GNU GPL v2 Copy Left clause, delayed release of source

Question

I am using a modified Linux kernel from a NAS company for my own project.

It has been more then one month since the company released a new version of their software which includes the modified kernel so far the code has not been made available.

Is it allowed to delay the release of the source code or does GNU GPL v2 require that the source and product are released simultaneously?

If the latter is the case what options do I have to get the source?

Answer 1

If the modified Linux kernel is made available in binary form, the terms of GPL v2 require one of two things for commercial distribution - (1) the source code is delivered with the binary form, (2) a written offer to provide the source code for a charge no more than physical distribution (e.g. the cost of the media plus delivery) that is valid for at least three years is provided with the binary form. A third distribution option is available for noncommercial distribution.

The requirement to make the source code available takes effect the moment that the binary is delivered. That is, you cannot delay the release of the source code. By distributing the modifications to the Linux kernel, the creator has agreed to the terms of the GPL.

These questions in the GPL FAQ support this:

• Does the GPL require that source code of modified versions be posted to the public?
• The GPL says that modified versions, if released, must be “licensed … to all third parties.” Who are these third parties?
• What does this “written offer valid for any third party” mean? Does that mean everyone in the world can get the source to any GPL'ed program no matter what?
• If I distribute GPL'd software for a fee, am I required to also make it available to the public without a charge?
• I downloaded just the binary from the net. If I distribute copies, do I have to get the source and distribute that too?
• I want to distribute binaries via physical media without accompanying sources. Can I provide source code by FTP instead of by mail order?
• I want to make binaries available for anonymous FTP, but send sources only to people who order them.

It would appear that the person providing the modifications to the Linux kernel is violating the GPL. The Free Software Foundation offers suggestions on what to do when you see a violation.

The first step would be to contact the distributor and ask for instructions on how to receive the source code for the version of the software that you have. Since this is being released by an organization, I presume that you have some method of contacting them - a mailing list, a support email or forum, or a support phone number. My suggestion would be a support email address, to begin a papertrail, should your request be ignored or rejected.

If the source code is not made available per the terms of the GPL, only the copyright holders are capable of pursuing legal action to enforce the license. You can gather the information that the FSF recommends and reach out to the copyright holders.

You'll have to do some investigation on what the best contact method would be. However, based on the COPYING file that is part of the Linux kernel repository, the copyright for Linux is held by Linus Torvalds and the other Linux kernel developers. There may be a suitable mailing list, forum, or chat room where you can reach out to Linux developers to determine if they are able to assist.