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

Michael Poole
2007-06-19T01:22:09Z

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? 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.

> 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.
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.)

Michael Poole

> I do in fact argue that there are things that are wrong with TiVo doing
> this. But they are not GPL-related things. I would make these same arguments
> if the TiVo contained no GPL'd software and I in fact do make them about
> products like the Xbox.
>
> DS