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Thread: AnthraX Linux Kernels Remain Closed Source

  1. #111
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    Apr 2011
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    Quote Originally Posted by brosis View Post
    One may charge for access to binary, and charge for access to code (as right to recieve code is guaranteed for those who recieve binary).
    The charge for source code however may not be higher than that for code, and he may not impose any NDAs/Agreements to prevent those who purchased the binary /and source, to distribute them for any fee. And when this happens, then these persons can demand source from upstream, under very same conditions. But they are not obligated to recieve any binaries from him directly. See GPL faq.
    No, don't read the GPL FAQ, read the GPL itself: http://www.gnu.org/licenses/old-licenses/gpl-2.0.html (since the kernel is version 2)
    3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

    a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
    b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
    c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

    The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.

    If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.
    [Bold added.]

    In other words, in an commercial distribution the GPL requires the distributor to either supply the source with the binary (making the source available for download from the same place of the binary counts; this does not require supplying the source code to anyone other than a recipient), or to provide the source code to any third party (not necessarily the "purchaser") for a charge of no more than what it costs them to supply the code.

    And not a reply to this post, but the GPLv2 (i.e. the relevant licence) does not make any distinction about distributions within an organisation versus public distribution. However, with internal distribution someone could try to argue (possibly successfully) that the organisation is the licensee rather than the individuals, and therefore there is no distribution occurring. However, if the individuals are using it for their own personal use that cannot apply.

    In this specific instance, I find it very hard to believe that the "customers" are not using the kernel for their own personal use, and therefore I would suggest that it is a public distribution. And if it is a public distribution, then the fact that they are refusing to provide the source to some of their "customers", or are charging more than the cost of providing them with it, is definitely a licence violation; and the fact that they will not provide source code to other individuals is extremely likely also a licence violation.

  2. #112
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    Very easy workaround: he can only distribute the source on platinum-plated five-layer bluray disks. Tada, that takes care of the physical cost

  3. #113
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    Quote Originally Posted by curaga View Post
    Very easy workaround: he can only distribute the source on platinum-plated five-layer bluray disks. Tada, that takes care of the physical cost
    Then it better arrive on platinum-plated five-layer bluray disks, and it better fill it. Otherwise, I call BS.

  4. #114
    Join Date
    Oct 2007
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    OH, USA
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    Lightbulb Wanted to add a little but on what PreferLinux just said,

    PreferLinux pretty much got the last couple 'loopholes' covered clearly, so I encourage any believers in the 'loopholes' to read his recent post.

    Regarding the 'forumn is an organization' loophole...
    You have to consider how the courts define legal entities, and they don't consider how something is described rhetorically. They have a standard defined through case law to deal with these situations, as they are actually quite common in loads of cases. If the definition of an entity is in dispute, they always use the 'walks like a duck, quacks like a duck' standard.

    You would need to 'walk like' other legal 'persons' to justify internal use, and a forum isn't a 501c or corporation. The definition also goes both ways, meaning you must also 'quack like'. It's also clear that a forum doesn't 'quack like' one of legal 'persons'. In established case law, affiliation alone doesn't result in personhood, and neither would only walking. The real emphasis is always on the 'quack', and this example 'quacks' like public distribution.

    Regarding the 'not-distributed, and yet still mysteriously available', example....
    This is also a common situation in civil case law, as intent is often a MAJOR aspect of liability. Although even negligence alone is usually enough, assuming a reasonable party would not have done such actions. A reasonable party would take measures to ensure the 'internal' binaries were not publicly available. Although it would never get this far since the group would never get a judge to agree with it's initial personhood premise.

    This is only my opinion, and IMNAL....But I do have some in the close family, and often ask about these type of scenarios. Also remember contract law isn't established by a legislation, whether someone violates would be up to the judge.

  5. #115
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    Jan 2013
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    @PreferLinux: pretty much yes, thank you!

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