RE: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

David Schwartz
2007-06-19T02:10:53Z

> David Schwartz writes:

> >> First, end users buy and use the hardware in question. It does not
> >> belong to Tivo, so the analogy to his laptop fails there.

> > No, this is incorrect. They buy *some* of the rights to the
> > hardware but not
> > all of them. Specifically, they do not buy the right to choose
> > what software
> > runs on that hardware. That right is still owned by TiVo.

> Do you have a reference to the contract establishing that cession of
> rights from the buyer to Tivo?

No, and I submit that this is at least arguably something wrong that TiVo is
doing. Note that Microsoft does this too when you buy an Xbox. It has
nothing to do with the GPL.

> To the extent that some contract
> purports to restrict the user in ways contrary to the GPL, I suspect
> Tivo might have a hard time defending it in court.

I agree, however, this doesn't restrict the user in ways contrary to the
GPL. The GPL does not say that you have to be allowed to modify the Linux
running on some particular piece of hardware because that is a legitimate
authorization decision. TiVo not letting you change the software is the same
as me not letting you change the software on my laptop.

> > You can argue that TiVo is being dishonest, breaking the law,
> > being immoral,
> > or whatever in retaining this right or in failing to disclose that they
> > retain it. But you cannot coherently deny that TiVo retains
> > this right when
> > they sell certain other rights to the hardware.

> By the first sale doctrine, someone who buys an item has practically
> unlimited rights to deal with it or dispose of it as the buyer wishes.

This is solely a right against copyright claims. You would be correct if
TiVo were going to sue you for violating some copyright they hold in the
hardware or software if you modified the software.

> The only things that would restrict that are statute or a contract
> entered as part of the sale -- most likely a EULA or other shrink-wrap
> agreement. Given that most such recognized agreements deal with
> software or services rather than hardware, I am not sure a court would
> recognize a hardware EULA as being binding. (I suspect this is the
> direction you were heading with the paragraph below.)

Yep, but that has nothing whatsoever to do with the GPL. The exact same
argument applies with the Xbox. It's about whether authorization to modify a
device should or must come with buying that device.

The GPL was never about allowing you to load modified software onto hardware
where the legitimate creators/owners of that hardware say, "no, you may not
modify the software running on this hardware".

DS