[svlug] HP's Quickplay - Where's the Source?

Rick Moen rick at linuxmafia.com
Fri Dec 31 18:26:56 PST 2004

Quoting Jeffrey Siegal (jbs at quiotix.com):

> Rick Moen wrote:
> >That is, they would then be committing the tort of copyright violation.
> >You'd be doing them a favour letting them know so they could fix that
> >situation.  However, the notion that being in that (uncomfortable)
> >situation somehow obliges the infringer to "make source code available"
> >is a common misconception:  All the injured parties can get, if they
> >sue, is court-ordered cessation of the infringing activity, and (in some
> >cases) monetary damages.
> That's not necessarily the case.  If you can successfully argue that the 
> GPL binds the infringer under contract law, then you can seek, and the 
> court may award, "specific performance," which means making them do what 
> the contract says they will do (i.e. distribute source code to those to 
> whom binary code was distributed).

1.  GPLv2 does not purport to be a contract, but rather a grant under
copyright law.  (Of course, a judge certainly could, irrespective of
that, decide whether it possessed all required elements for contract
formation, but any defects in those elements would not decide the
question of its legal force.)

2.  In any event, GPLv2 does _not_ require recipients who create and
distribute derivative works to issue source code.  It states that
failure to do so disqualifies recipient from enjoying the rights it
otherwise conveys, leaving recipient with only whatever statutory rights 
he automatically enjoys upon lawful receipt in his jurisdiction (i.e.,
per 17 U.S.C., hereabouts).  (See GPLv2 clause 5.)  Which would mean no
right to create derivative works, or to redistribute.

> There is precious little GPL case law, so whether this would ever 
> actually happen is impossible to say.

You may want to read the MySQL AB / Nusphere case's preliminary rulings
and the Netfilter Project / Sitecom injunction for some very strong
indications about how caselaw would be likely to go.  Meanwhile,
irrespective of specifically _GPL_ caselaw, I'll stake a bottle of Red
Tail Ale that you can't cite even one case in any US jurisdiction, ever,
in which a copyright infringer was ever ordered to hand over copyright
rights over his _own_ creation included in a derivative work to
plaintiff.  I can't find one; I'll bet you can't, either.

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