Once again about the GPL and Russian laws

    More and more organizations have recently moved their computers to free software. This can be a “radical” transition to Linux or a “sparing option” when computers remain running Windows, but “pirated” programs are replaced with free ones. As a result, the organization gets the opportunity to save on the purchase of licensed software and to equip a workplace suitable for performing the main range of “office” tasks: editing texts, working with the Internet, sending e-mail, and the like.

    In order not to provoke another holivar, we will not dwell on questions about how well the “free” software performs its tasks, and how much money will cost to support it. In addition to these problems, the company is confronted with yet another - about “how legitimate it is to use“ free software ”, and whether there will be any complaints to the organization from various kinds of“ controllers ”.

    Now we will try once again to dwell on this topic.

    “Confirm that you are not a camel”



    At first glance, this sounds strange: it would seem that all that needs to be taken care of is whether the copyright holder of the used program or Linux distribution has any complaints, and since there are none, consider the issue settled. But we live in Russia, where claims can arise from a variety of bodies, which, on duty, in search of any violations, have the right to intervene in the organization. Therefore, the question of whether you use the software legally can be raised in the absence of any claims by the copyright holder.

    This especially applies to free programs, the copyright holder of which is often somewhere far away, and they themselves are downloaded via the Internet and do not have the required attributes of “commercial” software in the form of beautiful boxes. Perhaps that is why the most diverse ideas about the "illegality" of the GNU GPL and other free licenses arose and spread among the masses, the analysis of which became a pretty worn-out topic in the domestic linux community.

    The problem of “confirmation of license” was confronted not only by Russian Linuxoids: according to one of the leading core developers Alan Cox, even the English police seized “bald” blanks with “pirated Linux” . True, they later explained to them that this was not necessary.

    Enlightenment in this area generally means a lot. The more dummies users know that “there is such a Linux operating system that can be downloaded and used absolutely free,” the less likely it is to run into a policeman who has never heard of her.

    And please do not believe those who claim that "the GPL is not valid because it is not approved by the state." Firstly, the law does not contain such a requirement for civil contracts. And secondly, the law itself says exactly the opposite: article 421 of the Civil Code (clause 2) allows you to conclude contracts that are not provided for by the law at all - the main thing is that they do not contradict the law.

    The statement that the domestic legislation allegedly does not know the concept of a “free” or “open” license is also untrue. In fact, article 1368 of the Civil Code provides for such a license for patents. In accordance with its terms, the patent holder can notify Rospatent that he is ready to grant the right to use his invention to anyone. As you can see, this feature of it is very similar to free licenses, which also appeal to an unlimited circle of people.

    Article 6 of the Civil Code of the Russian Federation permits the application of civil legislation by analogy when the rules of the law governing certain legal relations apply to similar legal relations, which the law has not yet regulated.

    In general, the application of patent law to the distribution of programs is quite possible; the law is not opposed. And one more thing: it is not at all required that the text of the contract be in Russian. At least, the law “ On the state language of the Russian Federation ” in the third article, listing the range of situations when the use of Russian is mandatory, says nothing about civil law contracts.

    GPL and taxes



    At the end of 2008, there was a slight panic among domestic Linuxoids related to the interpretation of the legitimacy of using free software in organizations. The Interpretation was carried out by the Private Law Research Center and the Ministry of Finance, documents with this interpretation were published in the weblog of an assistant to one of the deputies of the State Duma.

    These were the answers to two parliamentary requests with a request for clarification of the question of “whether the right ... the right holder ... of copyright or related rights to the result of intellectual activity has the right to transfer or grant the right to use such a result of intellectual activity at no cost”.

    The response of the Ministry of Finance contained an indication that paragraph 2 of Article 248 of the Tax Code for the purposes of calculating corporate income tax was considered to receive property rights free of charge only if it was not accompanied by a reciprocal obligation to transfer property or provide some kind of service.

    In this regard, the Ministry of Finance concluded that upon receipt of the right to use a work for free, the taxpayer generates income that is subject to taxation. The value of this income is determined "based on the market price" of similar software.

