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Rather crucially, the license itself does not say that you have the right to the source code. It is only the separate written offer which gives you that right.
by teddyh 10mo ago
Rather crucially, the license itself does not say that you have the right to the source code. It is only the separate written offer which gives you that right. If you did not receive such an offer, you don’t have any right to it. But then, the company has already, unquestionably, violated the GPL, and the company can be sued immediately. Specifically, you don’t have to first ask the company for the source code! The lack of a written offer is in itself a clear violation.
- schmuckonwheels 10mo ago> But then, the company has already, unquestionably, violated the GPL, and the company can be sued immediately. You were right up to this point. Medical devices requiring a prescription must be obtained via specialized suppliers, like a pharmacy for hardware. These appliances are not sold directly to end users because they can be dangerous if misused. This includes even CPAP machines. In theory, that written offer only needs to go to the device suppliers. Who almost universally have no interest in source code. When the device is transferred or resold to you, it need not be accompanied by the offer of source. If that was true, anyone reselling an Android phone could open themselves up to legal liability. Imagine your average eBayer forgetting to include an Open Source Software Notice along with some fingerprint-encrusted phone.
- teddyh 10mo ago> If that was true, anyone reselling an Android phone could open themselves up to legal liability. That’s only an appeal to ridicule. If those are valid, here’s an opposing one: If this is not true, then any company can violate the GPL all it likes just by funneling all its products through a second company, like a reseller.
- gpm 10mo agoHere's an appeal to the law, the doctrine of copyright exhaustion (also known as the first sale doctrine) dictates that copyright is exhausted upon the first sale of the device (i.e. to the distributor) and they have no rights to control or prevent further sales. That the GPL potentially fails to achieve what it intends to is neither a legal argument, nor particularly surprising.
- AnthonyMouse 10mo agoWouldn't that imply that end-user license agreements are all unenforceable because the software was sold through a retailer, and even if it wasn't you could just a get a secondhand copy?
- gpm 10mo agoBy my understanding EULAs are based on contract law and having a clickwrap agreement that requires you agree to it before using the software, not copyright law. Except perhaps to the extent that copyright law would prevent you from creating a derivative work that doesn't require you to agree to that clickwrap agreement prior to using the software.
- AnthonyMouse 10mo agoHow does that solve it? Alice buys the software, clicks "agree" so that it runs and then sells it to Bob who uses it without ever agreeing.
- verall 10mo agoSomewhere deep in the legalese Alice agreed she would not do that, i.e. "non transferable license".
- AnthonyMouse 10mo agoIsn't that the part that would violate the first sale doctrine?
- waste_monk 10mo agoI think the usual argument is that you don't own the digital good, you have a license to use it, and that license is between you and the originator (or their reseller) directly. And you aren't allowed to resell the license. E.g. this sort of thing https://www.tomshardware.com/video-games/pc-gaming/steam-checkout-banner-clarifies-you-dont-own-the-game-you-buy-gog-takes-a-jab-at-steam-saying-it-gives-users-offline-installers-that-cannot-be-taken-away https://www.tomshardware.com/video-games/pc-gaming/steam-che...
- Y_Y 10mo agoMy Android phone does come with an explicit written offer of source. It's in Settings>About>Legal.
- JoshTriplett 10mo ago> When the device is transferred or resold to you, it need not be accompanied by the offer of source. This is false. The person transferring the device must either pass along the offer they received (GPLv2 clause 3(c), and only if performing non-commercial redistribution), or pass along the source code (GPLv2 clause 3(a)).
- gpm 10mo agoBy my understanding under US law first sale doctrine means that 3 (both (a) and (c)) doesn't apply, copyright has been exhausted and the intermediate party here doesn't need a license at all to sell the device on. Even if you want to argue the GPL is a contract and not just a license the intermediate owner has never been required to become a party to it. Even if for some reason they agreed to the contract - and somehow it was a binding contract despite the complete lack of consideration - it seems unlikely that the courts would interpret 3 to apply because reselling a device isn't "distributing" within the meaning of copyright law because of first sale doctrine.
- mr_toad 10mo ago> In theory, that written offer only needs to go to the device suppliers. The GPL clearly specifies recipients, it doesn’t say anything about suppliers.
- ryandrake 10mo agoYou already created an interesting top-level comment analyzing the difference between "offering" and "providing" which has a lot of discussion. I'm just saying it's not "ridiculous" to expect software licensing terms to be applied and enforced, whatever a judge decides those terms end up meaning.