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Re: Help to pick a license for my free source code project

From: Alexander Terekhov
Subject: Re: Help to pick a license for my free source code project
Date: Mon, 15 Oct 2007 19:33:56 +0200

Rui Miguel Silva Seabra wrote:
> >
> Nice of you to *not* quote the rebuttal from Eben Moglen, on the same
> article.
>         If you sell someone a book she has a right to give it to whomever
>         she pleases. That's the first-sale rule. But the donee of the book

Yup. Now, consider:

   1. Party A makes a GPL'ed program available, on two CDs.  One has the
   program in binary form, and one has the source.

   2. Party B obtains these CDs, and having no interest in the source code,
   gives the source CD away, or perhaps discards it.

   3. Later, Party B no longer has a use for the program, so deletes all
   copies they have made of the binary CD, and then puts the binary CD up
   for sale.

   4. Party C buys the binary CD.

Question: who, if any, is obligated to provide source to Party C (if
Party C wants it)?

As far as I can work out, the answer is no one.  Party A is off the
hook. He distributed the source with the binary, satisfying all of his
GPL requirements.

As for Party B, he is the owner of a copy of the program, legally
obtained, and is entitled under the First Sale Doctrine to sell that
particular copy.

Because of first sale, Party B does not need the copyright owner's
permission to distribute this copy, and so the act of distributing
does not constitute acceptance of the offered license.

This may seem a contrived example, but I think it is going to become
common as GPL'ed code is used in embedded devices.  E.g., suppose
Party A is selling a generic router, or generic PVR, or something like
that, built around a Linux kernel.  What he sells is a circuit board
with a processor, and the GPL'ed code in ROM.  He delivers these
boards and code to his clients, along with a CD with the source.  The
clients put the boards in boxes, add in their application-level code,
to turn the boxes into complete routers or PVRs or whatever, and sell
the boxes to consumers.  Consumers are Party C here.

[end quoting Tim Smith]

Note that the GPLv2 does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works." It also ignores Section 117,
which gives "the owner of a copy of a computer program" the right to
"make or authorize the making of another copy OR ADAPTATION of that
computer program" if it is "an essential step in the utilization of
the computer program in conjunction with a machine".


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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