issue 2009#1

42

What is said about termination and remedies for copyright infringement in this chapter 0 apply
equally to all the GNU software licenses, for the LGPLv3 incorporates the terms and
conditions of the GPLv3, supplementing them by some additional permissions, and the
AGPLv3  consists  of  the  text  of  the  GPLv3  plus  an  additional  paragraph  in  s.  13  concerning
remote network interaction, which alterations do not modify the functionality thereof in
respect of enforcement. For that reason, references to license sections are here made only to the
GPLv3, but the same legal basis pertains to each license.

In accordance with s. 2 of the GPLv3, the license does not control the right of the licensee to
run the program in any way (cf. GPLv3, s. 9). By contrast, section 8 provides that any attempt to
propagate or modify in contravention of the license is void and will automatically terminate the
licensee’s rights under the GPLv3. Thus, the right to exercise even internal or private
propagation and modification is perpetual only as long as one’s rights have not been
terminated. Section 10 of the GPLv3 contains a provision of automatic licensing, but violators
are barred from claiming the benefit of that functionality and thus avoiding the termination of
rights for certain software by simply obtaining a new copy of that piece of software by virtue of
GPLv3, s. 8, para. 4.

Nevertheless, in exchange for the automatic nature of the termination, the license from a
particular copyright holder will be reinstated, should the licensee cease the violation of the
GPLv3 in its entirety. This reinstatement of rights can be either (1) provisional, unless and until
the  copyright  holder  explicitly  and  finally  terminates  the  license,  or  (2)  permanent,  if  the
copyright holder fails to notify the licensee of the violation by some reasonable means prior to
60 days after the cessation. (Para. 2.) Moreover, a violator who has never received notice of a
GPLv3 violation from a particular copyright holder with respect to any GPLv3-covered software
is eligible for permanent reinstatement, should she cure the violation prior to 30 days after her
receipt of the notice (para. 3). Thus, the termination procedure involves a 60-day period of
repose and a 30-day cure opportunity for first-time violators. It is noteworthy that the provision
regarding  first-time  violators,  which  was  added  for  the  purpose  of  someone  who  accidentally
runs afoul of the rules159, may entail difficult questions concerning necessitated evidence160.

Those parties who fail to adhere to the stipulated time limits or cure the violations in aggregate
ultimately forfeit all rights under the license; except for the permission to run the unmodified
program (see GPLv3, s. 2). Should they wish to reinstate their rights to propagate and modify,

159 See GPLv3-DD3, 33.
160 If no concentrated database of license violations, that is both real time and dependable, exists, it is rather simple
for the violator to profess to qualify for the exception of the third paragraph of s. 6 of the GPLv3.



Nordic Journal of Commercial Law
issue 2009#1

43

they must request an explicit reinstatement of rights from the copyright holders, who are fee to
condition the reinstatement upon optional requirements.161

Remedies for Copyright Infringement

Chapter 49 of the Penal Code (39/1889) and ss. 56a–56f of the Copyright Act set forth
criminal sanctions for the infringements of copyright. The discussion hereunder, however,
omits the questions of criminal responsibility and solely focuses on civil remedies available for
the copyright holders, in this case the licensor of GNU-covered software162.

To start with, when a judicial decision is taken finding an infringement of copyright, a court of
justice may under s. 56g of the Copyright Act issue against the infringer an injunction aimed at
prohibiting the continuation of the infringement163.  The  injunction  may  also  be  issued  as  a
preliminary injunction in accordance with c. 7, s. 3 of the Code of Judicial Procedure
(4/1734)164. Liability for an infringement actualises regardless of the degree of negligence and
irrespective of the infringer acting in bona or mala fide. Copyright does not recognise protection
provided  by  good  faith,  except  for  cases  where  a  copy  of  a  work  has  been  made  for  private
use.165

Moreover, s. 57(1) of the Copyright Act provides that any person who uses a work in violation
of  the  Act  is  obliged  to  pay  the  author  fair  compensation  for  such  use.  If  the  use  is  made
wilfully or through negligence, the infringer must, in addition to the mere fair compensation,
pay damages for any other loss, including for mental suffering and other injury (s. 57[2] of the
Copyright Act). As regards fair compensation in respect of computer programs, it is an
established practice of the Supreme Court that the amount of it is considered equal to that of
the normal license fee, unless the special characteristics of the case presume otherwise (KKO
1998:91, KKO 1999:115); the compensation contains no punitive element. Liability for

161 Kuhn, Williamson and Sandler 2008, 11–12. In Progress Software Corporation v MySQL AB, 195 F. Supp. 2d 328
(D. Mass. 2002), the judge implied in her order to grant partial summary judgement that a breach of the GPLv2 by
failure to include the corresponding source could be cured by conveying it in later versions. Given that the GPLv3
contains provisions as to the automatic reinstatement of rights, the statement appears inaccurate at least under the
framework of versions 3.
162 For the special characteristics of criminal responsibility, see Sorvari 2007, 191 ff.
163 See also the Act Concerning the Securing of Evidence Production in Civil Actions Pertaining to Intellectual
Property Rights (344/2000).
164 HE 26/2006 vp, 20. In such cases, the petitioner must be able to establish a probability that she has an
enforceable right and that there is a danger that the opposing party hinders or undermines the realisation of that
right or decreases essentially its value or significance; see Norrgård 2002, 177–186.
165 Sections 57(1) i.f. and 58(1) i.f. of the Copyright Act.



Nordic Journal of Commercial Law
issue 2009#1

44

compensation is related to the infringement of the financial interest belonging to the copyright
holder, and if no valid tariff is available, the court must appraise the amount on a case-by-case
basis by taking cognisance of the purpose, scale and harmfulness of the unauthorised use (KKO
2007:63)166.  Therefore,  although  in  the  GNU  software  license  context  programs  are  often
licensed without charge and thereupon establishing economic loss is troublesome, a court that
recognises the business models and income formation channels related to the open source
software paradigm may arguably arrive at a reasonable quantum of compensation.

Infringement that is proved to result from negligence on the infringing party’s side leads up also
to  passing  judgement  with  regard  to  damages  for  any  other  loss.  Pursuant  to  s.  57(4)  of  the
Copyright  Act,  the  provisions  of  the  Tort  Liability  Act  (412/1974)  are  also  applicable  to  the
damages referred to in the second subsection. Accordingly, liability for damages follows the
general principle of full compensation167. In addition to forfeited profits, examples of coverable
loss would be expenses caused by the detection of the infringement as well as supervisory acts
related to the law of copyright168. If no evidence concerning the amount of loss is available or
evidence can only be presented with difficulty, the court has the power to assess the amount,
within reason (c. 7, s. 6 of the Code of Judicial Procedure). Liability for legal costs is
determined by the common rules contained in c. 21 of the Code of Judicial Procedure.

Apart from injunction, compensation and damages, the Copyright Act also contains provisions
as to forfeiture (s. 58), publication of a ruling (s. 59a), prevention of material’s supply (s. 60a)
and decision on interruption (s. 60c), which are available within the limits enacted. Of these,
especially the possibility of forfeiture appears interesting with regard to the GNU software
licenses, for a court may, at the request of the injured party, prescribe, according to what it
deems reasonable, that (1) a copy of a work that has been produced, made available to the
public  or  altered  in  a  manner  contrary  to  the  Copyright  Act,  as  well  as  (2)  any  instrument
intended for the making of copies, are to be destroyed, altered in specific ways, delivered to the
injured party against compensation corresponding to the cost of manufacture, or rendered
incapable of unauthorised use.

166 See also Lehtonen 1998, 206–207.
167 The  foundation  of  c.  2,  s.  1  of  the  Tort  Liability  Act  is  that  a  person  who  deliberately  or  negligently  causes
injury or damage to another is liable for damages in full. However, the damages may be adjusted if the liability is
deemed unreasonably onerous in view of the financial status of the person causing the injury or damage and the
person  suffering  the  same,  and  the  other  circumstances.  Nonetheless,  if  the  injury  or  damage  has  been  caused
deliberately, full damages are to be awarded unless it is deemed that there are special reasons for a reduction in the
damages.
168 Sorvari 2007, 312–315.



Nordic Journal of Commercial Law
issue 2009#1

45

Assessment of Risk Position

One of the most famous characterisations of the GNU software licenses was expressed by Craig
Mundie, Microsoft Senior Vice President, in his speech given on the commercial software
model at the New York University Stern School of Business in 2001, where he said:

Some of the most successful [open source software] technology is licensed under
the […] GPL. The GPL mandates that any software that incorporates source code
already licensed under the GPL will itself become subject to the GPL. When the
resulting software product is distributed, its creator must make the entire source
code base freely available to everyone, at no additional charge. This viral aspect of
the GPL poses a threat to the intellectual property of any organization making use of
it.169

Congruently, some have expressed contentions that inadvertent incorporation of code governed
by a GNU software license into a proprietary product can necessitate coercion to release one’s
proprietary code under the present license170. Section 11 of the GPLv3 is indeed designed to
prevent patents from being used to render a GPLv3-covered program proprietary de facto, but
copyright-wise the IPR cannot be said to be threatened. As mentioned in the preceding chapter,
copyright holders whose interests are affected by an infringing activity can bring an action for
compensation and possibly damages as well as apply for an injunction and, where appropriate,
the other remedies referred to in c. 7 of the Copyright Act. What they are not able to do, by
virtue of copyright law, is to require the conveying of an infringing work on altered terms, since
the Copyright Act carries no provisions for that regard.

Consequently, should a defendant be found to have wrongfully included code that is covered
by  a  GNU  software  license  in  its  own  proprietary  work,  she  can  be  condemned  to  pay
compensation for the conveyance that has already occurred, and prevented from conveying her
product  further.  What  about  forfeiture;  can  the  court  prescribe  the  source  code  of  the  whole
product be delivered to the injured party against compensation corresponding to the cost of
manufacture? Section 58(1) of the Copyright Act refers to any ‘typographical material, printing

169 Mundie 2001, emphasis added. He continued, ‘It also fundamentally undermines the independent commercial
software sector because it effectively makes it impossible to distribute software on a basis where recipients pay for
the  product  rather  than  just  the  cost  of  distribution.’  The  argument  is  not  completely  accurate,  for  s.  4  of  the
GPLv3 provides that the conveyor may charge any price for each copy that she conveys, and offer support or
warranty protection for a fee.
170 See Henry 2003; Epstein 2004.



Nordic Journal of Commercial Law
issue 2009#1

46

block, mold and other instrument or device’.171 It seems probable that the provision
encompasses only tangible objects, and an expansive interpretation, which would cover even the
source code of a computer program, appears unfounded172. In any event, in accordance with s.
4(1) of the Copyright Act, a person who has adapted a work has copyright in that work in its
new  form.  Her  right  to  dispose  of  it  is  subject  to  the  copyright  in  the  original  work,  but  the
right to exclude and the consequent power to license remain exclusively at the discretion of the
copyright holder.

The reciprocity obligations under different GNU software licenses can be outlined in a way
expressed by illustration 1 below. The outer limit of each circle delineates the boundary unto
which the reciprocity obligations of the license that is restricted to its area extend. Each circle
also incorporates all the other circles and obligations that are situated within it. Consequently,
the reciprocal requirements of the LGPLv3 apply only to the conveyance of modifications,
those  of  the  GPLv3  to  the  conveyance  of  modifications  and  combinations  alike,  and  the
AGPLv3 covers both the conveyance and network use of modifications as well as combinations.
None of the current GNU software licenses makes reciprocal demands with regard to internal
propagation173,  but  such  obligation  is  conceivable  and  would  constitute  the  strictest  form  of
reciprocity. All the relevant actions related to the law of copyright that occur in the scope of the
license trigger the reciprocity obligation described in chapters 0 through 0 of this thesis,
respectively.

171 Cf. 17 USC 506(b), which provides that when a person is convicted of a criminal infringement, as defined in
subsection (a), the court in its judgement of conviction shall, in addition to the penalty therein prescribed, order
the  forfeiture  and  destruction  or  other  disposition  of  all  infringing  copies  and  all  implements,  devices,  or
equipment used in the manufacture of such infringing copies.
172 See also Kivimäki 1966, 186–187; Sorvari 2007, 329–333.
173 See  GPLv3  comments  in  file  ‘gplv3-draft-4’,  where  it  was  suggested  that  the  current  scope  of  propagation,  as
defined  in  s.  0  of  the  GPLv3,  without  conveying  includes  a  possible  weakness  with  regard  to  some  trade  and
membership associations with a significant number of members, since internal propagation in such organisations
would be equivalent of conveying in all but name.



Nordic Journal of Commercial Law
issue 2009#1

47

Illustration 1. Imaginable and actual scopes of reciprocity within the system of GNU software licenses

All rights granted under the GNU software licenses are granted for the term of copyright on the
program, and are irrevocable provided the stated conditions are met (GPLv3, s. 2). That said,
developers who are interested in utilising code so licensed and whose intended use would
trigger the reciprocity obligation are given principally two options by the licenses174. First, since
copyright protects only the tangible implementation or expression of an idea, not the idea itself,
she could produce herself a similar software component that provides the same functionality.
Second,  she  may  use  the  code  governed  by  a  GNU  software  license  and  abide  by  the  terms
thereof.  If  one  chooses  neither,  it  is  a  question  of  copyright  infringement,  which  can  be
discontinued and redressed by means of the above-mentioned remedies. The infringing source
code, however, cannot be forced to be released under a GNU software license, or any license

174 See also Kumar 2006, 17.



Nordic Journal of Commercial Law
issue 2009#1

48

for that matter, but it stays with the proprietor175. Since the license has been terminated under
s. 8 of the GPLv3, earning financial benefit by making copies of that work or making it
available to the public is not possible before entering into an agreement with the copyright
holder  of  the  original  work,  if  the  proprietary  software  cannot  be  deemed  as  a  new  and
independent work in the meaning of s. 4(2) of the Copyright Act but falls into the category of
the first subsection, where its copyright is subject to the right in the original work.

Szattler, however, argues that the reciprocal requirements of the GNU software licenses might
be regarded as consideration rather than just as limitations of granted rights and, if that were
the case, a claimant could in the event of infringement file a suit for a breach of contract.
Consequently, a court could oblige the infringer to publish the code at issue.176 Consideration
is  a  common  law  term  for  a  legal  fact  that  is  required  from  a  promise  in  order  to  meet  the
requirements for the formation of a contract; the claimant must be able to show that she has
bought the defendant’s promise either by doing some act in return for it or by offering a
counter-promise.177 By contrast, at civil law the question is not whether a promise is supported
by  consideration,  but  a  contract  is  made  where  two  or  more  parties  willingly  bind  themselves
into a legal act that arouses obligations and corresponding rights between the contracting
parties178. Under common law, it can be concluded that the GNU software licenses do not form
a contract, since the license texts do not evidence the necessitated meeting of minds with regard
to consideration179. However, the total legal obligations of the parties arising out the agreement
governed by a GNU software license might in a civil law jurisdiction lead to a conclusion that
such a document is deemed a regular contract rather than a proper copyright license180.

175 Cf. the action by the FSF to recover damages and to enjoin future infringement arising from the infringement
of its copyrights by Cisco Systems, Inc. submitted to the US District Court of Southern District of New York on 11
December 2008, available at http://www.fsf.org/licensing/complaint-2008-12-11.pdf. The prayer for relief includes
requests as follows: ‘(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors,
principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns, and all others in
active concert or participation with Defendant, be enjoined and restrained from copying, modifying, distributing
or  making  any  other  infringing  use  of  Plaintiff’s  software;  (2)  That  the  Court  order  Defendant  to  pay  Plaintiff’s
actual and consequential damages incurred, in an amount to be determined at trial or, in the alternative, statutory
damages as set forth in 17 USC 504(c); (3) That the Court order Defendant to account for and disgorge to Plaintiff
all profits derived by Defendant from its unlawful acts; (4) That the Court order Defendant to pay Plaintiff’s
litigation expenses, including reasonable attorney’s fees and costs of this action; and (5) That the Court grant
Plaintiff any such further relief as the Court may deem just and proper.’—In this regard, the complaint makes to
source code no reference whatsoever.
176 Szattler 2007, 72–73.
177 Furmston 1991, 70–73. See also Rudanko 1998, 72–73.
178 Hemmo 2003a, 10–15; Tolonen 2004, va111.4995. Cf. Zitting 1989, 472–474.
179 Kumar 2006, 16–24, who argues that the licenses are enforceable by the licensee through a promissory estoppel
action. For the introduction to that doctrine, see Spencer Bower and Turner 1966, 332–358.
180 Cf. Nimmer 2005.

http://www.fsf.org/licensing/complaint-2008-12-11.pdf.


Nordic Journal of Commercial Law
issue 2009#1

49

The contractual approach has an impact on the connecting factor rules and the applicable
law181, but it would also betoken a significant concern in respect of enforcement. The general
effects of obligations involve specific performance, which can be fulfilled by execution, where
necessary182. Were, for example, the provision to convey also the corresponding source, where
conveying a GPLv3-covered work in object code form occurs in accordance with s. 6 of the
GPLv3, deemed as a contractual obligation, a court of justice would in principle be entitled to
order proprietary source code to be published as a consequence of a breach of contract.

Under Finnish law, however, liability for specific performance is confined by restrictions
founded on characteristics of the obligation, obstacles to performance and the impracticality of
the specific performance; secondary obligations and obligations of the obligee do not entitle to
discrete specific performance183.  Due  to  the  special  construction  of  reciprocal  open  source
licenses, it could be argued that the requirement to provide source code is comparable with a
secondary obligation, for practically the GNU software licenses specify limitations to the
licensor’s grant of rights, not burdens to the licensee184. A prayer to release all the source code
on account of a minor breach could also constitute hardship. An interpretation analogous to s.
23(1) of the Sale of Goods Act would suggest that the licensee is not obliged to perform the
obligation if the performance would require sacrifices that are disproportionate to the licensor’s
interest in performance, as the case might arguably be.

Specific performance is impractical where other legal remedies offer an adequate legal
protection to the obligee. If the licensor is able to seek reimbursement and a restraining order
in the form of injunction, the need for a claim for specific performance seems dubious.185 That
is especially the case where only small amounts of code governed by a GNU software license
have  been  incorporated  into  a  proprietary  product  or  where  the  code  utilised  in  a  violating
manner  forms  only  a  diminutive  portion  of  the  end  product; de minimis non curat lex.  Such  a
finding would also be congruent with the solutions adopted in the international collections of
principles with regard to contract law. In accordance with the UNIDROIT Principles of
International Commercial Contracts, where a party who owes an obligation other than one to
pay  money  does  not  perform,  the  other  party  may  require  performance,  unless  the  party
entitled to performance may reasonably obtain performance from another source (UNIDROIT,

181 See Szattler 2007, 73–77.
182 Hakulinen 1958, 49.
183 Aurejärvi 1988, 82–83.
184 Hakulinen 1958, 56. E.g., s. 6 of the GPLv3 provides that ‘[y]ou may convey a covered work in object code form
under  the  terms  of  sections  4  and  5, provided that you also convey the machine-readable Corresponding Source
under the terms of this License’ (emphasis added).
185 Arg. Saarnilehto 2005, 100–101.



Nordic Journal of Commercial Law
issue 2009#1

50

art. 7.2.2[c]). The Principles of European Contract Law provide for essentially the same in art.
9:102(2)(d) thereof186.

Perhaps the most convincing argument against specific performance stems, nonetheless, from
the  license  texts  themselves.  Under  s.  8  of  the  GPLv3  any  attempt  to  propagate  or  modify  a
covered  work  will  automatically  terminate  the  license.  The  provision  is  subject  to  certain
possibilities to reinstatement referred to above, but if they are not resorted, the license—or
contract—is terminated. Moreover, even a permanent reinstatement under subsection 8b of the
GPLv3 does not affect the judgement, for it necessitates ceasing all violation of the license. Any
action to the contrary will trigger the provision of automatic termination anew. Accordingly, all
contractual commitments expire upon the termination of a contract. If the termination is
induced by a contracting party, liability for occurred damages may ensue, but specific
performance is not available any longer.

In the aforementioned cases the liability for damages follows the principles of contractual
liability, whereupon the damages constitute compensation also for economic loss that is not
connected to personal injury or damage to property187.  However,  with  regard  to  the  GNU
software licenses there might often be situations where the mileage aspired after by the licensor
consists merely of future reciprocal paybacks and has thereby no economic value at all, since
software has been licensed without charge188. Taking legal policy into account, it would de lege
ferenda appear justifiable in connection with gross license violations for a court to order the
infringing code to be released through specific performance in place of unsubstantial
compensation. By contrast, such real argument ought not to appertain to occurrences of minor
negligence,  for  causing  a  complete  loss  in  value  of  a  proprietary  program  would  there  be
disproportionate and thus ungrounded.

4. Demarcation

Institutional Support

Legislation

The Copyright Act entered into force on 1 September 1961. Under s. 73 thereof, it repealed
the Act on Copyright in Products of Intellectual Activity (174/1927; hereinafter referred to as

186 The  Draft  Common  Frame  of  Reference,  by  contrast,  recognises  no  such  exception;  see  DCFR,  art.  III.–
3:302(3).
187 Cf. c. 5, s. 1 of the Tort Liability Act.
188 See Jacobsen v Katzer, n. 92 supra.



Nordic Journal of Commercial Law
issue 2009#1

51

the ‘Old Copyright Act’). Prior to the force of the last-mentioned statute, the copyright regime
of the Grand Duchy of Finland and, as of 1917, the Republic of Finland was regulated by the
Decree Relating to the Rights of Writers and Artists in Respect of the Products of Their Labour
(8/1880; hereinafter referred to as the ‘Decree of 1880’).

Already the gracious proposal of the Imperial Majesty concerning the Decree of 1880 proposed
in its s. 7 that the translator of a literary work should enjoy to her translation a right identical to
what is accorded to the author of the original work189. Furthermore, with regard to independent
works,  s.  8(2)  of  the  proposal  provided  that  unauthorised  reformation  of  a  literary  work  by
means of adaptation, modification or addition were to be deemed to constitute a copyright
infringement, unless the new work could be interpreted as forming an independent work190.
The Decree of 1880 contained no provisions as to combining works or parts thereof and
whether such creation of compilations would constitute a separate object of copyright.

