[License-discuss] License-discuss Digest, Vol 78, Issue 6

Wed Aug 8 21:11:22 UTC 2018

Gustavo --

There is no reason that a distributor of a product that includes software
licensed under the GPL cannot use an upstream supplier's written offer as a
part of compliance with the source availability requirement of the GPL. The
point of option c is to say that for certain non-commercial distribution,
passing along the upstream written offer is sufficient. Option b does not
preclude use of the upstream written offer: merely passing along that
written offer is not by itself sufficient; the offer actually needs to be
an effective offer--requests are actually fulfilled.

Consider a downstream distributor of a product that includes GPL-licensed
software. That distributor includes its upstream supplier's written offer.
That written offer is real; requests sent in response to that written offer
are fulfilled. That downstream distributor has not failed to comply with
the GPL merely because it did not write its own written offer and did not
not implement its own separate fulfillment process for receiving requests
and sending source code responses. This use of an upstream supplier's
effective written offer complies with the GPL. If the upstream supplier
disappears or otherwise fails to fulfill requests based on the offer, then
the downstream distributor has a problem; unlike someone qualifying under
option c, the commercial distributor is not off the hook simply because it
passed on the offer.

If what matters is the name on the offer (not whether the offer is
effective), then that would be a GPL that serves the interests of
troll-oriented "compliance enforcement", not the interests that the GPL
seeks to serve. I do not believe that that is what is intended in the GPL.

-- Scott

Scott K Peterson

Senior Commercial Counsel

Red Hat, Inc.

On Wed, Aug 8, 2018 at 11:18 AM Gustavo G. Mármol <gustavo.marmol at gmail.com>
wrote:

