Net Integration's NITIX OS

[Hal Duston]

On Mon, 2004-01-19 at 11:11, Leo J Mauler wrote:
> Let me see if I understand you correctly.
> 
> Say I create a new Linux kernel with a number of modifications. I
> announce that I have done so on several common Linux forums, such as
> comp.os.linux.advocacy and the KCLUG mailing list. I even have a website
> on which you can see me crowing about how I've created this modified
> Linux kernel, including a streaming video of two computers side by side
> demonstrating the benefits of the modified Linux kernel.
> 
> Then I sit on the *binary* of the kernel and never hand it out to ANYONE.
>  I also never hand out the source code.  The kernel is used on my home
> machines only.  No one ever gets to see the source code or receive the
> binary.
> 
> Have I fulfilled the GPL's requirements?  Your statements would seem to
> indicate "yes".

That is correct.  At this point you have not distributed the binaries
_at all_, and so the requirements of the GPL are _much_ reduced.  In
fact the only requirement of the GPL at this point is that you follow
clause 2 of the GPL

Clause 2 covers modification of a GPL covered work:

   2. "You may modify your copy or copies of the Program
       or any portion of it, ..."

Clause 2a covers placing notice of modification in the source code
files:

       a) "You must cause the modified files to carry 
          notices stating that you changed the files 
          and the date of any change."

Clause 2b covers the requirement of licensing to _all_ third parties iff
(if and only if) you distribute to _any_ third parties.  Note again that
this covers _licensing_ only, and not distribution.  If you don't
distribute _at all_ then this clause does not apply:

       b) "You must cause any work that you distribute or publish, 
           ..."

Clause 2c covers placing notice of modification in the "ordinary" output
of the program

       c) "If the modified program normally reads
           commands interactively when run, you must
           cause it, ..."

> And can I presume that the GPL says that if that modified kernel is
> *stolen* out of my home and then redistributed to someone else, that the
> third party not directly involved in the theft cannot make a claim of
> "license" to the source code?  (assuming of course that the thief cannot
> make a claim of license as well)

That is an interesting situation.  You haven't distributed it, so to my
mind, you aren't required to license the code.  Now I would maintain
that if you had distributed the code to _any_ other party, then the
third party that obtained the code from the thief would in fact be
properly licensed to use the code.  Indeed even the thief would be
properly licensed.

> But you would still be required to provide the source code to a KCLUG
> member you had given a binary+source CD to, if they requested the source
> code again, correct?  I'm thinking in terms of "they get home, there's a
> big scratch on the binary+source CD you originally handed them, and the
> source code is inaccessible while the binary kernel is still accessible".
> 
> The parties to whom you directly handed the binary+source can still
> request additional copies of the source if their copies of the source
> have become inaccessible or lost, correct?  It is only parties beyond the
> KCLUG members (continuing the analogy) who cannot make direct requests to
> the author for source code, correct?

If the source was "defective", I have not actually properly distributed
the source to them, and am bound to provide a replacement.  I would not
be required to replace source code that was once accessible, but is no
longer accessible once the work has left my control.  After all, as
clause 11 and 12 provide, there is no warranty.

Also, I am only bound to provide the source to the same KCLUG member(s)
to whom I have provided the binary.  My obligation ends there.
--
Hal