Subject: Re: selling GPL sources
From: Rick Moen <rick@linuxmafia.com>
Date: Tue, 20 Sep 2005 11:53:00 -0700

Quoting Smith, McCoy (mccoy.smith@intel.com):

> For what it's worth, the FSF has opined somewhat on this point:
> http://www.fsf.org/licensing/licenses/gpl-faq.html#DoesTheGPLAllowDownlo
> adFee

Yes, but that's, once again, not addressing Guilherme's scenario, but 
rather Ben Tilly's (regarding "Billy"):  Implicit in FSF's FAQ item is the
assumption that the distributor has gained access to the work (in whole
or in part) under a licence grant.  Guilherme's "author" (who has turned
out, it seems, to be himself) owns copyright on the codebase in his own
name, unencumbered by third-party rights, and therefore is not obliged
(by anything that had been cited) to consent to any particular legal
obligations towards others.


Entirely separately, but since you mention it, I have longstanding
problems with at least one particular (different) item in the GPL FAQ,
http://www.fsf.org/licensing/licenses/gpl-faq.html#DistributeWithSourceOnInternet
:

  Q: I want to distribute binaries without accompanying sources. Can I
  provide source code by FTP instead of by mail order?

  A: You're supposed to provide the source code by mail-order on a
  physical medium, if someone orders it. You are welcome to offer people
  a way to copy the corresponding source code by FTP, in addition to the
  mail-order option, but FTP access to the source is not sufficient to
  satisfy section 3 of the GPL. 

This is inaccurate, and the maintainers, at minimum, should be expected
to know better:  GPLv2 clause 3b says nothing whatsoever about a
"physical medium".

One might speculate that the quoted text is how FSF would like people 
to interpret the licence's wording -- i.e., making the quoted text, in
that case, deliberately polemical rather than just an error -- but
what would likely prevail in court would be the licence's _actual
wording_ as an embodiment of the licensor's intent.  (Note that FSF is
not, in the general case, the licensor.  Their interpretation of the
moment, albeit certainly worth listening to and considering, is hardly
disposative on the legal question.)

Disclosure:  I have brought that very matter to FSF's attention during
my involvement in discussions of a business's licensing matters in 2000,
long before FSF's posting of the GPL FAQ onto its site.  At the time,
Richard stated that I was "niggling" in my objection to his assertion 
that physical media are required, but he did not dispute the point of
law.  He suggested that the matter was likely to be addressed in a
future version of the licence.  (I am unfortunately obliged to
paraphrase, and may be doing so loosely.  I am not at present speaking
for any business, and should be assumed to speak only for myself.)

-- 
Cheers,                    I've been suffering death by PowerPoint, recently.
Rick Moen                                                     -- Huw Davies
rick@linuxmafia.com