Legal status of an embedded Linux case

Question

I wanted to find the source code of embedded Linux that is used in Shenzhen Apexis Electronic Co.,Ltd products.

For example in this page: http://apexis.com.cn/productsdetails_244.html You see they mentioned 'Embedded LINUX System' as the OS used in their product.

I sent an email with this text to them:

Source code of your Embedded LINUX System

Hi. As you should know linux is open source and under GPLv2 that says if anyone uses it he must release it under GPLv2 that means source code must be available to requestors. I saw that you use an Embedded LINUX System in your product in this page: http://apexis.com.cn/productsdetails_244.html I searched but could not find its the source code of your linux OS. Where can I find it?

Thank you. Regards.

But they replied:

Hi ,Sir

Sorry to us can not provide source code of the linux OS .

Please Understand .

I am not sure but recently some guy told me that, legally, Open source software like Linux kernel used in embedded systems need not to remain/be released as open source. But I think Linux is under GPLv2 that hasn't such an exception and is a copyleft license that doesn't let its use in proprietary software. It says the source code should be available to requestors.

Can this be a violation of GPL?

Answer 1

It sounds like it.

These days, the best place to ask seems to be the Software Freedom Conservancy.

http://sfconservancy.org/linux-compliance/about.html [email protected]

Answer 2

The GPL gives the distributor of the software three options:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

A company selling hardware with an embedded operating system, counts as commercial distribution. So option c does not apply. They must have chosen between option a and b.

If they chose option a, they are allowed to refuse your request. However in that case you can get a copy of the source from anybody who bought the product and is willing to share it.

If they chose option b, they must comply with your request. But unless you got a copy of the written offer mentioned in option b, you cannot prove that they chose this option.

If you can prove that they are violating the license, then anybody holding copyright to a piece of the code can take legal action against them. I am guessing you probably don't hold the copyright to any part of the code. But this being Linux a lot of people do hold copyright to parts of it, and any of them can take legal action.

So your best course of action is to notify somebody who would take the case further. The Free Software Foundation has in at least one notable case taken part in enforcing the GPL on Linux.

Answer 3

GPL does not require a developer to provide source code to all requesters. It's stated clearly in GPL FAQ

The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization.

But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program's users, under the GPL.

Bottom line is if you didn't buy the product you are asking about you have no rights to get the source code.

Other part of the issue that you might get the Linux source code at the end, but in their product they may also use some third-party components, which don't have to be under GPL license. Those components you likely to get only in binary form.