Thursday, June 3, 2010

Some Odd Ideas About How GPL Licensing Works

There's been a lot of discussion of the FSF enforcement action here, on Twitter and and elsewhere. It's been suggested to me that, since the "GPL is a 'distribution license'" and since Apple "distributed" copies of GNUgo, Apple must therefore "comply" with the GPL. I'm afraid this is sheer fantasy. Here's my reasoning:

1. Yes, the GPL is, indeed, a "distribution" license, i.e. certain obligations in the license are "triggered" by the act of "distributing" a "binary".

2. Distributing a binary and failing to meet those obligations, indeed, constitutes an infringement of the author's copyright on the code: the copyright grant in the GPL is contingent on meeting the GPL's obligations.

3. A "distributor" of a GPL-licensed binary thus has two options: meet the obligations, or be in infringement. "Meeting the obligations" and "complying with the GPL" are non-contractual choices that this "distributor" gets to make, of his own free will. He can, alternatively, choose to infringe, again of his own free will.

4. Apple cannot be held to be in infringement, thanks to the "safe harbor" provided by the DMCA, so long as they meet the obligations of that act, as indeed they have done in the past, and presumably continue to do.

5. Ergo, whether the FSF imagines that Apple is a "distributor" of GPL-licensed "binaries" means nothing whatsoever: the DMCA says they can't be held liable for infringement as long as they observe the requirements of the Act. The most that the FSF can legitimately say is that Robota Softwarehouse evidently placed what seems to be an infringing copy of the GNUgo program in Apple's store.

6. The remedy for such an infringement would have been for the FSF to provide Apple with a DMCA infringement notification, to which Applewould have responded by removing the application, presuming that Robota Softwarehouse didn't provide a DMCA counter-notification stating that they believe the FSF is mistaken and that they're willing to settle the matter in court.

7. If Robota did file a counter-notification, the FSF would have no recourse but to sue Robota Softwarehouse if they wished to get the situation redressed. They couldn't sue Apple, even though the program was still up on the App Store, still getting "distributed", still merrily infringing the GPL: the DMCA says they couldn't. And they couldn 't even force Apple to take it down, not without a court order coming out of their winning their case against Robota.

At no point in any of this does the GPL license on the code actually matter in the slightest to Apple.

That's my understanding of things. Does that gibe with other people's?
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