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Let's say there are 3 people Q A Z . Q makes a GPL library. A uses it and licensed it under the MIT licence purposefully. Z uses A's library in a proprietary, paid-for library and distributes it with over a million downloads when Q realizes and files an infringement case against A and then Z has also infringed indirectly. However Z cannot apply GPL to his code as it would be a commercial disaster. What will Z do?

  • If Z won't release under GPL, then what possible answer other than Immediately cease distribution and give refunds to all affected users are you expecting? – MadHatter Oct 22 at 11:54
  • But is it in this case really Z's fault that he did not reverify?Shouldn't all the burden be on A?Z just used code under the license he found. – compenthusiast Oct 22 at 12:09
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    Z's lack of deliberate copyright violation until now is what will likely save him/her from punitive damages. But now (s)he knows. If (s)he continues to distribute code in violation, or allow code to be used by his/her customers in violation, that defence will disappear. I ask again, what sort of answer were you hoping for? That some kind of GPL exception might appear out of thin air, so Z could continue trading without interruption? – MadHatter Oct 22 at 12:11
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    Cease distribution and refund all affected customers, yes. As for A's liability, Z didn't pay A anything for the code in the first place; why on earth should A be financially liable? Here's the rub: Z made a business out of selling other people's work. It's Z's job to bend over backwards to ensure (s)he has the rights to do that. Z failed to do so, and must now face the consequences. – MadHatter Oct 22 at 12:15
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    That's a completely different question, please don't use comments to ask new questions. – Philip Kendall Oct 22 at 12:20
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Z will either release his/her work under GPL, or (s)he will immediately cease distribution and refund all his/her affected customers for the code which they have paid to use but may no longer use. Those are the options available (edit: approaching Q for a commercial licence is, as Felix G points out below, another option, though one that I consider very unlikely to succeed).

As covered in comments above, Z didn't pay A for the code that A mistakenly made available under MIT; indeed, A may well not have the faintest idea that Z is using A's code in this way. So it is very unlikely A would have any liability.

If Z was selling a product with a clear disclaimer that the customer bought it at their own risk and Z had no idea whether the customer was entitled to use it, then I suppose it's possible that Z would be protected from an obligation to refund his/her customers. But (a) it's jurisdictionally-dependent, (b) it's also off-topic for OS.SE, and (c) why would anybody buy a product under those terms in the first place?

At the end of the day, Z has decided to make a business out of selling someone else's work. If you're going to do that, you need to bend over backwards to ensure that you have the right to do it. Z failed to ensure that, and is enjoying the consequences.

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    I'd like to add that there technically is a third option: Z could try to ask Q for a commercial license. Of course, Q might not want to do that, or they might not be able to even if they wanted (if there are other contributors and the project doesn't have a CLA/CTA) – Felix G Oct 22 at 14:36
  • @FelixG that is a very good point, and thank you for making it. I regard it as vanishingly unlikely that Q would agree, since people who use the GPL generally intend their work to remain open. Even if Q did, the fact that a million copies have already been sold is going to have a serious effect on the price. But it is still an option, so thank you again for bringing it up. – MadHatter Oct 22 at 14:45
  • How about any of these other potential options (practical or otherwise): • Z removing the library and writing their own equivalent (taking great care not to use or even see the original code); • commissioning such a replacement from another company; • refactoring their product to use the original GPL library without linking with it; • releasing their product without the library and requiring their customers to obtain and install it; • approaching Q in the hope of getting an LGPL version (which might be more acceptable than a commercial licence). – gidds Oct 23 at 0:46
  • @gidds it's a bit late for Z not to see the original code, wouldn't you say? The second option has nothing to do with free software, the third I don't understand, the fourth doesn't remove the GPL obligation (still a derivative work), the fifth Felix already suggested in effect (and I still think is highly unlikely). – MadHatter Oct 23 at 6:03

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