Re: OFF TOPIC about GPL enforcement (Was: Re: [tdf-discuss] Re: [Libreoffice] Proposal to join Apache OpenOffice)

DISCLAIMER: IANAL. Consult one for real legal advice if you need it.

----- Original Message ----

> From: plino <pedlino@gmail.com>
> BRM wrote:
> > Directly from the FSF, authors of the GPL. You  must have a copy of the
> > written 
> > offer in order to be entitled  to receipt of the source.
>
> It's amazing how you distort arguments  to keep your own perspective.
>
> What the GPL says is that whoever gives you  a copy of the program is also
> obliged to give you the written offer.
> They  can not be separated.
>
> "your friend must give you a copy of the offer  along with a copy of the
> binary"
>
> I don't understand how you can quote  something that says the opposite of
> what you are trying to  prove!

Here's the mythical situation:

Group A makes a product - B - that is under the GPL.
Group C takes that product and makes product 'D' - also under the GPL - but only 
releases it to their customers for a fee. (Perfectly valid!)
Group C provides the written notice to said customers; but does not make it 
publically available to non-customers. (Perfectly valid!)
Customer E provides a copy with written notice to Party F.
Party F may ask Group C for the code, showing the written notice he received 
from Customer E which matches what Group C provided to Customer E.

The above is what the FSF states - in what I referenced - is required.

Now, suppose there is another party in the mythical situation:

Customer E also provide a copy _without_ written notice to Party G.

Customer E violated the GPL by not providing the written notice to Party G; 
however, as a result Party G has no recourse against Group C.
Their recourse is first against Customer E for not providing the written notice; 
at which point they can then approach Group C just like Party F did.

However in both cases, if a Party H who has not received any distribution from 
Group C either directly (e.g. Customer E) or indirectly (e.g. Party F and Party 
G) decides they want a copy of the source for product "D" produced by Group C 
then the GPL has not taken effect - there was no distribution involved with 
respect to Party H, and Group C owes nothing to Party H. Remember, GPL only 
takes affect at point of Distribution.

That does not mean that Group C may not be honorable and provide the source for 
product 'D' to Party H any way, but there is no requirement in the GPL to do so.

BTW - the FSF also addresses the issue of if Party H obtained a distribution 
illegally, and states that Party H in such case may have to wait until they exit 
prison to be able to then be act on the distribution clause. 
(http://www.gnu.org/licenses/gpl-faq.html#StolenCopy)

I am not twisting anything, and I could have referenced several other FAQ 
entries on the FSF website as well - just chose the one most relevant - one 
explicitly stating the from the FSF's perspective that the party asking for the 
source must also have the written notice. It may not be a popular view - in that 
you all may not like it. That does not necessarily mean that it is therefore 
incorrect - it is quite correct with regards to reading the GPL, and the various 
information the FSF has published on it.

So just b/c a company does not provide the source to everyone under the sun does 
not mean they are in violation of the GPL.

Note that the above situation also matches this FAQ entry:

http://www.gnu.org/licenses/gpl-faq.html#WhatDoesWrittenOfferValid

The _written offer_ must be provided and valid for any third party who has 
received the distribution. If you haven't received the distribution directly or 
indirectly then it is not valid for you as no distribution was involved.

Indeed, you can also look at 
http://www.gnu.org/licenses/gpl-faq.html#ModifiedJustBinary - it only has to be 
available to the users.

Please, if you are going to try to refute this at least quote from the FSF, 
Lessig, or SFLC to do so - they (and not 'gpl-violations.org' )are the authors 
of the GPL.

That doesn't mean that 'gpl-violations.org' is not providing a useful service, 
or don't necessarily have a very good understanding of the license. But they are 
primarily acting on behalf of people that do have that written offer, or are 
helping to enforce that people receive that written offer when one was not made. 
If a company is in compliance - even if it is not a way that you necessarily 
like - then there is nothing gpl-violations.org can do - they are in compliance. 
As it is you haven't even quoted anything from them to refute what I have said - 
and there is nothing on their website about it either. Still, they are less 
authoritative on the matter than FSF, Lessig, and SFLC - from which I _have_ 
quoted, and extensively at that. Sorry to burst your bubble.

> From: Simos Xenitellis <simos.lists@googlemail.com>
> So, what you are  telling me is that if a manufacturer is already violating the 
> GPL,
> then a  third party cannot ask for the source code?
> Is this a claim that the GPL is  not enforceable?

If they are violating by not providing the written offers with their 
distribution, then yes someone can make them provide said written offers to the 
people that they are suppose to be providing it to - e.g. their customers - 
which then brings them into compliance so long as they comply with the written 
offers when acted upon by said customers or another party whom said customers 
have distributed the GPL'd work to - e.g. by providing the manufactured item, or 
party thereof that contains the GPL'd work.
 
> If a product is violating the GPL, then you can  ask http://gpl-violations.org/ 
> for assistance
> so that the manufacturer  makes available the source code as required, for the 
> full range of  products.

Again, they only have to with respect to the written offer. And that written 
offer must be valid for any third party who has a copy of the written offer and 
been distributed to. That does not necessarily mean the community, or the public 
at large.
 
> For my TV, I click on
> a. Yellow button (documentation)
> b.  (It's already on the Get started menu)
> c. Select "Open source  Licenses".
> That's it.

It is your TV; therefore if they did not provide you a written offer or make the 
source available to you in some respect then they are in violation.
If they did, then they are in compliance and you need only get the source in the 
manner they provided it - which may require you to present the written offer or 
show evidence of the TV being in your possession to them.
I, however, not being their customer or having said TV have no standing to ask 
for the source for said TV model.

By your actions, you have requested gpl-violations.org to render aid to you to 
help resolve the issue. They are therefore acting on your behalf; and you may 
therefore have to provide information to them for them to be able to force the 
company to comply as they may not otherwise necessarily have standing to do so.

Again - DISCLAIMER: IANAL. Consult one for real legal advice if you need it.

Ben


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