Empowering users of GPL software

It seems fairly obvious to me that:

* Vizio is not in compliance with any of the three options under section 3 (at least, based on the publicly-available information that I have seen about this case thusfar).
* Section 4 says that their copying is unauthorized and their license rights are terminated, because they failed to comply with section 3. But SFC does not have standing to sue over that, and isn't claiming it as a cause of action. So we can (probably?) ignore that.
* Section 5 states that Vizio has "accepted" the GPL by "modifying or distributing the program (or any work based on the Program)."
* SFC is trying to argue that this "acceptance" is a binding contract, and that Vizio must therefore comply with at least one of the three options under section 3.

I don't understand what part of this argument implies that Vizio must supply the software to everyone. Of course, it's a moot point, since anything given to the SFC will almost certainly be made public as soon as the litigation concludes. But if (for example) big tech companies start suing each other under this theory, they might behave differently, so this question really does matter and is not entirely academic.

I suppose you are arguing that they cannot "accompany" the binaries with the source, because the binaries were already distributed to the SFC? Contrary to popular belief, judges hate this kind of "well, actually" semantics hair-splitting argument. It is no longer possible to *literally* accompany the binaries with the source, but providing source after the fact is obviously the next-best thing. A judge would likely either order money damages to make up the difference (i.e. "Here's how much money the SFC lost by not having access to the source code for X months/years, and that monetary loss was caused by Vizio failing to provide source, so now Vizio has to pay the SFC that much in damages"), or just call it "de minimis" and rule that supplying the source after the fact is close enough (i.e. "The SFC didn't lose any money by not having access to the source code for X months/years, so Vizio doesn't have to pay them anything at all").

This may sound unfair, and perhaps it is, but a more interesting question, to my mind, is whether the SFC will even get as far as arguing this point in the first place. Before they can begin to argue over "accompanying" vs. "providing after the fact," the SFC first has to establish that *just* paying money damages would be inadequate to cure the violation all by itself. Money damages are usually favored as the clean and simple way to fix a contractual violation, and courts don't like ordering specific performance unless there's no reasonable alternative. So it's entirely possible that the court will rule as follows:

1. Vizio violated the contract.
2. SFC had rights under the contract, which were harmed by Vizio's breach.
3. But SFC is not in the commercial software business. They don't make software, they don't sell software, and they don't employ software developers. So they suffered no actual commercial damages as a result of the breach.
4. SFC "wins" and gets nominal damages of $1. Vizio is ordered to comply with the contract in the future, and they do so by pulling the specific product(s) that SFC purchased.
5. The end (at least until a company that *does* make software buys a Vizio product and sues over it, anyway).