The Legislative Council published its proposal for the Old Copyright Act in 1920. Under s.
4(1)  of  the  proposal,  it  was  propounded  that  the  author  ought  to  receive  the  same  exclusive
rights that she has in respect of her work also to translation and adaptation thereof. It stems
reputedly from the very character of copyright that the work created by an author deserves
protection in both the original and an altered form191. However, in accordance with s. 5, also a
work based on the original one deserves to be an object of legal protection, so that the author
of the translation or adaptation was to have copyright in the present work in that new form.
This derivative copyright maintains the copyright in the original work infrangible. The
stipulation was commensurate with art. 2(3) of the Berne Convention, which provides that
translations, adaptations, arrangements of music and other alterations of a literary or artistic
work shall be protected as original works without prejudice to the copyright in the original
work.—Creating a substantially original work, which only loosely pertains to the underlying
work, was not to be considered as alteration (s. 4[3] of the proposal).192 What, then, makes a
work substantially original? The preliminary works for the Swedish copyright legislation provide
that such alteration must affect the ‘inner form’ of a work. Consequently, since copyright does
not protect the underlying ideas, the concept may be borrowed but the manner of
representation must be substantially original.193

189 HE 3/1876 vp, 3.
190 HE 3/1876 vp, 4. The Law Committee considered in its report subsection 2 as possibly misleading and in any
event unnecessary for the courts, whereupon it recommended the removal thereof (LaVM 8/1876 vp, 14).
191 Legislative Council 1920, 28–29.
192 Legislative Council 1920, 1–2, 29.
193 SOU 1956:25, 136–137.



Nordic Journal of Commercial Law
issue 2009#1

52

The  proposal  of  the  Legislative  Council  also  touched  upon  the  question  of  combination.
Section 6 thereof provided that, if a work was to be compiled of separate works by several
contributors, each one would have copyright in her own contribution. Moreover, if also the
work that concerns the consolidation of separate contributions could be deemed to constitute a
form of creative intellectual work, the performing party ought to have copyright in the
combined work.194 In the latter case, the combiner was to be justified in deciding in favour of
making the combined work available to the public by herself, irrespective of the contributors195.

The resultant Government proposal and thereupon the Old Copyright Act differed from the
stand of the Legislative Council predominantly with regard to the general structure; the
provisions concerning independent, combined and modified works were more verbose but
substantively concordant196. The same applies in many respects to the report of the
Commission concerning the proposal for the current Copyright Act, which is an essential
preliminary work in respect of Finnish copyright law197. The report describes alteration as not
exactly achieving a new creation but rather giving the original work a new form. Therefore, the
copyright of the altering party is secondary in respect that her right is dependent upon the
assent by the copyright holder of the original work.198 As sections 4 and 5 of the Copyright Act
have remained unamended since the coming into force thereof, characterisations concerning
the demarcation of various derivative works expressed during the lengthy legislative history have
remained valid199.

In 1991, the Copyright Act was amended by Act 34/1991 to include specific rules governing
computer programs. Prior to the amendment, the Copyright Commission had published its
fourth preliminary report concerning, inter alia, the legal protection of software. In the report,
the Commission reiterates the fact that a computer program enjoys protection also in an altered

194 Legislative Council 1920, 2, 21–22. Cf. art. 2(5) of the Berne Convention: ‘Collections of literary or artistic
works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents,
constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works
forming part of such collections.’
195 Legislative Council 1920, 30. Nonetheless, her right of disposal was only to be in connection with the
combined work as a whole.
196 HE 89/1926 vp, 3–7. Unlike the proposal of the Legislative Council, the Government proposal contained only
one  bill  common  to  all  intellectual  works,  excluding  photographs.  The  reading  of  the  matter  in  Committees
involved various comments on different directions; see LaVM 13/1926 vp; SuVM 108/1926 vp; EV 89/1926 vp.
197 KM 1953:5, 8, 44. The report of the Commission contains rather few objective amendments vis-à-vis the Old
Copyright Act. The main reason for passing a new law was the tendency towards uniform statutes in each Nordic
country. (KM 1953:5, 42–43.)
198 KM 1953:5, 49–50.
199 HE 23/1960 vp does contentually not depart much from the results of the Nordic preparation. Cf. KM 1953:5,
6–35.



Nordic Journal of Commercial Law
issue 2009#1

53

form but, if the input of the altering party is creative and original, the latter has derivative
copyright  in  the  altered  work  in  accordance  with  s.  4(1)  of  the  Copyright  Act.  However,
adapting  software  from  one  programming  language  to  another  is  more  often  than  not  a
technical operation that does not call for creative effort, whereupon the adapting party is not
granted copyright.200 The Government proposal regarding the amendment provides some
guidance as to applying the provision of drawing freely on a computer program. It states that
employing the system, logic, algorithms, principles and concepts of an existing work would
constitute  a  first-hand  copyright  in  accordance  with  s.  4(2)  of  the  Copyright  Act,  if  the  new
form of expression was independent enough.201

At the Community level, it is similarly clear that while programs are accorded protection,
underlying logic or algorithms thereof are not copyrightable subject matter. Accordingly,
software having essentially the same functions of existing programs is still, despite superficial
resemblance, considered as an independent invention insofar that the development has been
carried out without ‘undue’ inspiration.202 If similarities in the source code that implement the
ideas, rules and principles of the program occur as between inter-operative software, where the
constraints of an interface are such that in the circumstances no different implementations are
possible, then no copyright infringement will normally occur203.

In conclusion, copyright in respect of computer programs is concentrated particularly upon the
source code thereof. Therefore, conventional alteration that does not involve the complete
rewriting of the code base implicates prima facie that the modification has occurred in the sense
of s. 2 of the Copyright Act. If the conducted acts, however, are rather insignificant or lacking
originality, it is pursuant to Kivimäki’s nomenclature an instance of ‘non-proper’ modification,
whereupon no new form of the original work has emerged but copyright-wise the program
remains unaltered204.  Such  non-proper  modification  does  not  require  a  permission  of  the
copyright holder and cannot, in proportion, be forbidden by the last-mentioned205.

200 KM 1987:8, 178.
201 HE 161/1990 vp, 16–17, 50.
202 COM (88) 172 final, 182–183. In its proposal for the Software Directive, the Commission describes the
algorithms from which a program is built up being ‘the equivalent of the words by which the poet or the novelist
creates his work of literature, or the brush strokes of the artist or the musical scales of the composer’ (COM (88)
816 final – SYN 183, 5). Cf. Europarl 1990, 81.
203 COM (88) 816 final – SYN 183, 8. See also EESC 1989, 5. In such circumstances it is said that the idea and
expression have merged (Hass 2007, 388).
204 Kivimäki 1948, 103–104.
205 Välimäki 2009, 37.



Nordic Journal of Commercial Law
issue 2009#1

54

Case Law

As mentioned above, there is no Finnish case law concerning computer programs released
under the GNU software licenses206. Furthermore, the precedents decided heretofore by the
Supreme  Court  related  to  the  law  of  copyright  in  general  are  not  pertinent  to  the  present
phrasing of the question. However, guidelines for decision-making with regard to delimiting the
dividing line between permitted and prohibited copying and altering, respectively, can be
derived from some judgements issued by the Courts of Appeal. In practise, the decision is made
comparing the similitude of two programs: expert witnesses present evidence as to what extent
the  original  work  and  the  alleged  copy  are  similar  under  the  framework  of  the  Copyright  Act
and  the  court  then  assesses  what  sort  of  legal  relevance  ought  to  be  merited  to  the  points  of
resemblance207.

The third versions of the GNU software licenses are bound up with the principles of copyright
law even more than before. Whereas the GPLv2 applies in accordance with s. 0 thereof to any
program or other work that contains a notice stating it may be distributed under the terms of
the present license, under s. 0 of the GPLv3 the program only refers to works that are
copyrightable. Furthermore, it is the specific intention of the draftsmen that the GNU software
licenses are pure copyright licenses, plus a patent grant, which contain no contractual elements
whatsoever208. Therefore, the scope of the licenses and, ultimately, risk positions of the licensees
are  dependent  upon  the  definitions  of  applicable  copyright  law,  whereupon  the  threshold  of
originality and other relevant factors related to the law of copyright must be discussed with the
intention of analysing definitive legal statuses.

In order to be accorded the exclusive rights provided by the Copyright Act in the first place, the
program must hold a certain level of originality209. Since there are no requirements—or
possibilities, for that matter—for registering the copyright in Finland, everything written creates
an ex ante assumption of copyright protection from the occasion it is put in fixed form210; under
art.  5(2)  of  the  Berne  Convention,  the  enjoyment  and  the  exercise  of  copyright  shall  not  be
subject to any formality. However, literary works including computer programs are protected

206 This  author  is  aware  of  one  case  tried  before  the  Helsinki  Court  of  Appeal  that  concerned  a manual licensed
under the GPL, where the court considered that the license terms had no relevance to the dispute between the
author and the publisher. See HelHO 14.6.2007 1963 (final judgement).
207 Välimäki 2009, 66.
208 Moglen 2001; GPLv3-DD2, 20. This stand was especially apparent in Draft 1 of the GPLv3, where the title of s.
9 was ‘Not a Contract’; see GPLv3-DD1, s. 17.
209 KM 1953:5, 44. According to the report of the commission, such a requirement stems from the ‘very nature’ of
the subject matter.
210 Cf. 17 USC 408 et seq. Registration of copyright betokens substantial procedural advantages in respect of
enforcement; see Ginsburg 1992, 162–163.



Nordic Journal of Commercial Law
issue 2009#1

55

only insofar as they are original in the sense that they are their author’s own intellectual
creations (see, explicitly, art. 1[3] of the Software Directive). When applied to software, the
principle  means  that  in  order  to  enjoy  these  rights  a  program  must  represent  such  individual
character  that  it  excludes  the  possibility  of  someone  else  arriving  at  a  nearly  uniform
outcome211. Accordingly, in case RHO 13.10.1992 1128 (final judgement) it was not
demonstrated that the applications subject to prima facie unauthorised copying would be results
of such creative work that would embody the protected contribution of individual labour in the
sense of the Copyright Act212.

The issue of similitude does not actualise until it has been established ex post that a computer
program outruns the necessitated threshold of originality. Once it has been proven that the
work as such enjoys copyright protection, the next phase follows. The landmark decision in that
regard is that of HelHO 28.12.1999 3571 (final judgement). In the case, the appellant
demanded the defendants’ conviction for copyright offence and misuse of a business secret,
because they had apparently copied parts of the appellant’s source code and made software so
constructed available to the public. According to the appellant, the copied parts covered 40
percent of the whole program: allegedly some 90 percent of the code for the memory segment
of  the  communicative  portion  and  approximately  25  percent  of  the  code  for  the  application
program were copied.

The court commenced by elucidating that whilst the appellant’s computer program meets the
minimal standards of originality en bloc, it does not necessarily mean that each part of the
program is protected in accordance with the Copyright Act as well. Also the separate portions
must, in order to enjoy copyright protection, meet the criterion of originality213. The evidence
was that between 10 and 15 percent of the total quantity of the source code of the defendants’
software had been copied from appellant’s prior code. However, the facts that the programs
were constructed by the same programmers, the programs implemented the same functionality,
the GUIs were similar, the used programming language enabled the programmers to vary rather
little and the structure of the payment terminal reduced to implement certain matters in certain
fashion could all account for the resemblances. Moreover, the functionality of certain identical
modules  was  defined  by  the  standards  for  banking  and  telecommunications  so  that  the
formulations therein were to be considered as simple routine code. Consequently, the court

211 Copyright Council 2008:13, 8.
212 Pursuant to the judgement of the District Court of Frankfurt am Main concerning the validity of the GPL (see
n. 157 supra), ‘nur eine gänzlich banale Programmierleistung’ is not sufficiently original to warrant copyright protection.
213 The court build on the disquisition provided by computer science professors in their expert opinions, according
to which it is customary to exploit parts from existing software in the programming work of a new product. Such
exploitation may infringe copyright, should the existing parts be creative to the extent that they meet the minimum
standards of originality.



Nordic Journal of Commercial Law
issue 2009#1

56

deemed the copied parts to be either inconsequential or insignificant, whereupon the
complaint of the appellant was dismissed.

Therefore,  the  copyright  protection  is  absent  not  only  from  the  parts  of  the  code  that  are  so
trivial that the functionality intended therein can be effectively implemented in only one way,
but also where ideas are merged into their expressions in such a way that it is impossible to give
to the same idea a differing form of appearance214. For instance, if the purpose of a program sets
imperative boundary conditions on the source code through, say, confines of an operating
environment, sets of technical standards or exigencies of compatibility, then, to that extent,
copyright protection will be denied from those modules215.

The relevance of the above-mentioned decision by the Helsinki Court of Appeal is that it
essentially approved of the principles on how to establish copyright infringement for software
developed first in the leading US case Computer Associates International, Inc. v Altai, Inc.216, where
the court proposed the so-called substantial similarity test217. The test consists of three phases:
First, the structure of the code is abstracted. Second, the parts that are not protected by
copyright are filtered out. Third, the protected parts are set against each other in order to detect
the similarities.218 The criterion of substantial similarity arguably provides the authority
applying the law with a workable method of drawing a distinction between the tangible
implementation or expression of an idea and the idea itself. Under this approach, the ideas of a
computer program are comparable to the purposes thereof, but due to the dynamic abstraction
process, each module is given its own purpose. Should the purpose be implementable only in
one way, it does not suffice for crossing the threshold of originality.

Prior to the aforementioned decision, the prevailing US test for copyright infringement was
established in the cause célèbre case of Whelan Associates, Inc. v Jaslow Dental Laboratory, Inc.219, in
which the choice of the abstraction level was deemed a static operation and, to that end, a low
standard was elected220. The result was an attempt to apply the classic idea–expression
dichotomy, where the purpose of the whole program was defined as its idea. Consequently, any
part of the software package that was not absolutely necessary for the purpose would constitute

214 Ang 1994, 112.
215 Välimäki 2009, 67.
216 982 F.2d 693 (2nd Cir. 1992).
217 Klami and Neejärvi 1997, 593–594.
218 Mylly 2005, 761; Diver 2008, 128–129. Accordingly, the method is also known as ‘abstraction–filtration–
comparison’.
219 797 F.2d 1222 (3rd Cir. 1986).
220 Hass 2007, 387–388.



Nordic Journal of Commercial Law
issue 2009#1

57

the protected expression.221 The problem of the said analysis lies in the fact that software can
serve for numerous purposes. Such static abstraction operation would effectively lead to a
situation where the dichotomy becomes obsolete; expression so defined would be accorded too
strong a protection.222

As  far  as  I  can  see,  the  substantial  similarity  test  is  an  approach  to  break  down  the  copyright
protection of computer programs into smaller components. Instead of using the monolithic
notion of a ‘work’, which can inflict distortions on the scope of protection, one can analytically
identify and assort non-protectable elements. Consequently, computer programs are protected
primarily as a code, but the protection does not necessarily cover all parts thereof. Under the
present test, a program is first examined in terms of its structure rather than the specific
sequences of code. The purpose of the operation is to resolve the functionality of each
procedure and subroutine (paras. 75–82). Against this knowledge, following elements are to be
sifted out from the protectable core: (1) elements dictated by efficiency, (2) elements dictated by
external factors and (3) elements taken from the public domain (paras. 83–107). Finally the
remaining parts can be compared for substantial similarity (para. 108). Therefore, the main
criterion  in  respect  of  the  comparison  is  that  resemblances  are  located  in  those  factually
relevant parts.

The substantial similarity test has been used in the UK as well. In Ibcos Computers Ltd v Barclays
Mercantile Highland Finance Ltd223 the High Court of Justice approved of the method that
copyright infringement analysis required in respect of computer programs multiple levels of
abstraction and comparison.224 To that end, the court outlined a four-part approach that can be
expressed as follows225:

a) What are the works or works in which the claimant claims copyright?
b) Is each such work ‘original’ in the sense of art. 1 of the Software Directive?
c) Has copying from that work occurred?
d) Has a substantial part of that work been reproduced?

The criterion of a substantial part was further refined in Cantor Fitzgerald International v
Tradition (UK) Ltd226,  according  to  which  not  only  the  program  as  a  whole  but  also  the

221 Diver 2008, 128.
222 Ang 1994, 145.
223 [1994] FSR 275.
224 Hass 2007, 390–391.
225 See Freedman 2000, 38.
226 [2000] RPC 95.



Nordic Journal of Commercial Law
issue 2009#1

58

individual modules and techniques used therein ought to be examined, but the definite
judgement  on  substantiality  is  to  be  made  in  relation  to  the  aggregate  of  the  work;  it  has  no
relevance to the matter, whether or not the copied part is necessary for the technological
functioning227. Moreover, since the allegedly copied sections must be original and not dictated
by external factors in order to be protectable, the focus of the assessment should accordingly lie
in the quality, not the quantity of the code.228 The creativity perceived in components that have
been exploited in an infringing manner constitutes a more significant factor in judicial
appraisal than some rigid numerical limits.

In Finland, a recent decision by the Vaasa Court of Appeal follows the international
development trends. In VHO 17.5.2005 712 (final judgement) computer programs that had
been made using a software development environment (SDE) were not deemed original
enough, since the SDE itself, the used programming language, the purposed use of the software
and the process equipment that the software was designed to control each necessitated certain
implementations by the software development. Consequently, the programmers’ freedom of
design choice, and thereby possibilities to conduct original and creative programming, was
circumscribed by external consideration, which led to a non-protectable set of operations in the
end product. The essentials of the assessment concerning similitude and the resultant
conclusion of the comparison follow rather closely the principles set forth in the above-
mentioned foreign proceedings on establishing software copyright infringements with regard to
the  source  code.  Thus,  even  an  obvious  similarity  will  not  constitute  an  infringement  of
copyright if it is a corollary of determining extrinsic factors229.

In accordance with s. 55(1) of the Copyright Act, the Council of State appoints the Copyright
Council, the purpose of which is to assist the Ministry of Education in the handling of matters
pertaining to copyright and to issue opinions regarding the application of the present Act230.
The opinions of the Copyright Council are merely of recommendatory nature and do not
legally bind neither the applicant nor her adverse party. Despite the absence of judicial power,
nonetheless, the Copyright Council is a de facto organ  for  legal  protection,  since  the  parties
ordinarily conform to its opinions by not taking further legal action thereafter. Again, the

227 Hass 2007, 391 fn. 96.
228 Freedman 2000, 38–39.
229 In Computer Associates International, Inc. v Altai, Inc., the court mentioned (1) the mechanical specifications of the
computer on which a particular program is intended to run, (2) the compatibility requirements of other programs
with which a program is designed to operate in conjunction, (3) computer manufacturers’ design standards, (4)
demands of the industry being serviced, and (5) widely accepted programming practices within the computer
industry as instances of such factors.
230 For the composition and decision-making process of the Council, see ss. 18–23 of the Copyright Decree
(547/1995).



Nordic Journal of Commercial Law
issue 2009#1

59

Copyright Council is also an organ acquainted with the specific concerns in the sector of
copyright, whereupon the opinions issued by it are often utilised during litigation.231

The Copyright Council has discussed the matters interrelated to the law of copyright and
computer  programs  in  several  of  its  opinions.  In  opinion  1996:3,  the  Council  took  the  view
that an application was not original and creative enough so as to attain the threshold of
originality. The routine in question was formed predominantly according to the manual and by
utilising the features of the parent program. The choices made in order to dispose of the data
processing problem did not attest to such originality that someone else could not have
concluded equally in solving the same problem. Therefore, according to the Copyright Council,
the determinations conducted were rather dictated by the outcome and thus mainly constituted
a testimony to mechanical unravelling.232

By contrast, in opinion 1997:12 the Council looked upon a computer program, which
contained  140  command  lines,  as  a  literary  work.  The  program  was  implemented  with  a
programming language of a logic unit that controls the manufacture of bakery products and it
dovetailed the functions of the production equipment.233 The  view  of  the  Council  was
subsequently accepted by the Supreme Court in KKO 2008:45, according to which the software
in question fulfilled the requirement of originality and was thereby copyrighted pursuant to s.
1(2) of the Copyright Act. The Copyright Council has assessed the threshold of originality in
respect of computer programs also in its opinions 2005:7, 2006:5, 2006:12 and 2008:13. In all
of these, the programs were deemed to outrun the minimum and receive copyright
protection234.

In summary, the Copyright Council is also of the opinion that the bases of a computer program
as well as the circumstances necessary to implement the idea thereof are not copyrighted as
such. In order to identify such necessities, the software must be conceptually divided into
smaller functional divisions, and certain divisions that merely employ standard techniques do
not enjoy protection although the program as a whole would do so. However, the Council can
be  criticised  for  occasionally  pitching  the  threshold  of  originality  on  too  low  a  level.  For
instance, in Copyright Council’s opinion 2003:10 it regarded utilities that solved a small data
processing problem in diverging environments as protectable works. The Council justified its
assessment by arguing that each utility had required from its author possibly several days’ work

231 Lappalainen 2007, pr111.12314. See also Haarmann 2006, 42.
232 Copyright Council 1996:3.
233 Copyright Council 1997:12.
234 See Copyright Council 2005:7, 9–10; Copyright Council 2006:5, 10–11; Copyright Council 2006:12, 9;
Copyright Council 2008:13, 16.



Nordic Journal of Commercial Law
issue 2009#1

60

contribution,  whereupon  they  count  as  the  results  of  individual  labour.235 The  case  went
afterwards before the Vaasa Court of Appeal (VHO 17.5.2005 712), where the court traversed
the  opinion  of  the  Copyright  Council  on  the  grounds  that  the  source  code  of  the  programs
contained only elements that were dictated by external factors, expressions which are not
copyrightable236.

Separate and Independent Works

Limitations and Exceptions to Copyright

The exclusive rights granted to authors or their assignees under copyright law do not apply to
all situations but are subject to certain limitations and exceptions237.  Under  art.  13  of  the
TRIPS, for example, the member states shall confine limitations and exceptions to exclusive
rights to certain special cases on two conditions. Such instances must not (1) conflict with a
normal exploitation of the works and (2) unreasonably prejudice the legitimate interests of the
rights holder238. In the US, the limited use of copyrighted material without requiring
permission from the copyright holder has been implemented by means of the fair use doctrine
(17 USC 107), whereas some other common law jurisdictions operate under the notion of fair
dealing (e.g., ss. 29–31 of the Copyright, Designs and Patents Act 1988)239. By contrast,
continental European civil law copyright systems tend to avoid such open-ended provisions but
favour  the  principle  of numerus clausus instead. To that end, in Finland the limitations on
copyright are placed in c. 2 of the Copyright Act. Nevertheless, irrespective of the divergences as
to the flexibility of the restrictions under national copyright laws, it can be noted that basically
all such concepts exclude the operations of commercial nature—more or less according to rule—
from the scope of application240.

Other more fundamental boundaries of copyright are begotten by the idea–expression divide.
Since copyright protects the form in which ideas are expressed rather than the ideas themselves,
software can as a consequence be developed to achieve the same results to the extent that the

235 Copyright Council 2003:10, 12–13.
236 Cf. Oksanen 2004, 30.
237 Haarmann 2005, 154. Whether such limitations and exceptions are seen reducing some idealised form of
copyright or providing a balance to the rights of copyright in the form of ‘user rights’, is a matter of philosophy of
copyright; see NRC 2000, 136–139.
238 See also art. 9(2) of the Berne Convention and art. 10 of the WCT for other embodiments of this ‘three-step
test’.
239 Senftleben 2004, 162–166.
240 KM 1980:12, 87; Rowland and Campbell 2002, 35; Senftleben 2004, 65; Landau 2006, 26–27.



