Re: "GPL requirement could have a chilling effect on derivative distros"

[Tim Smith]

In article <85bqscano5.fsf@lola.goethe.zz>, David Kastrup wrote:
> What happened to "under the terms of this license"?  Well, it is nothing
> we really need to worry about too much, agreed, since those terms include
> 
>   5. You are not required to accept this License, since you have not
>   signed it.
> 
>> Without sources,
> 
> Uh, no.  You can't change the stuff and distribute it in changed form.
> You received it with source (and license), and if you want to insist on
> just copyright exhaustion, you have to pass it on in this state.

The case that is interesting is this:

    1. Party A makes a GPL'ed program available, on two CDs.  One has the
    program in binary form, and one has the source.

    2. Party B obtains these CDs, and having no interest in the source code,
    gives the source CD away, or perhaps discards it.

    3. Later, Party B no longer has a use for the program, so deletes all
    copies they have made of the binary CD, and then puts the binary CD up
    for sale.

    4. Party C buys the binary CD.

Question: who, if any, is obligated to provide source to Party C (if Party C
wants it)?

As far as I can work out, the answer is no one.  Party A is off the hook.
He distributed the source with the binary, satisfying all of his GPL
requirements.

As for Party B, he is the owner of a copy of the program, legally obtained,
and is entitled under the First Sale Doctrine to sell that particular copy.  

If B were selling a *modified* copy, or if B were making new copies and
selling them, it would be different, but that's not the case here.

This may seem a contrived example, but I think it is going to become common
as GPL'ed code is used in embedded devices.  E.g., suppose Party A is
selling a generic router, or generic PVR, or something like that, built
around a Linux kernel.  What he sells is a circuit board with a processor,
and the GPL'ed code in ROM.  He delivers these boards and code to his
clients, along with a CD with the source.  The clients put the boards in
boxes, add in their application-level code, to turn the boxes into complete
routers or PVRs or whatever, and sell the boxes to consumers.  Consumers are
Party C here.

The same thing arises when consumers resell the boxes.  You buy a router or
PVR off of someone on eBay, and the seller is not going to be obligated to
come up with source code for you to the GPL'ed code inside the box.  Only if
the last vendor to actually modify or copy the code happened to use the GPL
option that requires providing the source to anyone who asks will you have
someone who is obligated to give you source.

-- 
--Tim Smith