[copyleft-next] HBR cure 2013-02-18

Kuno Woudt kuno at frob.nl
Mon Feb 18 18:31:47 UTC 2013


Hello,

On 02/18/2013 06:36 PM, Richard Fontana wrote:
> That said, on to the HBR cure: I had a conversation with Bradley Kuhn
> in which we very briefly discussed this issue, as Bradley was long
> under the impression that the GPL could not *possibly* support an
> argument that mere licensees have some standing to enforce the source
> code requirement (despite the fact, of which Bradley might not be
> aware, that over the years some legal academics have at last taken the
> question seriously, if skeptically, and some private practice lawyers
> [admittedly seeking to profit from the erstwhile open source boom, the
> SCO crisis, etc.] purported to take this qite seriously too).
>
> I noted the obvious point that copyleft-next and GPLv2/GPLv3 are not
> worded identically, so his comment was partially irrelevant.
>
> Bradley mentioned some interesting work that Australian lawyer Brendan
> Scott had done attempting, AIUI, to use Australian consumer protection
> law to give a basis for GPL licensees to sue upstream distributors for
> failure to provide source code. It is not clear whether such efforts
> have been successful.

Under dutch law a mere licensee should be able to enforce the GPL. 
Dutch IT lawyer Arnoud Engelfriet blogged [1] about this last year.

I will give a quick English summary of the relevant bits of that blog post:

Dutch contract law has a "third-party beneficiary" concept.  An example 
of where this can be used is when you purchase something from an online 
retailer.  The retailer has a contract with a courier service to deliver 
the package, as a buyer you do not have a contract with the courier 
service.  However you are a beneficiary of the contract between the 
retailer and the courier, you can sue the courier and demand that the 
courier honors the contract it has with the retailer (on penalty of a 
"dwangsom" -- a conditional fine).

This should also work for copyleft licenses.  If you purchase a device 
with e.g. the Linux kernel in it, and the manufacturer does not give you 
the source code when you ask for it, you can sue the manufacturer of the 
device and demand that it honors the contract (GPLv2) the manufacturer 
has with the Linux kernel developers.

-- kuno / warp.

[1] 
http://blog.iusmentis.com/2012/03/16/kun-je-als-koper-van-een-tomtec-tablet-ze-dwingen-de-linuxbroncode-vrij-te-geven/


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