    More cautious was the Private Law Research Center, which responded that such a transfer was a “gift”. In support of this, it was said that “giving” in practice is understood quite broadly and includes not only the transfer of property, but also the transfer of property rights, as well as release from duties. Therefore, the Center recommended to refrain from such a “gift” between commercial organizations, expressly prohibited by Article 575 of the Civil Code of the Russian Federation. The exclusive right is classified as “property” in article 1226 of the Civil Code. However, this is a very big question - is the "property" the right to use the program under a non-exclusive license.

    The essence of “property” law lies precisely in assimilating it to property: the copyright holder can dispose of it and protect it from illegal use. The holder of a non-exclusive license does not have such rights. As regards “donation,” article 572 states that donation is not a contract that provides for a counter obligation, and the GPL contains such obligations.

    In any case, it should be considered exaggerated expressed in the discussion of letters of concern that the tax will come and counts the enterprise for free Linux income as for Windows. There were no such cases, and the market price of Linux distributions is well known. But if the tax tries, you now know what to answer.

    In general, the norm on the prohibition of donation between commercial organizations is designed to prevent possible abuse associated with sheltering property from taxes, bankruptcy, and so on - if you wish, you can find a bunch of ways of abuse. By analogy with material values, the tax authorities look with suspicion on the free transfer of “intellectual property”. But there is still a difference between the transfer and distribution to anyone who wants it, so there remains a chance to convince the inspector that there is no abuse in this.

    Deal form



    A very large number of difficulties are caused by the electronic form of concluding a contract, which is used when downloading a program from the Internet. The Civil Code ( Article 1286 ) requires that a license agreement be concluded in writing, with one exception specifically for programs: they have a simplified form for concluding an agreement when its terms are stated on the copy of the program or on the packaging of the copy.

    Acceptance of these conditions is considered the beginning of the use of the program. Since downloading the program does not imply either a copy or packaging, many consider this agreement to be non-concluded. But firstly, as already mentioned, the application of civil law is allowed by analogy, and nothing prevents, to draw a parallel between the texts of the license appearing on the screen or recorded in a file written on the box. And secondly, civil law does not consider the “written form” to be the contract that is set out on paper and signed by the parties.

    Along with such a method, Article 434The Civil Code of the Russian Federation allows the conclusion of written transactions by exchanging documents through any form of communication, which allows you to establish that the document comes from a specific person. Moreover, the proposal to conclude a contract (the so-called “offer”) can be expressed explicitly in a response message, or it can be concluded in specific actions. Article 438 of the Civil Code of the Russian Federation establishes that the adoption of the terms of the contract may be the execution of actions to execute it, "unless otherwise provided by law, other legal acts or specified in the offer".

    Thus, the text of the GPL in electronic form may well be considered an offer, and the implementation of actions to disseminate the modified program - acceptance.

    By the way, if we return to the “simplified” form of concluding an agreement on a program, with the conditions on the copy, we will see that the procedure for concluding it fully complies with the conditions of articles 434 and 438: the text of the agreement is set out in the document, and its adoption is carried out by performing the actions indicated in law. So such an agreement is not concluded orally, as many believe: it is a form of writing.

    Accounting Reflection



    Free licenses provide the right to use the software to anyone. Such licenses are called “non-exclusive”, the costs of acquiring copies of such programs should be reflected in accounting as expenses for ordinary activities on the basis of RAS 10/99 “Organization expenses”. These copies themselves can be reflected on the balance sheet according to the rules of PBU 6/01 “Accounting for fixed assets” or PBU 5/01 “Accounting for inventories”.

    There is also a RegulationAccounting "Accounting for Intangible Assets" (PBU 14/2007), which provides for the statement on the balance of the exclusive right to the result of intellectual activity. Such an exclusive right first arises for the author after the creation of the work. The author can transfer it to someone else under a license agreement or an agreement on the alienation of exclusive rights.

    The presence of this right means the possibility of complete control over the work, including permission or a ban on its use. According to these rules, it is necessary to reflect the free software that the organization has changed, and is going to somehow profit from it. In this case, on the basis of the old program, a new one is created, which is considered a “derivative work”, the exclusive right to it arises after the changes are made and belongs to the new copyright holder. If you just use the downloaded program or the Linux distribution, it is recommended that you reflect in the documents the presence of the instance that you yourself will create. Moreover, at a cost different from zero rubles, since the tax inspectorate looks very grossly at gratuitous transactions in organizations.

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