Their manual/documentations has no mentioning of BSD licensed software. While its possible that bsd license is included in paper form with the devices with reference to each software package, it is unlikely. As such, 99% sure that Kogan is violating BSD licensed software too.
Kogan is aware that they are using open source software (http://www.kogan.com/uk/newsroom/kogan-releases-119-android-...), as is indicated by their press releases. As such, if an infringement is found, it likely to be seen as intentionally and willingly regarding that product.
Otherwise, it seems as a common misunderstanding by Kogan in how one provide source code to users. Its not very complicated, but hand waving users towards Google is not enough. Had the kernel been gplv3, then they could just given the user a link, but since the kernel is gplv2, the options are either a written offer for minimum 3 years or to include the source code alongside the binaries. GPLv3 changed the license text regarding source distribution because they did not want to still live in 1990s.
Kernel drivers however are a separate issue as the primary author of the kernel (Linus) has given explicit permission to produce "some form" of drivers without having to follow the license. For most people, that is enough safety against lawsuits, even if copyright do not care who is the primary author, and gives equal copyright rights to each author of a project.
Kogan is as shady as they come, they rebrand cheap chinese hardware with their own firmware, rebrand hardware with a Kogan sticker and once you restore it you're back to the manufacturers firmware.
They do have to abide by Australian consumer laws though, which is always a plus.
"Hey, you only have the source for Android 1.5 for this phone on your website - can you please provide me the source for the Android 1.6 binaries you released."
"The only source available is that on our website."
"Okay, but under the terms of the GPL (which covers some of the code released as part of that binary), you must provide source code on request. You have the binary on your site and no associated source code. Please either provide the source code or a direct link to where it exists on your website."
"We only provide the source code on our website. Stop contacting us and have a nice day."
I mean, they did make an effort in releasing most of the source code, so they're by no means at the level of this company, however they're still in violation.
Sorry for the naievety, but it's not just modules that are inserted into the kernel that provide the support that they need (I am not a systems/kernel programmer)? And in that case, could they license the modules separately?
I don't know about how this is done currently, but isn't that the reason why those drivers often don't ship installed but have to be installed by user request?
No. The GPLv2 license is explicit in how one provides the source code. Either bundle the binary and source code together, or provide a written offer for source code that is valid at minimum 3 years or as long support is valid, depending on what is highest.
GPLv3 however changed this to reflect the new invention called the Internet. You can now use a simple link to the repository where source code reside.
This could be a bit more subtle than it might first appear. Most countries have in their copyright something that allows an entity that has a lawfully made and lawfully obtained physical object that they obtained from someone else to resell that particular object without violating copyright.
This is why used bookstores can exist legally.
This is also why when you buy a Samsung TV from Best Buy, and want the GPL code, you have to ask Samsung rather than Best Buy. Best Buy did distribute the TV (and thus the binary software contained therein) to you, but since that distribution did not require permission of the copyright owner Best Buy has no GPL obligation.
Note that this works for Best Buy because they are essentially receiving copies of the software and then just passing those copies through to their customers, in a one to one manner. If Best Buy were modifying the code in the TV, of if they were copying the code into other TVs (say copying the code from a high end TV model to a lower end model to enable premium features), then they would no longer be operating in a one to one pass through fashion, and would need permission of the copyright owner--and then WOULD have GPL obligations and you would turn to Best Buy for the code to your television.
Now suppose some OEM makes a generic TV platform. It consists of the guts of the TV (display, power supply, electronics, and firmware), ready to be put in to a case. A company like Kogan or Best Buy that wants a house brand TV can buy the guts from the OEM, put it into a case they have someone else make for them that has their name on it, and sell it as their own.
Suppose also that the firmware consists of a minimal Linux system, configured to automatically start a shell running as user 'tv' after boot, and the startup scripts for the 'tv' user start a minimal X server, and then run ~/tvapp, which just puts up a minimal TV GUI that lets you change channels and adjust the volume.