> Bruce, just a few comments about what you have stated:
>
> *This came up for me regarding an automobile media center containing Linux
> and other Free Software. It seemed to me that this part would eventually be
> traded by auto dismantlers, etc. My customer was a major auto part
> manufacturer with deep pockets and potentially many automobile brands
> integrating the part. I told them to fulfill the source code distribution
> responsibility for all downstream parties, and to publish contact
> information for their dealers, etc. to use if anyone asked about "source
> code", and ultimately it's on their public web site. As far as I'm aware,
> this is the default which very many manufacturers of retail items have
> settled upon".  *
>
> 1-  *"I told them to fulfill the source code distribution responsibility
> for all downstream parties, and to publish contact information for their
> dealers, etc. to use if anyone asked about "source code", and ultimately
> it's on their public website"*: My opinion is restricted to Argentina,
> which is the country where I admitted to the bar: That fact (to assume
> responsibility for third parties obligations) it does not change the
> commercial redistributor obligations under what is expressly stated in the
> license text, but certainly I do agree about what you have suggested in the
> past, in the sense that it could help to reduce and mitigate potential
> risks for compliance issues if that is agreed in the distribution agreement
> between parties (that´s to say, in written).
>
> 2. With respect to: "*and to publish contact information for their
> dealers, etc. to use if anyone asked about "source code", and ultimately
> it's on their public web site". *I also agree that it could work for some
> business scenarios but not for all. Some of the issues regarding "to have a
> list with commercial distributors in the same webpage of the manufacturer"
> when the manufacturer operates worldwide are not directly related to open
> source compliance, but most with who is "an authorized reseller to do
> business with the manufacturer". Somehow this point is very sensitive since
> many time commercial partner information publicly available in good faith
> by the manufacturer have been misused and misrepresented to do business
> with public entities (partner agreement has an express term, once expired
> should be approved a new distribution agreement. many times the agreements
> are not renewed due by non-performance or compliance issues. Having a
> commercial distributor list country by country updated (date/time) is not
> feasible in practical terms). As I said, in my experience manufacturer are
> jealous to make public available who are they authorized country´s
> resellers to distributes (except for worldwide OEM and ISV that are most
> recognizable enterprises) their products (with GPL license obligations &
> 3.), especially in countries where corruption index is no satisfactory, due
> to FCPA regulations applicable in foreign countries.
>
> El mié., 8 ago. 2018 a las 9:00, <
> license-discuss-request at lists.opensource.org> escribió:
>
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>>    1. Re: License-discuss Digest, Vol 78, Issue 4 (Bruce Perens)
>>
>>
>> ----------------------------------------------------------------------
>>
>> Message: 1
>> Date: Tue, 7 Aug 2018 22:50:26 -0700
>> From: Bruce Perens <bruce.perens at opensource.org>
>> To: license-discuss at lists.opensource.org
>> Subject: Re: [License-discuss] License-discuss Digest, Vol 78, Issue 4
>> Message-ID:
>>         <CAGaT-eB+7yw-Pxx5eL522pGZN0+Gc1aLJbAC=
>> Oo5hkQn3D4_0w at mail.gmail.com>
>> Content-Type: text/plain; charset="utf-8"
>>
>> This came up for me regarding an automobile media center containing Linux
>> and other Free Software. It seemed to me that this part would eventually
>> be
>> traded by auto dismantlers, etc. My customer was a major auto part
>> manufacturer with deep pockets and potentially many automobile brands
>> integrating the part. I told them to fulfill the source code distribution
>> responsibility for all downstream parties, and to publish contact
>> information for their dealers, etc. to use if anyone asked about "source
>> code", and ultimately it's on their public web site. As far as I'm aware,
>> this is the default which very many manufacturers of retail items have
>> settled upon.
>>
>> There are things you should consider before distributing the source code
>> with the product. Nobody keeps the box, the manual, and the included
>> software CD. These things go in landfills. If you convey the source code
>> on
>> the products own storage media, about 1 in 10,000 users is going to
>> download it before erasing it, and you've made the product that much
>> harder
>> to install for the other 9999 by adding an additional step of deleting the
>> source code. And then when some user figures out that they _do_ want the
>> source code, it's gone, and the manufacturer can say "I gave it to you
>> once" instead of providing it online.
>>
>> The burden of providing source code on a web site is not a high one. It's
>> overstating to call it "unlimited liability", even if it may be a
>> never-ending task.
>>
>>     Thanks
>>
>>     Bruce
>>
>> On Tue, Aug 7, 2018 at 3:53 PM, David Woolley <forums at david-woolley.me.uk
>> >
>> wrote:
>>
>> > On 07/08/18 21:53, Gustavo G. M?rmol wrote:
>> >
>> >> That?s to say, regardless of the quantities of commercial resellers
>> that
>> >> it could be in a "distribution binary product?s chain" the original
>> >> distributor/manufacturer would be the party that in practical terms
>> would
>> >> provide "the source code offer" to the "final licensee or end users"
>> >> (despite the fact that the original distributor/manufacturer has no
>> >> contractual relationship with the commercial redistributor?s end
>> >> user/customer) and not the commercial redistributors (authorized by the
>> >> original distributor/manufacturer to distributes their products).
>> >>
>> >
>> > The whole public licence concept is based on the idea that rights can be
>> > given without a direct contract.
>> >
>> > The final distribution step can be non-commercial, leading to an
>> unlimited
>> > liability on the last commercial distributor.
>> >
>> > As I remarked, up-thread, it is fairly clear that the intent is to
>> > strongly encourage commercial distributors to provide the source code at
>> > the same time as the binary. By doing that, they no longer have any
>> > obligation.
>> >
>> > I think the practice of making the offer at the top of distribution also
>> > applies to embedded linux systems in the UK, e.g. set top boxes.
>> Although
>> > it may technically violate the licence, I think that licensors tend to
>> take
>> > the view that it does still achieve the spirit of the licence, namely
>> that
>> > end users are assured of being able to obtain a copy.
>> >
>> >
>> >
>> > _______________________________________________
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>> > License-discuss at lists.opensource.org
>> > http://lists.opensource.org/mailman/listinfo/license-discuss
>> > _lists.opensource.org
>> >
>>
>>
>>
>> --
>> Bruce Perens K6BP - CEO, Legal Engineering
>> Standards committee chair, license committee member, co-founder, Open
>> Source Initiative
>> President, Open Research Institute
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