Why is it ridiculous? If the license says you have the right to obtain the source code to software that was distributed to you, then you have the right to obtain the source code. It doesn't matter what your intended use of it is.
Why is it ridiculous? If the license says you have the right to obtain the source code to software that was distributed to you, then you have the right to obtain the source code. It doesn't matter what your intended use of it is.
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.
> 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.
> 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.
Here'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.
Wouldn'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?
By 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.
How 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.
Somewhere deep in the legalese Alice agreed she would not do that, i.e. "non transferable license".
Isn't that the part that would violate the first sale doctrine?
I 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-che...
No, not if the same itself was unlawful because Alice signed a contract to not sell it like that.
The GPL notably allows for the sale, it was legal here.
> No, not if the same itself was unlawful because Alice signed a contract to not sell it like that.
It's the contract that's the violation, isn't it? What would the first sale doctrine be if in order to get a copy you could be required to sign a contract not to exercise your rights under it? For that matter, how could state-level contract law override the federal first sale doctrine?
The "derivative work" hack also seems kind of fragile. The normal way to get someone to agree to something is that they need a right from the license, which they then don't get if they don't agree to it. But if it doesn't give them anything that they need then "there are ways to use the copy they own and have a right to use without agreeing to any additional terms" is more like the default you're trying to hack your way out of than something they're exploiting a loophole to get into, and where does that leave you if anything slips?
Suppose Alice is a three year old. She owns the copy, she presses the button and now she has a running copy even though she's not competent to enter into a contract, and then Bob buys it from her. Or Alice owns the copy and Carol presses the button, and then maybe Carol could be sued, but also maybe Carol lives in another country, and either way Alice now owns a running copy she never agreed not to sell. And then you want to be able to say "but that's cheating" except that it's not any less cheating than what you were doing to try to get them to agree to it.
So too is the GPL a contract, or at least nobody has proven that it is not a contract and the SFC will fight to prove that it is
Sure, maybe anyways but let's assume it is, the parties to that contract are the manufacturer and the copyright holder. The contract allows the manufacturer to distribute it to the distributor without requiring the distributor to agree to the terms and itself become a party. The distributor can then sell the device with the software on it on without acquiring a license and becoming a party to the contract because the copyright has been exhausted (first sale doctrine).
EULA's get around this by forcing the end user to become a party to the contract via a click wrap agreement. There is usually no such click wrap agreement binding the distributor in the case of the GPL. And the GPL doesn't require the creation or maintenance of such a click wrap agreement so the manufacturer would be free to remove it even if the original software had one.
Like when I buy a second hand book and then I start printing copies of the book and selling them without any agreement with the original author or publisher?
Like when you buy or sell a second hand book without getting permission from the copyright holder to distribute their copyrighted material, which would otherwise be necessary.
It doesn't scale as well if I only have a single copy and don't make more. I daresay it won't be commercially viable.
Second hand book stores and libraries the world over have made it work
They typically buy more than one book.
Distribution agreement is generally different from a sale. Distributors act as agents of the manufacturer. It’s not yet counted as a sale. Most warranties are limited to first owner and do not transfer. How do you think this squares with that? Does it mean I don’t get warranty on the dishwasher I got from Costco? It’s also the same principle of a distributor acting as an agent that enables the manufacturer to have a contract with you.
> first sale doctrine) dictates that copyright is exhausted upon the first sale of the device (i.e. to the distributor).
The copyright doesn’t go away when copies are sold to a distributor. Someone (probably the manufacturer) still has legal obligations to the copyright holder.
copyright doesn't give you the kind of rights that a GPL license does - which is not based on copyright, but on contract law (ala, it's in the name - licenses).
A sale of an object does not transfer those licenses (but those licenses are still valid on the seller - a manufacturer selling widgets will have to obey the GPL clauses. If an end user of this widget wants the source code, they have to go back all the way to the manufacturer, rather than any of the middle-men presumably).
With regards to further distribution of the copy sold to the distributor, it does go away.
> 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)).
By 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.
My Android phone does come with an explicit written offer of source. It's in Settings>About>Legal.
> 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.
You 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.
It's a medical device that requires a prescription. You can't buy it off the shelf. They're not distributing software to you either. You must go through a medical equipment supplier who transfers the device to you after insurance has paid for some or all of it.
For the same reason you can't find an airplane entertainment system in the trash and call up the company and demand source code.
It doesn't matter what form it takes. Compiled binaries of GPL code are being distributed. The recipients of that binary are entitled to the source of the GPL portions in a usable form:
The GPL here doesn't extend beyond the kernel boundary. Userland is isolated unless they have GPL code linked in there as well. If they were careless about the linkage boundaries then that's on them.You've gone off the rails by narrowly focusing on a passage of a software license without understanding the contract law and copyright law environments that those licenses and transactions exist in.
If you file a statement of claim to a court that is just riffing on the theme of "Compiled binaries of GPL code are being distributed" - you won't get anywhere.
I implore you to learn how to identify the parties involved, which contracts get formed when and between whom, de minimis, exemptions to copyright, and the non-copyrightable parts of code.
The recipient of that object code is the medical device supplier, not the end-user.
It's subsequently transferred to you after presenting a prescription, without any accompanying offer of source code.
In other words, assume you are the second owner in all cases when it comes to certified medical equipment.
AFAIK if you find an Android phone in the trash, you are not entitled to source either since you never received the offer of source during a purchase transaction. You know that little slip of paper you toss as soon as you open some new electronics that says "Open Source Software Notice".
> purchase transaction
The licensee has to offer code to users (more precisely, to any third party). It doesn’t say they have to purchase anything to be a legitimate user.
> In other words, assume you are the second owner in all cases when it comes to certified medical equipment.
By that logic, _any_ company can effectively ignore the GPL constraints by just selling it to a reseller, first; one that they have a contract with to _not_ offer the source code when they re-sell it.
It is my understanding that, if I use GPL in my code, and I distribute it to someone that then re-distributes it to someone else... the GPL is still binding. I don't see why that wouldn't be the case with hardware using GPL'd software.
Would you disagree with this logic? You distribute GPL code to me on a dvd. I give that dvd to someone else. I have not made a copy of the source code, so copyright does not come into this. If instead I copied the dvd and emailed the iso to someone else I would be distributing and copyright comes into it.
The GPL binds _everyone_ who distributes GPL-covered work, including resellers. It doesn't matter if you made a copy of it, you are distributing it.
No it doesn't. It can not bind someone that has not agreed to it. A failure to agree might mean they are infringing on copy-right and is liable for damages, but it is wrong to say it binds everyone that distributes it.
They are distributing it without the right to distribute it. The only thing that allows them to distribute it is agreeing to the license/contract to do it in a specific way. If they don't do that, they don't have the right to distribute it. The person they got it from saying otherwise doesn't change that.
the license travels with the copy, it is what allows the copy.
if the license does not travel with the copy, then the copy is unlicensed and is a copyright violation. the license carries restrictions and grants rights. those aspects cannot be violated or the license ceases to exist.
you don't know what you are talking about, so stop guessing.
So when I buy a product with GPL code via Amazon, Amazon is the one with the rights to receive the source? That medical supplier is getting paid via the medical coverage the end user is paying for.