Yet another Broadcom 63xx manufacturer potentially violating GPL

[Malcolm Bain]

Hi all

Peter Roozemaal wrote:
> It is an interesting legal question whether "rental of a device" implies
> "distribution of software". My non-lawyerly gut feeling says that it is
> distribution, most copyright laws that I know require permission of the
> copyright holder for commercial rental of CDs, DVDs and videos. I am not
> aware of a lawsuit that decided the above question, it could make an
> interesting one, less sure of winning than the obvious GPL-infringement
> case.
>   
If one can argue that renting the device includes renting the software 
in the device, then what Neuf/Cegetel is doing would seem to fall under 
"distribution" mentioned in the GPL (though this would depend ultimately 
where the GPL is interpreted - ie what courts, what law is applied): in 
the EU, most courts would refer to their own Copyright Law, which will 
be an implementation of the EU Software Directive 1991. This includes 
rental of software explicitly as a "distribution":  "Art 4. c) any form 
of distribution to the public, including the rental, of the original 
computer program or of copies thereof." The Spanish Copyright Law for 
example, includes a literal translation of this provision. The more 
general meaning of distribution (which would be consulted if there was 
any doubt if this was a rental) includes sale, rental, lending, or any 
other form of distributing to the public.

And "renting" means "making the work available for use for a limited 
time for direct or indirect commercial benefit". (The UK has similar 
wording - the benefits of EU directives, in this case, the Rental 
Directive 1992!). I would argue this covers what Neuf/Cegetel are doing: 
(1) the software is made available for use, (2) the time is limited and 
the device including software must be returned, and (3) the fact that in 
this case it seems the box is placed at client sites "for free" should 
not avoid the "commercial gain" criteria, as the company indirectly 
gains through use of the connection services (connection charges, etc.).

[Thinking about it, though, if a computer in a rented car included GPL 
software, would the rental company have to make available copies of the 
software to clients? Seems a bit farfetched, I can't quite imagine CDs 
with the software in the glove compartment, or downloading it from 
Hertz's rental site! Is there an argument about whether the software 
would have to be an essential part of the rental or not?]

Or one could go for secondary infringement (a bit more difficult): 
dealing in a device that includes infringing software....  But is the 
software infringing until it is actually distributed without access to 
sources? (vicious circle on that one, maybe).

Malcolm (TINLA, as usual)