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Fairphone does not provide any source code for its Fairphone 3 phone. They admit this on their website and also confirmed this to me in an email:

We really appreciate your feedback and concern, but unfortunately at this point the source tree still on the working process. It will be published eventually once the responsible team considered it is ready.

I believe them that they want to release it eventually, but it's not legal to delay like this, right? Assume I have the phone in my hands right now (note 1).

On their website they also claim that

As parts of this kernel are owned by third parties, we need their permission first

But this isn't possible either I believe. Or is it possible they signed some contract that said they can't redistribute the source, even though by using it they also agree to the license which requires them to distribute the source?

On the printed materials distributed with the phone the only relevant section is the following:

Fairphone provides mobile phones using Android OS with GApps. For this OS Fairphone will provide software updates and fixes. Please note, Fairphone only supports unmodified, officially released software...Software is an essential aspect of the mobile phone and Fairphone will make every effort to provide timely updates and fixes...You may not resell, sublicense, rent, lease, transfer, disclose or lend this software to any third party. You may not modify, alter, reverse engineer or decompile this software.

This seems to obviously contradict the GPL and I assume is null and void - right?

Note 1: I don't actually own the phone, but please assume I do - if I thought I could get the source code as a phone owner, I could and maybe would buy the phone. It's readily available from stock where I live. Nowhere in my exchange of email with them they said or even hinted at the possibility that their answer would have been different had I attached proof of purchase or asked via another channel that could be indicated on a written notice distributed with the phone.

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    Are they actually shipping the phone? I can only see "preorder" on their shop... until they actually ship the software there is 0 obligation on their part. – Bakuriu Nov 26 at 19:43
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    "It will be published eventually once the responsible team considered it is ready." That seems odd. Doesn't the GPL oblige them to distribute the source code that was actually used to produce the binary they distributed in the phone? If they're still working on the source to make it "ready", that implies they're making changes, so it will be different source code. – Ben Nov 27 at 0:52
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    When you buy the phone does it come with a Written Notice saying that they will provide source code upon request? Note that they only need to provide such a notice to people who actually obtain the product (e.g. by buying it or obtaining it from someone else who bought it before). They don't need to post it on their web site for example. – Brandin Nov 27 at 8:45
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    @Brandin I make a point to check source availability before I buy (and now I certainly won't), so I don't know. But considering their answer to my request, they aren't providing the source to anyone (I didn't tell them I didn't buy the phone and they didn't ask). – Nobody Nov 27 at 11:18
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    @Brandin I own a Fairphone 3. I can't find any such notice in the paraphernalia that came with the physical phone, although it's possible that I've subsequently lost a piece of paper that came with it I suppose. – Dan Scally Nov 27 at 16:04
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I believe them that they want to release it eventually, but it's not legal to delay like this, right?

If indeed Fairphone is distributing a device with an embedded Linux kernel but not making the corresponding source available to recipients of that device, that's a rather cut-and-dry GPL violation. An author whose work is included in Fairphone's version of the kernel could sue (either for monetary damages and/or an injunction to stop distribution) and probably win.

The legal liability here is fairly clear, assuming my stated preconditions are true. It is worth noting, however, that the Software Freedom Conservancy's Principles of Community-Oriented GPL Enforcement advise legal action as a last resort. If you are the copyright holder of code whose GPL license terms are being ignored, consult with the SFC or the GNU project for advice on how to correct such misuse in the most constructive way possible.

As parts of this kernel are owned by third parties, we need their permission first

This is vague enough that it might not be problematic. Possibly this refers to hardware drivers that are loaded as binary blobs from wrapper modules, which are outside the application of the GPL. That is, it is possible for Fairphone to have received binary blob drivers not under the GPL and incorporated them into their kernel, thereby placing them in a position of having legally acquired "part of the kernel" from a third party without GPL rights.

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This is a common misconception, but under GPL, you are only obliged to supply source code to "those who receive the binary". Since the phone with the binary on it is not publicly available, they have no obligation to make their source changes public. Even when it's out, they only have a legal obligation to share source with phone owners, not the public as a whole.

I am not sure about other obligations Fairphone has due to android licensing.

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    I'm sorry, but the phone is available. There is an owner somewhere in the comments, and two online retailers which ship to my area have them in stock. It's possible it's backordered at Fairphone, but resellers still have stock and probably will have until Fairphone catches up again. – Nobody Nov 27 at 16:26
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    Yes this is correct but I feel it only partly answers the question. It seems pretty clear that they are actually shipping the phone but not actually providing source code to those people. It seems pretty ironic given the name "Fairphone". They claim that they are trying to remove unfair practices from their product, yet it seems pretty unfair to ignore the license. – Brandin Nov 27 at 18:42
  • I think OP is confusing Fairphone's intent to supply a useable and buildable from source android distribution publicly, but not just yet, for a GPL violation. Getting an android distribution to run on a phone also requires closed source driver/firmware binaries to be included in it, Fairphone seems to have not prioritized getting clear distribution rights for the drivers. You can request the source for GPLed code as a phone owner, and they should legally respond to that, but it's rather a moot point unless they can also distribute the firmware. – Jorn van de Beek Nov 28 at 11:55
  • @JornvandeBeek It's pretty standard procedure that you need to extract firmware binary blobs from the phone or an update package when building Android images. They are often not included in the source. – Nobody Nov 28 at 12:10
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    @JornvandeBeek But when you distribute GPL software the obligation is on you to also distribute the source code, or to provide a written notice. I.e. the customer should not have to come and ask you to comply with the license; they should have already done so. – Brandin Nov 28 at 18:02

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