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

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

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

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

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

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

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    Did you ask your lawyer to clarify who was distributing the software in the hypothetical case? It sounds like you think he meant that "you", the resident to whom the disk belongs, are distributing the software. But did he actually say that? It seems to me more likely that it would be the thief who is distributing the software, and therefore it is the thief who would have to comply with the license or be liable for copyright infringement (on top of theft). Commented Oct 19, 2022 at 3:17
  • Wouldn't the thief be the one obligated under GPT-3 to provide the source code, since they're the ones doing the distribution?
    – nick012000
    Commented Oct 19, 2022 at 22:12

1 Answer 1


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

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

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

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

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    But wait. In your final example the owner did nothing, took no action. Transfer and distribute are active verbs and require an actor. The taker is the actor, thus the thief is the one who has transferred it, not the owner, so you may have an argument that the copyright holder can sue the thief who will almost certainly be unable to comply, but I can't see how the owner is distributing anything. Especially if there were reasonable safeguards against theft that were circumvented. (lack of safe guards could be negligent, that's reasonable of course)
    – Gus
    Commented Oct 18, 2022 at 18:07
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    Also, do you know of any examples where this has been decided?
    – Gus
    Commented Oct 18, 2022 at 18:35
  • Apples license terms require that you are the rightful owner of the hardware. I think they could sue someone who steals a Mac or iPhone for copyright infringement.
    – gnasher729
    Commented Oct 19, 2022 at 6:10

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