Comment by schmuckonwheels
19 hours ago
> But then, the company has already, unquestionably, violated the GPL, and the company can be sued immediately.
You were right up to this point. Medical devices requiring a prescription must be obtained via specialized suppliers, like a pharmacy for hardware. These appliances are not sold directly to end users because they can be dangerous if misused. This includes even CPAP machines.
In theory, that written offer only needs to go to the device suppliers. Who almost universally have no interest in source code. When the device is transferred or resold to you, it need not be accompanied by the offer of source.
If that was true, anyone reselling an Android phone could open themselves up to legal liability. Imagine your average eBayer forgetting to include an Open Source Software Notice along with some fingerprint-encrusted phone.
> If that was true, anyone reselling an Android phone could open themselves up to legal liability.
That’s only an appeal to ridicule. If those are valid, here’s an opposing one:
If this is not true, then any company can violate the GPL all it likes just by funneling all its products through a second company, like a reseller.
Here's an appeal to the law, the doctrine of copyright exhaustion (also known as the first sale doctrine) dictates that copyright is exhausted upon the first sale of the device (i.e. to the distributor) and they have no rights to control or prevent further sales.
That the GPL potentially fails to achieve what it intends to is neither a legal argument, nor particularly surprising.
Wouldn't that imply that end-user license agreements are all unenforceable because the software was sold through a retailer, and even if it wasn't you could just a get a secondhand copy?
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Distribution agreement is generally different from a sale. Distributors act as agents of the manufacturer. It’s not yet counted as a sale. Most warranties are limited to first owner and do not transfer. How do you think this squares with that? Does it mean I don’t get warranty on the dishwasher I got from Costco? It’s also the same principle of a distributor acting as an agent that enables the manufacturer to have a contract with you.
> first sale doctrine) dictates that copyright is exhausted upon the first sale of the device (i.e. to the distributor).
The copyright doesn’t go away when copies are sold to a distributor. Someone (probably the manufacturer) still has legal obligations to the copyright holder.
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> When the device is transferred or resold to you, it need not be accompanied by the offer of source.
This is false. The person transferring the device must either pass along the offer they received (GPLv2 clause 3(c), and only if performing non-commercial redistribution), or pass along the source code (GPLv2 clause 3(a)).
By my understanding under US law first sale doctrine means that 3 (both (a) and (c)) doesn't apply, copyright has been exhausted and the intermediate party here doesn't need a license at all to sell the device on. Even if you want to argue the GPL is a contract and not just a license the intermediate owner has never been required to become a party to it. Even if for some reason they agreed to the contract - and somehow it was a binding contract despite the complete lack of consideration - it seems unlikely that the courts would interpret 3 to apply because reselling a device isn't "distributing" within the meaning of copyright law because of first sale doctrine.
My Android phone does come with an explicit written offer of source. It's in Settings>About>Legal.
> In theory, that written offer only needs to go to the device suppliers.
The GPL clearly specifies recipients, it doesn’t say anything about suppliers.