Nordic Journal of Commercial Law
issue 2009#1

61

basic concepts can be expressed differently.241 Accordingly, although algorithms are essential to
the way computers process information as software is written by specifying an algorithm using
declarations, expressions and statements, from the copyright’s point of view they merely
represent certain ideas behind the system design242. Algorithms are ultimately expressed in the
form  of  source  code,  which  together  with  a  possible  GUI  is  the  only  directly  perceivable  and
thereby copyrightable part of a program243.

However, the UK case Cantor Fitzgerald International v Tradition (UK) Ltd referred  to  above
makes for interesting reading also as to the extent of copyright protection. ‘Software
architecture’ alludes to two important characteristics of a computer program, to wit the
hierarchical structure of procedural components and the structure of data244. Such
characteristics are not directly perceivable from the source code but the High Court of England
and Wales nevertheless took the view that the software architecture is capable of protection if a
substantial part of the programmer’s skill, labour and judgement had gone into it245. Already in
Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd it had been held that copyright can
subsist in the software architecture where the modular components are combined in a way that
can be deemed to form a copyrightable compilation. In accordance with Nova Productions Ltd v
Mazooma Games Ltd and Bell Fruit Games Ltd246, also a GUI can fulfil the UK requirements for
copyright protection, but as an artistic work, not a computer program.

In the US, the attitudes towards bestowing copyright protection upon software architecture
have been more reserved. In Whelan Associates, Inc. v Jaslow Dental Laboratory, Inc., the court held
that copyright protection of computer programs might extend beyond the programs’ literal code
to their structure, sequence, and organisation. However, the court deciding the case of Computer
Associates International, Inc. v Altai, Inc. disapproved. According to it, analysing the scope of
copyright  protection  in  terms  of  ‘structure’  was  ambiguous  and  identifying  structure  with
‘sequence’ and ‘organisation’ fallacious. Consequently, copyright may be infringed even if no
literal code is copied but the analysis ought to follow the test of substantial similarity. As regards
GUIs,  it  is  arguably  settled  case  law  that  the  functionalities  thereof  are  non-protectable  in  the
US.  It  stems  already  from  art.  9(2)  of  the  TRIPS  and  art.  2  of  the  WCT  that  copyright

241 COM (88) 172 final, 182.
242 KM 1987:8, 177–178.
243 See Välimäki 2009, 15, who speaks of the ‘surface’ of software.
244 Pressman 1994, 327–328.
245 Freedman 2000, 38–39. The court considered the overall structure of the system at a high level of abstraction
and  the  allocation  of  functions  between  various  programs  as  analogous  to  a  plot  of  a  novel  or  play.  Under  the
Anglo-Saxon legal order, taking a plot even without plagiarising any part of the particular manner of expression
might be sufficient to amount to copyright infringement (Rebikoff 2001, passim).
246 [2007] EWCA Civ. 219.



Nordic Journal of Commercial Law
issue 2009#1

62

protection does not extend to the methods of operation as such. Nonetheless, it seems
conceivable that under special circumstances a GUI could enjoy copyright protection through
the doctrine of compilations.247

All the cases under discussion have been tried before an Anglo-Saxon court, which is primarily
due to the geographical and financial distribution of the software industry248. Domestic
precedent courts have yet to pass a ruling on these matters, so that the legal state in Finland is
somewhat unclear. However, the multilateral conventions concerning copyright have been
entered into with a view to create a system that guarantees protection meeting certain minimum
requirements for authors in all the member states249. This congruent international background
provides for the assumption that the foundations described above were applicable to Finland as
well, unless valid contraindications exist.

In any event, granted that the software architecture or the GUI would suffice to enjoy copyright
protection, anyone can draw freely on the structural design or the graphical methods of
operation to create a new and independent work, copyright in which is not subject to the rights
in the original program. For instance, copyright in a technological standard that defines what
sort of architectural solutions must be used in interfaces in order to guarantee the compatibility
of different systems does not set any limitations upon the implementer of the standard based
on copyright law, since art. 1(2) of the Software Directive protects the original expression of
interface specifications, not specifications as such250. The decision of VHO 17.5.2005 712
confirms the meagre protection of interfaces by noting that since the programming alternatives
available  in  respect  of  such  abstractions  are  often  limited,  it  is  difficult  for  these  portions  of
software to outrun the threshold of originality251. However, if the architecture specifies certain
things on source code level, copyright may again have relevance to the matter, for it is the
concrete written form of a computer program that copyright ultimately covers.

Independence from Licenses

The final paragraph of s. 5 of the GPLv3 provides that a compilation of a covered work with
other separate and independent works, which are not by their nature extensions of the covered

247 See Lai 1999, 77–79; Mylly 2005, 763. Cf. Välimäki 2009, 22–24.
248 Forbes 2007.
249 Haarmann 2005, 26.
250 Band and Katoh 1995, 242–243. The European Commission takes the view that implementation of a
specification  does  not  constitute  copying,  but  leads  to  a  clearly  distinct  work;  see  Case  T-201/04  R Microsoft
Corporation v Commission of the European Communities [2004] ECR II-4463, para. 168 et seq.
251 Mylly 2005, 756.



Nordic Journal of Commercial Law
issue 2009#1

63

work and which are not combined with it with the intention of forming a larger program, is
called an aggregate. Inclusion of a covered work in an aggregate does not cause the GPLv3 to
apply to the other parts of the aggregate, if the compilation and its resulting copyright are not
used to limit the access or legal rights belonging to the users of the compilation beyond what
the individual works permit.

It is a foregone conclusion that if, broadly speaking, neither of two programs is a modified
version of the earlier one or otherwise based on it, they are separate and independent works.
For  example,  proprietary  software  may  be  bundled  with  an  installer  program  that  is  licensed
under a GNU software license without there being a need to assess, whether the terms of that
license apply to the installed software. The answer is in the negative as the installer and the files
it installs remain unconnected, for the copyright status of data does not change regardless of
programmatic processing252.  Unless  substantial  parts  of  the  output  are  copied  from  the
processing program, the exclusive rights conferred by copyright law do not extend to output,
but the latter inherits the qualities of the input.253

Under s. 1 of the GPLv3 the corresponding source for a work in object code form includes the
source code for shared libraries and dynamically linked subprograms that the work is
specifically designed to require. Thus, even a separately-conveyed component that can be
reasonably considered an independent and separate work in itself but is designed specifically for
use  in  combination  with  a  work  governed  by  a  GNU  software  license  must  according  to  the
license be, on account of this dependence, licensed under compatible terms254. However, such
independent  modules  that  are  by  no  means  derived  from  the  original  program  and  are  not
conveyed  only  to  be  used  in  combination  with  and  as  a  part  of  a  specific  program  licensed
under a GNU software license are not affected by the license terms in question255. Thus,
software covered by a GNU software license can be conveyed in conjunction with proprietary
systems, provided that the instances of both classes are not combined in a way that would make
them effectively a single program.

By contrast, as regards programs lacking such independence, subsection 5c of the GPLv3 is
unconditional in its language by stating that works based on a GPLv3-covered program may be
conveyed  exclusively  on  condition  that  the  entire  work,  as  a  whole,  is  licensed  under  the
present license to anyone who comes into possession of a copy. However, notwithstanding any
contractual stipulations to the contrary and as a consequence of the principles referred to

252 See also s. 2 of the GPLv3.
253 KM 1987:8, 65 ff.
254 GPLv3-DD1, 12; GPLv3-DD2, 13.
255 GPLv3-DD3, 46–47. Drafts 1 and 2 of the GPLv3 contained an explicit provision in that regard, but the fact is
still inherent in other sections of the license.



Nordic Journal of Commercial Law
issue 2009#1

64

above, use of the idea or inclusion of elements of a program governed by a GNU software
license that are either

a) unoriginal,
b) dictated by efficiency,
c) dictated by external factors or
d) taken from the public domain256

does not cause the license in question to apply to the new program. Instead, the last-mentioned
is to be deemed a separate work for copyright law purposes and, therefore, may be licensed
under whichever terms.

This  is  due  to  the  fact  that  copyright  offers  computer  programs  general erga omnes protection,
which nevertheless, in contrast to patents, encompasses merely the form of expression
thereof257. The legislator has deemed it good legal policy to motivate competition by enabling
anyone to exploit the well-known techniques and methods of software industry in order to
create and further develop economic substitutes that are founded on the same idea and
perform  the  same  tasks  as  the  original  products258. If these new programs have been
implemented in an original way without having recourse to the protectable elements of the
primary work, they are both protected irrespective of each other259. Thus, a work must be
licensed under a GNU software license only as long as any substantial portion of parts so
covered is present in the subsequent version260.

It  has  been  defined  in  s.  0  of  the  GPLv3  that  ‘“the  Program”  refers  to  any copyrightable work
licensed under this License’261. Since the licensed subject matter is determined against the
system of copyright law, incorporating non-protectable elements in a work that is being licensed

256 The  public  domain  is  a  range  of  abstract  materials  that  are  not  owned  or  controlled  by  anyone,  thus  making
them  available  to  be  used  for  any  purpose  without  any  requirements  of  permission  (Välimäki  2002,  856).  In  our
jurisdiction,  the  author  may  waive  her droit d’auteur with binding effect only in relation to use that is limited in
character and extent (s. 3[3] of the Copyright Act) and the waiver of financial rights must occur separately for each
function of exclusive rights (Kivimäki 1948, 322–323). For discussion with regard to placing a work in the public
domain in the US, see Samuels 1993, 158–162.
257 See Castrén 2006a, yj111.50906.
258 HE 161/1990 vp, 16.
259 KM 1987:8, 178.
260 See also GPLv3-DD1, 16.
261 Emphasis added. In that regard, the section additionally provides that ‘copyright’ also means copyright-like laws
that  apply  to  other  kinds  of  works.  Further  to  n.  156 supra, it is an interesting question whether the Unfair
Business Practices Act could be considered as a copyright-like law. The topic, however, is too broad to be discussed
here and is better explored in a separate study.



Nordic Journal of Commercial Law
issue 2009#1

65

under terms that are not compatible with those of the present GNU software license does not
arguably constitute even a breach of contract. Since non-protectable elements are by definition
not copyrightable, I find it implicit in the license texts that the reciprocal license grant does not
encompass elements that, considered in isolation, do not enjoy copyright protection but such
parts are exempted from the scope of the licenses and may, therefore, be freely utilised. The
interpretation is concordant with the takings of attitude by the FSF, as they have accentuated
that the GNU software licenses are not contracts and have expressly approved of my reading in
respect of parts taken from the public domain262. It is difficult to see how the construction
could differ as regards other forms of non-protectable elements.

Naturally, figuring out which parts of a program are presumably non-protectable is a case-
specific operation that necessitates application of the substantial similarity test by the party
wishing to separate such parts from the rest. In the end, only the court of final instance is
competent to pronounce on the validity of the demarcation once and for all. It is noteworthy
that whilst, for instance, comments with the same contents, similar indentations and other
suchlike circumstances do not render two separate computer programs into copies of the same
work, the same applies vice versa: ostensible alteration such as line division, indentation,
information  embedded  in  the  source  code  or  operating  with  upper  and  lower  case  does  not
affect the judicial comparison test, since it cannot transfigure a copy into a modification or
independent work263.

Combined Works

Subject to the exceptions set forth above, LGPLv3-covered software can be incorporated in a
proprietary system merely on certain boundary conditions. The GNU software licenses start
from  the  premise  that  a  work  incorporating  material  covered  by  such  a  license  forms  an
extended version of the latter. Section 2 of the LGPLv3 provides that if the licensee modifies a
copy of a program so licensed, the modified copy may not be conveyed under terms other than
those of either LGPLv3 or GPLv3, if it is conveyed at all.

However, the specific class of combined works may pursuant to s. 4 of the LGPLv3 essentially
be conveyed under terms of one’s own choice264.  In  the  framework  of  LGPLv3,  a  combined
work means a product that is produced by combining or linking an application with an
LGPLv3-covered library. An application, for its part, is defined as any work that makes use of an
interface provided by such a library, but which is not otherwise based on it. (LGPLv3, s. 0.)

262 See Moglen 2001; FSF 2008a.
263 Copyright Council 1998:16, 9–10.
264 See ch. 0 supra with regard to the requirements concerning different ways of incorporation and combination.



Nordic Journal of Commercial Law
issue 2009#1

66

Section  5  of  the  Copyright  Act  provides  that  a  person  who,  by  combining  works  or  parts  of
works, creates a literary compilation has copyright therein, but her rights do not restrict the
rights in the individual works. These compilations must, in order to enjoy copyright protection,
be intellectual creations as such, which denotes that the selection and articulation of the works
contained in the compilation have occurred according to a certain original scheme265.
Combined works referred to in the LGPLv3 may, therefore, be literary compilations in the
sense of the present section. Whether the operation is in respect of the Copyright Act classified
to fall into the category of s. 4(1) or s. 5 bears, however, no particular relevance, since they both
necessitate the permission of the person holding copyright in the original work266. It stems from
the explication of an application that only such combining that can be deemed a mode of using
an  interface  provided  by  the  library  can  produce  a  combined  work  and  thereby  entitle  to  the
exception as to reciprocity267.

Combining that forms a single work is not limited to static or dynamic linking, which is
meaningful only in certain technological circumstances, so that modules may form a combined
program even if they are not linked sensu stricto268. Therefore, LGPLv3-covered programs that
provide one or more interfaces can be used through those interfaces in proprietary applications
irrespective of the licenses thereof. The only legal restriction that the LGPLv3 imposes in such
situations is that users cannot be prevented from running debuggers on the combined works (s.
4 of the LGPLv3). As a consequence, only if the library itself is being modified, the assessment
follows the principles discussed in the following chapter269.

265 KM 1953:5, 50.
266 Koktvedgaard and Levin 2007, 73.
267 It is not obvious whether the present provision, or the GNU software licenses in general, ought to be
interpreted in dubio contra proferentem. The licenses have been drafted by the FSF, which could be characterised as
an interest group, but in all cases except where that organisation itself acts as a licensor neither party has
formulated the terms rather than merely adheres thereto. Furthermore, the advantage of size may case-specifically
exist  on  either  the  licensor’s  or  licensee’s  side.  Since  the  documented  revision  and  update  process  of  the  GNU
software licenses from version 2 to version 3 makes the objective interpretation of the contractual relation possible,
verbatim reading of the licenses appears well-founded; see KM 1990:20, 342–343; Hemmo 2003, 581;
Wilhelmsson 2008, 97 ff.
268 See GPLv3-FIN, 18.
269 The program licensed under the LGPLv3 needs not necessarily be a subroutine library. For instance, the
OpenOffice.org office application suite is governed by the present license so as to ensure that the published
improvements  to  the  software  itself  become  available  for  everyone  but,  at  the  same  time,  enable  the  commercial
conveyance  of  add-ons  and  plug-ins  that  make  use  of  the  interfaces  provided  by  the  application  suite
(OpenOffice.org 2008).



Nordic Journal of Commercial Law
issue 2009#1

67

Modified Works

Communications Based Analysis

Under s. 0 of the GPLv3, to modify a work means to copy from or adapt all or part of a work in
a fashion requiring copyright permission, other than the making of an exact copy. By such
definition, linking or combining a protectable GPLv3-covered code with other material appears
to form a single modified work, conveying of which must occur exclusively under the present
license (GPLv3, sub-s. 5c). As regards the functional scope affected by reciprocity, it stems from
the elucidation of corresponding source contained in s. 1 of the GPLv3 that the cumulative
modified work is to include also those dynamically linked subprograms that the work is
specifically designed to require, ‘such as by intimate data communication or control flow
between those subprograms and other parts of the work’.

The license text contains no further definition on what is meant by such intimate data
communication or control flow270. The rationale documents, instead, provide that the notion is
intended to describe interaction and knowledge so intricate and detailed that it implies a
module being particularly produced to depend upon a GPLv3-covered element271. The FSF’s
opinion has been further elaborated on its web page that contains answers to commonly-asked
questions concerning the GNU software licenses272. In response to a query about the difference
between an ‘aggregate’ and other kinds of ‘modified versions’, they state to believe that a proper
criterion for demarcating the line between two separate programs and one program with two
parts is ultimately conditional upon communication, both the mechanism thereof and what
kinds of information are interchanged.

Under  this  view,  including  modules  in  the  same  executable  file  would  betoken  that  they  are
certainly combined in one program. The same would apply to modules that are designed to run
linked together in a shared address space and make function calls to each other273. By contrast,
if two programs use for communication a mechanism that is normally used between separate
programs, it creates a prima facie assumption of separateness274. Nonetheless, should the

270 The  wording  of  the  provision  was  similar  in  Draft  1  of  the  GPLv3.  In  Draft  2,  ‘complex’  was  substituted  for
‘intimate’,  which  some  readers  had  found  unclear  (GPLv3-DD2,  7).   However,  ‘intimate’  was  restored  in  Draft  3
anew, following from further public discussion; see GPLv3 comments in file ‘gplv3-draft-2’.
271 GPLv3-DD3, 42.
272 FSF 2008a.
273 According to the FSF, using shared memory to communicate with complex data structures is somewhat
equivalent to dynamic linking. On the contrary, were a module invoked by a function that creates a separate
address space for the child, it would arguably be a separate program.
274 The FSF lists pipelines, inter-process sockets and command line arguments as examples of such communication
mechanisms.



Nordic Journal of Commercial Law
issue 2009#1

68

programs exchange complex internal data structures, the semantics of the communication
would then be intimate enough to refute the assumption and constitute a basis to consider two
parts as combined into a larger program. Pursuant to this interpretation, if a library is released
under the GPLv3, any program that uses it must, too, be under the same or a compatible
license, because the program as it is actually run includes the library275. Since the GPLv3 refers
to dynamically linked subprograms that the work is specifically designed to require,
communication limited to invoking the primary function of a module with few options forms,
however, a borderline case276.

The interpretation assumed by the FSF is supported by case Micro Star v FormGen Inc.277, where
the  US  Court  of  Appeals  for  the  Ninth  Circuit  took  the  view  that  map  files  were  relevant
adaptations  of  the  original  game  in  respect  of  copyright  law.  The  map  files  did  not  copy  any
code or graphics of the game but were linked to the graphics library thereof. As a consequence,
the files generated new audiovisual displays when the game was run. According to the court,
although these displays came entirely out of the source art library of the game, the
incorporation  of  copyright  protected  expression  was  evidenced  by  the  fact  that  the  map  files
could only be used with the present game. A rather low premium was placed on technological
details. Instead, the court construed the infringement on the basis of the outcome that results
from the use of the map files.278

Worldwide, there is apparently no record that anyone would have circumvented a strongly
reciprocal GNU software license by means of dynamic linking and subsequently contested
when  threatened  by  the  copyright  holder  with  the  institution  of  legal  proceedings,  which
suggests that the industry de facto approves of the FSF’s interpretation. As regards static linking,
there has been one litigation where the issue was almost taken under de jure analysis. In 2001
was filed the case of Progress Software Corporation v MySQL AB279, where proprietary software was
allegedly compiled inside the binary distribution of a GPL-covered database management
system280. In the preliminary injunction, the court stated that whether a program linked to
software governed by the GPL can be considered a derivative work of that software raises a

275 As regards object-oriented languages, the FSF are of the opinion that ‘subclassing’ is creating a work based on
the earlier work. LGPLv3, s. 0 specifically provides that, for the purposes of the present license, defining a subclass
of a class defined by an LGPLv3-covered library is deemed a mode of using an interface of the library.
276 FSF 2008a.
277 154 F.3d 1107 (9th Cir. 1998).
278 See Välimäki 2009, 40.
279 See n. 161 supra.
280 Välimäki 2005, 134–135.



Nordic Journal of Commercial Law
issue 2009#1

69

factual dispute281. The case was, however, settled before judgement was passed, so that the issue
still forgoes an authoritative opinion.

Critique of Communicative Interpretation

The reasoning of Micro Star v FormGen Inc. ensues from the prevailing practice amongst Anglo-
Saxon jurisdictions, according to which the original elements in the plot of a copyrightable
literary work may be considered a substantial part of the work and, therefore, copyright in the
original work may be infringed even if the actual language has not been copied at all282. In view
of that, the court in question held that the infringed work was the story itself, whereby the
stories ‘told’ in the map files were sequels, the subject matter of which belonged to the exclusive
rights of the copyright holder. Under Finnish legal order, however, plots cannot be
copyrighted283. As a result, the finding of copyright infringement presumes that protected
material from a pre-existing work has been substantially incorporated into a subsequent work.

To that end, relying on another case concerning runtime alteration tried before the same Ninth
Circuit seems more legitimate. In Lewis Galoob Toys, Inc. v Nintendo of America, Inc.284, the
concurrent altering of digital information that originated in a data storage device was not
deemed copyright infringement, since the infringing work would have to incorporate a portion
of the copyrighted work in some form. Jaeger and Metzger argue that, if software components
are loaded into the memory of a computer simultaneously and thereafter linked, they practically
become a single executable, so that the legal assessment of the arrangement ought not to differ
from physical incorporation285.  In  principle,  the  argument  appears  justified  for  law  should
address itself to the essence of matters. However, copyright is by definition protection for the
format, in this case literal code, whereupon the interpretation cannot be accepted; the coverage
of functionality would require the backing of institutional support.

The definitions of modification and propagation contained in the GNU software licenses are
strongly connected with the exclusive rights conferred upon the copyright holder under the
applicable copyright law286.  Making  of  an  exact  copy,  executing  a  work  on  the  computer  and
modifying a private copy (cf. s. 25j of the Copyright Act) are all specifically excluded from their

281 Majerus 2003.
282 See Rebikoff (2001) and the cases referred to therein.
283 Copyright Council 1986:8; Copyright Council 1994:9.
284 964 F.2d 965 (9th Cir. 1992).
285 Jaeger and Metzger 2006, 39–40.
286 They refer to a ‘fashion requiring copyright permission’ and ‘infringement under applicable copyright law’,
respectively.



Nordic Journal of Commercial Law
issue 2009#1

70

scope, which leaves actions referred to in ss. 2, 4(1) and 5 of the Copyright Act remaining287.
Any attempt to propagate or modify a GPLv3-covered work except as expressly provided in the
license document terminates the rights under the license (GPLv3, s. 8). Therefore, a product
that uses the functionality of a GPLv3-covered component without incorporating any portions
of the latter cannot, in our jurisdiction, arguably be said to propagate or modify in
contravention of the license. As a result, dynamically linking applications to libraries licensed
under the GPLv3 would not trigger reciprocity, since such applications ought to be deemed
separate and independent works, barring where the source code of the GPLv3-covered software
component per se has been altered.

