GPL violation (GCC-compiler suite)

[Malcolm Bain]

Hi all

Sorry, another long email here, but then, Heiko is asking for it! :)

Armijn Hemel wrote:
> hi Heiko,
> 
>>From http://gpl-violations.org/news.html, I thought that gpl-violations.org 
>>took the initative in quite a lot of cases. 
> 
> Only in cases where Harald's own copyright was breached. The fact that there
> are a lot of cases on the newspage only demonstrates how poorly vendors
> actually understand the GPL.

This doesn't stop the list talking about the issues and strategy and giving a
bit of advice - but contributions are voluntary, as far as I know... :)
> 
>>So: can you help me to 
>>1) analyze the case I want to see examined. 

You haven't stated what you want, except to say they are in breach. What are you
actually wanting?
-- them to put the copyright notices and GPL back on the distro? (a matter for
the copyright holder, as has been suggested)
-- access to source code? (this you can probably start making more noise about
directly - though you would need to have local german law advice on that one -
and advice from someone in the country where the supplier is). Technically
speaking you need to be the copyright holder to sue the company for breach of
the GPL. See below for an alternative.

>>One more question: is it possible to state the name of the company and the URL 
>>for downloading the software here? Or might that get me into legal trouble? 
> 
I don't know what the legal situation is in Germany, but so long as you can
support your statements (ie. they are factual and not defamatory), their should
be no risk in naming them in a list like this. The fact that a statement is true
is usually a defense against any claim for defamation (otherwise, no one here
could name any company in breach of the GPL, which would make things difficult).

> Well, in case they *are* compliant it might. The only way you can be sure
> is making a purchase and see whether or not they follow option 3a or 3b
> from the GPL. Based on what you're saying I'd say it is not much of a
> problem though, but it is always good to be careful, even when you're
> right.
> 
I don't think you need to purchase the software to ask for a copy of the source
code to check if they are compliant - if (1) the software is modified GPL and
(2) you know someone else who has been distributed the software and doesn't have
the source, then you can ask the company for the source. (And it seems from your
email that they are distributing the software via web, anyway.) If they are
distributing the binary only, then GPL cl. 3 applies, obliging them to give or
offer the source code under terms of section 1 and 2.... and GPL cl 2b says (as
we all know !) "you must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any part thereof, to
be licensed as a whole at no charge to all third parties under the terms of this
License." So, no payment, and software under GPL.

Regardless of absence the copyright statements, etc, they will be in breach of
this clause if they don't send the source to you (they may be able to charge a
distribution fee).

And their response to your request would at least give some indication of what
the company is up to.

WARNING: Legal bit coming here! (but TINLA)

But if you buy the software, as Armijn says, then you have a contract with them
and you could sue them for breach of that contract. (You may actually have a
license contract with them even if you don't buy the code... they have to
license the code to you somehow...)

The argument goes as follows: if the software is GPL modified, and they don't
provide the source, then they are in breach of the original GPL license, which
means they no longer have the right to distribute the software, which means they
are in breach of a warranty in your purchase contract (a warranty that they have
the right to distribute the software). See my email to 09/09 on this list.

It's a bit of a tricky argument though, and I am not sure what award the court
would give you (usually only damages (your money back) - you wouldn't
necessarily get the source code or copyright notices on the code). But lots of
bad publicity for the company in question, so it is better used as a means of
persuasion than actually taking them to court!

Again, as I said, you need local law advice as the strength of this argument.
Under Spanish law and UK law, the company cannot exclude the warranty by
contract and I'd be delighted to take up the matter ;-).

(It would be great to see this kind of claim upheld by a court, it would give
substantial support to enable users to sue for breach of GPL, not just copyright
holders!).

cheers
Malcolm Bain