When an end-user of software today retrieves and installs his code, in many ways, this happens in a very different manner than it did in the good, old days. Gradually, it is becoming increasingly rare that a user of a computer buys a CD-rom (or a DVD) and then installs the software on his local computer.

Today, the largest growth in this area is found in connection to software development within applications on the mobile market, in which a huge number of apps are downloaded and installed on mobile devices, such as smartphones and tablets, e.g. iPhones and iPads. These devices run first and foremost on Apple’s operating system (IOS) and the Linux-based operating system developed by Google, Android. Microsoft has nothing comparable to the market position it has on mobile devices as it does with Windows operating on traditional computers.

With these new apps, a new concept, “app stores,” has arisen. Developers of apps have placed these in virtual shops, which have basically replaced the old-fashioned brick and mortar shops where you picked up your cardboard boxes containing CD-roms.  With the virtual shops, you go online and often wirelessly visit these app stores, develop your apps, pay for them, and download them to your mobile devices.

In the case of Android, in principle, everybody who wants to can establish an app store, as the success then typically depends on you obtaining a critical mass of buyers and sellers of apps. In Apple’s case, Apple has ensured such a connection between hardware and software that in order to retrieve apps for your iPhone, iPad, or iPod, it is absolutely necessary to use Apple’s App Store. (That this log-in is problematic from a competitive point of view is another story.)

An interesting question, which to an increasing extent is actualised, is how the licencing terms of open-source software licences work in part with the user terms for buyer and seller in connection with app stores and in part with the open-source licensed code that is uploaded to an app store by the seller, and from there, downloaded by the buyer. As in other cases in which a user of open-source software develops on top of an app and allows it be a part of solutions that are distributed to others, including to the end-user, it is relevant to check if the open-source licencing terms regarding the originally-used code are complied with in the subsequent links.

There are probably other issues that could be interesting to examine, but I primarily see three situations that deserve attention.

The first question is about “distribution” of the code. The most important open-source licence, General Public Licence (GPL), mentions in version 2 about the “distribution” of code, when a physical copy of the code is transferred from one computer to another computer (each of whose belongs to or is controlled by individuals independent of each other). In the case of distribution of code derived from the original code (modification), the distributor, the owner of the copyright for the modification, is obliged to give the recipient the same licencing terms to the modification that apply to the original code. This is known as copyleft.

The question in connection to an app store is then:  should the uploading of code to the servers of the app store and then downloading of code to the buyer’s/user’s mobile devices are both to be considered distribution? If this (in particular in the latter situation that I deal with here) is the case, it will entail that the user/buyer would not only obtain the right of use on open-source licencing terms for the downloaded app, but shall also have access to the source code under certain conditions.

There is likely no doubt that if an app containing open-source software, at least released under the GPL, is downloaded and installed on a user’s mobile device, we are talking about distribution. The distribution concept is not absolute in the sense that it is defined legislatively. The distribution concept should be understood in a way that is defined in the open-source licence that may govern the use of the specific code.

As far as GPL is concerned, version 2 (“distribution”) and GPL, version 3 (“conveyance”), there exists no doubt. One could imagine other open-source licences for which the distribution is not defined in the same way. And then there are all the other open-source licences for which there only just are not (NOTE: THERE ARE NOT these provisions, or only ARE??) copyleft provisions, thus, the distribution concept is moot.

An exciting trend is that our use of mobile devices in the future, perhaps will not to such as great extent as now exists be based on apps that we download on our mobile devices, but equally based on functionality that is made available via the equivalent of a browser on our mobile devices.

Many predict that in particular, the use of HTML 5 will mean that a good deal of the advanced functionalities and features that today we can have delivered directly via Web applications from a server to our browser on our ordinary, stationary computers or laptops/notebooks, in the same way will be delivered directly from a server to a browser on our mobile devices. This ability means that the app store, as we now know it, especially in Apple’s case, for which it is completely necessary for one to gain access to and be able to download apps to first go through an app store, loses its significance. Then, the use of genuine Web-applications also has significance for the understanding of the distribution concept.