By contrast, the significance of intimate data communication or control flow actualises in
situations where also the material governed by the GPLv3 has been modified in a way that
would, without permission, make the licensee liable for copyright infringement. For example, a
licensee could attempt to escape the requirement of subsection 5c of the GPLv3 by placing all
her improvements in a separate subprogram and merely modifying the main program to
dynamically link thereto. Now, if she conveys the main program in accordance with the GPLv3
but does not include the source code of the runtime component, will it satisfy the license? No.
Addition of modules and other parts to a program results in a new program based on the old
program, if the alteration physically affects the literal code of the latter. The definition of the
corresponding source means that irrespective of the method of combination all non-system
libraries, subprograms and suchlike that the work is designed to require must also be licensed
under a GPLv3-compatible license, at the risk of the conclusion that modification, propagation
or both have occurred contrary to the license and therefore s. 2 of the Copyright Act288. In the
present case, the licensee has designed the work to require the external component and, since
such alteration requires the permission of the copyright holder, the licensee’s right to dispose of
the improved version, as a whole, is subject to the copyright in the original work (see art. 4[b] of
the Software Directive)289.

Only if the component meets the criteria for a system library set forth in the third paragraph of
s. 1 of the GPLv3, the conveyance of combinations formed by GPLv3-covered and proprietarily
licensed software products is possible, since the corresponding source does not include the
system libraries of the work (GPLv3, s. 1). System libraries are by definition core components of
the operating system that may not necessarily come directly with it but that all users of the
software in question can reasonably be expected to have (see ibid.).  Programs  governed  by  the

287 Cf. art. 4 of the Software Directive.
288 See also GPLv3-FIN, 10.
289 The rule has not been expressed unequivocally in the Copyright Act, but the interaction of ss. 2, 4(1) and 5
thereof leads to the conclusion that the copyright holder has the exclusive right to exploit the new works formed by
modifying of the original; see Haarmann 2006, 103.



Nordic Journal of Commercial Law
issue 2009#1

71

GPLv3 may therefore be combined with such GPLv3-incompatible components and conveyed
in one.290 However, the definition of major components has been drafted using relatively
objective terminology, so that the expected degree of success of an effort to invoke the provision
without strong factual grounds appears rather low.

Remote Network Interaction

Irrespective of the assessment whether a work is an original or a modified version, strong
reciprocity is not triggered until transfer of copyrightable material occurs or is enabled (GPLv3,
s. 0)291.  This  is  where  the  AGPLv3  comes  in.  Section  13  of  the  AGPLv3  provides  that  if  the
licensee modifies an AGPLv3-covered program, the modified version must offer all users
interacting with it remotely through a computer network an opportunity to receive the
corresponding source of the present version292. The material scope of the reciprocity follows the
rules set forth in the preceding chapter, but already remote network interaction activates the
obligation.

Remote network interaction is not one of the exclusive rights of the copyright holder referred
to in s. 2 of the Copyright Act or art. 4 of the Software Directive293. However, since alteration
is, the copyright holder may on her license grant authorise such action in general, but impose
certain boundary conditions294. As this is the case with regard to the AGPLv3, a licensee who
consequently oversteps the license grant renders herself guilty of copyright infringement for
committing a restricted act without authorisation295. Thus, the advantage of the AGPLv3 for an
author who designs software for network server use is obvious: she is able to receive the benefit
of any modifications to her original work the same as conventional developers may exploit any
improvements on conveyed software.

In accordance with s. 13 of the AGPLv3, network reciprocity extends to all interacting users
only. Therefore, use in private computer networks securely sharing any part of an organisation’s
information or operational systems with its members does not require the organisation to

290 See Smith 2007.
291 Cf. GPLv3-DD3, 40.
292 Provided, naturally, that the modified version supports such interaction.
293 See n. 148 supra. Under the latter section of law, restricted acts include (1) the permanent or temporary
reproduction; (2) the translation, adaptation, arrangement and any other alteration; and (3) any form of
distribution to the public of a computer program.
294 Cf. s. 2(1) of the Copyright Act; art. 4(b) of the Software Directive.
295 Such modification does not, for the reasons discussed in ch. 0 supra, entitle to the exception of s. 25j(1) of the
Copyright Act either.



Nordic Journal of Commercial Law
issue 2009#1

72

release the corresponding source to any third parties296. Outside intranet environments, an ASP
affected by the AGPLv3 can naturally control and limit use of the service by agreement297.
However, in line with other GNU software licenses, anyone who has access to the service and
chooses to receive the corresponding source thereof may under conditions stated in ss. 4
through 6 and 13 of the AGPLv3, respectively, freely release it to the public, with or without a
fee.

5. Conclusive Remarks

On account of the analysis explicated in chapter 4 above, we are now able to refine the scope of
reciprocity contained in the GNU software licenses. In view of that, the respective reciprocity
obligations are triggered as of the moment when (1) protected material from a program licensed
under  a  GNU  software  license  has  been  substantially  incorporated  into  a  subsequent  work  in
accord with illustration 2 below and (2) the activity referred to in the present license—
conveyance or remote network interaction—has taken place.

Illustration 2. Process of identifying protectable elements of GNU-covered software

It should be noted that, unless the first-mentioned criterion has been met, such software
components that only dynamically link to a program governed by a GNU software license
should arguably be separated de lege lata as independent works. Granted that in such cases the

296 As regards occurrences of unauthorised use, such users are not probably first in line demanding their
opportunity to receive the source code. At any rate, it could be argued that the concept of ‘interaction’ necessitates
certain two-way effect that objects have upon one another, which is conceptually absent from unauthorised use.
297 See, in that regard, Lampola, et al. 2003, 27–30.



Nordic Journal of Commercial Law
issue 2009#1

73

program as it is actually run includes also the dynamically linked module, no alteration occurs
in concrete or permanent form. Copyright comprises the right to dispose of a work in specific
functions, none of which pertains to factual usage. Neither applicable legislation nor legislative
history  or  legal  usage  supports  the  interpretation  that  would  extend  to  the  protection  of
functionality; teleological arguments alone cannot justify the extension beyond literal code.
Construction of the framework for assessing the conditions according to which dynamic linking
could nevertheless be construed as alteration in the sense of copyright law is a task that must be
performed by subsequent research.

Having said that, the complex connecting factor rules of private international law betoken that
even purely domestic actors cannot be lulled into certainty as to the legal state concerning their
software. As Micro Star v FormGen Inc. evidences, there are jurisdictions and circumstances
under which developers ought to be cautious, especially where the work is designed to
considerable  rely  upon  other  software.  Another  solution  is  to  deploy  software  by  way  of  the
SaaS method. The GNU software licenses do not place any conditions on licensees that merely
make copies of programs so covered and run them. Moreover, s. 0 of the GPLv3 permits
anyone the freedom to make modifications and use them privately, without ever conveying
them to third parties. Placing the program on a server machine for the public to interact to is
under the present section not conveying. In such cases, therefore, the ASP is not obliged to
release the modified sources in the first place, whereupon the issue of dynamic linking does not
actualise at all, unless the vendor has utilised protectable material licensed under the AGPLv3.

If  the  licensee  decides  to  be  bound  by  a  GNU  software  license,  the  license  under  which  she
licenses her modifications does not necessarily need to be the particular license that governs the
code being utilised. Two licenses are compatible if they permit the use of the licensed material
in  the  prospective  way.  For  instance,  a  program  that  is  combined  with  a  GPLv3-covered
program must be released under a license compatible with the present one, so that the
combination itself is consequently available under the GPLv3. License terms are compatible
with those of the GPLv3 where code released under them can be combined with GPLv3-
covered code to form a larger program, which is then conveyed under the GPLv3. Therefore,
the alterations made by a subsequent developer may be licensed under a permissive or standard
reciprocity license per se,  but  the  outcome  as  a  whole  is  governed  by  the  more  restrictive  one.
However, only reciprocally licensed modifications by parties who do not hold copyright in the
original work are able to prohibit the original author from converting the product’s license into
proprietary at a later time, barring the complete rewrite of protectable subsequent elements.
That is the core of reciprocity.

Technologically speaking, open source software allows developers to recycle existing code to fill
specific needs rather than write new software from scratch. Such development approach offers
the potential for more flexible technical procedures and quicker innovation, thus helping to
produce reliable, high quality software in an economic manner. For this reason, detailed legal
analysis as to the risks and benefits associated with the licenses governing the legal relationships
pertaining to open source software enables the market actors to make reasoned decisions
thereof, and ultimately decreases the transaction costs of migrating thereto.



Nordic Journal of Commercial Law
issue 2009#1

74

Appendices

Appendix 1. GNU General Public License, Version 3, 29 June 2007

Copyright © 2007 Free Software Foundation, Inc. <http://fsf.org/>

Everyone is permitted to copy and distribute verbatim copies of this license document, but
changing it is not allowed.

Preamble

The  GNU  General  Public  License  is  a  free,  copyleft  license  for  software  and  other  kinds  of
works.

The  licenses  for  most  software  and  other  practical  works  are  designed  to  take  away  your
freedom to share and change the works. By contrast, the GNU General Public License is
intended  to  guarantee  your  freedom  to  share  and  change  all  versions  of  a  program—to  make
sure it remains free software for all its users. We, the Free Software Foundation, use the GNU
General Public License for most of our software; it applies also to any other work released this
way by its authors. You can apply it to your programs, too.

When we speak of free software, we are referring to freedom, not price. Our General Public
Licenses are designed to make sure that you have the freedom to distribute copies of free
software (and charge for them if you wish), that you receive source code or can get it if you want
it, that you can change the software or use pieces of it in new free programs, and that you know
you can do these things.

To protect your rights, we need to prevent others from denying you these rights or asking you
to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of
the software, or if you modify it: responsibilities to respect the freedom of others.

For example, if you distribute copies of such a program, whether gratis or for a fee, you must
pass on to the recipients the same freedoms that you received. You must make sure that they,
too, receive or can get the source code. And you must show them these terms so they know
their rights.

Developers that use the GNU GPL protect your rights with two steps: (1) assert copyright on
the software, and (2) offer you this License giving you legal permission to copy, distribute
and/or modify it.

For the developers’ and authors’ protection, the GPL clearly explains that there is no warranty
for this free software. For both users’ and authors’ sake, the GPL requires that modified
versions be marked as changed, so that their problems will not be attributed erroneously to
authors of previous versions.

http://fsf.org/


Nordic Journal of Commercial Law
issue 2009#1

75

Some devices are designed to deny users access to install or run modified versions of the
software inside them, although the manufacturer can do so. This is fundamentally incompatible
with the aim of protecting users’ freedom to change the software. The systematic pattern of
such abuse occurs in the area of products for individuals to use, which is precisely where it is
most  unacceptable.  Therefore,  we  have  designed  this  version  of  the  GPL  to  prohibit  the
practice for those products. If such problems arise substantially in other domains, we stand
ready  to  extend  this  provision  to  those  domains  in  future  versions  of  the  GPL,  as  needed  to
protect the freedom of users.

Finally, every program is threatened constantly by software patents. States should not allow
patents to restrict development and use of software on general-purpose computers, but in those
that do, we wish to avoid the special danger that patents applied to a free program could make
it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render
the program non-free.

The precise terms and conditions for copying, distribution and modification follow.

TERMS AND CONDITIONS

0. Definitions

“This License” refers to version 3 of the GNU General Public License.

“Copyright” also means copyright-like laws that apply to other kinds of works, such as
semiconductor masks.

“The Program” refers to any copyrightable work licensed under this License. Each licensee is
addressed as “you”. “Licensees” and “recipients” may be individuals or organizations.

To “modify” a work means to copy from or adapt all or part of the work in a fashion requiring
copyright permission, other than the making of an exact copy. The resulting work is called a
“modified version” of the earlier work or a work “based on” the earlier work.

A “covered work” means either the unmodified Program or a work based on the Program.

To “propagate” a work means to do anything with it that, without permission, would make you
directly or secondarily liable for infringement under applicable copyright law, except executing
it on a computer or modifying a private copy. Propagation includes copying, distribution (with
or without modification), making available to the public, and in some countries other activities
as well.

To “convey” a work means any kind of propagation that enables other parties to make or
receive copies. Mere interaction with a user through a computer network, with no transfer of a
copy, is not conveying.



Nordic Journal of Commercial Law
issue 2009#1

76

An interactive user interface displays “Appropriate Legal Notices” to the extent that it includes
a convenient and prominently visible feature that (1) displays an appropriate copyright notice,
and (2) tells the user that there is no warranty for the work (except to the extent that warranties
are provided), that licensees may convey the work under this License, and how to view a copy of
this  License.  If  the  interface  presents  a  list  of  user  commands  or  options,  such  as  a  menu,  a
prominent item in the list meets this criterion.

1. Source Code

The “source code” for a work means the preferred form of the work for making modifications
to it. “Object code” means any non-source form of a work.

A “Standard Interface” means an interface that either is an official standard defined by a
recognized standards body, or, in the case of interfaces specified for a particular programming
language, one that is widely used among developers working in that language.

The “System Libraries” of an executable work include anything, other than the work as a whole,
that (a) is included in the normal form of packaging a Major Component, but which is not part
of  that  Major  Component,  and  (b)  serves  only  to  enable  use  of  the  work  with  that  Major
Component, or to implement a Standard Interface for which an implementation is available to
the public in source code form. A “Major Component”, in this context, means a major essential
component (kernel, window system, and so on) of the specific operating system (if any) on
which  the  executable  work  runs,  or  a  compiler  used  to  produce  the  work,  or  an  object  code
interpreter used to run it.

The “Corresponding Source” for a work in object code form means all the source code needed
to generate, install, and (for an executable work) run the object code and to modify the work,
including scripts to control those activities. However, it does not include the work’s System
Libraries, or general-purpose tools or generally available free programs which are used
unmodified  in  performing  those  activities  but  which  are  not  part  of  the  work.  For  example,
Corresponding Source includes interface definition files associated with source files for the
work, and the source code for shared libraries and dynamically linked subprograms that the
work is specifically designed to require, such as by intimate data communication or control flow
between those subprograms and other parts of the work.

The Corresponding Source need not include anything that users can regenerate automatically
from other parts of the Corresponding Source.

The Corresponding Source for a work in source code form is that same work.



Nordic Journal of Commercial Law
issue 2009#1

77

2. Basic Permissions

All rights granted under this License are granted for the term of copyright on the Program, and
are irrevocable provided the stated conditions are met. This License explicitly affirms your
unlimited permission to run the unmodified Program. The output from running a covered
work is covered by this License only if the output, given its content, constitutes a covered work.
This License acknowledges your rights of fair use or other equivalent, as provided by copyright
law.

You may make, run and propagate covered works that you do not convey, without conditions
so long as your license otherwise remains in force. You may convey covered works to others for
the sole purpose of having them make modifications exclusively for you, or provide you with
facilities for running those works, provided that you comply with the terms of this License in
conveying all material for which you do not control copyright. Those thus making or running
the covered works for you must do so exclusively on your behalf, under your direction and
control, on terms that prohibit them from making any copies of your copyrighted material
outside their relationship with you.

Conveying under any other circumstances is permitted solely under the conditions stated
below. Sublicensing is not allowed; section 10 makes it unnecessary.

3. Protecting Users’ Legal Rights from Anti-Circumvention Law

No covered work shall be deemed part of an effective technological measure under any
applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on
20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.

When you convey a covered work, you waive any legal power to forbid circumvention of
technological measures to the extent such circumvention is effected by exercising rights under
this License with respect to the covered work, and you disclaim any intention to limit operation
or  modification  of  the  work  as  a  means  of  enforcing,  against  the  work’s  users,  your  or  third
parties’ legal rights to forbid circumvention of technological measures.

4. Conveying Verbatim Copies

You may convey verbatim copies of the Program’s source code as you receive it, in any medium,
provided that you conspicuously and appropriately publish on each copy an appropriate
copyright notice; keep intact all notices stating that this License and any non-permissive terms
added in accord with section 7 apply to the code; keep intact all notices of the absence of any
warranty; and give all recipients a copy of this License along with the Program.

You may charge any price or no price for each copy that you convey, and you may offer support
or warranty protection for a fee.



Nordic Journal of Commercial Law
issue 2009#1

78

5. Conveying Modified Source Versions

You  may  convey  a  work  based  on  the  Program,  or  the  modifications  to  produce  it  from  the
Program, in the form of source code under the terms of section 4, provided that you also meet
all of these conditions:

a) The work must carry prominent notices stating that you modified it, and giving a relevant
date.

b) The work must carry prominent notices stating that it is released under this License and any
conditions added under section 7. This requirement modifies the requirement in section 4
to “keep intact all notices”.

c) You must license the entire work, as a whole, under this License to anyone who comes into
possession of a copy. This License will therefore apply, along with any applicable section 7
additional  terms,  to  the  whole  of  the  work,  and  all  its  parts,  regardless  of  how  they  are
packaged. This License gives no permission to license the work in any other way, but it does
not invalidate such permission if you have separately received it.

d) If the work has interactive user interfaces, each must display Appropriate Legal Notices;
however, if the Program has interactive interfaces that do not display Appropriate Legal
Notices, your work need not make them do so.

A compilation of a covered work with other separate and independent works, which are not by
their  nature  extensions  of  the  covered  work,  and  which  are  not  combined  with  it  such  as  to
form  a  larger  program,  in  or  on  a  volume  of  a  storage  or  distribution  medium,  is  called  an
“aggregate” if the compilation and its resulting copyright are not used to limit the access or legal
rights  of  the  compilation’s  users  beyond  what  the  individual  works  permit.  Inclusion  of  a
covered  work  in  an  aggregate  does  not  cause  this  License  to  apply  to  the  other  parts  of  the
aggregate.

6. Conveying Non-Source Forms

You may convey a covered work in object code form under the terms of sections 4 and 5,
provided that you also convey the machine-readable Corresponding Source under the terms of
this License, in one of these ways:

a) Convey the object code in, or embodied in, a physical product (including a physical
distribution medium), accompanied by the Corresponding Source fixed on a durable
physical medium customarily used for software interchange.

b) Convey the object code in, or embodied in, a physical product (including a physical
distribution medium), accompanied by a written offer, valid for at least three years and valid
for as long as you offer spare parts or customer support for that product model, to give
anyone who possesses the object code either (1) a copy of the Corresponding Source for all
the software in the product that is covered by this License, on a durable physical medium
customarily used for software interchange, for a price no more than your reasonable cost of



Nordic Journal of Commercial Law
issue 2009#1

79

physically performing this conveying of source, or (2) access to copy the Corresponding
Source from a network server at no charge.

c) Convey individual copies of the object code with a copy of the written offer to provide the
Corresponding Source. This alternative is allowed only occasionally and noncommercially,
and only if you received the object code with such an offer, in accord with subsection 6b.

d) Convey the object code by offering access from a designated place (gratis or for a charge),
and offer equivalent access to the Corresponding Source in the same way through the same
place at no further charge. You need not require recipients to copy the Corresponding
Source along with the object code. If the place to copy the object code is a network server,
the  Corresponding  Source  may  be  on  a  different  server  (operated  by  you  or  a  third  party)
that supports equivalent copying facilities, provided you maintain clear directions next to
the object code saying where to find the Corresponding Source. Regardless of what server
hosts the Corresponding Source, you remain obligated to ensure that it is available for as
long as needed to satisfy these requirements.

e) Convey the object code using peer-to-peer transmission, provided you inform other peers
where the object code and Corresponding Source of the work are being offered to the
general public at no charge under subsection 6d.

A separable portion of the object code, whose source code is excluded from the Corresponding
Source as a System Library, need not be included in conveying the object code work.

A “User Product” is either (1) a “consumer product”, which means any tangible personal
property  which  is  normally  used  for  personal,  family,  or  household  purposes,  or  (2)  anything
designed or sold for incorporation into a dwelling. In determining whether a product is a
consumer  product,  doubtful  cases  shall  be  resolved  in  favor  of  coverage.  For  a  particular
product received by a particular user, “normally used” refers to a typical or common use of that
class of product, regardless of the status of the particular user or of the way in which the
particular  user  actually  uses,  or  expects  or  is  expected  to  use,  the  product.  A  product  is  a
consumer product regardless of whether the product has substantial commercial, industrial or
non-consumer uses, unless such uses represent the only significant mode of use of the product.

“Installation Information” for a User Product means any methods, procedures, authorization
keys, or other information required to install and execute modified versions of a covered work
in that User Product from a modified version of its Corresponding Source. The information
must suffice to ensure that the continued functioning of the modified object code is in no case
prevented or interfered with solely because modification has been made.

If  you  convey  an  object  code  work  under  this  section  in,  or  with,  or  specifically  for  use  in,  a
User Product, and the conveying occurs as part of a transaction in which the right of possession
and  use  of  the  User  Product  is  transferred  to  the  recipient  in  perpetuity  or  for  a  fixed  term
(regardless of how the transaction is characterized), the Corresponding Source conveyed under
this section must be accompanied by the Installation Information. But this requirement does



Nordic Journal of Commercial Law
issue 2009#1

80

not apply if neither you nor any third party retains the ability to install modified object code on
the User Product (for example, the work has been installed in ROM).

The requirement to provide Installation Information does not include a requirement to
continue to provide support service, warranty, or updates for a work that has been modified or
installed by the recipient, or for the User Product in which it has been modified or installed.
Access to a network may be denied when the modification itself materially and adversely affects
the operation of the network or violates the rules and protocols for communication across the
network.

Corresponding Source conveyed, and Installation Information provided, in accord with this
section must be in a format that is publicly documented (and with an implementation available
to the public in source code form), and must require no special password or key for unpacking,
reading or copying.

7. Additional Terms

“Additional permissions” are terms that supplement the terms of this License by making
exceptions from one or more of its conditions. Additional permissions that are applicable to
the entire Program shall be treated as though they were included in this License, to the extent
that they are valid under applicable law. If additional permissions apply only to part of the
Program, that part may be used separately under those permissions, but the entire Program
remains governed by this License without regard to the additional permissions.

When  you  convey  a  copy  of  a  covered  work,  you  may  at  your  option  remove  any  additional
permissions from that copy, or from any part of it. (Additional permissions may be written to
require their own removal in certain cases when you modify the work.) You may place
additional permissions on material, added by you to a covered work, for which you have or can
give appropriate copyright permission.

