Without inserting myself into an internet argument, I’d like to address some basic misunderstandings of the GPL at the root of Lefty’s recent post about Microsoft and my colleague Bradley Kuhn. On his blog, Lefty chides Bradley for referring to Microsoft as violators of the GPL. He makes two basic mistakes about GPLv2, and since this isn’t the first time I’ve heard such views, I’m going to address them each here. I’m not going to take a position on whether Microsoft violated, and I’m not going to insult anybody, so hopefully this post will be taken in the spirit in which it is offered.
In Lefty’s view of GPLv2, distributing GPL-licensed code without source and without a written offer for source is not a violation until a distributee asks for source and is denied. This view is faulty. The license describes conditions under which distributing is permitted. As soon as distribution occurs in the absence of satisfaction of those conditions, the license (and underlying copyright) is violated. In other words, violation occurs at the moment of unauthorized distribution. It is true that violators are often given time to come into compliance with the license before public accusations are thrown around, but that’s a courtesy, not a requirement.
If Microsoft distributed without source and without a written offer, it violated at the moment of distribution. Anybody (including me and, apparently, Lefty) who wants to live in a world where later compliance cures an earlier violation, should push for adoption of GPLv3, which has a very carefully constructed cure provision:
Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.
The second misunderstanding is also important. According to Lefty’s reading of GPLv2, when a distributee in receipt of a written offer is denied requested source, the distributee has a cause of action against the distributor. This is not the case. GPLv2 is not a contract, and distributees are not third-party beneficiaries of the license. The license gives them no rights. After all, it is not their copyright at stake. Rather, it is the upstream developer who has a complaint: her code was copied without permission. This is why GPL-enforcement claims are brought by developers (e.g. Harald Welte and FSF) and not users.
With those two clarifications (and the note that I like Lefty quite a bit), I return you all to your regularly scheduled flame war.