Big Blue assuages customers about SCO (News.com)

Posted Jul 28, 2003 21:43 UTC (Mon) by bastiaan (subscriber, #5170) [Link]

TSG claims they are the copyright holder, and also that they haven't given anyone a license to sublicense the source code. In other words that they are 'the only ones who can license it'. Secondly they claim that they haven't licensed the code under the GPL themselves.
Logically, in the context of the GPL, they are not the "original licensor". If you consider the following time line it should be clearer:

1) party A writes some code X.
2) party A licenses X to party B under NDA.
3) party B publishes X under the GPL.
4) party C incorporates X in GPLed project Y (and publishes it).
5) party D downloads Y (including X) from C's ftp server.
6) party A redistributes Y (including X).
7) party E downloads Y (including X) from A's ftp server.

At 5) party A has not been involved with a GPL'ed X at all and therefore hasn't any obligation imposed by the GPL: it does not have to "automatically give a license" to the recipient D. Ergo it cannot be the "original distributor" at 5).
Now, since there can only be one "original licensor" both D and E must have gotten their license from the same party (via GPL section 6).
Conclusion: party A can still maintain they have not given you a GPL license even if they continue to distribute C.

Of course A=TSG*, B=IBM, C=Linus, X='the alleged infringing code', Y=Linux and D and E are innocent bystanders.

IMHO (and IANAL still), this line of reasoning may work in their case against IBM but destroys any case against Linux users, because it implies their accpetance that X is GPLed now.

Cheers,

Bastiaan

* yes, I'know TSG didn't write the code itself, but that's immaterial to the discussion.