Notwithstanding any other provision of this License, for material you add to a covered work,
you may (if authorized by the copyright holders of that material) supplement the terms of this
License with terms:

a) Disclaiming warranty or limiting liability differently from the terms of sections 15 and 16 of
this License; or

b) Requiring  preservation  of  specified  reasonable  legal  notices  or  author  attributions  in  that
material or in the Appropriate Legal Notices displayed by works containing it; or

c) Prohibiting misrepresentation of the origin of that material, or requiring that modified
versions of such material be marked in reasonable ways as different from the original
version; or

d) Limiting the use for publicity purposes of names of licensors or authors of the material; or



Nordic Journal of Commercial Law
issue 2009#1

81

e) Declining to grant rights under trademark law for use of some trade names, trademarks, or
service marks; or

f) Requiring indemnification of licensors and authors of that material by anyone who conveys
the material (or modified versions of it) with contractual assumptions of liability to the
recipient, for any liability that these contractual assumptions directly impose on those
licensors and authors.

All other non-permissive additional terms are considered “further restrictions” within the
meaning  of  section  10.  If  the  Program  as  you  received  it,  or  any  part  of  it,  contains  a  notice
stating that it is governed by this License along with a term that is a further restriction, you may
remove that term. If a license document contains a further restriction but permits relicensing or
conveying under this License, you may add to a covered work material governed by the terms of
that license document, provided that the further restriction does not survive such relicensing or
conveying.

If you add terms to a covered work in accord with this section, you must place, in the relevant
source files, a statement of the additional terms that apply to those files, or a notice indicating
where to find the applicable terms.

Additional terms, permissive or non-permissive, may be stated in the form of a separately
written license, or stated as exceptions; the above requirements apply either way.

8. Termination

You may not propagate or modify a covered work except as expressly provided under this
License. Any attempt otherwise to propagate or modify it is void, and will automatically
terminate your rights under this License (including any patent licenses granted under the third
paragraph of section 11).

However, if you cease all violation of this License, then your license from a particular copyright
holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally
terminates  your  license,  and  (b)  permanently,  if  the  copyright  holder  fails  to  notify  you  of  the
violation by some reasonable means prior to 60 days after the cessation.

Moreover, your license from a particular copyright holder is reinstated permanently if the
copyright holder notifies you of the violation by some reasonable means, this is the first time
you have received notice of violation of this License (for any work) from that copyright holder,
and you cure the violation prior to 30 days after your receipt of the notice.

Termination  of  your  rights  under  this  section  does  not  terminate  the  licenses  of  parties  who
have received copies or rights from you under this License. If your rights have been terminated
and  not  permanently  reinstated,  you  do  not  qualify  to  receive  new  licenses  for  the  same
material under section 10.



Nordic Journal of Commercial Law
issue 2009#1

82

9. Acceptance Not Required for Having Copies

You are not required to accept this License in order to receive or run a copy of the Program.
Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer
transmission to receive a copy likewise does not require acceptance. However, nothing other
than  this  License  grants  you  permission  to  propagate  or  modify  any  covered  work.  These
actions infringe copyright if you do not accept this License. Therefore, by modifying or
propagating a covered work, you indicate your acceptance of this License to do so.

10. Automatic Licensing of Downstream Recipients

Each time you convey a covered work, the recipient automatically receives a license from the
original licensors, to run, modify and propagate that work, subject to this License. You are not
responsible for enforcing compliance by third parties with this License.

An “entity transaction” is a transaction transferring control of an organization, or substantially
all assets of one, or subdividing an organization, or merging organizations. If propagation of a
covered work results from an entity transaction, each party to that transaction who receives a
copy of the work also receives whatever licenses to the work the party’s predecessor in interest
had or could give under the previous paragraph, plus a right to possession of the
Corresponding Source of the work from the predecessor in interest, if the predecessor has it or
can get it with reasonable efforts.

You may not impose any further restrictions on the exercise of the rights granted or affirmed
under this License. For example, you may not impose a license fee, royalty, or other charge for
exercise of rights granted under this License, and you may not initiate litigation (including a
cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making,
using, selling, offering for sale, or importing the Program or any portion of it.

11. Patents

A “contributor” is a copyright holder who authorizes use under this License of the Program or a
work  on  which  the  Program  is  based.  The  work  thus  licensed  is  called  the  contributor’s
“contributor version”.

A contributor’s “essential patent claims” are all patent claims owned or controlled by the
contributor, whether already acquired or hereafter acquired, that would be infringed by some
manner, permitted by this License, of making, using, or selling its contributor version, but do
not include claims that would be infringed only as a consequence of further modification of the
contributor version. For purposes of this definition, “control” includes the right to grant patent
sublicenses in a manner consistent with the requirements of this License.



Nordic Journal of Commercial Law
issue 2009#1

83

Each  contributor  grants  you  a  non-exclusive,  worldwide,  royalty-free  patent  license  under  the
contributor’s essential patent claims, to make, use, sell, offer for sale, import and otherwise run,
modify and propagate the contents of its contributor version.

In the following three paragraphs, a “patent license” is any express agreement or commitment,
however denominated, not to enforce a patent (such as an express permission to practice a
patent or covenant not to sue for patent infringement). To “grant” such a patent license to a
party  means  to  make  such  an  agreement  or  commitment  not  to  enforce  a  patent  against  the
party.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding
Source  of  the  work  is  not  available  for  anyone  to  copy,  free  of  charge  and  under  the  terms  of
this License, through a publicly available network server or other readily accessible means, then
you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive
yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner
consistent with the requirements of this License, to extend the patent license to downstream
recipients. “Knowingly relying” means you have actual knowledge that, but for the patent
license, your conveying the covered work in a country, or your recipient’s use of the covered
work  in  a  country,  would  infringe  one  or  more  identifiable  patents  in  that  country  that  you
have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or
propagate  by  procuring  conveyance  of,  a  covered  work,  and  grant  a  patent  license  to  some  of
the parties receiving the covered work authorizing them to use, propagate, modify or convey a
specific copy of the covered work, then the patent license you grant is automatically extended to
all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage,
prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that
are specifically granted under this License. You may not convey a covered work if you are a
party to an arrangement with a third party that is in the business of distributing software, under
which you make payment to the third party based on the extent of your activity of conveying
the work, and under which the third party grants, to any of the parties who would receive the
covered work from you, a discriminatory patent license (a) in connection with copies of the
covered work conveyed by you (or copies made from those copies), or (b) primarily for and in
connection with specific products or compilations that contain the covered work, unless you
entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Nothing in this License shall be construed as excluding or limiting any implied license or other
defenses to infringement that may otherwise be available to you under applicable patent law.



Nordic Journal of Commercial Law
issue 2009#1

84

12. No Surrender of Others’ Freedom

If  conditions  are  imposed  on  you  (whether  by  court  order,  agreement  or  otherwise)  that
contradict the conditions of this License, they do not excuse you from the conditions of this
License. If you cannot convey a covered work so as to satisfy simultaneously your obligations
under  this  License  and  any  other  pertinent  obligations,  then  as  a  consequence  you  may  not
convey it at all. For example, if you agree to terms that obligate you to collect a royalty for
further conveying from those to whom you convey the Program, the only way you could satisfy
both those terms and this License would be to refrain entirely from conveying the Program.

13. Use with the GNU Affero General Public License

Notwithstanding any other provision of this License, you have permission to link or combine
any covered work with a work licensed under version 3 of the GNU Affero General Public
License  into  a  single  combined  work,  and  to  convey  the  resulting  work.  The  terms  of  this
License will continue to apply to the part which is the covered work, but the special
requirements of the GNU Affero General Public License, section 13, concerning interaction
through a network will apply to the combination as such.

14. Revised Versions of this License

The Free Software Foundation may publish revised and/or new versions of the GNU General
Public License from time to time. Such new versions will be similar in spirit to the present
version, but may differ in detail to address new problems or concerns.

Each version is given a distinguishing version number. If the Program specifies that a certain
numbered version of the GNU General Public License “or any later version” applies to it, you
have the option of following the terms and conditions either of that numbered version or of
any later version published by the Free Software Foundation. If the Program does not specify a
version number of the GNU General Public License, you may choose any version ever
published by the Free Software Foundation.

If  the  Program  specifies  that  a  proxy  can  decide  which  future  versions  of  the  GNU  General
Public  License  can  be  used,  that  proxy’s  public  statement  of  acceptance  of  a  version
permanently authorizes you to choose that version for the Program.

Later license versions may give you additional or different permissions. However, no additional
obligations are imposed on any author or copyright holder as a result of your choosing to follow
a later version.



Nordic Journal of Commercial Law
issue 2009#1

85

15. Disclaimer of Warranty

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY
APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE
COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS
IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE
RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU.
SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION.

16. Limitation of Liability

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN
WRITING  WILL  ANY  COPYRIGHT  HOLDER,  OR  ANY  OTHER  PARTY  WHO
MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE
TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL  DAMAGES  ARISING  OUT  OF  THE  USE  OR  INABILITY  TO  USE
THE  PROGRAM  (INCLUDING  BUT  NOT  LIMITED  TO  LOSS  OF  DATA  OR  DATA
BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD
PARTIES  OR  A  FAILURE  OF  THE  PROGRAM  TO  OPERATE  WITH  ANY  OTHER
PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.

17. Interpretation of Sections 15 and 16

If the disclaimer of warranty and limitation of liability provided above cannot be given local
legal effect according to their terms, reviewing courts shall apply local law that most closely
approximates an absolute waiver of all civil liability in connection with the Program, unless a
warranty or assumption of liability accompanies a copy of the Program in return for a fee.

END OF TERMS AND CONDITIONS

How to Apply These Terms to Your New Programs

If you develop a new program, and you want it to be of the greatest possible use to the public,
the best way to achieve this is to make it free software which everyone can redistribute and
change under these terms.



Nordic Journal of Commercial Law
issue 2009#1

86

To do so, attach the following notices to the program. It is safest to attach them to the start of
each source file to most effectively state the exclusion of warranty; and each file should have at
least the “copyright” line and a pointer to where the full notice is found.

<one line to give the program’s name and a brief idea of what it does.>
Copyright (C) <year> <name of author>

This program is free software: you can redistribute it and/or modify it under
the terms of the GNU General Public License as published by the Free Software
Foundation, either version 3 of the License, or (at your option) any later
version.

This program is distributed in the hope that it will be useful, but WITHOUT
ANY WARRANTY; without even the implied warranty of
MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General
Public License for more details.

You should have received a copy of the GNU General Public License along with
this program. If not, see <http://www.gnu.org/licenses/>.

Also add information on how to contact you by electronic and paper mail.

If the program does terminal interaction, make it output a short notice like this when it starts
in an interactive mode:

<program> Copyright (C) <year> <name of author> This program comes with
ABSOLUTELY NO WARRANTY; for details type ‘show w’. This is free software, and
you are welcome to redistribute it under certain conditions; type ‘show c’ for
details.

The hypothetical commands ‘show w’ and ‘show c’ should show the appropriate parts of the
General  Public  License.  Of  course,  your  program’s  commands  might  be  different;  for  a  GUI
interface, you would use an “about box”.

You should also get your employer (if you work as a programmer) or school, if any, to sign a
“copyright disclaimer” for the program, if necessary. For more information on this, and how to
apply and follow the GNU GPL, see <http://www.gnu.org/licenses/>.

The GNU General Public License does not permit incorporating your program into proprietary
programs. If your program is a subroutine library, you may consider it more useful to permit
linking proprietary applications with the library. If this is what you want to do, use the GNU
Lesser General Public License instead of this License. But first, please read
<http://www.gnu.org/philosophy/why-not-lgpl.html>.

Appendix 2. GNU Lesser General Public License, Version 3, 29 June 2007

Copyright © 2007 Free Software Foundation, Inc. <http://fsf.org/>

http://www.gnu.org/licenses/
http://www.gnu.org/licenses/
http://www.gnu.org/philosophy/why-not-lgpl.html
http://fsf.org/


Nordic Journal of Commercial Law
issue 2009#1

87

Everyone is permitted to copy and distribute verbatim copies of this license document, but
changing it is not allowed.

This version of the GNU Lesser General Public License incorporates the terms and conditions
of version 3 of the GNU General Public License, supplemented by the additional permissions
listed below.

0. Additional Definitions

As used herein, “this License” refers to version 3 of the GNU Lesser General Public License,
and the “GNU GPL” refers to version 3 of the GNU General Public License.

“The Library” refers to a covered work governed by this License, other than an Application or a
Combined Work as defined below.

An “Application” is any work that makes use of an interface provided by the Library, but which
is not otherwise based on the Library. Defining a subclass of a class defined by the Library is
deemed a mode of using an interface provided by the Library.

A “Combined Work” is a work produced by combining or linking an Application with the
Library. The particular version of the Library with which the Combined Work was made is also
called the “Linked Version”.

The “Minimal Corresponding Source” for a Combined Work means the Corresponding
Source for the Combined Work, excluding any source code for portions of the Combined
Work that, considered in isolation, are based on the Application, and not on the Linked
Version.

The “Corresponding Application Code” for a Combined Work means the object code and/or
source code for the Application, including any data and utility programs needed for
reproducing the Combined Work from the Application, but excluding the System Libraries of
the Combined Work.

1. Exception to Section 3 of the GNU GPL

You may convey a covered work under sections 3 and 4 of this License without being bound by
section 3 of the GNU GPL.

2. Conveying Modified Versions

If you modify a copy of the Library, and, in your modifications, a facility refers to a function or
data to be supplied by an Application that uses the facility (other than as an argument passed
when the facility is invoked), then you may convey a copy of the modified version:



Nordic Journal of Commercial Law
issue 2009#1

88

a) under this License, provided that you make a good faith effort to ensure that, in the event
an Application does not supply the function or data, the facility still operates, and performs
whatever part of its purpose remains meaningful, or

b) under the GNU GPL, with none of the additional permissions of this License applicable to
that copy.

3. Object Code Incorporating Material from Library Header Files

The object code form of an Application may incorporate material from a header file that is part
of the Library. You may convey such object code under terms of your choice, provided that, if
the incorporated material is not limited to numerical parameters, data structure layouts and
accessors, or small macros, inline functions and templates (ten or fewer lines in length), you do
both of the following:

a) Give prominent notice with each copy of the object code that the Library is used in it and
that the Library and its use are covered by this License.

b) Accompany the object code with a copy of the GNU GPL and this license document.

4. Combined Works

You may convey a Combined Work under terms of your choice that, taken together, effectively
do not restrict modification of the portions of the Library contained in the Combined Work
and reverse engineering for debugging such modifications, if you also do each of the following:

a) Give prominent notice with each copy of the Combined Work that the Library is used in it
and that the Library and its use are covered by this License.

b) Accompany the Combined Work with a copy of the GNU GPL and this license document.
c) For a Combined Work that displays copyright notices during execution, include the

copyright notice for the Library among these notices, as well as a reference directing the
user to the copies of the GNU GPL and this license document.

d) Do one of the following:
0) Convey  the  Minimal  Corresponding  Source  under  the  terms  of  this  License,  and  the

Corresponding Application Code in a form suitable for, and under terms that permit,
the user to recombine or relink the Application with a modified version of the Linked
Version to produce a modified Combined Work, in the manner specified by section 6
of the GNU GPL for conveying Corresponding Source.

1) Use a suitable shared library mechanism for linking with the Library. A suitable
mechanism is one that (a) uses at run time a copy of the Library already present on the
user’s  computer  system,  and  (b)  will  operate  properly  with  a  modified  version  of  the
Library that is interface-compatible with the Linked Version.

e) Provide Installation Information, but only if you would otherwise be required to provide
such information under section 6 of the GNU GPL, and only to the extent that such



Nordic Journal of Commercial Law
issue 2009#1

89

information is necessary to install and execute a modified version of the Combined Work
produced  by  recombining  or  relinking  the  Application  with  a  modified  version  of  the
Linked Version. (If you use option 4d0, the Installation Information must accompany the
Minimal Corresponding Source and Corresponding Application Code. If you use option
4d1, you must provide the Installation Information in the manner specified by section 6 of
the GNU GPL for conveying Corresponding Source.)

5. Combined Libraries

You may place library facilities that are a work based on the Library side by side in a single
library together with other library facilities that are not Applications and are not covered by this
License, and convey such a combined library under terms of your choice, if you do both of the
following:

a) Accompany the combined library with a copy of the same work based on the Library,
uncombined with any other library facilities, conveyed under the terms of this License.

b) Give  prominent  notice  with  the  combined  library  that  part  of  it  is  a  work  based  on  the
Library, and explaining where to find the accompanying uncombined form of the same
work.

6. Revised Versions of the GNU Lesser General Public License

The Free Software Foundation may publish revised and/or new versions of the GNU Lesser
General Public License from time to time. Such new versions will be similar in spirit to the
present version, but may differ in detail to address new problems or concerns.

Each version is given a distinguishing version number. If the Library as you received it specifies
that a certain numbered version of the GNU Lesser General Public License “or any later
version” applies to it, you have the option of following the terms and conditions either of that
published  version  or  of  any  later  version  published  by  the  Free  Software  Foundation.  If  the
Library as you received it does not specify a version number of the GNU Lesser General Public
License, you may choose any version of the GNU Lesser General Public License ever published
by the Free Software Foundation.

If the Library as you received it specifies that a proxy can decide whether future versions of the
GNU Lesser General Public License shall apply, that proxy’s public statement of acceptance of
any version is permanent authorization for you to choose that version for the Library.

Appendix 3. GNU Affero General Public License, Version 3, 19 November 2007

Copyright © 2007 Free Software Foundation, Inc. <http://fsf.org/>

http://fsf.org/


Nordic Journal of Commercial Law
issue 2009#1

90

Everyone is permitted to copy and distribute verbatim copies of this license document, but
changing it is not allowed.

Preamble

The GNU Affero General Public License is a free, copyleft license for software and other kinds
of works, specifically designed to ensure cooperation with the community in the case of
network server software.

The  licenses  for  most  software  and  other  practical  works  are  designed  to  take  away  your
freedom to share and change the works. By contrast, our General Public Licenses are intended
to guarantee your freedom to share and change all versions of a program—to make sure it
remains free software for all its users.

When we speak of free software, we are referring to freedom, not price. Our General Public
Licenses are designed to make sure that you have the freedom to distribute copies of free
software (and charge for them if you wish), that you receive source code or can get it if you want
it, that you can change the software or use pieces of it in new free programs, and that you know
you can do these things.

Developers that use our General Public Licenses protect your rights with two steps: (1) assert
copyright  on  the  software,  and  (2)  offer  you  this  License  which  gives  you  legal  permission  to
copy, distribute and/or modify the software.

A secondary benefit of defending all users’ freedom is that improvements made in alternate
versions of the program, if they receive widespread use, become available for other developers to
incorporate. Many developers of free software are heartened and encouraged by the resulting
cooperation. However, in the case of software used on network servers, this result may fail to
come about. The GNU General Public License permits making a modified version and letting
the public access it on a server without ever releasing its source code to the public.

The GNU Affero General Public License is designed specifically to ensure that, in such cases,
the  modified  source  code  becomes  available  to  the  community.  It  requires  the  operator  of  a
network server to provide the source code of the modified version running there to the users of
that server. Therefore, public use of a modified version, on a publicly accessible server, gives the
public access to the source code of the modified version.

An  older  license,  called  the  Affero  General  Public  License  and  published  by  Affero,  was
designed to accomplish similar goals. This is a different license, not a version of the Affero
GPL, but Affero has released a new version of the Affero GPL which permits relicensing under
this license.

The precise terms and conditions for copying, distribution and modification follow.



Nordic Journal of Commercial Law
issue 2009#1

91

TERMS AND CONDITIONS

0. Definitions

“This License” refers to version 3 of the GNU Affero General Public License.

“Copyright” also means copyright-like laws that apply to other kinds of works, such as
semiconductor masks.

“The Program” refers to any copyrightable work licensed under this License. Each licensee is
addressed as “you”. “Licensees” and “recipients” may be individuals or organizations.

To “modify” a work means to copy from or adapt all or part of the work in a fashion requiring
copyright permission, other than the making of an exact copy. The resulting work is called a
“modified version” of the earlier work or a work “based on” the earlier work.

A “covered work” means either the unmodified Program or a work based on the Program.

To “propagate” a work means to do anything with it that, without permission, would make you
directly or secondarily liable for infringement under applicable copyright law, except executing
it on a computer or modifying a private copy. Propagation includes copying, distribution (with
or without modification), making available to the public, and in some countries other activities
as well.

To “convey” a work means any kind of propagation that enables other parties to make or
receive copies. Mere interaction with a user through a computer network, with no transfer of a
copy, is not conveying.

An interactive user interface displays “Appropriate Legal Notices” to the extent that it includes
a convenient and prominently visible feature that (1) displays an appropriate copyright notice,
and (2) tells the user that there is no warranty for the work (except to the extent that warranties
are provided), that licensees may convey the work under this License, and how to view a copy of
this  License.  If  the  interface  presents  a  list  of  user  commands  or  options,  such  as  a  menu,  a
prominent item in the list meets this criterion.

1. Source Code

The “source code” for a work means the preferred form of the work for making modifications
to it. “Object code” means any non-source form of a work.

A “Standard Interface” means an interface that either is an official standard defined by a
recognized standards body, or, in the case of interfaces specified for a particular programming
language, one that is widely used among developers working in that language.



Nordic Journal of Commercial Law
issue 2009#1

92

The “System Libraries” of an executable work include anything, other than the work as a whole,
that (a) is included in the normal form of packaging a Major Component, but which is not part
of  that  Major  Component,  and  (b)  serves  only  to  enable  use  of  the  work  with  that  Major
Component, or to implement a Standard Interface for which an implementation is available to
the public in source code form. A “Major Component”, in this context, means a major essential
component (kernel, window system, and so on) of the specific operating system (if any) on
which  the  executable  work  runs,  or  a  compiler  used  to  produce  the  work,  or  an  object  code
interpreter used to run it.

The “Corresponding Source” for a work in object code form means all the source code needed
to generate, install, and (for an executable work) run the object code and to modify the work,
including scripts to control those activities. However, it does not include the work’s System
Libraries, or general-purpose tools or generally available free programs which are used
unmodified  in  performing  those  activities  but  which  are  not  part  of  the  work.  For  example,
Corresponding Source includes interface definition files associated with source files for the
work, and the source code for shared libraries and dynamically linked subprograms that the
work is specifically designed to require, such as by intimate data communication or control flow
between those subprograms and other parts of the work.

The Corresponding Source need not include anything that users can regenerate automatically
from other parts of the Corresponding Source.

The Corresponding Source for a work in source code form is that same work.

2. Basic Permissions

All rights granted under this License are granted for the term of copyright on the Program, and
are irrevocable provided the stated conditions are met. This License explicitly affirms your
unlimited permission to run the unmodified Program. The output from running a covered
work is covered by this License only if the output, given its content, constitutes a covered work.
This License acknowledges your rights of fair use or other equivalent, as provided by copyright
law.

