Possible GPL violation by Multitrode with pump station managerproduct.

[Neil Brown]

ons 2010-03-31 klockan 11:43 +0100 skrev Neil Brown:

Thanks, Henrik - you make some interesting points.

> This non-commercial requirement actually puts distributors,  
> retailers &  >stores selling equipment shipped with a written offer  
> technically on the non->compliance side as it's as far as I can tell  
> only applicable in direct sales, >but I don't see much of a point in  
> arguing about that split hair.

I think that this is an interesting point, and, like the point below,  
is one I am actually addressing in a presentation at the FSFE's  
Freedom Task Force conference in Amsterdam next week.

I would not see this as an issue of non-compliance; the requirement  
under GNU GPL 2.0 does not oblige the distributor to be the one  
fulfilling the offer, but rather merely obliged to provide the offer.  
That offer could reference a third party, from which a recipient must  
request the source code, as per the offer. I see the difference  
between (b) and (c), of section 3, as being that (b) permits a  
distributor to outsource the code distribution obligation, but remains  
liable for a failure of that third party, whereas (c) entitles the  
distributor to place reliance on the upstream distributor, and is not  
liable for a failure of that upstream distributor.

>> Under GNU GPL 2, online accessiblity is insufficient - if the  
>> distributor wishes to make use of the "written offer" approach, it  
>> would need to offer the code on a "physical medium". It could, of  
>> course, put the code in a repo., and, in all likelihood, the number  
>> of requests for source on a DVD etc. might be low, but, to be  
>> compliant, it would need to offer this.

> True, but that distinction is more of an academic issue than  
> practical >application of the license today, where online  
> distribution is both easier and >cheaper to everyone involved.

That was my view too - but I am aware, from discussions in  
anticipation of my presentation, since I address this point too, that  
our view is not universal, and, importantly, is not the view taken by  
the court in the Skype case, in Munich.

I see the distinction being one based on the time of drafting - when  
GNU GPL 2.0 was drafted, broadband uptake was far lower, and online  
distribution was available to some, but only a few. GNU GPL 3.0  
represents the reality of today, and, I would consider that it is at  
least persuasive in interpreting GNU GPL 2.0. However, the problem  
with this argument is that it inherently acknowledges that the  
drafting in GNU GPL 2.0 does not cover online distribution, and so one  
would be taking a risk placing reliance on an interpretation that it  
is fine.

My personal view is that, given the terms of GNU GPL 3.0, and the  
clarification of this point, the community should accept as valid the  
online distribution of code for binaries distributed under clause 3(b)  
of GNU GPL 2.0.

(For anyone attending the conference, my third point, subject to  
corporate approval, addresses open source software and application  
stores, and the role / liability of the application store provider,  
under the principles of "intermediary liability".)

-- 



Neil

neil at neilzone.co.uk | http://neilzone.co.uk