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Re: Do I have claim to the source-code?

From: Tim Smith
Subject: Re: Do I have claim to the source-code?
Date: Tue, 02 Jan 2007 19:41:43 -0800
User-agent: MT-NewsWatcher/3.5.1 (Intel Mac OS X)

In article <slrneplkjd.1n3d.merijn+nospam@athome.nowhere>,
 Merijn de Weerd <> wrote:
> On 2007-01-02, John Hasler <> wrote:
> > Merijn writes:
> >> But copyright-wise, rental is just another act of distribution.
> >
> > See
> ><
> >html>
> > particularly (b)(1)(B)(i) and (d). 
> Not sure how that's relevant. This gives people the right to
> dispose of certain physical copies they lawfully acquire ("first
> sale"). There are limitations on this right for computer programs
> and it doesn't give you the right to rent out the lawfully
> acquired copy. 
> What I'm saying is that you can't rent someone a piece 
> of software without a valid license. It's one of the exclusive
> rights of 17 USC 106, item (3) to be precise. So if
> Telefonica rents me a box with GPL software in it, they better
> comply with the GPL and give or offer me the source.

You are overlooking a possibility.  Company X manufactures the box, and 
installs the GPL software on it.  Company X sells that box, containing 
the GPL software, to Telefonica.  Company X also provides source code to 
Telefonica, thus satisfying X's GPL requirements.

Telefonica takes that box, adds their software, and distributes it to 
you.  If they have not modified the software, and not copied it, but are 
merely passing on that copy they received from Company X to you, they 
are covered under first sale (or would be in the US, at least...anyone 
know how first sale works in the actual country under discussion?).  
This act of distribution does NOT require permission of the copyright 
holder, and so Telefonica is under no GPL obligation to you.  Neither is 
Company X, as they were only obligated to Telefonica.

I think we are going to see this situation a lot with embedded devices, 
like PVRs, cell phones, PDAs, routers, etc..  It is in the device 
maker's interests to buy generic embedded software systems from 
companies like Company X, and then run their code as applications on 
them, and that's a perfect set up to hit this situation where first sale 
lets there exist a legitimate GPL binary that is in the wild without 
anyone being obligated to provide source to the user.

We'll also see a similar situation with used devices.  Company Y makes a 
PDA, for example, and they have modified or copied the GPL code.  
Suppose Company Y decides to satisfy GPL by including in the box a 
CD-ROM with the source code.  Person Z buys that PDA.  A year or two 
later, Z gets a new PDA, and puts the old one up for sale on eBay.  He's 
long since lost that source CD-ROM.  That's OK, as first sale protects 
him.  But now if you buy that used PDA, you will have GPL binary code, 
and there will be no one obligated to provide you with source.

--Tim Smith

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