... and while it's legal for Fairphone to create such a tainted kernel, they can't redistribute those binaries, not even inside a phone.

@MSalters For the Linux kernel they can. This is because the Linux kernel is licensed under GPL v2 with exceptions that allow closed-source binary blobs to be distributed with it

But only a copyright holder can sue them, not a random member of the public. A random member of the public can request the source code, not get it, and tell a copyright holder, that's it.

As a random member of the public you can also not argue "I wouldn't have bought the phone if I had known I can't get the source code", because purchasing the phone never gave you rights to the source code that other members of the public didn't have.

@gnasher729 I doubt the second part. I assume consumer protection law would at least allow you to get a refund, where strong consumer protection laws exist. You might also be able to sue for fraudulent business practices or something, for example on the grounds that they advertised it as Android, which implies source availability, so they had fraudulent advertising.

@gnasher729 Re "But only a copyright holder can sue them", I don't think that's true. They are breaching their contract (license) in a way that creates a harm to you, so you should be able to seek redress for that harm. What you can't do is sue for Copyright infringement. In fact, it's my understanding that even the Copyright holders probably wouldn't prevail on a Copyright claim; it becomes a contract issue once there's a contract (license) in play.

@ikegami Aside from the fact that to sue for harm done you would have to show actual concrete harm (not just being mad that you don't have the source code), they do not have a contract with you that promises to deliver the source code, so you really don't have any grounds on which to sue them. Not delivering modified GPL source code upon request is a violation of their legal responsibility to the rights holder(s). It is not a violation of their legal responsibility to you or other purchasers of their product.

@GrandOpener, Re "It is not a violation of their legal responsibility to you or other purchasers of their product.", Not true. They are legally responsible to provide it to you. Being denied something to which you are legally entitled to obtain is a concrete harm, which is evident by the fact that an injunction could redress it.

@ikegami That's not how GPL/copyright law works. Someone who modifies GPL code has a legal responsibility to the author to provide source when requested. If they fail to do so, they have legally wronged the author by violating that agreement. They have not legally wronged the requester, with whom there was never any legally binding agreement. The GPL creates a legal obligation to provide source when requested. it does not directly entitle you, a third party, access to the modified code. That may seem like splitting hairs, but it's a very important difference in how the law works.

@GrandOpener Re "That's not how GPL/copyright law works", As I mentioned above, this isn't a Copyright issue. When a contract (license) is present, it usually becomes a contract issue.

@GrandOpener, Re "They have not legally wronged the requester,", They have. They are contractually bound to provide something to the requester, and they are not fulling that requirement

@ikegami Hey man, I told you how the law surrounding GPL actually works. That’s just how it is. If you don’t think it’s fair or logical to work that way, you can take that up with lawyers and lawmakers. There’s nothing else useful I can add.

I didn't say anything about anything being unfair.

@Mars Linux is a kernel, nothing else. Certainly in this context.

@mars that was an answers for msalt. Of course they can (must!) release the kernel but they can't release 3rd parties closed source code (which is what my comment is about, it's allowed to mix them)

@AdrianoRepetti Sorry, sounded like you were suggesting that Android doesn't release the source for the kernel.

Whoops, re-reading now I see you're right. I wrote it really poorly

@ikegami So by that logic, if I hire a hitman to provide death to a target, and the hitman refuses, has the hitman then legally wronged the target?

@ikegami To proceed against Fairphone, you'd have to demonstrate that they agreed to be bound by the GPL's terms. The GPL merely offers Fairphone a license and does not, and cannot, compel Fairphone to accept it. Fairphone is absolutely free to reject the GPL if they don't like its terms. (They may then be distributing a copyrighted work for which they have no license, but whether they have a defense to an accusation from the author of copyright infringement is a separate issue.)

Before anyone gets too definitive about whether the GPL is a contract or a mere licence, I'd advise reading this LWN article (full disclosure: I wrote it, but hopefully it doesn't mangle excessively the message of the talk which it reports). The answers to many of these questions vary wildly by jurisdiction and legal tradition, and are not in any case as cut and dried as some commentators are suggesting.

@MadHattersupportsMonica, if the GPL were seen as a contract, who would be the involved parties? Fairphone and the author or Fairphone and the phone buyer?

@BartvanIngenSchenau The thrust of the article is that contract and licensing law isn't simple. It was also a real induction for me into the idea that law doesn't always function as I'd expect it to, so I'm not sure I'm necessarily qualified to answer your question. The strong impression I got, though, is that the speakers were focussing on the implicit or unilateral contract between software distributor and software recipient, which in this specific case would be Fairphone and the buyer.

Though there is equally one formed between the author and Fairphone, of course.