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A company based in Taiwan has created derivative works (in particular, an operating system for their range of embedded devices) based upon many works licensed under the GNU GPL v3 (potentially from many different countries), has published the text of the GNU GPL v3 in their work, and has previously published the GPL-licensed source code used in creating their derivative works.

However, this Taiwanese company has ceased publishing the GPL-licensed source code despite having modified it in order to continue development of their derivative works, which are then conveyed to the end-users of its products, placing it in breach of the GNU GPL v3 license covering the open-source code used to derive its software.

As a software developer (based in Australia), I wish to develop software solutions that operate within the GPL-licensed portions of the Taiwanese company's operating system. However, since the Taiwanese company has not released the relevant GPL-licensed source code as the GNU GPL v3 license requires it to, I am unable to develop my own solutions for this platform.

That is:

  1. A potential (Australian) client asks me to develop a software solution "that must run on (the Taiwanese company)'s newest operating system."

  2. Because the Taiwanese company has not released the relevant GPL-licensed source code for a significant amount of time (years) - and has never released source code for the most recent major version of its operating system despite it having been released around a year ago - I must answer my client, "No, (the Taiwanese company) has not released its GPL-licensed source code as it is legally obliged to do, and until it does, neither I nor any other entity other than (the Taiwanese company) can do so."

As a result, I cannot enter into a contract with the potential client to perform the desired work, and the client must either contract (the Taiwanese company) to do the work, or change hardware platforms to one for which the relevant tools for me to do my work are available, at considerable expense to themselves.)

Due to my inability to develop software solutions for the Taiwanese company's OS, caused by that company's breach of the GPL license that covers portions of its OS' source code, am I able to claim against the Taiwanese company for loss of income, in that its breach of the GPL license(s) of the works from which it derived its OS has led to my inability to perform work based upon its derivative work that, under the GNU GPL v3, is also required to be free and open-source?

  • Additionally to the answers, there is always the possibility of dual licencing (that the owner of the GPL source code has it licenced to the Taiwanese company under a different licence that does not force them to provide their source code). – SJuan76 Nov 24 '16 at 12:11
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If they make copies of GPL licensed software and distribute them, or they create derivative works of GPL licensed software, without following the terms of the GPL license, then they are committing copyright infringement. They can be sued for copyright infringement by the copyright holder, or by any of the copyright holders, if there is more than one.

In your situation (your company can't make money because another company commits copyright infringement, and the other company can make money because they are committing copyright infringement), you might be able to sue them for anti-competitive behaviour. Because you are unable to compete because of their illegal behaviour. You'd need to check details with a local lawyer. (In Germany, this would be quite clearly "unfair competition" and illegal, but different countries will have different laws).

  • Which country's laws would apply in such a situation? Australia? Taiwan? The nations in which the licensed software packages creators reside? – Monty Wild Nov 24 '16 at 22:52
  • @MontyWild yes - and quite possibly others as well – Dale M Nov 24 '16 at 23:13
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Probably not

If they are following the GPL licence they must release the source code. They have not released the source code therefore they are not following the licence. This is not necessarily a breach of copyright. Even if it is a breach, you do not have standing to take action.

  • Don't I have a standing to take action as a third party injured by their failure to abide by the license, i.e. as a victim of their negligence or deliberate refusal to do that which they are required to do? – Monty Wild Nov 24 '16 at 1:54
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    @montyWild If Bunnings has a contract with BricksAreUs to supply bricks which Bricks breaches meaning Bunnings has no stock you can't sue anyone just because you can't get bricks unless you have a contract with Bunnings already. Similarly, if two companies which you do not have a contract with are in breach of a contract: how does that involve you? – Dale M Nov 24 '16 at 1:57
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    As I understand the GPL (IANAL), if you breach the terms then the license is terminated - so they are in breach of copyright. However that is a matter between them and the copyright holders. Note that in principle the company may have paid the copyright holder(s) for a private license - in which case there is nothing the OP can do. (In practise, very few authors who license under the GPL also offer commercial licenses.) – Martin Bonner supports Monica Nov 24 '16 at 10:45
  • Couldn't it be said that by selling devices containing GPL-licensed software which that vendor has itself modified and is therefore in possession of the modified but still GPL-licensed source code, the seller is entering into an implied contract with the purchaser to provide the source code to the GPL-licensed software upon the purchaser's request? Could it be said that by refusing to do so not only breaches the terms of the GPL license with respect to the creator of the software, but also the implied contract with the purchaser? – Monty Wild Nov 24 '16 at 23:05
  • @MontyWild Your question has been asked and answered - if you have a follow up question please post it as such and cite this question, don't ask substantive questions in comments. – Dale M Nov 24 '16 at 23:18

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