Subject: Re: selling GPL sources
From: Rick Moen <rick@linuxmafia.com>
Date: Tue, 20 Sep 2005 10:54:59 -0700

Quoting Ben Tilly (btilly@gmail.com):
> On 9/19/05, Mahesh T. Pai <paivakil@yahoo.co.in> wrote:
> 
> > 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).

I realise there's some irony in an amateur pseudo-lawyer (me) being
critical of analysis from other amateur pseudo-lawyers -- but the above
sentence relies on the vague casual term "promise", which should not be
confused with the legal term "contract".

_Regardless_ of whom a "promise" was made to, that itself doesn't
suffice to establish an offer and acceptance, supported by
consideration, etc.  Thus my point to Mr. Mahesh T. Pai (Mr. "violation
of an undertaking") and others.

> 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.

Quite so.

> 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.

This hypothetical _differs fundamentally_ from the case Guilherme
raised.  Billy is reusing third-party code under licence.  The person in
Guilherm's scenario was not.  I just note the fact in passing.

> 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.)

My understanding of the unauthorised practice of law statutes is that
analysing hypothetical legal situations does _not_ constitute practice
of law.  Otherwise, laymen would not be able to discuss legal matters at
all.  You thus wouldn't need to worry unless Billy and David are real
persons in that situation, and you're helping them with their respective
specific problems.

> 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.

That is correct.  (Of course, separately, David and Billy might have
business relationships such that contract or promissory estoppel might
possibly apply, but that is not part of your hypothetical.)

-- 
Cheers,                       Ah, September, when the sysadmins turn colors
Rick Moen                     and fall off the trees....
rick@linuxmafia.com                                     -- Dave Van Domelen