You may make, run and propagate covered works that you do not convey, without conditions
so long as your license otherwise remains in force. You may convey covered works to others for
the sole purpose of having them make modifications exclusively for you, or provide you with
facilities for running those works, provided that you comply with the terms of this License in
conveying all material for which you do not control copyright. Those thus making or running
the covered works for you must do so exclusively on your behalf, under your direction and
control, on terms that prohibit them from making any copies of your copyrighted material
outside their relationship with you.



Nordic Journal of Commercial Law
issue 2009#1

93

Conveying under any other circumstances is permitted solely under the conditions stated
below. Sublicensing is not allowed; section 10 makes it unnecessary.

3. Protecting Users’ Legal Rights from Anti-Circumvention Law

No covered work shall be deemed part of an effective technological measure under any
applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on
20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.

When you convey a covered work, you waive any legal power to forbid circumvention of
technological measures to the extent such circumvention is effected by exercising rights under
this License with respect to the covered work, and you disclaim any intention to limit operation
or  modification  of  the  work  as  a  means  of  enforcing,  against  the  work’s  users,  your  or  third
parties’ legal rights to forbid circumvention of technological measures.

4. Conveying Verbatim Copies

You may convey verbatim copies of the Program’s source code as you receive it, in any medium,
provided that you conspicuously and appropriately publish on each copy an appropriate
copyright notice; keep intact all notices stating that this License and any non-permissive terms
added in accord with section 7 apply to the code; keep intact all notices of the absence of any
warranty; and give all recipients a copy of this License along with the Program.

You may charge any price or no price for each copy that you convey, and you may offer support
or warranty protection for a fee.

5. Conveying Modified Source Versions

You  may  convey  a  work  based  on  the  Program,  or  the  modifications  to  produce  it  from  the
Program, in the form of source code under the terms of section 4, provided that you also meet
all of these conditions:

a) The work must carry prominent notices stating that you modified it, and giving a relevant
date.

b) The work must carry prominent notices stating that it is released under this License and any
conditions added under section 7. This requirement modifies the requirement in section 4
to “keep intact all notices”.

c) You must license the entire work, as a whole, under this License to anyone who comes into
possession of a copy. This License will therefore apply, along with any applicable section 7
additional  terms,  to  the  whole  of  the  work,  and  all  its  parts,  regardless  of  how  they  are
packaged. This License gives no permission to license the work in any other way, but it does
not invalidate such permission if you have separately received it.



Nordic Journal of Commercial Law
issue 2009#1

94

d) If the work has interactive user interfaces, each must display Appropriate Legal Notices;
however, if the Program has interactive interfaces that do not display Appropriate Legal
Notices, your work need not make them do so.

A compilation of a covered work with other separate and independent works, which are not by
their  nature  extensions  of  the  covered  work,  and  which  are  not  combined  with  it  such  as  to
form  a  larger  program,  in  or  on  a  volume  of  a  storage  or  distribution  medium,  is  called  an
“aggregate” if the compilation and its resulting copyright are not used to limit the access or legal
rights  of  the  compilation’s  users  beyond  what  the  individual  works  permit.  Inclusion  of  a
covered  work  in  an  aggregate  does  not  cause  this  License  to  apply  to  the  other  parts  of  the
aggregate.

6. Conveying Non-Source Forms

You may convey a covered work in object code form under the terms of sections 4 and 5,
provided that you also convey the machine-readable Corresponding Source under the terms of
this License, in one of these ways:

a) Convey the object code in, or embodied in, a physical product (including a physical
distribution medium), accompanied by the Corresponding Source fixed on a durable
physical medium customarily used for software interchange.

b) Convey the object code in, or embodied in, a physical product (including a physical
distribution medium), accompanied by a written offer, valid for at least three years and valid
for as long as you offer spare parts or customer support for that product model, to give
anyone who possesses the object code either (1) a copy of the Corresponding Source for all
the software in the product that is covered by this License, on a durable physical medium
customarily used for software interchange, for a price no more than your reasonable cost of
physically performing this conveying of source, or (2) access to copy the Corresponding
Source from a network server at no charge.

c) Convey individual copies of the object code with a copy of the written offer to provide the
Corresponding Source. This alternative is allowed only occasionally and noncommercially,
and only if you received the object code with such an offer, in accord with subsection 6b.

d) Convey the object code by offering access from a designated place (gratis or for a charge),
and offer equivalent access to the Corresponding Source in the same way through the same
place at no further charge. You need not require recipients to copy the Corresponding
Source along with the object code. If the place to copy the object code is a network server,
the  Corresponding  Source  may  be  on  a  different  server  (operated  by  you  or  a  third  party)
that supports equivalent copying facilities, provided you maintain clear directions next to
the object code saying where to find the Corresponding Source. Regardless of what server
hosts the Corresponding Source, you remain obligated to ensure that it is available for as
long as needed to satisfy these requirements.



Nordic Journal of Commercial Law
issue 2009#1

95

e) Convey the object code using peer-to-peer transmission, provided you inform other peers
where the object code and Corresponding Source of the work are being offered to the
general public at no charge under subsection 6d.

A separable portion of the object code, whose source code is excluded from the Corresponding
Source as a System Library, need not be included in conveying the object code work.

A “User Product” is either (1) a “consumer product”, which means any tangible personal
property  which  is  normally  used  for  personal,  family,  or  household  purposes,  or  (2)  anything
designed or sold for incorporation into a dwelling. In determining whether a product is a
consumer  product,  doubtful  cases  shall  be  resolved  in  favor  of  coverage.  For  a  particular
product received by a particular user, “normally used” refers to a typical or common use of that
class of product, regardless of the status of the particular user or of the way in which the
particular  user  actually  uses,  or  expects  or  is  expected  to  use,  the  product.  A  product  is  a
consumer product regardless of whether the product has substantial commercial, industrial or
non-consumer uses, unless such uses represent the only significant mode of use of the product.

“Installation Information” for a User Product means any methods, procedures, authorization
keys, or other information required to install and execute modified versions of a covered work
in that User Product from a modified version of its Corresponding Source. The information
must suffice to ensure that the continued functioning of the modified object code is in no case
prevented or interfered with solely because modification has been made.

If  you  convey  an  object  code  work  under  this  section  in,  or  with,  or  specifically  for  use  in,  a
User Product, and the conveying occurs as part of a transaction in which the right of possession
and  use  of  the  User  Product  is  transferred  to  the  recipient  in  perpetuity  or  for  a  fixed  term
(regardless of how the transaction is characterized), the Corresponding Source conveyed under
this section must be accompanied by the Installation Information. But this requirement does
not apply if neither you nor any third party retains the ability to install modified object code on
the User Product (for example, the work has been installed in ROM).

The requirement to provide Installation Information does not include a requirement to
continue to provide support service, warranty, or updates for a work that has been modified or
installed by the recipient, or for the User Product in which it has been modified or installed.
Access to a network may be denied when the modification itself materially and adversely affects
the operation of the network or violates the rules and protocols for communication across the
network.

Corresponding Source conveyed, and Installation Information provided, in accord with this
section must be in a format that is publicly documented (and with an implementation available
to the public in source code form), and must require no special password or key for unpacking,
reading or copying.



Nordic Journal of Commercial Law
issue 2009#1

96

7. Additional Terms

“Additional permissions” are terms that supplement the terms of this License by making
exceptions from one or more of its conditions. Additional permissions that are applicable to
the entire Program shall be treated as though they were included in this License, to the extent
that they are valid under applicable law. If additional permissions apply only to part of the
Program, that part may be used separately under those permissions, but the entire Program
remains governed by this License without regard to the additional permissions.

When  you  convey  a  copy  of  a  covered  work,  you  may  at  your  option  remove  any  additional
permissions from that copy, or from any part of it. (Additional permissions may be written to
require their own removal in certain cases when you modify the work.) You may place
additional permissions on material, added by you to a covered work, for which you have or can
give appropriate copyright permission.

Notwithstanding any other provision of this License, for material you add to a covered work,
you may (if authorized by the copyright holders of that material) supplement the terms of this
License with terms:

a) Disclaiming warranty or limiting liability differently from the terms of sections 15 and 16 of
this License; or

b) Requiring  preservation  of  specified  reasonable  legal  notices  or  author  attributions  in  that
material or in the Appropriate Legal Notices displayed by works containing it; or

c) Prohibiting misrepresentation of the origin of that material, or requiring that modified
versions of such material be marked in reasonable ways as different from the original
version; or

d) Limiting the use for publicity purposes of names of licensors or authors of the material; or
e) Declining to grant rights under trademark law for use of some trade names, trademarks, or

service marks; or
f) Requiring indemnification of licensors and authors of that material by anyone who conveys

the material (or modified versions of it) with contractual assumptions of liability to the
recipient, for any liability that these contractual assumptions directly impose on those
licensors and authors.

All other non-permissive additional terms are considered “further restrictions” within the
meaning  of  section  10.  If  the  Program  as  you  received  it,  or  any  part  of  it,  contains  a  notice
stating that it is governed by this License along with a term that is a further restriction, you may
remove that term. If a license document contains a further restriction but permits relicensing or
conveying under this License, you may add to a covered work material governed by the terms of
that license document, provided that the further restriction does not survive such relicensing or
conveying.



Nordic Journal of Commercial Law
issue 2009#1

97

If you add terms to a covered work in accord with this section, you must place, in the relevant
source files, a statement of the additional terms that apply to those files, or a notice indicating
where to find the applicable terms.

Additional terms, permissive or non-permissive, may be stated in the form of a separately
written license, or stated as exceptions; the above requirements apply either way.

8. Termination

You may not propagate or modify a covered work except as expressly provided under this
License. Any attempt otherwise to propagate or modify it is void, and will automatically
terminate your rights under this License (including any patent licenses granted under the third
paragraph of section 11).

However, if you cease all violation of this License, then your license from a particular copyright
holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally
terminates  your  license,  and  (b)  permanently,  if  the  copyright  holder  fails  to  notify  you  of  the
violation by some reasonable means prior to 60 days after the cessation.

Moreover, your license from a particular copyright holder is reinstated permanently if the
copyright holder notifies you of the violation by some reasonable means, this is the first time
you have received notice of violation of this License (for any work) from that copyright holder,
and you cure the violation prior to 30 days after your receipt of the notice.

Termination  of  your  rights  under  this  section  does  not  terminate  the  licenses  of  parties  who
have received copies or rights from you under this License. If your rights have been terminated
and  not  permanently  reinstated,  you  do  not  qualify  to  receive  new  licenses  for  the  same
material under section 10.

9. Acceptance Not Required for Having Copies

You are not required to accept this License in order to receive or run a copy of the Program.
Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer
transmission to receive a copy likewise does not require acceptance. However, nothing other
than  this  License  grants  you  permission  to  propagate  or  modify  any  covered  work.  These
actions infringe copyright if you do not accept this License. Therefore, by modifying or
propagating a covered work, you indicate your acceptance of this License to do so.



Nordic Journal of Commercial Law
issue 2009#1

98

10. Automatic Licensing of Downstream Recipients

Each time you convey a covered work, the recipient automatically receives a license from the
original licensors, to run, modify and propagate that work, subject to this License. You are not
responsible for enforcing compliance by third parties with this License.

An “entity transaction” is a transaction transferring control of an organization, or substantially
all assets of one, or subdividing an organization, or merging organizations. If propagation of a
covered work results from an entity transaction, each party to that transaction who receives a
copy of the work also receives whatever licenses to the work the party’s predecessor in interest
had or could give under the previous paragraph, plus a right to possession of the
Corresponding Source of the work from the predecessor in interest, if the predecessor has it or
can get it with reasonable efforts.

You may not impose any further restrictions on the exercise of the rights granted or affirmed
under this License. For example, you may not impose a license fee, royalty, or other charge for
exercise of rights granted under this License, and you may not initiate litigation (including a
cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making,
using, selling, offering for sale, or importing the Program or any portion of it.

11. Patents

A “contributor” is a copyright holder who authorizes use under this License of the Program or a
work  on  which  the  Program  is  based.  The  work  thus  licensed  is  called  the  contributor’s
“contributor version”.

A contributor’s “essential patent claims” are all patent claims owned or controlled by the
contributor, whether already acquired or hereafter acquired, that would be infringed by some
manner, permitted by this License, of making, using, or selling its contributor version, but do
not include claims that would be infringed only as a consequence of further modification of the
contributor version. For purposes of this definition, “control” includes the right to grant patent
sublicenses in a manner consistent with the requirements of this License.

Each  contributor  grants  you  a  non-exclusive,  worldwide,  royalty-free  patent  license  under  the
contributor’s essential patent claims, to make, use, sell, offer for sale, import and otherwise run,
modify and propagate the contents of its contributor version.

In the following three paragraphs, a “patent license” is any express agreement or commitment,
however denominated, not to enforce a patent (such as an express permission to practice a
patent or covenant not to sue for patent infringement). To “grant” such a patent license to a
party  means  to  make  such  an  agreement  or  commitment  not  to  enforce  a  patent  against  the
party.



Nordic Journal of Commercial Law
issue 2009#1

99

If you convey a covered work, knowingly relying on a patent license, and the Corresponding
Source  of  the  work  is  not  available  for  anyone  to  copy,  free  of  charge  and  under  the  terms  of
this License, through a publicly available network server or other readily accessible means, then
you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive
yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner
consistent with the requirements of this License, to extend the patent license to downstream
recipients. “Knowingly relying” means you have actual knowledge that, but for the patent
license, your conveying the covered work in a country, or your recipient’s use of the covered
work  in  a  country,  would  infringe  one  or  more  identifiable  patents  in  that  country  that  you
have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or
propagate  by  procuring  conveyance  of,  a  covered  work,  and  grant  a  patent  license  to  some  of
the parties receiving the covered work authorizing them to use, propagate, modify or convey a
specific copy of the covered work, then the patent license you grant is automatically extended to
all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage,
prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that
are specifically granted under this License. You may not convey a covered work if you are a
party to an arrangement with a third party that is in the business of distributing software, under
which you make payment to the third party based on the extent of your activity of conveying
the work, and under which the third party grants, to any of the parties who would receive the
covered work from you, a discriminatory patent license (a) in connection with copies of the
covered work conveyed by you (or copies made from those copies), or (b) primarily for and in
connection with specific products or compilations that contain the covered work, unless you
entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Nothing in this License shall be construed as excluding or limiting any implied license or other
defenses to infringement that may otherwise be available to you under applicable patent law.

12. No Surrender of Others’ Freedom

If  conditions  are  imposed  on  you  (whether  by  court  order,  agreement  or  otherwise)  that
contradict the conditions of this License, they do not excuse you from the conditions of this
License. If you cannot convey a covered work so as to satisfy simultaneously your obligations
under  this  License  and  any  other  pertinent  obligations,  then  as  a  consequence  you  may  not
convey it at all. For example, if you agree to terms that obligate you to collect a royalty for
further conveying from those to whom you convey the Program, the only way you could satisfy
both those terms and this License would be to refrain entirely from conveying the Program.



Nordic Journal of Commercial Law
issue 2009#1

100

13. Remote Network Interaction; Use with the GNU General Public License

Notwithstanding any other provision of this License, if you modify the Program, your modified
version  must  prominently  offer  all  users  interacting  with  it  remotely  through  a  computer
network (if your version supports such interaction) an opportunity to receive the
Corresponding Source of your version by providing access to the Corresponding Source from a
network server at no charge, through some standard or customary means of facilitating copying
of software. This Corresponding Source shall include the Corresponding Source for any work
covered by version 3 of the GNU General Public License that is incorporated pursuant to the
following paragraph.

Notwithstanding any other provision of this License, you have permission to link or combine
any  covered  work  with  a  work  licensed  under  version  3  of  the  GNU  General  Public  License
into a single combined work, and to convey the resulting work. The terms of this License will
continue  to  apply  to  the  part  which  is  the  covered  work,  but  the  work  with  which  it  is
combined will remain governed by version 3 of the GNU General Public License.

14. Revised Versions of This License

The  Free  Software  Foundation  may  publish  revised  and/or  new  versions  of  the  GNU  Affero
General Public License from time to time. Such new versions will be similar in spirit to the
present version, but may differ in detail to address new problems or concerns.

Each version is given a distinguishing version number. If the Program specifies that a certain
numbered version of the GNU Affero General Public License “or any later version” applies to
it, you have the option of following the terms and conditions either of that numbered version
or  of  any  later  version  published  by  the  Free  Software  Foundation.  If  the  Program  does  not
specify a version number of the GNU Affero General Public License, you may choose any
version ever published by the Free Software Foundation.

If the Program specifies that a proxy can decide which future versions of the GNU Affero
General Public License can be used, that proxy’s public statement of acceptance of a version
permanently authorizes you to choose that version for the Program.

Later license versions may give you additional or different permissions. However, no additional
obligations are imposed on any author or copyright holder as a result of your choosing to follow
a later version.

15. Disclaimer of Warranty

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY
APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE
COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS



Nordic Journal of Commercial Law
issue 2009#1

101

IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE
RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU.
SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION.

16. Limitation of Liability

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN
WRITING  WILL  ANY  COPYRIGHT  HOLDER,  OR  ANY  OTHER  PARTY  WHO
MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE
TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL  DAMAGES  ARISING  OUT  OF  THE  USE  OR  INABILITY  TO  USE
THE  PROGRAM  (INCLUDING  BUT  NOT  LIMITED  TO  LOSS  OF  DATA  OR  DATA
BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD
PARTIES  OR  A  FAILURE  OF  THE  PROGRAM  TO  OPERATE  WITH  ANY  OTHER
PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.

17. Interpretation of Sections 15 and 16

If the disclaimer of warranty and limitation of liability provided above cannot be given local
legal effect according to their terms, reviewing courts shall apply local law that most closely
approximates an absolute waiver of all civil liability in connection with the Program, unless a
warranty or assumption of liability accompanies a copy of the Program in return for a fee.

END OF TERMS AND CONDITIONS

How to Apply These Terms to Your New Programs

If you develop a new program, and you want it to be of the greatest possible use to the public,
the best way to achieve this is to make it free software which everyone can redistribute and
change under these terms.

To do so, attach the following notices to the program. It is safest to attach them to the start of
each source file to most effectively state the exclusion of warranty; and each file should have at
least the “copyright” line and a pointer to where the full notice is found.

<one line to give the program’s name and a brief idea of what it does.>
Copyright (C) <year> <name of author>



Nordic Journal of Commercial Law
issue 2009#1

102

This program is free software: you can redistribute it and/or modify it under
the terms of the GNU Affero General Public License as published by the Free
Software Foundation, either version 3 of the License, or (at your option) any
later version.

This program is distributed in the hope that it will be useful, but WITHOUT
ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS
FOR A PARTICULAR PURPOSE. See the GNU Affero General Public License for more
details.

You should have received a copy of the GNU Affero General Public License along
with this program. If not, see <http://www.gnu.org/licenses/>.

Also add information on how to contact you by electronic and paper mail.

If your software can interact with users remotely through a computer network, you should also
make  sure  that  it  provides  a  way  for  users  to  get  its  source.  For  example,  if  your  program  is  a
web application, its interface could display a “Source” link that leads users to an archive of the
code.  There  are  many  ways  you  could  offer  source,  and  different  solutions  will  be  better  for
different programs; see section 13 for the specific requirements.

You  should  also  get  your  employer  (if  you  work  as  a  programmer)  or  school,  if  any,  to  sign  a
“copyright disclaimer” for the program, if necessary. For more information on this, and how to
apply and follow the GNU AGPL, see <http://www.gnu.org/licenses/>.

Bibliography

Literature

Aarnio 1989
Aarnio, Aulis. Laintulkinnan teoria. Yleisen oikeustieteen oppikirja. Porvoo: WSOY, 1989.

Ang 1994
Ang, Steven. “The Idea-Expression Dichotomy and Merger Doctrine in the Copyright Laws of
the U.S. and the U.K.” International Journal of Law and Information Technology 2, no. 2 (1994):
111–153.

Aurejärvi 1988
Aurejärvi, Erkki. Velvoiteoikeuden oppikirja. Helsinki: Condictio, 1988.

Babcock 2007
Babcock, Charles. “What Will Drive Open Source?” InformationWeek, 19 March 2007: 36–44.

Bainbridge 1999
Bainbridge, David. Software Licensing. 2nd edition. Herts: CLT Professional Publishing, 1999.

http://www.gnu.org/licenses/
http://www.gnu.org/licenses/


Nordic Journal of Commercial Law
issue 2009#1

103

Band and Katoh 1995
Band, Jonathan, and Masanobu Katoh. Interfaces on Trial: Intellectual Property and Interoperability
in the Global Software Industry. Boulder, CO: Westview Press, 1995.

Bradbury 2004
Bradbury, Danny. “Documentation dearth undermines open source security.” Infosecurity Today
1, no. 5 (2004): 6.

Brooks 2007
Brooks, Jason. “Free software folly.” eWeek, 9 July 2007: 56.

Castrén 2006a
Castrén, Martti. “Patenttioikeus.” In Yritysoikeus, by Kirsti Rissanen, et al. Helsinki: WSOYpro,
2006. Available: http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=yj111.50627.

Castrén 2006b
Castrén, Martti. “Tekijänoikeus.” In Yritysoikeus, by Kirsti Rissanen, et al. Helsinki: WSOYpro,
2006. Available: http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=yj111.48448.

Collin 2004
Collin, P. H. Dictionary of Law. Fourth edition. London: Bloomsbury, 2004.

Curran 2008
Curran, Franck. “GPLv3: What the new version of the General Public License means for
software developers.” The Rational Edge, 15 March 2008: 42–44.

Daintith 2004
Daintith, John, ed. A Dictionary of Computing. Fifth edition. Oxford: Oxford University Press,
2004.

Deek and McHugh 2008
Deek, Fadi P., and James A. M. McHugh. Open Source: Technology and Policy. New York, NY:
Cambridge University Press, 2008.

Diver 2008
Diver, Laurence. “Would the current ambiguities within the legal protection of software be
solved by the creation of a sui generis property right for computer programs?” Journal of
Intellectual Property Law & Practice 3, no. 2 (2008): 125–138.

Dixon 2004
Dixon, Rod. Open Source Software Law. Boston: Artech House, 2004.

Draft Common Frame of Reference
Principles, Definitions and Model Rules of European Private Law. Interim Outline Edition. Edited by
Christian von Bar, et al. Prepared by the Study Group on a European Civil Code and the
Research Group on EC Private Law (Acquis Group). Munich: Sellier, 2008.

Elo and Hasu 2003
Elo, Tommi, and Tero Hasu. “Detecting Co-Derivative Source Code – An Overview.” In Teknis-
juridinen selvitys tekijänoikeudesta tietokoneohjelman lähdekoodiin Suomessa ja Euroopassa, by Markus
Oksanen, Tommi Elo and Tero Hasu, 1–48. Helsinki: Helsinki Region Chamber of
Commerce, 2003.

http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=yj111.50627.
http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=yj111.48448.


