[Discuss] Govt Source Code Policy

[smallm at sdf.org (Mike Small)]

Rich Pieri <richard.pieri at gmail.com> writes:

> On 4/4/2016 12:50 PM, Mike Small wrote:
>> I don't know a lot about copyright, but I'm guessing being a victim of
>> theft or warranted seizure aren't among experiences that "would make you
>> directly or secondarily liable for infringement under applicable
>> copyright law."
>
> You are guessing incorrectly.
>
> If for any reason an original (the originally licensed copy of a work)
> is no longer in your possession you must destroy all archival copies of
> that original which remain in your possession. Failure to do so at your
> first opportunity makes you liable for copyright infringement.
>
> Copyright law in the US makes no exceptions as to why possession of the
> original is not retained so yes, theft or seizure would make victims
> liable for infringement.

That's a bit weak. You would only be liable if you in fact did not erase
your backups and had some. So their definition would stand on a
hypothetical present fact (that backups exist) and a hypothetical future
action (that the victim doesn't destroy them) for the hypothetical "you"
the license references.

But for the sake of argument let me concede the point. Let's say Syed
Farook's phone had had GPLed Apple system software on it. It would have
been Farook who would be breaking the GPL by not passing on the
"authorization info" as he "conveyed" this GPLv3ed iPhone software to
the FBI. This possibility wouldn't have prevented or disincentivized
Apple from using the GPLv3 + autodestruct.

For one thing if Apple were the only copyright holders section 6 and in
fact all of the GPL is irrelevant since the only one it could fear a
lawsuit from would be itself. But imagine there was an upstream to be
concerned about. Apple in fact is in compliance each time they "convey"
so long as they include the "installation information" that prevents the
thing turning into pixie dust when tampered with. If one of those folks
further "conveys" without "installation information," say by being shot
dead as they are "conveying" before getting a chance to yell out the
"installation information," Apple has nothing to fear. The GPL doesn't
open you to copyright suits from passing on software to someone who goes
on to violate the GPL. So Apple could happily use the GPLv3 to try to
ensure each user has full control of software they've received while
simultaneously using some kind of autodestruct to help the same users
evade disclosure of their info to the feds, all without fear of a
copyright lawsuit.

As an aside, the possibility of this kind of unintended side effect is a
good argument for licensing GPLv3 or later. If you've read or heard any
opinions from the FSF about this case you would imagine the "or later"
would attempt to snuff out any tip of the scales in favour of the Feds
if it actually existed.