Subject: Re: selling GPL sources
From: Ben Tilly <btilly@gmail.com>
Date: Tue, 20 Sep 2005 15:47:10 -0700

 Tue, 20 Sep 2005 15:47:10 -0700
On 9/20/05, Rick Moen <rick@linuxmafia.com> wrote:
> Quoting Smith, McCoy (mccoy.smith@intel.com):
[...]
>   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".

Question.  Suppose that you are supposed to publically provide source
and I wish to receive it.  If I am unable to accept it in the form
that you wish to distribute it, to what extent do you need to bend to
accomodate my needs?

For instance suppose that I live in Kenya, and do not have reliable
phone service, let alone internet, and I wish to receive the source
code to Linux.  Do you have to be ready to mail a CD to me?  I believe
that the FSF's intent is that you do.  I don't know what a judge would
say.

For a more arbitrary instance, suppose that you make code publically
available by putting them up on a proprietary network.  Can you then
claim, "Anyone can get access to the code, they just have to register
for the proprietary network!"  Is that allowed?  I'd hope not, and
would hope that a judge would agree.  But then what is the difference
between said proprietary network and the Internet?

FWIW I suspect that that item was written in a time when access to the
Internet in the USA was far from universal.  So the situation in some
ways resembled more closely the Kenyan example than the current USA.

> 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.)

No, but my understanding is that judges are likely to be swayed by
their understanding of how people historically understood the license.
 I've heard that this is part of why the FSF wrote their FAQ, to help
ensure that the GPL would be interpreted as they want it interpreted.

> 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.)

I'll bet that Richard *intended* the requirement to be physical media,
so if you remind him, he'd be likely to make that fix.

I wonder what he'd think about my proposal of a stack of CDs, each CD
containing 5 more bytes of code. :-)

Cheers,
Ben