FSF takes on Apple's App Store over GPL

FSF takes on Apple's App Store over GPL

Best Buy take this sort of risk all the time - how often do you think they verify for themselves that (for example) no toxic materials are present in illegal quantities in product they sell?

If you pass on the box unopened as it came from SuSE, you're including SuSE's written promise and adding a guarantee that it will be honoured, or including source code. The risk from doing so is small, and I assume that Best Buy have done due diligence to ensure that they're safe (e.g. by getting their distributor to agree to take on the risks that come from supplying infringing product); until SuSE refuse to honour their promise, the product is legal, after all, and if source is included, it's legal even if SuSE disappear tomorrow.

And the same applies to everything else under copyright that Best Buy stock; as a distributor, they are bound to obey copyright law. This greatly limits their liability, but doesn't remove it completely. The general rule here is that a retailer like Best Buy will normally only ever engage in so-called "innocent" infringement - they genuinely believed that they were in compliance with the licences (and will have a paper trail to show why they believed this), and thus, assuming they remove the problematic product from sale as soon as they discover it's infringing, their net liability is as close to 0 as makes no difference.

In particular, you would be hard-put to require specific performance, as you could get the sources elsewhere, albeit at some effort, so you are not in a position that cannot be fixed by application of money. Best Buy should be in a position to demonstrate that they did not deliberately infringe (i.e. that they thought they were compliant), and that they took action to stop infringing as soon as they were notified. As a result, the chances are that, at worst, they'd be ordered to give you the necessary information to chase their upstream, but no money.

The reason this is acceptable risk for Best Buy, but not for a device manufacturer is twofold:

1. Best Buy can easily demonstrate that they did not deliberately infringe, but thought that they were in compliance - they bought and sold sealed boxes. A device manufacturer who customises the code they receive before they ship it is going to struggle to say that they didn't have an opportunity to check for infringement themselves.
2. The loss to Best Buy if they have to stop selling a product for legal reasons is small - their distributor will generally have to buy the product back. The loss to a device manufacturer in having to take a product off the market and reclaim stock from resellers is high.

Of these reasons, the first is the biggie - because Best Buy can show innocence, they have a good chance of not facing damages for non-compliance. Bringing it back round to the Apple situation - there's probably not a lot that can legally be done to Apple over this sorry mess, this time round, as they pulled the product as soon as they discovered it was infringing; this changes if someone can show that their approvals process gives them a chance to check for infringement. However, it does put everyone on notice that (in the FSF's opinion at least), it's impossible to distribute GPL code on the App Store without an exception clause added. Future developers who wish to use GPL code in App Store applications now know the intentions of at least one copyright holder who uses the GPL.