Nordic Journal of Commercial Law
issue 2009#1

104

Epstein 2004
Epstein, Richard A. “Why open source is unsustainable.” Financial Times, 9 November 2004.
Available: http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8.html.

Fogel 2001
Fogel, Karl. Open Source Development with CVS. 2nd edition. Scottsdale, AZ: Paraglyph Press,
2001.

Ford 2007
Ford, Ian. “It’s all about the service.” ITNOW 49, no. 6 (2007): 14–15.

Freedman 2000
Freedman, C. D. “The Protection of Computer Software in Copyright and the Law of
Confidence: Improper Decompilation and Employee-Poaching.” International Journal of Law and
Information Technology 8, no. 1 (2000): 25–47.

Furmston 1991
Furmston, M. P. Cheshire, Fifoot and Furmston’s Law of Contract. Twelfth Edition. London:
Butterworths, 1991.

Gasser 2006
Gasser, Urs. “Legal Frameworks and Technological Protection of Digital Content: Moving
Forward Towards a Best Practice Model.” Berkman Center Research Publication, no. 04 (2006): 1–
58.

Germanowski 1998
Germanowski, Glen. “Is the ‘Shrinkwrap’ Licence Worth the Paper Envelope it’s Printed On?”
International Journal of Law and Information Technology 6, no. 3 (1998): 313–326.

Ghosh and Soete 2006
Ghosh, Rishab, and Luc Soete. “Information and intellectual property: the global challenges.”
Industrial and Corporate Change 15, no. 6 (2006): 919–935.

Ginsburg 1992
Ginsburg, Jane C. “Copyright in the U.S. since Berne Accession.” Nordiskt Immateriellt Rättskydd
61 (1992): 159–186.

Gomulkiewicz 2009
Gomulkiewicz, Robert W. “Conditions and Covenants in License Contracts: Tales from a Test
of the Artistic License.” Texas Intellectual Property Law Journal, no. 17 (2009): 1–32.

Gringras 1996
Gringras, Clive. “The Validity of Shrink-Wrap Licences.” International Journal of Law and
Information Technology 4, no. 2 (1996): 77–107.

Haarmann 2005
Haarmann, Pirkko-Liisa. Tekijänoikeus ja lähioikeudet. Kolmas, uudistettu painos. Helsinki:
Talentum, 2005.

Haarmann 2006
Haarmann, Pirkko-Liisa. Immateriaalioikeus. 4., uudistettu painos. Helsinki: Talentum, 2006.

Hakulinen 1958
Hakulinen, Y. J. Velvoiteoikeus I. Yleiset opit. Helsinki: Pellervo-Seura, 1958.

http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8.html.


Nordic Journal of Commercial Law
issue 2009#1

105

Hass 2007
Hass, Douglas A. “Uneasy détente: strengthening the market’s adaptation of the GNU General
Public License in common law jurisdictions.” Journal of Intellectual Property Law & Practice 2, no.
6 (2007): 382–396.

Hemmo 2003a
Hemmo, Mika. Sopimusoikeus I. Helsinki: Talentum, 2003.

Hemmo 2003b
Hemmo, Mika. Sopimusoikeus II. Helsinki: Talentum, 2003.

Henry 2003
Henry, Steven. ‘Viral’ Open-Source License Can Destroy Software’s Value. Press release, Boston, MA:
Wolf, Greenfield & Sacks, P.C., 2003.

Hietanen, Oksanen and Välimäki 2007
Hietanen, Herkko, Ville Oksanen, and Mikko Välimäki. Community Created Content: Law,
Business and Policy. Helsinki: Turre Publishing, 2007.

Howson 2003
Howson, Peter. Due Diligence: The Critical Stage in Mergers and Acquisitions. Aldershot: Gower,
2003.

Jaeger 2005
Jaeger, Till. “Ziffer 2 GPL.” In Die GPL kommentiert und erklärt, by Institut für Rechtsfragen der
Freien und Open Source Software, 57–77. Köln: O’Reilly, 2005.

Jaeger and Metzger 2006
Jaeger, Till, and Axel Metzger. Open Source Software: Rechtliche Rahmenbedingungen der Freien
Software. 2. Auflage. München: Verlag C.H. Beck, 2006.

Kaiserwerth 2008
Kaiserwerth, Matthias. “Barriers to the Cloud – Opportunities to Pave the Way with New Legal
Frameworks.” International Technology and Communications Law Forum. Versailles, 2008.

Kartio 2004
Kartio, Leena. “Esineet ja omaisuus.” In Varallisuusoikeus, by Ari Saarnilehto, Mika Hemmo and
Leena Kartio. Helsinki: WSOYpro, 2004. Available:
http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos= va111.32208.

Kemppinen 2006
Kemppinen, Jukka. Digitaaliongelma. Kirjoitus oikeudesta ja ympäristöstä. Lappenranta: Acta
Universitatis Lappeenrantaensis 242, 2006.

Kivimäki 1948
Kivimäki, T. M. Tekijänoikeus. Tutkimus kirjailijan, taiteilijan ja tiedemiehen oikeudesta teokseensa.
Porvoo: Suomalaisen Lakimiesyhdistyksen julkaisuja B-sarja n:o 27, 1948.

Kivimäki 1966
Kivimäki, T. M. Uudet tekijänoikeus- ja valokuvauslait. Porvoo: Suomalaisen Lakimiesyhdistyksen
julkaisuja B-sarja n:o 129, 1966.

http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=


Nordic Journal of Commercial Law
issue 2009#1

106

Klami and Neejärvi 1997
Klami, Hannu Tapani, and Jukka Neejärvi. “Teos vai keksintö? Tietokoneohjelmien tekijän- ja
patenttioikeudellisesta suojasta oikeusvertailun kannalta.” Lakimies, no. 4–5 (1997): 585–606.

Koktvedgaard and Levin 2007
Koktvedgaard, Mogens, and Marianne Levin. Lärobok i immaterialrätt: upphovsrätt, patenträtt,
mönsterrätt, känneteckensrätt – i Sverige, EU och internationellt. Nionde upplagan. Stockholm:
Norstedts Juridik, 2007.

Kotler, et al. 1999
Kotler, Philip, Gary Armstrong, John Saunders, and Veronica Wong. Principles of Marketing.
Second European Edition. London: Prentice Hall, 1999.

Kuhn, Williamson and Sandler 2008
Kuhn, Bradley M., Aaron Williamson, and Karen M. Sandler. A Practical Guide to GPL
Compliance. New York, NY: Software Freedom Law Center, 2008.

Kulmala 2003
Kulmala, Tatu. Ohjelmistovuokraussopimukset. Turku: Turun yliopiston oikeustieteellisen
tiedekunnan julkaisuja. Yksityisoikeuden julkaisusarja A:108, 2003.

Kumar 2006
Kumar, Sapna. “Enforcing the GNU GPL.” University of Illinois Journal of Law, Technology &
Policy, no. 1 (2006): 1–36.

Lai 1999
Lai, Stanley. “Recent Developments in Copyright, Database Protection and (Online)
Licensing.” International Journal of Law and Information Technology 7, no. 1 (1999): 73–94.

Lajoux and Elson 2000
Lajoux, Alexandra Reed, and Charles Elson. The Art of M&A Due Diligence: Navigating Critical
Steps & Uncovering Crucial Data. New York, NY: McGraw-Hill, 2000.

Lampola, et al. 2003
Lampola, Markku, Thomas Lemström, Carl Löfberg, Tatu Kulmala, Petri Einovaara, Anssi
Sampo, and Pekka Koskinen. ASP käsikirja. ASP-toiminnan arvoverkko ja juridiset mallit. Tampere:
Tampereen teknillinen yliopisto. Tuotantotalouden osasto, tutkimusraportti 5/2003.

Landau 2006
Landau, Michael. ““Fair Use” under U.S. Copyright Law: The Need for Clarity and
Consistency.” IPRinfo, September 2006: 25–31.

Lappalainen 2007
Lappalainen, Juha. “Erityistuomioistuimet ja eräät lautakunnat.” In Prosessioikeus, by Juha
Lappalainen, et al. Helsinki: WSOYpro, 2007. Available:
http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=pr111.11845.

Laurent 2004
Laurent, Andrew M. St. Understanding Open Source and Free Software Licensing. Sebastopol, CA:
O’Reilly, 2004.

http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=pr111.11845.


Nordic Journal of Commercial Law
issue 2009#1

107

Lawson and Rudden 2002
Lawson, F. H., and Bernard Rudden. The Law of Property. 3rd edition. Oxford: Oxford
University Press, 2002.

Lehtonen 1998
Lehtonen, Asko. “Kohtuullisen hyvityksen arviointi tietokoneohjelmaa koskevassa
tekijänoikeuden loukkaustapauksessa.” In Juhlajulkaisu Leena Kartio 1938–30/8–1998, by Anne
Kumpula. Turku: Turun yliopiston oikeustieteellisen tiedekunnan julkaisuja A. Juhlajulkaisut
n:o 7, 1998.

Lerner and Tirole 2005
Lerner, Josh, and Jean Tirole. “The Scope of Open Source Licensing.” The Journal of Law,
Economics, & Organization 21, no. 1 (2005): 20–56.

Manner 2001
Manner, Mikko. “Avoin lähdekoodi ohjelmistotaloudessa.” IPRinfo, no. 3 (2001): 14–15.

McAllister 2006
McAllister, Neil. “How to Buy Free Software.” InfoWorld, 4 March 2006: 33–37.

McDermid 1991
McDermid, John A., ed. Software Engineer’s Reference Book. Oxford: Butterworth–Heinemann,
1991.

Millard 2008
Millard, Christopher. “Cloud Computing: Some Issues for Lawyers.” International Technology
and Communications Law Forum. Versailles, 2008.

Millqvist 2006
Millqvist, Göran. Sakrättens grunder. En lärobok i sakrättens grundläggande frågeställningar avseende
lös egendom. Fjärde upplagan. Stockholm: Norstedt, 2006.

Morgan 2007
Morgan, Russell. “Protect Your Code.” PC Magazine, 17 July 2007: 89.

Mylly 2005
Mylly, Ulla-Maija. “Tietokoneohjelmien rajapintojen tekijänoikeussuoja.” Lakimies, no. 5
(2005): 746–767.

Niiranen and Tarkela 1998
Niiranen, Valtteri, and Pekka Tarkela. Tekijänoikeuden tietosanakirja. Porvoo: WSLT, 1998.

Norrgård 2002
Norrgård, Marcus. Interimistiska förbyd i immaterialrätten. Helsingfors: Kauppakaari, 2002.

NRC 2000
National Research Council. The Digital Dilemma: Intellectual Property in the Information Age.
Washington, DC: National Academy Press, 2000.

Oksanen 2004
Oksanen, Markus. “Ohjelmakoodi tekijänoikeussuojan kohteena.” IPRinfo, no. 3 (2004): 28–
30.



Nordic Journal of Commercial Law
issue 2009#1

108

Pressman 1994
Pressman, Roger S. Software Engineering: A Practitioner’s Approach. Third Edition, European
Adaptation. Adapted by Darrel Ince. London: McGraw-Hill, 1994.

Principles of European Contract Law
Commision on European Contract Law. Principles of European Contract Law. 1999. Available:
http://frontpage.cbs.dk/law/commission_on_european_contract_law/PECL%20engelsk/engel
sk_partI_og_II.htm.

Pöyhönen 2003
Pöyhönen, Juha. Uusi varallisuusoikeus. Helsinki: Talentum, 2003.

Raymond 2000
Raymond, Eric S. The Cathedral and the Bazaar: Musings on Linux and Open Source by an Accidental
Revolutionary. Rev. ed. Sebastopol, CA: O’Reilly, 2000.

Rebikoff 2001
Rebikoff, Stephen. “Restructuring the Test for Copyright Infringement in Relation to Literary
and Dramatic Plots.” Melbourne University Law Review 25, no. 2 (2001): 340–373.

Reed 2004
Reed, Chris. Internet Law: Text and Materials. Second edition. Cambridge: Cambridge Univeristy
Press, 2004.

Rosen 2001
Rosen, Lawrence. “The Unreasonable Fear of Infection.” Open Magazine, 2001. Available:
http://rosenlaw.com/html/GPL.PDF.

Rosen 2004
Rosen, Lawrence. Open Source Licensing: Software Freedom and Intellectual Property Law. New
Jersey: Prentice Hall, 2004.

Rosen 2008
Rosen, Lawrence. ”Bad Facts Make Good Law: The Jacobsen Case and Open Source.” Open
Source Software 2008: Benefits, Risks and Challenges for Software Users, Developers and Investors. New
York, NY: Practising Law Institute, 2008. 1–6.

Rowland and Campbell 2002
Rowland, Diane, and Andrew Campbell. “Supply of Software: Copyright and Contract Issues.”
International Journal of Law and Information Technology 10, no. 1 (2002): 23–40.

Rudanko 1998
Rudanko, Matti. “Kauppaoikeuden kehityssuuntauksia II. Kaupallisten oikeussuhteiden teoria.”
Lakimies, no. 1 (1998): 68–89.

Saarnilehto 2005
Saarnilehto, Ari. Pääasiat velvoitteesta. Helsinki: WSOYpro, 2005.

Samuels 1993
Samuels, Edward. “The Public Domain in Copyright Law.” Journal of the Copyright Society of the
U.S.A., no. 41 (1993): 137–182.

http://frontpage.cbs.dk/law/commission_on_european_contract_law/PECL%20engelsk/engel
http://rosenlaw.com/html/GPL.PDF.


Nordic Journal of Commercial Law
issue 2009#1

109

Selvig 1986
Selvig, Erling. “Tolkning etter norsk eller annen skandinavisk rett av certepartier og andre
standardvillkår utformet på engelsk.” Tidskrift for Rettsvitenskap, 1986: 1–26.

Senftleben 2004
Senftleben, Martin R. F. Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step
Test in International and EC Copyright Law. The Hague: Kluwer Law International, 2004.

Siltala 2001
Siltala, Raimo. Johdatus oikeusteoriaan. Helsinki: Forum Iuris, 2001.

Sisula-Tulokas 2007
Sisula-Tulokas, Lena. Kuljetusoikeuden perusteet. Helsinki: Talentum, 2007.

Sorvari 2007
Sorvari, Katariina. Tekijänoikeuden loukkaus. Helsinki: WSOYpro, 2007.

Spencer Bower and Turner 1966
Spencer Bower, George, and Alexander Kingcome Turner. The Law Relating to Estoppel by
Representation. London: Butterworths, 1966.

Strömholm 1970
Strömholm, Stig. Upphovsrättens verksbegrepp. Stockholm: Panorstedt & Söners Förlag, 1970.

Szattler 2007
Szattler, Eduard. “GPL – “Viral” License or “Viral” Contract.” Masaryk Univesity Journal of Law
and Technology 1, no. 1 (2007): 67–79.

Takki 2002
Takki, Pekka. IT-sopimukset – käytännön käsikirja. Helsinki: Talentum, 2002.

Tolonen 2003
Tolonen, Hannu. Oikeuslähdeoppi. Helsinki: WSOY Lakitieto, 2003.

Tolonen 2004
Tolonen, Hannu. “Siviilioikeuden yleiset periaatteet.” In Varallisuusoikeus, by Ari Saarnilehto,
Mika Hemmo and Leena Kartio. Helsinki: WSOYpro, 2004. Available:
http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=va111.4959.

Tuomisto 1993
Tuomisto, Jarmo. Tyyppipakosta aikaprioriteettiin. Näkökohtia esineoikeudellisen sivullissuojan
perusteista. Helsinki: Suomalaisen Lakimiesyhdistyksen julkaisuja. A-sarja n:o 192, 1993.

UNIDROIT
International Institute for the Unification of Private Law. UNIDROIT Principles of International
Commercial Contracts 2004. Rome, 2004. Available:
http://unidroit.org/english/principles/contracts/principles2004/integralversionprinciples2004
-e.pdf.

Vaidhyanathan 2001
Vaidhyanathan, Siva. Copyrights & Copywrongs: The Rise of Intellectual Property and How It
Threatens Creativity. New York, NY: New York University Press, 2001.

http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=va111.4959.
http://unidroit.org/english/principles/contracts/principles2004/integralversionprinciples2004


Nordic Journal of Commercial Law
issue 2009#1

110

Vapaavuori 2002
Vapaavuori, Tom. “Tietokoneohjelmiston lähdekoodin escrow-talletus.” Defensor Legis, no. 6
(2002): 1068–1074.

Vedenkannas 2002
Vedenkannas, Matti. “Tietokoneohjelman luovutuksen luonne: tekijänoikeuden,
käyttöoikeuden vaiko teoskappaleen luovutus.” Defensor Legis, no. 5 (2002): 826–879.

Vetter 2006
Vetter, Greg R. “Exit and Voice in Free and Open Source Software Licensing: Moderating the
Rein over Software Users.” Oregon Law Review 85, no. 1 (2006): 183–273.

Vuorijoki 2004
Vuorijoki, Jari. “Yhteistoimintasopimukset.” In Varallisuusoikeus, by Ari Saarnilehto, Mika
Hemmo and Leena Kartio. Helsinki: WSOYpro, 2004. Available:
http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=va111.56096.

Välimäki 2002
Välimäki, Mikko. “Avoimen lähdekoodin ohjelmistolisensseistä.” Defensor Legis, no. 5 (2002):
851–861.

Välimäki 2005
Välimäki, Mikko. The Rise of Open Source Licensing: A Challenge to the Use of Intellectual Property in
the Software Industry. Helsinki: Turre Publishing, 2005.

Välimäki 2007
Välimäki, Mikko. “GPL-lisenssin uusi versio on vaikealukuinen.” IPRinfo, no. 3 (2007): 14–16.

Välimäki 2009
Välimäki, Mikko. Oikeudet tietokoneohjelmistoihin. 2., uudistettu painos. Helsinki: Talentum,
2009.

West 2003
West, Joel. “How open is open enough? Melding proprietary and open source platform
strategies.” Research Policy 32, no. 7 (2003): 1259–1285.

Wilhelmsson 2008
Wilhelmsson, Thomas. Vakiosopimus ja kohtuuttomat sopimusehdot. Kolmas, uudistettu painos.
Helsinki: Talentum, 2008.

WIPO 1985
Group of Experts on the Copyright Aspects of the Protection of Computer Software. “Report.”
Copyright (World Intellectual Property Organization), April 1985: 146–149.

Zitting 1989
Zitting, Simo. “Sopimuksen käsitettä koskevia näkökohtia.” In Juhlakirja Jaakko Pajula I. Ihminen
ja yhteiskunta, by Heikki Karapuu, 467–474. Helsinki: Kansaneläkelaitos, 1989.

Official Sources

COM (88) 172 final
Green Paper on Copyright and the Challenge of Technology – Copyright Issues Requiring Immediate

http://www.wsoypro.fi/wsoypro.aspx?page=selain&pos=va111.56096.


Nordic Journal of Commercial Law
issue 2009#1

111

Action. Communication from the Commission, Brussels: Commission of the European
Communities, 1988.

COM (88) 816 final – SYN 183
“Proposal for a Council Directive on the legal protection of computer programs.” Official
Journal of the European Communities, no. C 91 (1989): 4–16.

Copyright Council 1986:8
Copyright Council. Suojan kohde, hahmo, repliikki. 1986:8.

Copyright Council 1994:9
Copyright Council. Tekijänoikeus televisiosarjan käsikirjoitukseen. 1994:9.

Copyright Council 1996:3
Copyright Council. Tietokoneohjelman tekijän tekijänoikeus. 1996:3.

Copyright Council 1997:12
Copyright Council. Tietokoneohjelman tekijänoikeus. 1997:12.

Copyright Council 1998:16
Copyright Council. Tekijänoikeus tietokoneohjelmiin. 1998:16.

Copyright Council 2003:10
Copyright Council. Tekijänoikeus tietokoneohjelmiin. 2003:10.

Copyright Council 2005:7
Copyright Council. Tietokoneohjelman teostaso ja suoja. 2005:7.

Copyright Council 2006:5
Copyright Council. Tietokoneohjelman suoja. 2006:5.

Copyright Council 2006:12
Copyright Council. Tietokoneohjelman teostaso ja suoja. 2006:12.

Copyright Council 2008:13
Copyright Council. Tekijänoikeus soittosovellukseen. 2008:13.

CRNR/DC/55
“Partly Consolidated Text of Treaty No 1.” Diplomatic Conference on Certain Copyright and
Neighboring Rights Questions. Geneva: World Intellectual Property Organization, 1996.

EESC 1989
Economic and Social Committee. “Opinion on the proposal for a Council Directive on the
legal protection of computer programs.” Official Journal of the European Communities, no. C 329
(1989): 4–9.

Europarl 1990
European Parliament. “Legal protection of computer programs – Proposal for a directive COM
(88) 816 final – SYN 183.” Official Journal of the European Communities, no. C 231 (1990): 78–
83.

EV 89/1926 vp
Eduskunnan vastaus hallituksen esitykseen tekijänoikeutta sekä oikeutta valokuviin koskeviksi laeiksi.



Nordic Journal of Commercial Law
issue 2009#1

112

HE 3/1876 vp
Keisarillisen majesteetin armollinen esitys Suomenmaan säädyille ehdoituksen kanssa asetukseen
kirjailijan ja taiteilijan oikeudesta työnsä tuotteisiin.

HE 89/1926 vp
Hallituksen esitys eduskunnalle tekijänoikeutta sekä oikeutta valokuviin koskeviksi laeiksi.

HE 23/1960 vp
Hallituksen esitys eduskunnalle laiksi tekijänoikeudesta kirjallisiin ja taiteellisiin teoksiin ja laiksi
oikeudesta valokuvaan.

HE 161/1990 vp
Hallituksen esitys eduskunnalle laeiksi yksinoikeudesta integroidun piirin piirimalliin sekä
tekijänoikeuslain, oikeudesta valokuvaan annetun lain ja patentti- ja rekisterihallituksesta annetun lain
muuttamisesta.

HE 211/1992 vp
Halltuksen esitys eduskunnalle laiksi tekijänoikeuslain ja tekijänoikeuslain muuttamisesta annetun lain
voimaantulosäännöksen 2 momentin muuttamisesta.

HE 360/1992 vp
Hallituksen esitys eduskunnalle laiksi kuluttajansuojalain muuttamisesta ja eräiksi siihen liittyviksi
laeiksi.

HE 309/1993 vp
Hallituksen esitys eduskunnalle perustuslakien perusoikeussäännösten muuttamisesta.

