Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Traditionally, contracts are purely private affairs and a non-party does not have the right to make a claim under the contract just because they're identified in it as a beneficiary. So if I had a contract with you where I gave you $1,000,000 and you gave me a house and also agreed to give my child a house, the orthodox position is that I can sue you for your failure to comply but by child cannot. But in many (most?) places this rule has been partially or wholly abrogated if the intention to benefit a non-party is made clear in the contract. But it really depends on the wording of the statute. In New Zealand, it has to be "a person, designated by name, description, or reference to a class, who is not a party to the deed or contract."

(This is not legal advice etc.)

California, I believe, is one of the few states that allow evidence on the intent of the parties even when the text has an unambiguous reading.

This applies to your question in one way, and the full case in another way.

I believe that in most states the judge would ask where the GPL mentions third parties can sue, contrary to the default that they cannot. If you want an agreement enforceable by a third party, you almost always need to say so. In those states, it would be really hard to get a judge to read such a right into the agreement. In California, you can still argue that that was the intent of the parties (which is a funny concept when you apply a text written in 1991 to concepts like installing code on a television). I think this judge has still expressed skepticism, but she doesn't sound decided (and that's for the trial).

In California, I seem to remember it used to be much easier for a third party beneficiary to sue, but there was some recent-ish (90s?) case that restricted it to cases where the intent of the agreement was to benefit the third party (probably defined something like, one party needs to have intended the contract clearly to benefit a third party, and the other side must have understood this). This is to distinguish from cases where the third party benefits from the agreement *incidentally*, but the parties acted in self-interest.

I think this is one reason why the SFC designed this carefully to be a state case in California.

The other application is the construction of the GPL. I personally do not think SFC's construction of the text, requiring a practical ability to modify the software in the TV, is feasible. GPL was written in 1991. It doesn't even mention devices. It's clear it contemplates the software to be something like a binary, and at that time, installing from source would have meant running `make install`. I think it's much more plausible to read the text as requiring Makefiles than signing keys.

Here, too, I think SFC can attempt to have more read into the language with evidence from, say, FSF. Not that I would think it is easy when the FSF itself held for ages religiously the view that it's not an agreement (while here if it's not an agreement, SFC has no case; but, frankly, it's my impression that FSF's "it's not an agreement" was intended probably to avoid some pitfalls around disclaiming warranties, and I think no court ever accepted the argument that they are not agreements).

Now, I do tend to read the December 23 ruling as deciding that getting keys argument against SFC—and, contra SFC, I don't think the judge was misled or rejected something SFC didn't claim, but solidly rejected the argument that (L)GPLv2 can reasonably be read to require cryptographic keys necessary to run modified code on the device. SFC makes a lot of noise about "we never said it must not break something", but I really think the judge ruled that no, installation scripts just cannot be read to encompass things that would allow you to run *any code* on that specific device.

This is not to say that the case has been disaster for SFC. In fact, I think it's been a success. It's already very significant that the judge has decided there was a binding and accepted offer to provide the sources to SFC.

I think the trial is going to be mostly about what triggers that—do you need to go through the rituals of requesting the source, have them ignore and stall for years and then you probably won't sue because that's expensive—or whether anyone who receives the software, and regardless of whether Vizio made the offer (it might be breach of license to not provide, but it doesn't follow anyone can sue to enforce it) has enforceable rights, which likely would make something like class actions on their behalf much more possible.

And that will turn in intent. FSF has said some conflicting things over years, and I believe deciphering that will be one part. And I'm not sure if it's been decided yet how that is to be applied to this case, where it's about the intent of the *parties*. The SFC will obviously argue that there's no other consideration; the code *is* the consideration, and it's obviously for the benefit of everyone. But I don't think it's hard to find FSF quotes saying "only the copyright owners can sue" from the relevant times, and that's quite relevant for the intent of the parties when conducting the transaction.

There is the contract describing the sale of the TV ("I give you money and you give me a TV") and the completely different *potential* contract talked about here: "I offer to give you the source code; I accept your offer of source code." The latter is the one the judge is considering, on the basis that there was a written offer for source code buried in the TV's menu.

One of the possibilities discussed in the article is that if it turns out an offer needs to be made before ordinary people can form the latter kind contract (and be able to sue over it), we end up right back where we started. Companies might willfully withhold source *and* not make a written offer, and only authors could sue them for it because ordinary people would need an offer to accept in order to later be able to sue for the code.