If the functionality that was delivered previously by downloading an app now is delivered as functionality via the browser on the mobile device, then in most cases, we are not dealing with distribution, thus the copyleft provisions are not germane. As far as GPL, version 2 and GPL, version 3 are concerned, it is just not considered, making functionality available via a network, to be distribution. It is only the GPL-derived licence, the so-called Affero General Public License (AGPL) – and a few other OS licences – for which making functionality available via the network is also considered distribution.

However, until HTML functionality has replaced the need for downloading apps, it must be ascertained that at least as far as open-source software released under GPL is concerned, the user’s download of an app will release the copyleft provision.

This then leads to the second question. If we now are dealing with distribution, who is then responsible for the copyleft provisions to be complied with? For one, it seems that the seller of the app is responsible. This is probably not terribly controversial. A more important question is, however, if the operator of the app store would be responsible for the licencing terms of the open-source code downloaded via the operator’s app store being complied with.

The question should be answered based on an analysis of which part the operator of an app store plays in part in relation to the seller or the developer of the app, and in part, in relation to the buyer/user of the app.

In my opinion, there is no doubt that for the case of Apple, as operator of Apple’s App Store, the operator is responsible for the open-source licences included in the code of an app sold from Apple’s App Store, and the licencing requirement must be complied with. This is due to the strict control that Apple maintains in connection to the entire process. On the contrary, though, it can be questioned if operators of app stores, in which Android apps or apps under other operating systems can be downloaded in the same way, may be considered as responsible to the original licensor of the open-source software for maintaining compliance with the licence.

All in all, it must depend on an evaluation of the degree and the extent of the control that the app store operator exercises regarding the two parties. It is doubtful on could clearly find the answer to this. I believe that one could infer possibilities by looking at the distinction of the controller and the data processor within the current legislation pertaining to processing personal data, partly by the distinction between the content provider and service provider in the e-commerce legislation.

This leads to the third question. Other than deciding who – the developer/seller or the app store operator – is responsible for compliance with the open source licence, it is also relevant to check whether the business terms used in an app store are compatible with an open-source licence. Said in a different way, the question is:  are the rights that the buyer/user of an app has downloaded from an app store limited to the business terms related to the purchase in a way that is not allowed in accordance with the open source licence terms?

Without having thoroughly scrutinised the Terms of Service (ToS) for iTunes and Apple’s App Store, it can however be ascertained that, for instance, provisions on how many mobile devices that a downloaded application can be used on will be against one of the fundamental rights that the user obtains in connection with an open-source licence–namely the right to make all the copies the user wants and to make unlimited distribution hereof.

To force the user of open-source software to abide by constraining terms in other agreements is a clear violation of all open-source licences, which would result in the person who violates the licence losing his own right to use the code in question under the open-source licence in question.

Which consequences and to whom such a violation will have, and will not have, are a bit more complicated. Here it of course plays a role who, as in the discussion above, is considered responsible for complying with the licence in connection with the download of the code via an app store. The most practical consequence of such a violation of the open-source licence terms will likely be partly that the original developer/seller of the app loses his right to let the original open- source software be a part hereof, and partly that the operators of the app store will be obliged to remove all apps from the app store in which the open-source software is sold, and – considerably much worse – could be obliged to revoke all the apps downloaded to date.

Regardless of who is responsible for this, the original developer, seller of the app, and the operator of the app store have a great interest in having clarified whether the ToS of the app store are compatible with the open-source licences that are a part of the apps sold via the app store. Apple’s iTunes and App Stored definitely face a challenge here, which to a great extent is being attempted to be solved by Apple simply having prohibited the use of open-source software in the apps sold via Apple’s App Store.

Google’s Android market has inserted a provision in its ToS that explicitly states that in case of any disagreements between the provisions in open-source licences and the Android market’s ToS, the open-source terms will prevail.

As in so many other cases that concern legal matters in connection to open-source software, one should not be intimidated by the fact that these issues can seem relatively difficult to solve. Experience shows that solutions exist, and luckily, most of the developers of open-source software, irrespective of them holding firmly to their rights, normally are pragmatic and willing to find sensible solutions to any challenges that arise.