(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.
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!