The company buying these and rebranding them (who I shall call "the store") as their own writes their own version of tvapp that puts up a full featured GUI that allows for control of all the TV features (or they license a full featured tvapp from someone else and just replace the graphics and modify the text so it looks like it is theirs).
If the OEM that made the generic TV guts was careful, all modifications the store makes consist of just replacing ~/tvapp. They do not do anything that would create a derivative work of any of the open source code that the OEM used, and that code is just passed through from the OEM to the consumer one to one with no copying, and the net result is that the store does not end up with any obligation to provide anyone with copies of the source to the open source code in their TV.
Applying this to the present case, the big question then is just what is Kogan doing to produce their branded phones and tablets and TVs? Are they dealing with an OEM like the hypothetical one I described above, and just adding user mode applications to a generic system that is being treated as a black box? If so, then they in fact not be violating any licenses, and it would be the OEM that people need to turn to for their copies of the source.
On the other hand, if they were doing something like getting generic devices from one OEM, and taking firmware that got from a contractor, and installing copies of that firmware into the OEM devices, and the contractor used open source in that firmware, then Kogan would be responsible for providing the source code. In this case, they are making copies, not just passing on copies they received one for one to their customers.
Based on a quick (and perhaps imperfect) read of the article, I was not able to tell which of the above best describes what Kogan is doing. Do we know?
(Adding this as a self-reply rather than incorporating it into the above, because it is not directly relevant but interesting enough to maybe be worth discussing)
Suppose Kogan does in fact fall into the case where they are just modifying separate user applications and are just passing the GPL binaries they receive from the OEM on to their customers unmodified one to one, and so in fact do not have a GPL obligation (since they are not doing anything that requires permission of the copyright owner).
So you track down that OEM (which could be hard...) and ask for the source.
The OEM was smart when they decided to use GPL software. They read and understood the license, and learned that they basically have two choices when it comes to providing source.
1. When they distribute GPL binaries to someone, they can accompany the binaries with the corresponding source, or
2. The can distribute the binaries without source, but make the source available to anyone who asks.
Being sensible, they do not want to deal with the hassle that option #2 can be, and go with #1. Every single TV guts box they ship to a Best Buy or a Kogan is accompanied by a CD-ROM containing the complete source for every bit of software in the TV.
This completely satisfies the OEMs GPL requirement to provide source. They can legitimately tell you to go talk to Best Buy or Kogan or whoever's name is one front of your TV.
The end result is that you end up with a bunch of GPL code sitting in your living room--and NOBODY is obligated to provide you with a copy of the source code!
(Might as well add one more interesting little copyright twist that might have some interesting consequences for free software, and that has been almost completely overlooked)
In the US, there is a very interesting thing in copyright called the termination right. It probably won't have much affect on software (it is mostly a music and book thing), but there is a remote chance it could be significant in some cases.
The termination right was meant to address the situation where you have a young artist who produces a great work when they are early enough in their career that they are unknown and have almost no bargaining power, and the artist ends up making very little money from the work--it is the music company or book publishers that signs them that ends up making a ton of money.
What the termination right does, basically, is 35 years after the artist signed away their copyrights to the music company or book publisher, the artist is given a window in which they can take back the copyright. They can then negotiate a new deal with the publishers, with much better terms now that they are an established artist instead of an unknown kid.
You might expect publishers would be smart, and include in their contracts with new young artists that the artist agrees not to invoke the termination right when it vests. Congress was smart enough to realize that publishers would do that, and so made it so that you cannot contract away your termination right.
As I said, this is generally irrelevant for software. First, termination rights do not apply to works for hire. Almost all closed source software is written as a work for hire, I suspect. So, as amusing as it would be for some retired COBOL programmer to reclaim copyright on some major bank's ancient but still in service mainframe software, it probably is not going to happen.
Second, not much software survives 35 years. Even if something does not officially get replaced or retired, over 35 years it will usually accumulate enough piecemeal rewrites that nothing is left of the original--not even as a derivative work.