HE 28/2004 vp
Hallituksen esitys eduskunnalle laeiksi tekijänoikeuslain ja rikoslain 49 luvun muuttamisesta.

HE 26/2006 vp
Hallituksen esitys eduskunnalle laeiksi teollis- ja tekijänoikeuksia koskevan lainsäädännön muuttamisesta.

KM 1953:5
Ehdotus laiksi tekijänoikeudesta kirjallisiin ja taiteellisiin teoksiin. Komiteanmietintö, Helsinki:
Valtioneuvoston kirjapaino, 1953.

KM 1980:12
Vuoden 1976 tekijänoikeuskomitean I osamietintö. Yksityinen käyttö, valokopiointi ja nauhoitus
opetustoiminnassa. Komiteanmietintö, Helsinki: Valtion painatuskeskus, 1980.

KM 1987:8
Tietotekniikka ja tekijänoikeus. Tekijänoikeuskomitean IV osamietintö. Teosten luominen ja käyttö
tietokoneen avulla; tietokoneohjelmien, tiedostojen ja tietokantojen sekä integroitujen piirien suoja.
Komiteanmietintö, Helsinki: Valtion painatuskeskus, 1987.

KM 1990:20
Oikeustoimilakitoimikunnan mietintö. Komiteanmietintö, Helsinki: Valtion painatuskeskus, 1990.

LaVM 8/1876 vp
Lakivaliokunnan mietintö n:o 8 keisarillisen majesteetin armollisesta esityksestä, joka sisältää ehdoituksen
asetukseen kirjailijan ja taiteilijan oikeudesta työnsä tuotteisiin.



Nordic Journal of Commercial Law
issue 2009#1

113

LaVM 13/1926 vp
Lakivaliokunnan mietintö n:o 13 hallituksen esityksen johdosta tekijänoikeutta sekä oikeutta valokuviin
koskeviksi laeiksi.

Legislative Council 1920
Legislative Council. Lainvalmistelukunnan ehdotus laiksi tekijänoikeudesta kirjallisiin ja
sävelmäteoksiin sekä laiksi tekijänoikeudesta kuvaamataiteiden teoksiin ja valokuviin ynnä perustelut.
Helsinki: Valtioneuvoston kirjapaino, 1920.

SOU 1956:25
Upphovsmannarätt till litterära och konstnärliga verk. Lagförslag av Auktorrättskommittén. Statens
offentliga utredningar, Stockholm: Iduns tryckeriaktiebolag, 1956.

SuVM 108/1926 vp
Suuren valiokunnan mietintö n:o 108 hallituksen esityksen johdosta tekijänoikeutta sekä oikeutta
valokuviin koskeviksi laeiksi.

Online Material

Adobe 2008
Adobe Systems Incorporated. Adobe product license agreements. 2008.
http://www.adobe.com/products/eulas/ (accessed October 30, 2008).

Aigrain 2002
Aigrain, Philippe. A framework for understanding the impact of GPL copylefting vs. non copylefting
licenses. 2002. Available: http://opensource.mit.edu/papers/aigrain2.pdf.

APGLv3-DD2
Free Software Foundation, Inc. Rationale for the second draft of the GNU Affero GPL version 3. 14
August 2007. Available: http://gplv3.fsf.org/agplv3-dd2-rationale.html.

Apple 2008
Apple Inc. Hardware & Software Product Agreements. 2008. http://www.apple.com/legal/sla/
(accessed October 30, 2008).

Ars Technica 2008
Ars Technica, LLC. Gartner: 80% of commercial apps to use open source by 2012. 5 February 2008.
http://arstechnica.com/news.ars/post/20080205-gartner-80-percent-of-commercial-software-
programs-will-include-open-source-by-2012.html (accessed October 9, 2008).

Artistic License 1.0
The Perl Foundation. Artistic License 1.0. http://www.perlfoundation.org/artistic_license_1_0
(accessed January 3, 2009).

Canonical 2009
Canonical Limited. OpenSourcing – Launchpad Development. 3 February 2009.
https://dev.launchpad.net/OpenSourcing (accessed February 17, 2009).

CIO 2008
CXO Media Inc. Open Source is Entering the Enterprise Mainstream, Survey Shows. 30 May 2008.
http://cio.com/article/375916/Open_Source_is_Entering_the_Enterprise_Mainstream_Surve
y_Shows (accessed October 9, 2008).

http://www.adobe.com/products/eulas/
http://opensource.mit.edu/papers/aigrain2.pdf.
http://gplv3.fsf.org/agplv3-dd2-rationale.html.
http://www.apple.com/legal/sla/
http://arstechnica.com/news.ars/post/20080205-gartner-80-percent-of-commercial-software-
http://www.perlfoundation.org/artistic_license_1_0
https://dev.launchpad.net/OpenSourcing
http://cio.com/article/375916/Open_Source_is_Entering_the_Enterprise_Mainstream_Surve


Nordic Journal of Commercial Law
issue 2009#1

114

Corel 2007
Corel Corporation. End User License Agreement – Legal Information. November 2007.
http://www.corel.com/servlet/Satellite/gb/en/Content/1166553879115 (accessed October
30, 2008).

EPL
Educational Community License, Version 2.0. April 2007. http://www.osedu.org/licenses/ECL-
2.0/ (accessed October 11, 2008).

EPO 2008
European Patent Office. Patents for software? 9 October 2008.
http://www.epo.org/topics/issues/computer-implemented-inventions.html (accessed October
11, 2008).

Forbes 2007
Forbes.com LLC. The Global 2000. 3 March 2007.
http://www.forbes.com/lists/2007/18/biz_07forbes2000_The-Global-
2000_IndName_17.html (accessed February 11, 2009).

Freshmeat.net 2008a
SourceForge, Inc. Browse project tree – License: OSI Approved: GNU General Public License (GPL). 8
October 2008. http://freshmeat.net/browse/15/ (accessed October 8, 2008).

Freshmeat.net 2008b
SourceForge, Inc. Statistics and Top 20. 8 October 2008. http://freshmeat.net/stats/#license
(accessed October 8, 2008).

FSF 1989
Free Software Foundation, Inc. “The General Public License as a Subroutine.” GNU’s Bulletin
1, no. 6 (January 1989). Available: http://www.gnu.org/bulletins/bull6.html.

FSF 2005
Free Software Foundation, Inc. Negotiating Compliance. 2 March 2005.
http://www.fsf.org/licensing/dealt.html (accessed January 28, 2009).

FSF 2008a
Free Software Foundation, Inc. Frequently Asked Questions about the GNU Licenses. 14 November
2008. http://www.gnu.org/licenses/gpl-faq.html (accessed January 28, 2009).

FSF 2008b
Free Software Foundation, Inc. The Free Software Definition. 20 March 2008.
http://www.gnu.org/philosophy/free-sw.html (accessed November 6, 2008).

FSF 2008c
Free Software Foundation, Inc. The GNU Operating System. 4 November 2008.
http://www.gnu.org/ (accessed November 6, 2008).

GPLv1
Free Software Foundation, Inc. GNU General Public License v1.0. February 1989.
http://www.gnu.org/licenses/old-licenses/gpl-1.0.html (accessed November 6, 2008).

GPLv2
Free Software Foundation, Inc. GNU General Public License v2.0. June 1991.
http://www.gnu.org/licenses/gpl-2.0.html (accessed October 11, 2008).

http://www.corel.com/servlet/Satellite/gb/en/Content/1166553879115
http://www.osedu.org/licenses/ECL-
http://www.epo.org/topics/issues/computer-implemented-inventions.html
http://www.forbes.com/lists/2007/18/biz_07forbes2000_The-Global-
http://freshmeat.net/browse/15/
http://freshmeat.net/stats/#license
http://www.gnu.org/bulletins/bull6.html.
http://www.fsf.org/licensing/dealt.html
http://www.gnu.org/licenses/gpl-faq.html
http://www.gnu.org/philosophy/free-sw.html
http://www.gnu.org/
http://www.gnu.org/licenses/old-licenses/gpl-1.0.html
http://www.gnu.org/licenses/gpl-2.0.html


Nordic Journal of Commercial Law
issue 2009#1

115

GPLv3 comments in file ‘gplv3-draft-1’
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
draft-1'&Order=DESC (accessed January 27, 2009).

GPLv3 comments in file ‘gplv3-draft-2’
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20=%20'gplv3-draft-
2'&Order=DESC (accessed January 27, 2009).

GPLv3 comments in file ‘gplv3-draft-3’
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
draft-3'&Order=DESC (accessed January 27, 2009).

GPLv3 comments in file ‘gplv3-draft-4’
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
draft-4'&Order=DESC (accessed January 20, 2009).

GPLv3 Process Definition
Free Software Foundation, Inc. GPLv3 Process Definition. 28 March 2007.
http://gplv3.fsf.org/original-process-definition (accessed October 15, 2008).

GPLv3-DD1
Free Software Foundation, Inc. GPLv3 First Discussion Draft Rationale. 16 January 2006.
Available: http://gplv3.fsf.org/gpl-rationale-2006-01-16.pdf.

GPLv3-DD2
Free Software Foundation, Inc. GPLv3 Second Discussion Draft Rationale. 27 July 2006. Available:
http://gplv3.fsf.org/gpl3-dd1to2-markup-rationale.pdf.

GPLv3-DD3
Free Software Foundation, Inc. GPLv3 Third Discussion Draft Rationale. 28 March 2007.
Available: http://gplv3.fsf.org/gpl3-dd3-rationale.pdf.

GPLv3-DD4
Free Software Foundation, Inc. GPLv3 Final Discussion Draft Rationale. 31 May 2007. Available:
http://gplv3.fsf.org/rationale.

GPLv3-FIN
Free Software Foundation, Inc. GPLv3 Final Rationale. 29 June 2007. Available:
http://www.gnu.org/licences/gpl3-final-rationale.pdf.

Helsinki Region Chamber of Commerce 2005
Helsinki Region Chamber of Commerce. Service Description. 2005.
http://helsinki.chamber.fi/index.phtml?s=338 (accessed November 2, 2008).

IBM 2008
International Business Machines Corp. IBM Software license agreements. 2008. http://www-
03.ibm.com/software/sla/sladb.nsf (accessed October 30, 2008).

Jones 2003
Jones, Pamela. “The GPL Is a License, not a Contract.” LWN, 3 December 2003. Available:
http://lwn.net/Articles/61292/.

http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20=%20'gplv3-draft-
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20'CF.NoteUrl'%20LIKE%20'gplv3-
http://gplv3.fsf.org/original-process-definition
http://gplv3.fsf.org/gpl-rationale-2006-01-16.pdf.
http://gplv3.fsf.org/gpl3-dd1to2-markup-rationale.pdf.
http://gplv3.fsf.org/gpl3-dd3-rationale.pdf.
http://gplv3.fsf.org/rationale.
http://www.gnu.org/licences/gpl3-final-rationale.pdf.
http://helsinki.chamber.fi/index.phtml?s=338
http://lwn.net/Articles/61292/.


Nordic Journal of Commercial Law
issue 2009#1

116

LGPLv3-DD2
Free Software Foundation, Inc. LGPLv3 Second Discussion Draft Rationale. 3 April 2007.
Available: http://gplv3.fsf.org/lgpl3-dd2-rationale.pdf.

Majerus 2003
Majerus, Laura A. Court Evaluates Meaning of “Derivative Work” in an Open Source License. 2003.
http://library.findlaw.com/2003/Jun/16/132811.html (accessed February 16, 2009).

Microsoft 2006
Microsoft Corporation. Patent Cooperation Agreement – Microsoft & Novell Interoperability
Collaboration. 2 November 2006.
http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx (accessed
November 7, 2008).

Microsoft 2008
Microsoft Corporation. Retail Software License Terms. 2008.
http://www.microsoft.com/about/legal/useterms/ (accessed October 30, 2008).

Moglen 2001
Moglen, Eben. Enforcing the GNU GPL. 10 September 2001.
http://www.gnu.org/philosophy/enforcing-gpl.html (accessed November 11, 2008).

Mundie 2001
Mundie, Craig. The Commercial Software Model – Speech Transcript. 3. May 2001.
http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.mspx (accessed January
29, 2009).

Nimmer 2005
Nimmer, Raymond T. Is the GPL license a contract? The wrong question. 6 September 2005.
http://www.ipinfoblog.com/archives/licensing-law-issues-is-the-gpl-license-a-contract-the-wrong-
question.html (accessed January 30, 2009).

NOSA
National Aeronautics and Space Administration. NASA Ames Open Source Software – NOSA
Software Agreement. http://opensource.arc.nasa.gov/page/nosa-software-agreement/ (accessed
October 11, 2008).

OGDTSL
The Open Group. The Open Group Directory Test Suite License. 14 April 2003.
http://opengroup.org/dif/blitspub/license.htm (accessed October 11, 2008).

OpenOffice.org 2008
OpenOffice.org. License Page. March 2008. http://www.openoffice.org/license.html (accessed
February 15, 2009).

Opinion on BitTorrent Propagation – GPLv3
Free Software Foundation, Inc. Opinion on BitTorrent Propagation. 3 October 2006.
http://gplv3.fsf.org/bittorrent-dd2.html (accessed January 27, 2009).

Opinion on Denationalization of Terminology – GPLv3
Free Software Foundation, Inc. Opinion on Denationalization of Terminology. 3 August 2006.
http://gplv3.fsf.org/denationalization-dd2.html (accessed January 9, 2009).

http://gplv3.fsf.org/lgpl3-dd2-rationale.pdf.
http://library.findlaw.com/2003/Jun/16/132811.html
http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx
http://www.microsoft.com/about/legal/useterms/
http://www.gnu.org/philosophy/enforcing-gpl.html
http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.mspx
http://www.ipinfoblog.com/archives/licensing-law-issues-is-the-gpl-license-a-contract-the-wrong-
http://opensource.arc.nasa.gov/page/nosa-software-agreement/
http://opengroup.org/dif/blitspub/license.htm
http://www.openoffice.org/license.html
http://gplv3.fsf.org/bittorrent-dd2.html
http://gplv3.fsf.org/denationalization-dd2.html


Nordic Journal of Commercial Law
issue 2009#1

117

Opinion on Digital Restrictions Management – GPLv3
Free Software Foundation, Inc. Opinion on Digital Restrictions Management. 3 August 2006.
http://gplv3.fsf.org/drm-dd2.html (accessed January 27, 2009).

Oracle n.d.
Oracle Corporation. Oracle License and Service Agreements.
http://www.oracle.com/corporate/license/agreements.html (accessed October 30, 2008).

OSI 2004
Open Source Initiative. The Open Source Definition. 2004. http://opensource.org/docs/osd
(accessed November 3, 2008).

OSI 2006
Open Source Initiative. Licenses by Name. 18 September 2006.
http://opensource.org/licenses/alphabetical (accessed February 19, 2009).

Palamida 2008
Palamida, Inc. GPLv3 and LGPLv3 Information Site. 4 October 2008.
http://gpl3.palamida.com:8080/ (accessed October 8, 2008).

PRH 2003
National Board of Patents and Registration of Finland. Tietokoneohjelmat ja patentointi. 14
February 2003. http://www.prh.fi/fi/uutiset/111.html (accessed October 11, 2008).

Red Hat 2008
Red Hat, Inc. Settlement Agreement. 6 June 2008.
http://www.redhat.com/f/pdf/blog/patent_settlement_agreement.pdf (accessed November 7,
2008).

SFLC 2007
Software Freedom Law Center. On Behalf of BusyBox Developers, SFLC Files First Ever U.S. GPL
Violation Lawsuit. 20 September 2007.
http://www.softwarefreedom.org/news/2007/sep/20/busybox/ (accessed February 5, 2009).

Slashdot 2003
SourceForge, Inc. LGPL is Viral for Java. 17 July 2003.
http://slashdot.org/developers/03/07/17/2257224.shtml (accessed January 20, 2009).

Smith 2007
Smith, Brett. A Quick Guide to GPLv3. 2007. http://www.gnu.org/licenses/quick-guide-
gplv3.html (accessed November 11, 2008).

Stallman 1998
Stallman, Richard. Copyleft: Pragmatic Idealism. 1998.
http://www.gnu.org/philosophy/pragmatic.html (accessed November 9, 2008).

Stallman 2007
Stallman, Richard. Why Upgrade to GPLv3. 2007. http://www.gnu.org/licenses/rms-why-
gplv3.html (accessed October 11, 2008).

Turner 2004
Turner, David. The LGPL and Java. November 2004. http://www.gnu.org/licenses/lgpl-
java.html (accessed November 9, 2008).

http://gplv3.fsf.org/drm-dd2.html
http://www.oracle.com/corporate/license/agreements.html
http://opensource.org/docs/osd
http://opensource.org/licenses/alphabetical
http://gpl3.palamida.com:8080/
http://www.prh.fi/fi/uutiset/111.html
http://www.redhat.com/f/pdf/blog/patent_settlement_agreement.pdf
http://www.softwarefreedom.org/news/2007/sep/20/busybox/
http://slashdot.org/developers/03/07/17/2257224.shtml
http://www.gnu.org/licenses/quick-guide-
http://www.gnu.org/philosophy/pragmatic.html
http://www.gnu.org/licenses/rms-why-
http://www.gnu.org/licenses/lgpl-


Nordic Journal of Commercial Law
issue 2009#1

118

Welte 2004
Welte, Harald. netfilter/iptables project enforces GPL once again. 19 May 2004. http://gpl-
violations.org/news/20040519-iptables-sitecom.html (accessed February 5, 2009).

Welte 2006
Welte, Harald. gpl-violations.org project prevails in court case on GPL violation by D-Link. 22
September 2006. http://gpl-violations.org/news/20060922-dlink-judgement_frankfurt.html
(accessed February 5, 2009).

Welte 2008
Welte, Harald. GPL Violations. 2008. http://gpl-violations.org/ (accessed October 15, 2008).

WordNet 2006
WordNet. “Library.” In Wordnet: An Electronic Lexical Database, edited by Christiane Fellbaum.
Princeton, NJ: Princeton University, 2006. Available:
http://wordnet.princeton.edu/perl/webwn?s=Library.

Working group on Libre Software 2000
Working group on Libre Software. Free Software / Open Source: Information Society Opportunities
for Europe? Information Society and Media Directorate-General, 2000. Available:
http://eu.conecta.it/paper.pdf.

Table of Cases

European Union

Case T-201/04 R Microsoft Corporation v Commission of the European Communities [2004] ECR II-4463 71

Finland

KKO 1998:91 17, 50
KKO 1999:115 43, 50
KKO 2007:63 50
KKO 2008:45 47, 68
HelHO 28.12.1999 3571, Record No. R99/661 63
HelHO 14.6.2007 1963, Record No. S06/2434 61
HelHO 22.5.2008 1427, Record No. R07/2622 36
RHO 13.10.1992 1128, Record No. R91/351 62
VHO 17.5.2005 712, Record No. R03/1245 66, 68, 71

Germany

Landgericht Frankfurt am Main, Record No. 26 O 224/06  47, 63
Landgericht München I, Record No. 21 O 6123/04  47

http://gpl-violations.org/news/20060922-dlink-judgement_frankfurt.html
http://gpl-violations.org/
http://wordnet.princeton.edu/perl/webwn?s=Library.
http://eu.conecta.it/paper.pdf.


Nordic Journal of Commercial Law
issue 2009#1

119

United Kingdom

Cantor Fitzgerald International v Tradition (UK) Ltd [2000] RPC 95 66, 70
Ibcos  Computers  Ltd  v  Barclays  Mercantile  Highland  Finance  Ltd
[1994] FSR 275 65, 70
Nova Productions Ltd v Mazooma Games Ltd and Bell Fruit Games Ltd
[2007] EWCA Civ. 219 70

United States of America

Brower v Gateway 2000, Inc., 676 N.Y.S.2d 569 (N.Y. App. Div. 1998) 7
Computer Associates International, Inc. v Altai, Inc.,
982 F.2d 693 (2nd Cir. 1992) 64, 67, 70
Jacobsen v Katzer, 535 F.3d 1373 (Fed. Cir. 2008)  24, 57
Lewis Galoob Toys, Inc. v Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992) 79
Micro Star v FormGen Inc., 154 F.3d 1107 (9th Cir. 1998) 78, 79, 84
ProCD, Inc. v Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) 7
Progress Software Corporation v MySQL AB,
195 F. Supp. 2d 328 (D. Mass. 2002) 49, 78
Whelan Associates, Inc. v Jaslow Dental Laboratory, Inc.,
797 F.2d 1222 (3rd Cir. 1986) 64, 70

6. Abbreviations

AGPL = GNU Affero General Public License

ASP = application service provider

c. = chapter [of statutes]

ch. = chapter

COM = Commission document for other institutions

CVS = Concurrent Versions System

DCFR = Draft Common Frame of Reference

DD = discussion draft

DMCA = Digital Millennium Copyright Act

DRM = digital rights management

EC = European Community

ECR = European Court Reports

EEC = European Economic Community

EESC = European Economic and Social Committee

EPC = Convention on the Grant of European Patents (European Patent

Convention)



Nordic Journal of Commercial Law
issue 2009#1

120

EPO = European Patent Office

EU = European Union

Europarl = European Parliament

EV = response of Parliament

EWCA = Court of Appeal of England and Wales

ff. = following

fn. = footnote [external to the thesis]

FSF = Free Software Foundation, Inc.

FSR = Fleet Street Reports

HE = Government proposal

HelHO = Helsinki Court of Appeal

IPR = intellectual property rights

IT = information technology

LaVM = report of the Law Committee

LGPL = GNU Lesser General Public License

GCC = GNU Compiler Collection

GNU = GNU’s Not Unix [recursive acronym]

GPL = GNU General Public License

GUI = graphical user interface

KKO = Supreme Court of Finland

KM = report of a commission

MFN = most favoured nation

n. = footnote [internal to the thesis]

n.d. = no date

NDA = non-disclosure agreement

no. = number

NRC = National Research Council

OSI = Open Source Initiative

para. = paragraph

PRH = National Board of Patents and Registration of Finland

RHO = Rovaniemi Court of Appeal

ROM = read-only memory

RPC = Reports of Patent Cases



Nordic Journal of Commercial Law
issue 2009#1

121

s. = section

SaaS = software as a service

SDE = software development environment

SopS = Treaty Series of the Statute Book of Finland

SOU = Swedish Government Official Reports

sub-s. = subsection

SuVM = report of the Grand Committee

SYN = cooperation procedure

TRIPS = Agreement on Trade-Related Aspects of Intellectual Property Rights

UK = United Kingdom of Great Britain and Northern Ireland

UNIDROIT = International Institute for the Unification of Private Law

US = United States

USC = United States Code

v = version; versus

VHO = Vaasa Court of Appeal

vp = parliamentary session

WCT = WIPO Copyright Treaty

WIPO = World Intellectual Property Organization