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If a company sells a device containing GPL licensed code they need to provide the source code when asked.

Does this apply to private sales, e.g. if I sell an used device that I bought on ebay, would I need to supply the source code when asked?

If I don't have the source code and the company that I bought the device from went out of business, resulting in me not having any way of getting the source code, does this legaly prohibit me from selling the device since I cannot provide the source code?

How about if I don't know that the device contains GPL licensed code? Does that change anything?

Dakkaron
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Copyright law applies to copying. If you buy an item from eBay, and sell it on to someone else, no code has been copied.m by you. Therefore you have no obligations. Don’t make copies of the code in the device, because that can create obligations for you.

With GPL licensed code, depending on what the person creating copies and distributing them did, either the software was accompanied by source code (and the receiver has no further rights to receive the source code), or everybody has the right to a copy of the source code for a reasonable payment, with no need to buy anything.

Saying this again to address comments: As long as you don't make any copies, the GPL license doesn't affect you at all. (Also, if you only make copies that are allowed by your laws, then the GPL license doesn't affect you). If you buy then sell an item, without making any copies of any software, then GPL doesn't affect you. You can quote the license terms as much as you like, but the GPL is a license, and the license terms determine whether you are allowed to make copies or not. Nothing else.

Compare this to proprietary software: You are only allowed to make copies that your law allows, and usually you can't get permission to make more copies. Same as with GPL licensed software, if you buy an item and sell it again, without copying any software inside it, it doesn't matter what proprietary software is in there. You can buy and sell your smart phone for example, which contains tons and tons of proprietary and non-proprietary software.

gnasher729
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  • I believe this is incorrect. Selling an item is distribution, a right you gain only by agreeing to the gpl, therefore must be done under the terms of the gpl. Also, as well as the 2 options you mention, you could have received an offer to access the code, and not taken up that offer. If the original company has gone out of business it is likely that this "offer" is no longer available. – Dave Mar 03 '20 at 13:40
  • @Dave GPL is all about copyright. It is a license that literally says "you are allowed to make copies if you are following certain rules", and as a consequence, if you don't follow these rules then you are not allowed to make copies". But since you are selling the item without making copies the GPL doesn't affect you in any way. It says you are not allowed to make copies, and you are not making copies. – gnasher729 Mar 04 '20 at 21:23
  • if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. GPL, https://www.gnu.org/licenses/gpl-3.0.en.html – Dave Mar 05 '20 at 10:06
  • @Dave Absolutely, completely missing the point. Nobody can force you to do these things. What's the consequence if you don't? You are not allowed to make copies of the software (unless allowed by copyright law). But you aren't making copies. So what are the consequences? Nil. Nada. Zilch. – gnasher729 Mar 05 '20 at 22:28
  • Copyright law also restricts distribution: "the owner of copyright under this title has the exclusive rights to ... distribute copies or phonorecords of the copyrighted work to the public." https://www.law.cornell.edu/uscode/text/17/106. However I think 1st sale doctrine may make it legal, I am still looking. – Dave Mar 05 '20 at 23:34
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    "Selling an item is distribution." No, it's not. The distribution right is extinguished once a copy is lawfully made for distribution by someone authorized by the copyright holder to make such a copy. You can't sell an item until the copy is already made, so as long as the copy was lawfully made, there is no distribution right left by the time you get to selling. See Capital Records, LLC v. ReDigi, Inc. – David Schwartz Mar 06 '20 at 01:28
  • @DavidSchwartz Is that so? If that's the case you can make GPL pretty much null and void by creating two companies: the first one makes copies and sells them to the second one, which then sells them on without making copies. Now the buyer can only ask for source code from the second company, which does not need to honor that request. – Dakkaron Mar 09 '20 at 07:50
  • @gnasher729 The consequence is the same as with any license agreement violation: a possible lawsuit and fine for violating against the contract that you entered in by using something covered under a license. – Dakkaron Mar 09 '20 at 07:51
  • @Dakkaron That first company would be violating the GPL because it would be making copies and not complying with 3a, 3b, or 3c. But it is true that it is possible to get around a lot of the GPL's requirements with such careful machinations. A court might still hold that you're infringing because the separation is fake and the two companies should be treated as one. – David Schwartz Mar 09 '20 at 23:49
  • @Dakkaron You can use something covered under a license without complying with the license because there is no law that requires you to comply with the license other than agreeing to it and you don't have to agree with it. See ProCD v. Zeidenberg, "Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license--though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program." – David Schwartz Mar 09 '20 at 23:52
  • @DavidSchwartz But if the second company is not subject to the GPL's requirements, do they need to comply to 3a/3b/3c? Say, the first company adds a written offer for the source code to their product and the second company (not being subject to the GPL's terms) just tosses that written offer before shipping the product to the end customer, then everyone should have complied to all they are required to. This scheme is not an invention, this happens a lot of times, since you often have a company producing devices and a second one distributing them. – Dakkaron Mar 10 '20 at 09:45
  • @DavidSchwartz E.g. Samsung builds a Smartphone, but does not sell it directly to a customer, but instead sells it to a reseller which then sells it to the customer. And I can't remember any Smartphone I ever bought containing an offer of where to get the kernel sources for Android. On the other hand, 3) of GPLv2 clearly references distribution, not only copying. Thus you need to comply to the license even if you only want to distribute devices containing GPL licensed code? – Dakkaron Mar 10 '20 at 09:48
  • @gnasher729 But licenses can affect you, no matter if you do make copies. E.g. if you buy a music CD and only play it, but not copy it, the license that you obtained for that CD can still prohibit you from playing it at large events. – Dakkaron Mar 10 '20 at 09:52
  • @Dakkaron Anyone can enforce the written offer, read 3b. A license can only affect you if you agree to it. If you buy a music CD, it's not the license that prevents you from playing it at large events but copyright law that does. (Read ProCD v. Zeidenberg. Here's the quote again, "Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license--though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program.") – David Schwartz Mar 10 '20 at 18:32
  • @DavidSchwartz So the actual question is, can you use/sell a program/device without agreeing to it's license? – Dakkaron Mar 11 '20 at 09:50
  • @Dakkaron You definitely can't if the specific type of use or sale involved is one you couldn't do if no special license was offered. That's because copyright law says you can't do that without a license. But if it's something that copyright law doesn't prohibit, that no law says you need a license to do, then it becomes a more complex test that depends on the type of license and how agreement with the license is confirmed and enforced. That's what the court is saying in that quote I keep repeating. The party seeking to enforce the license has to show that it was agreed to. – David Schwartz Mar 11 '20 at 15:23