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Re: Artifex v. Diebold: "The GPL is non-commercial!"

From: Hyman Rosen
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Fri, 05 Dec 2008 09:40:36 -0500
User-agent: Thunderbird (Windows/20081105)

amicus_curious wrote:
Well, that doesn't seem consistent. If Actiontec, say, distributes the software in its product, it has to give the source to its customer. But if that customer further distributes it, he has to do the same for his customers. And so on. But Verizon didn't have to do that it seems. How is their distribution of it different than Actiontecs other than Actiontec being one level upstream?

It's hard to say without having the details of the arrangement
between Verizon and Actiontec. First of all, once a customer gets
a copy of the product, he may pass on that copy to another party
without the GPL coming in to play, because of the doctrine of
first sale - you don't need permission from a copyright holder to
sell a legal copy that you have. So if Verizon buys a bunch of
routers with installed software from Actiontec, and then sells them
to its customers, Actiontec has a GPL obligation to Verizon but
Verizon has none. Second, it's not clear how Verizon supplies
firmware upgrades to the routers. The link on their website that
gets the upgrade suggestively has "actiontec gateway" in its URL,
which might mean that Verizon is just relaying it from Actiontec.

This is the sort of complexity that's best dealt with using the
legal discovery process, where all the details can be determined
with accuracy. Looking from the outside all we can do is guess.
But as I've posted here before, you can find dated evidence on the
web that well before the suit against Verizon was filed, Actiontec
was shipping routers without offering the GPLed sources, and that
after the suit was over, they were offering the sources. That seems
to have satisfied the copyright holders, and we in the peanut gallery
have no standing to say that it's insufficient.

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