Still, with open source, we now have a lot of code in wide use that was NOT work for hire. Could there be fragments of open source projects that actually make it through 35 years intact, and make the termination right actually relevant?
Correct. The termination clauses has an interesting - if somewhat unlikely - effect on software.
FLOSS software which depend on the ability to distribute new copies could have their license terminated after the 35 years, given that said software still existed in large enough volume to qualify for copyright status. The first thing I can think of would be the TCP/IP stack that was created in BSD, that if terminated could cause some serious problems for Apple and other OS that depend on that code.
No. Kogan would only be lifted from their GPL responsibility if they transfered the complete work unaltered to their customers. That includes the source code in those CD-ROM's, as the source code is part of the work.
By removing said CD-ROM's in the distribution, Kogan would be altering the work, and would require a copyright license to do so, in the same fashion as if they added something to the work.
I disagree. Let's say the GPL code in question is the Linux kernel, just so we have something more definite to talk about. When the OEM sells Kogan a TV containing a binary Linux kernel, and a CD-ROM containing the source to said Linux kernel, Kogan is receiving two copies (the one in the TV and the one on the CD-ROM) of one copyrighted work (the Linux kernel). Kogan is not altering either copy. It's irrelevant from a copyright view that Kogan happened to receive the two copies in the same shipment from the OEM, or that one copy is a source code CD-ROM and one is binary firmware.
It's not really much different than if I buy in one order from Amazon a copy of the first Harry Potter book in English, and a copy of the Spanish edition of the first Harry Potter book. If I then sell the Spanish edition to a used bookstore and keep the English edition, I don't have to get J.K. Rowling's permission. The combination of the English and Spanish editions did not become one work just because they both came in the same box from Amazon--and it wouldn't even if Amazon was actually offering such bundles as a package deal (say, aimed at readers who are learning Spanish so they can read them in parallel to help learn).
Even if a case could be made that the bundle of these two copies counts as a separate work, it would just be a collective work or a compilation work, and the copyright in the collection or compilation would belong to the party that made the collection or compilation--and that would be the OEM.
Totally disagree. the complete work is the source code and binary together. It's irrelevant that the copyrighted work happens to be made out of two CD-ROM's. A movie on two DVD's are not two movies, its the same movie, the same copy of the copyrighted work.
But if you are not happy with that answer, lets look what an US judge said about first-sale doctrine and software licenses:
("Generally, if the copyright owner makes it clear that
she or he is granting only a license to the copy of
software and imposes significant restrictions on the
purchaser's ability to redistribute or transfer that
copy, the purchaser is considered a licensee, not an
owner, of the software.").
In EU law, there is simply no sale for first-sale doctrine to trigger. The GPL obligations are simply not compatible with what defines a sale transaction.
Their manual/documentations has no mentioning of BSD licensed software. While its possible that bsd license is included in paper form with the devices with reference to each software package, it is unlikely. As such, 99% sure that Kogan is violating BSD licensed software too.
Kogan is aware that they are using open source software (http://www.kogan.com/uk/newsroom/kogan-releases-119-android-...), as is indicated by their press releases. As such, if an infringement is found, it likely to be seen as intentionally and willingly regarding that product.
Otherwise, it seems as a common misunderstanding by Kogan in how one provide source code to users. Its not very complicated, but hand waving users towards Google is not enough. Had the kernel been gplv3, then they could just given the user a link, but since the kernel is gplv2, the options are either a written offer for minimum 3 years or to include the source code alongside the binaries. GPLv3 changed the license text regarding source distribution because they did not want to still live in 1990s.
Kernel drivers however are a separate issue as the primary author of the kernel (Linus) has given explicit permission to produce "some form" of drivers without having to follow the license. For most people, that is enough safety against lawsuits, even if copyright do not care who is the primary author, and gives equal copyright rights to each author of a project.