GNU GPL V2 TERMS AND CONDITIONS
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.
1. You may copy and distribute 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 and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.
You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)
These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.
Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.
In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:
a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)
The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.
If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.
4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), 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 distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.
It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.
This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.
9. The Free Software Foundation may publish revised and/or new versions of the 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 a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally.
NO WARRANTY
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, 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.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE 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.
If you publish, distribute or allow a third party to use a copy of your product, the open source license requires you to release your product source code and automatically grants all third parties a license to your product source code and the ability to use it under the open source license. Specifically, Section 2 stipulates:
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)
There is some confusion over whether the open source license requires you to release your product’s source code even if you haven’t modified the original x265 code. The definition of Program as used in Version 2.0 of the GPL is:
The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.
Section 2 of the GPL does not apply to just the Program, but also to a “work based on the Program”. In this case, the Program is the x265 Software and a “work based on the Program” is your software that incorporates or links to the x265 Software or any portion of it, either verbatim or with modifications.
Internal Use Exception
If you use the x265 Software under the open source license and you publish, distribute or allow a third party to use your product – then everyone is automatically granted a license from you to use, copy and distribute your product source code under Version 2.0 of the GPL.
Section 2 b) specifically states that:
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
If you are using the x265 Software as part of an internal video encoding system and do not publish, distribute or allow a third party to use your encoding system, then your use under the open source license does not grant third parties a license to the source code of your system (see the “Internal Use” use case below). You should be careful because it is very easy to inadvertently trigger the license grant and requirement to disclose your product source code.
Open Source Disclosure Requirements
If you are required to disclose your source code, the GPL requires that you disclose all the source code of any software that includes or links to the x265 Software or any portion of the x265 Software. The “linkage” provision creates an expansive obligation of the source code that must be disclosed. Even if your product just links to the x265 library, all your source code is subject to the disclosure requirements under the open source license. This is why most developers/companies opt for a commercial license.
Downloading x265 Source Code
If you distribute a product that downloads or requires the customer to download the x265 Software (or any portion of it), then it is the same as including the x265 Software in your product. You cannot avoid your product being classified as a distribution by having your product or customer download the x265 Software. Because it is a distribution, the open source license automatically grants a license and requires that you open your source code.
Use Cases
Below are use cases of the most common business models to help you determine your obligations under the GNU General Public License, Version 2. Multiple use cases and other issues may apply to the same product and changes to your product or company structure may change your license obligations. Each product using the x265 Software should be reviewed separately for compliance on an ongoing basis.
Internal Product Development –During development, as long as you do not distribute or allow a third party to use your product, the open source license does not require you to publicly release your product source code.
Hardware/Software Sales – If you sell or perpetually license your product to a third party, this is clearly a distribution and the open source license automatically grants a license to all third parties and requires the release of your product source code. It doesn’t matter if you monetize your product or give it away for free, distributing your product to a third party triggers the license grant and obligation to disclose your product source code. Most companies choose a commercial license to avoid the disclosure requirement under the open source license.
Term Licensing - If you create a copy of your product and grant a customer the right to use the product, whether you make money or not, this constitutes a distribution and the open source license automatically grants a license to all third parties and requires that you release your product source code. Again, it doesn’t matter if the customer runs your product on your hardware, the cloud, or the customers own hardware.
Open Source Use – You always have the option of using the x265 Software and publishing your product source code for others to use under the open source license. Everyone using your product source code is granted a license to use it in accordance with the open source license, including the obligation to contribute back to you any changes to your product source code. We encourage this use case option as it allows the development community to learn and improve upon your work.
Internal Use – If you use your product internally and do not distribute or allow third parties to use it, you can use the x265 Software under the open source license without triggering the automatic license grant or the requirement to release your product source code. This is the only use case that allows you to use the x265 Software under the open source license without the automatic license grant or obligation to disclose your product source code.
The determining factor in most cases is “distribution”. Particularly in the case of cloud services, when is a cloud service a distribution. It comes down to control – if the cloud service allows the customer to control its use of the software instance, then it constitutes a distribution. A simple test is – can multiple customers video content be scheduled on the same software instance. If yes, then the service provider is in control and it is probably falls within the Internal Use exception. If your customer gets exclusive use fo the servicer instance, then it is effectively a distribution.
It is important to understand that you can unintentionally lose your Internal Use exception to automatically granting a license and releasing your product source code. For example:
A company that develops its own video encoding and distribution system that it uses internally could inadvertently grant a license if it grants a license to a related third party. For example, when a company expands internationally, it often creates one or more wholly owned subsidiaries in various countries and licenses its video encoding system to the foreign subsidiary. Because they are separate legal entities, this is a distribution and the company just granted everyone in the world a license to the video encoding system. It doesn’t matter that the companies are related or that they both use the software internally.
