More and more organizations have recently transferred their computers to free software. This may 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 equip a workplace suitable for performing the main circle of "office" tasks: text editing, 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 efficiently the “free” software performs its tasks, and how much money its support will cost. In addition to these problems, the company faces another one - on how “how legitimate it is to use“ free software ”, and whether there will be complaints to the organization from all sorts of“ controllers ”.
Now we will try again on this topic.
"Confirm that 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 has any complaints about the program being used or the Linux distribution, and since there are none, consider the question to be settled. But you and I live in Russia, where complaints can arise from the most diverse bodies, which, by duty, in search of any violations are granted the right to interfere in the activities of the organization. Therefore, the question of whether you legally use the software can be raised in the absence of any claims from 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 masses have arisen and spread a wide variety of ideas about the “illegality” of the GNU GPL and other free licenses, the analysis of which has become a rather hackneyed topic in the domestic linux community.
The problem of “confirming licensing” arose not only in front of Russian linuxids: according to one of the leading kernel developers Alan Cox, “bald” pigs with “pirated Linux” were
even seized by
English police. They, however, later explained that it was not necessary to do so.
Enlightenment in this area means a lot. The more users of teapots will know that "there is such an operating system Linux, which can be downloaded and used absolutely free", the less chances to run into a policeman who never heard of it.
And please do not believe those who claim that "the GPL license is not valid because it is not approved by the state." First, 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 (paragraph 2) permits the conclusion of 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 national legislation allegedly does not know the concept of a “free” or “open” license is also not true. In fact, Article 1368 of the
Civil Code provides for such a license for patents. In accordance with its terms, the patent owner may notify Rospatent that he is ready to give the right to use his invention to anyone. As you can see, this feature of it is very similar to free licenses, which are also addressed to an unlimited number of people.Article 6 of the
Civil Code allows the application of civil law by analogy, when the rules of the law governing certain legal relations apply to similar legal relations that the law does not yet regulate.
In general, the application of patent law norms to the distribution of programs is quite possible, the law does not mind. And yet: it is not at all required that the text of the treaty 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 compulsory, does not say anything about civil law contracts.
GPL and taxes
At the end of 2008, a slight panic arose and spread among Russian linuxoids, connected with the interpretation of the question of the legality 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 State Duma deputies.
These were the answers to two deputy inquiries asking for clarification of the question, “does the person ... who owns the copyright or related rights to the result of intellectual activity have the right to transfer or grant the right to use such result of intellectual activity free of charge?"
The response of the Ministry of Finance indicated that paragraph 2 of Article 248 of the
Tax Code for the purposes of calculating the corporate income tax is considered gratuitous in obtaining property rights only if it is not accompanied by a counter-obligation to transfer property or provide some kind of service.
In connection with this, the Ministry of Finance concluded that, when the right to use the work is received for free, the taxpayer has income that is subject to taxation. The value of this income is determined by “proceeding from the market price” of similar software.
More cautious was the Private Law Research Center, whose response contained the opinion that such a transfer was a “gift”. In support of this, it was said that “donation” is understood in practice quite broadly and includes not only the transfer of property, but also the transfer of property rights, as well as discharge from duties. Therefore, the Center recommended refraining from such a “donation” between commercial organizations, expressly prohibited by article 575 of the
Civil Code of the Russian Federation. The exclusive right is attributed to the “property” in article 1226 of the
Civil Code. However, this is a very big question - is the “property” right to use the program under a non-exclusive license.
The essence of the “property” right is precisely in likening it to its property: the right holder can dispose of it and protect it from unlawful use. The owner of a non-exclusive license does not have such rights. As for the “donation,” Article 572
states that donation is not a contract that provides for a counter-obligation, and contains such obligations in the GPL.
In any case, it is worthwhile to consider as exaggerated the concerns expressed when discussing the letters that tax will come and will count the company 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 and try - now you know what to say to her.
In general, the rule on the prohibition of donation between commercial organizations is designed to prevent possible abuses related to the shelter of property from taxes, bankruptcy, and so on - if you wish, you can find a bunch of methods of abuse. By analogy with the material values, the tax looks with suspicion at the free transfer of "intellectual property". But there is still a difference between the transfer and the distribution to anyone who wants to, so there is still a chance to convince the inspector that there is no abuse in this.
A very large number of difficulties is 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 contract be concluded in writing, with the only exception for programs: they have a simplified form for concluding a contract when its conditions are set out on a copy of the program or a copy of the copy.
Accepting these conditions is considered the beginning of the use of the program Since the download of the program does not imply any copy or packaging, many consider such a contract to be not concluded. But first, as already mentioned, the application of civil law by analogy is permitted, and nothing prevents to draw a parallel between the texts of a license appearing on the screen or recorded in a file with what is written on the box. And secondly, civil law considers “writing” not the contract, which is set out on paper and signed by the parties.
Along with this method, article 434 of the
Civil Code of the Russian Federation allows for the conclusion of written transactions by exchanging documents through any type of communication, which allows to establish that the document comes from a specific person. At the same time, a proposal to conclude an agreement (the so-called “offer”) can be expressed explicitly, in a reply message, or it can be concluded in concrete actions. Article 438 of the
Civil Code of the Russian Federation establishes that the adoption of the terms of a contract may be the taking of actions for its execution, “unless otherwise provided by law, other legal acts or specified in an offer”.
Thus, the text of the GPL in electronic form may well be considered an offer, and the implementation of actions to distribute the modified program - an acceptance.
By the way, if we return to the “simplified” form of concluding a contract for a program with the conditions on a copy, we will see that the procedure for concluding it fully corresponds to the conditions of Articles 434 and 438: the text of the contract is set out in the document, and its adoption occurs by performing the actions specified in law. So such a contract is not verbally, as many believe: this is a kind of written form.
Reflection in accounting
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 the accounting records as expenses for ordinary activities based on PBU 10/99
“Organization expenses”. These copies themselves can be reflected on the balance sheet according to the rules of Accounting
“Accounting for fixed assets” or Accounting Regulation 5/01
“Accounting for inventories”.
There is also a Accounting Regulation “Accounting for Intangible Assets” (PBU 14/2007), which provides for the statement of an exclusive right to the result of intellectual activity on the balance sheet. This exclusive right first arises from the author after the creation of the work. The author can transfer it to someone else under a license agreement or under an agreement on the alienation of exclusive rights.
The presence of this right means the possibility of complete control over the work, including the permission or prohibition of its use. According to these rules you need to reflect the free software that the organization has changed, and is going to somehow benefit 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 making changes and belongs to the new right holder. If you simply use the downloaded program or distribution of Linux, it is recommended to reflect in the documents the presence of the instance that you yourself create. And at a cost other than zero rubles, since the tax authorities are looking at donation deals in the activities of organizations.