Assume someone has bought some hardware with open source software, maybe GPLed software, and also assume that the original vendor has fully complied with the licenses. Which means, for example, that they provide access to the sources for a certain time period.

Now assume further that the person who bought the hardware wants to sell it at some point later. Maybe early after the original purchase, maybe much later.

Is the person who sells the used hardware also bound by the open source licenses? They may not even be aware of the licenses, they may have no software background at all. And, the time that the original vendor was required to provide the sources may long have elapsed, and the sources may no longer be publically available.

Think about all the people selling used cars, maybe future vintage-cars...


Interesting question. Traditionally, in the US the doctrine of first sale has held the that the copyright holders' right to control distribution of a particular copy is extinguished by the first sale of that copy. There is much ongoing discussion about the extent to which first-sale applies to digital assets; in Capitol Records v. ReDigi the court held that resale of digital music was not permitted by first-sale, but the argument turned on the way reselling digital music inevitably involved making a further copy, and that is not so in your case, where the digital asset is contained inside a (non-reproducible) physical asset. Similarly, in 2012 the ECJ held that

it is indeed permissible to resell software licenses even if the digital good has been downloaded directly from the Internet, and that the first sale doctrine applied whenever software was originally sold to a customer for an unlimited amount of time, as such sale involves a transfer of ownership, thus prohibiting any software maker from preventing the resale of their software by any of their legitimate owners

(summary from Wikipedia). So I can't find a completely dispositive answer, but the way I read it is that in many jurisdictions, the rights-holders' power to control ongoing distribution of a particular copy is extinguished by first sale. This includes the rights-holders' power to require that ongoing distribution take place under particular terms, including choice-of-licence and source-provision obligations. So as I read it, you can sell the box to your friend without worrying that you're giving him or her the right to turn around and demand source code that you don't even have.

Anyone thinking "ooh, I can get round the GPL by getting my friend to download a copy then selling it to me for £1, thus stripping the GPL from my copy" should note that even if that is so, you have neither the right to make multiple copies of, nor to modify, the copy you have thus acquired, since control of those is not extinguished by first-sale. All you have is the right to sell it on to someone else for £2, and good luck with that business model.

  • 1
    To my understanding, a vendor is also not allowed (under the GPL) to restrict their offer of the source code to the first buyers of their products. The source code must be available to anyone who has obtained a copy of the binaries, even if that was second-hand. – Bart van Ingen Schenau Apr 29 '20 at 12:33
  • 1
    @BartvanIngenSchenau thank you. Assuming the original vendor is not the sole rightsholder in the code, and thus has no power to vary the licence, I think that you make an excellent point, and I concur. That said, this being a s6b conveyance, the original conveyor might have gone for the three-year-offer option, and I don't believe that that three-year clock is restarted by the resale. So if the first owner has had the object for over three years the source may no longer be available via that route. – MadHatter Apr 29 '20 at 12:43
  • 1
    I concur. Although I think the three-year clock starts ticking after the device (and service for it) is discontinued, not when it is introduced. But even then the clock may have run out by the time of the resale. – Bart van Ingen Schenau Apr 29 '20 at 12:54
  • As a nicety, I don't agree with your analysis of the start point of the three-year period. But I agree with the rest of what you say. – MadHatter May 2 '20 at 17:05

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.