[mikekchar]

I am not a lawyer and I'm trying to wrap my head around this. For me the main issue (with respect to the GPL) is that the GPL does not compel you to distribute source code. It is simply a condition of the the granting of the license. The GPL is quite specific about it. It states that you do not have to accept the license. However, if you do not accept the license, there is nothing that will allow you to distribute the software (under copyright law).

In order to distribute software for which you do not own the copyright, you need to have a license. If you do not agree to the license, then it doesn't even get to the stage we are talking about. You can't distribute it anywhere (under international copyright law). If you agree to distribute the source code in order to get a license, then you have agreed to do that. Is that not what is meant by a commercially negotiated contract? There is consideration on both sides (one party gets to use the software, the other party ensures that the source code is available to users of the software).

Either way, I think this wording is terrible and it worries me greatly. However, my layman's view seems to fall on the side of the GPL being OK. I would be grateful for explanations on what I may have misunderstood.

[DannyBee]

"You can't distribute it anywhere (under international copyright law)."

True. There are two problems. First, this violation is remedied by an action. Normally, that action for an order to comply with the license (not just "stop using it and pay damages"). There is a question whether a court would legally be able to order such a thing anymore.

B. As you have identified, "Is that not what is meant by a commercially negotiated contract? "

Generally, a commercially negotiated contract is a contract explicitly negotiated between two parties. If i have received GPL software, i have not negotiated a contract with the author or anyone else.

[belorn]

Is there any prior case where an court demanded that a party comply with a copyright license? "stop using it or comply with the license" seems to be the obvious step for any infringer.

[mikekchar]

In the case of the GPL, the "or comply with the license" doesn't even apply. As soon as you violate the license, the license is terminated. This is to stop people from violating the license and then saying, "Ok, Ok, I'll comply" when they are threatened with a lawsuit. In practice, copyright holders usually forgive the other party and offer then a new license, though. So, again from my layman's point of view, I don't think this is an issue since the court can't force the other party to disclose their source code. It can only grant an injunction on distribution.

In every case, the use of the license (and subsequent release of the source code) is a choice. Of course, without choosing to follow the license, you can't distribute the software. As far as I understand, this is by design and the reason why the GPL is so robust.

I also think this is a negotiated license because the GPL specifically says that you don't have to accept it. It is a written offer for a license. Sometimes, if you contact the copyright holder you can get a different license. Usually now. Just because the offer is made to everybody, doesn't mean it is not a negotiation (I don't think... but that's probably where knowledge of the law would come in handy ;-) ).

[zkhalique]

I happen to agree with your analysis, but I am not a lawyer either.

What does it matter that a state cannot compel a corporation to reveal its source code as a condition of distribution? The key is that the recipient of the distribution cannot make use of it without a license, pursuant to international copyright law and treaties. And you can indeed sue them for infringing on this, under copyright law, can you not? As a condition of use, they must also OFFER TO distribute the source code of any derivatives.

No one is forcing the actual distribution of the source code of derivatives. But if this distribution does not happen, the recipient CAN be sued for copyright infringement, lacking a license, no?