Similarly, many companies create development hubs in various countries. If the development hub develops a video encoding system using x265 Software and then licenses it to the parent company or assigns it, but retains rights, then it is a distribution triggering the automatic license grant to all third parties.
A company putting their proprietary video encoding system that uses x265 Software on a third party hosting cloud service, like AWS, could also trigger an automatic license grant to third parties. Third party cloud hosting services have the right to access the server instances and software running on their servers. Giving a third party have access to your code on third party servers constitutes a distribution.
You, as an individual, create a great product using x265 Software and then you form a company to monetize your product. When you assign or license your product to the company, this is a distribution triggering the automatic license grant to your product source code.
Cloud Based Software as a Service (SaaS) – If you use your product to offer video encoding services to third parties, the service will fall under either the Internal Use or Term License use cases. As discussed previously, the Term License use case automatically grants a license to all third parties and requires the release of your source code, whereas Internal Use does not trigger these provisions. The determining factor between the two use cases is control.
If a new instance (copy) of your product is generated (by you or the customer) and the customer controls its use of your product, then you are effectively distributing your product. The open source license triggers the automatic license to all third parties and the requirement for you to release your product source code.
Another indicator that the service is a distribution under the open source license is if you require the customer to execute a license agreement before they can use the service, even a click license. If you require a service agreement, it will depend on the terms of the service agreement.
In contrast, if the customer submits their videos to you and you use your product to encode them for the customer, then it is effectively Internal Use and neither the automatic license nor the disclosure requirement are triggered. As noted earlier, a simple test is whether you can use the same software instance to encode multiple customers video content. If you can schedule multle customers, then you control the software instance. If the customer gets exclusive use, then it is a distribution.
Please contact us if you have any questions.
Apps – The x265 Software in often used in apps, particularly in mobile video apps because of the performance (minimal processor requirements) and high quality video produced by the x265 Software. Since the app is being distributed to third parties, the open source license automatically grants a license and requires that you release the source code for your app.
Internal Licensing/Distribution – Companies legitimately using the x265 Software without disclosure under the Internal Use exception may trigger the automatic license and disclosure requirement when they distribute their product to different legal entity within the company.
For example, companies often create foreign subsidiaries in different countries to expand their market. The technology is the same, but the content generally varies by market. When the parent company transfers or licenses the technology to its foreign subsidiary, this constitutes a distribution triggering the automatic license to all third parties and the requirement to disclose the product source code under the open source license.
Another common situation is when a company creates a development hub that is its own subsidiary. Depending on how the developed technology is transferred to the rest of the company, it would constitute a distribution and trigger the automatic license grant and requirement for the product source code to be disclosed under the open source license.
A similar license grant and disclosure requirement may occur when a company reorganizes (often for tax purposes) and transfers ownership of the intellectual property associated with the product to a separate subsidiary. The transfer of the ownership or a license to another legal entity is a distribution triggering the automatic license and source code disclosure requirement under the open source license.
Sale/Purchase of a Company – When one company buys another company that is using the x265 Software under the Internal Use exception, the sale/purchase of the company may constitute a distribution and trigger the requirement to disclose the product source code.
The evaluation is a two part test. First, is the purchase an equity purchase (the acquiring company buys the shares of the purchased company and acquires all its assets and liabilities). If it is an equity purchase, then the second question is whether the company is operated as a subsidiary or is the technology transferred within the acquiring company. If it is an equity sale and the company is operated as a subsidiary without any technology transfer to the rest of the company, the Internal Use disclosure exception is preserved.
If the purchase is an asset purchase (the acquiring company buys only the assets and the equity remains with the original owners), then this is likely a distribution (the product/technology is being sold) that triggers the source code disclosure requirement under the open source license.
Likewise, if the purchased company’s technology is distributed (technology transfer) within the acquiring company, this would constitute a distribution, triggering the requirement to disclose the product source code of any products using the x265 Software.
Proprietary Software Integration – Video encoding and distribution platforms have many interrelated components (other codecs, video analytics, optimization, server management, distribution, ad insertion, etc.) and very few companies develop all these components themselves. When you incorporate proprietary components from vendors with the x265 open source software, the vendor’s proprietary software becomes subject to the open source license.
Most vendors contractually prohibit their proprietary software from being used in a product that uses open source software. They don’t want their proprietary software being subject to the automatic licensing or disclosure requirements of the open source license. A commercial license allows a company to avoid breaching their contracts and maintaining compliance.
Third Party Development – Video encoding platforms are complex and require unique development knowledge. Most companies’ license existing components of an video encoding and distribution platform or they engage a developer to develop components of the system in accordance with their specifications. This can create some open source license issues.
As long as the developer assigns all their ownership rights to the company, then there is no difference between internal development and hiring a contractor. If the developer is allowed to retain some rights or is granted back some rights to the developed software, then this becomes a distribution under the open source license that triggers the automatic license grant and require the release of the product source code.
