licensing australia creative-commons
Can I claim against an entity who is in breach of a GPL license against a third party?
<p>A company based in Taiwan has created derivative works (in particular, an operating system for their range of embedded devices) based upon many works licensed under the GNU GPL v3 (potentially from many different countries), has published the text of the GNU GPL v3 in their work, and has previously published the GPL-licensed source code used in creating their derivative works.</p>

<p>However, this Taiwanese company has ceased publishing the GPL-licensed source code despite having modified it in order to continue development of their derivative works, which are then conveyed to the end-users of its products, placing it in breach of the GNU GPL v3 license covering the open-source code used to derive its software.</p>

<p>As a software developer (based in Australia), I wish to develop software solutions that operate within the GPL-licensed portions of the Taiwanese company's operating system.  However, since the Taiwanese company has not released the relevant GPL-licensed source code as the GNU GPL v3 license requires it to, I am unable to develop my own solutions for this platform.</p>

<p>That is:</p>

<ol>
<li><p>A potential (Australian) client asks me to develop a software solution "that must run on (the Taiwanese company)'s newest operating system."</p></li>
<li><p>Because the Taiwanese company has not released the relevant GPL-licensed source code for a significant amount of time (years) - and has never released source code for the most recent major version of its operating system despite it having been released around a year ago - I must answer my client, "No, (the Taiwanese company) has not released its GPL-licensed source code as it is legally obliged to do, and until it does, neither I nor any other entity other than (the Taiwanese company) can do so."</p></li>
</ol>

<p>As a result, I cannot enter into a contract with the potential client to perform the desired work, and the client must either contract (the Taiwanese company) to do the work, or change hardware platforms to one for which the relevant tools for me to do my work <em>are</em> available, at considerable expense to themselves.)</p>

<p>Due to my inability to develop software solutions for the Taiwanese company's OS, caused by that company's breach of the GPL license that covers portions of its OS' source code, am I able to claim against the Taiwanese company for loss of income, in that its breach of the GPL license(s) of the works from which it derived its OS has led to my inability to perform work based upon its derivative work that, under the GNU GPL v3, is <em>also</em> required to be free and open-source?</p>

<p>If they make copies of GPL licensed software and distribute them, or they create derivative works of GPL licensed software, without following the terms of the GPL license, then they are committing copyright infringement. They can be sued for copyright infringement by the copyright holder, or by any of the copyright holders, if there is more than one. </p>

<p>In your situation (your company can't make money because another company commits copyright infringement, and the other company <em>can</em> make money because they are committing copyright infringement), you might be able to sue them for anti-competitive behaviour. Because you are unable to compete because of their illegal behaviour. You'd need to check details with a local lawyer. (In Germany, this would be quite clearly "unfair competition" and illegal, but different countries will have different laws). </p>

<p><strong>Probably not</strong></p>

<p>If they are following the GPL licence they must release the source code. They have not released the source code therefore they are not following the licence. This is not necessarily a breach of copyright. Even if it is a breach, you do not have standing to take action.</p>
