Litigation forcing companies to share modified code

[Andrew Katz]

Neil - I concur entirely.

Eben Moglen explains that part of the rationale for the almost totally impenetrable patent wording in paragraph 5 of section 11 of GPL3 is that the FSF explicitly wanted to retain the ability for people to distribute GPL code privately.

Best wishes


Andrew

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-----Original Message-----
From: Neil Brown [mailto:neil at neilzone.co.uk] 
Sent: 20 July 2010 08:36
To: Bridget Devoy
Cc: legal at lists.gpl-violations.org
Subject: Re: Litigation forcing companies to share modified code


Quoting Bridget Devoy <bdevoy at gmail.com>:

Morning, Bridget

> I've read the GNU GPL to require a company who shares modified code with at
> least one other entity to share that modified code with all other entities
> that ask for it.  Is this correct?

There are some nuances here, but, generally speaking, no, it is not  
correct. (My thoughts based on GNU GPL 2.0, but should be very similar  
under GNU GPL 3.0.)

Let's take a couple of scenarios:

1.) Company A provides Company B with some binaries, based on modified  
GNU GPL 2.0 code.

   a.) Company A accompanies the distribution with the complete  
corresponding machine-readable source code, in line with clause 3(a)  
GNU GPL 2.0. In this situation, Company A is required to provide  
neither the binary, nor the source, to anyone else.

   b.) Company A accompanies the distribution with a written offer, in  
line with clause 3(b) GNU GPL 2.0. In this situation, Company A is  
required to make the source code available to "any third party" - in  
other words, any requestor, whether or not the requestor has obtained  
the binaries from Company A or not. However, Company A is not required  
to make the binaries available - but, having the source available, a  
third party should be able to compile the binary itself.

2.) Company A provides Company B with the modified source version of  
the GNU GPL 2.0 code.

   a.) Company A must satisfy the requirements of clauses 1 and 2, GNU  
GPL 2.0 in making this distribution. Of particular note here, clause  
2(b) provides that "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." However, this  
relates to licensing, and not distribution - Company A is not allowed  
to license the work on a selective or restrictive basis, but, there is  
no requirement for Company A to distribute its source code further. As  
such, a recipient of the code from Company A may distribute it further  
under the terms of GNU GPL 2.0, should it choose to do so, but, again,  
is not required to do so.


> I've been trying to compile a history
> of litigation where this term (or a similar term in other OSSLs) was invoked
> and an entity was forced to turn over its modified code.  Does anyone know
> of any cases or news stories involving such a scenario?  Thanks.

There is a great deal of debate on the subject, but, on the basis that  
GNU GPL 2.0 is a copyright licence, and not a contract, this means (to  
my way of thinking, at least) that one cannot be "forced", to release  
the source of modified code, if one chooses not to do so.

If Company A modifies covered code, and redistributes those  
modifications, then, by virtue of copyright law (which, whilst  
harmonised / given a minimum level in many countries, via the Berne  
Convention and TRIPS, is not the same everywhere in the world), one  
requires a licence, or else infringes the monopoly rights of the  
owners of copyright in the covered code. If the licence is conditional  
on release of source code, then, failure to make the source code  
available is likely to leave Company A without a licence, and thus  
(absent some form of fair dealing / fair use-like exemption)  
infringing copyright.

In the case of breach of contract, one might be able to argue that one  
should be put in a position as if the breach had not occured, with the  
release of the source code being the appropriate remedy, but, I would  
consider this far harder under the laws of copyright. One can sue for  
the loss, and seek damages, but, unless able to persuade a court for  
an injunction of specific performance, I would not see source code  
release being a likely remedy. (I am not convinced of the likelihood  
of success of such a claim for injunctive relief, although would be  
pleased to see the outcomes of your research, should this demonstrate  
otherwise!)

Practically, a company may be "forced" to release the source code,  
though, if it wishes to avoid an action for copyright infringement /  
pay damages - if a company is distributing a product in a manner which  
infringes copyright, and wishes to continue to distribute the product,  
releasing the source code might be the simplest, and most efficient,  
way to comply. I may be wrong - and, as always, happy to be  
enlightened - but this is my reading of the SFLC / Cisco settlement,  
by which Cisco is distributing the source code for its routers - it  
was simply cheaper and more efficient to do this than the alternatives.


-- 



Neil

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