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

Jeffrey Siegal jbs at quiotix.com
Fri Dec 31 18:38:27 PST 2004

Rick Moen wrote:
> 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.

GPL Section 5 basically says that by merely receiving the code licensed 
under the GPL, you do not need to accept the terms of the GPL.

But by going farther and redistributing, the argument for contract 
formation would be:

1. Licensee was aware of that the rights were offered contingent on 
licensee's performance under section 3 of GPL ("Accompany it with the 
complete corresponding machine-readable source code," etc.).  This 
constitutes an "offer"

2. Licensee made use of the rights.  This constitutes "acceptance".

> 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.

License clauses that require the licensee to return modifications back 
to the licensor (as opposed to a third party as with the GPL) are very 
common in commercial software licenses.  I would be surprised if there 
is not at least one case where the licensee was compelled to comply. 
But I don't have the interest in looking for it right now.

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