Subject: Re: selling GPL sources
From: Ben Tilly <btilly@gmail.com>
Date: Tue, 20 Sep 2005 00:07:02 -0700

 Tue, 20 Sep 2005 00:07:02 -0700
On 9/19/05, Mahesh T. Pai <paivakil@yahoo.co.in> wrote:
> Rick Moen said on Mon, Sep 19, 2005 at 04:57:17PM -0700,:
> 
>  > So, he'll have to sue himself for copyright infringement?
> 
> No,  the  user  can sue  the  copyright  holder  for violation  of  an
> undertaking!!!
> 
> The undertaking here being the unilateral undertaking by the copyright
> holder to provide source code at no more than cost of distributing the
>  source .

Who did the the copyright holder promise that to?  If not you, then
you have no right to legally complain (ie sue).  In fact he may not
have promised anyone that - putting code out under GPL is an offer to
others, not an indication that you have accepted its restrictions for
yourself.

But let's go to the most complex case of 4 people, Adam wrote GPLed
code that Billy used.  Billy distributes the executable to Charlie,
but doesn't distribute source code or give Charlie the offer.  David
reads the GPL and realizes that Billy is now obligated to give him
source, asks for the source, and Billy doesn't give it.  Here is my
understanding as a non-lawyer who has read what a bunch of lawyers
have written on the topic.  (This is not legal advice, yada yada
yada.)

Since Billy never promised David source code, and is under no
obligation to David, David has no standing to sue Billy.  But Adam can
sue Billy because Billy violated Adam's copyrights.  But if Billy and
Adam come to terms over this violation, then Billy is now in the
clear, whether or not David ever managed to receive a copy of the
source code from Billy.

This understanding does not change if a single person fills multiple
of these 4 roles.  For instance if Adam and Billy are the same person,
and so are Charlie and David.

> A copyright  holder who is not  providing source code  but claims that
> the binaries  are under  the GPL is,  IMHO, violating his  own promise
> made in the GPL.
[...]

My opinion differs.  He can grant himself any copyright permissions
that he wants.  He has the OPTION of following the GPL terms, but no
requirement to do so.  And nobody else is in a position to prove
whether he decided the GPL applied to himself.

Of course it isn't your opinion or my opinion that matters - it is the
judge's (informed) opinion.  I am not a lawyer and can't give legal
advice about what that opinion will be.  But everything that I've
heard lawyers say about this topic is in accord with my expectation
that only copyright holders can sue for a GPL violation.  If the
copyright holders are satisfied, then that's the end of the story.

(Obviously there may be US specific interpretations in that.  But I
notice that your email address suggests that you're from India, and
I'd expect that common law works similarly there to how it does in 49
of the US states.)

Cheers,
Ben