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According to an answer on Methods for obtaining source code from an uncooperative company:

You're probably out of luck. The company distributing this firmware has an obligation to provide you the source code, but this obligation is to the copyright holder. You are not the copyright holder. The copyright holder would have to sue them for license compliance.

Does this change for someone who wrote some of the code and the copyright of that portion is under their name? For example, would someone like Ulrich Drepper (the author of several components of the Linux kernel) be in a different situation than the OP of that question with regards to having rights to the source code if other copyright holders (like SFC) don't sue?

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It depends on the license the code comes under and whether theres a copyright-assignment requirement for that project.

In the case of the Linux kernel, the license is the GPLv2, and there is no copyright assignment requirement - so anyone who can prove ownership of code within the shipped binary (important caveat there - the Linux kernel is configurable, so parts of it can be excluded from the binary) can pursue a claim of copyright infringement if the source code is not distributed according to the license.

With the case of things like GCC (until the most recent version), while the project uses the GPL (v3), it also required copyright assignment to the FSF, meaning the original authors do not hold the copyright and thus have no standing to sue (authors rights not-with-standing). They have now dropped this requirement in the latest GCC version, but it stands for older versions.

As copyright holder, you have no ability to actually force the binary distributor to comply with the terms of the license - you can merely threaten them with, and pursue, a claim of copyright infringement. In court, you can sue to stop them from infringing further and to pay punitive and actual damages.

You may be able to get them to agree to conform with the license terms, but its highly doubtful that a court would agree to force them to conform with the license terms (there has yet to be a copyright-infringement case orientated around open source software that has resulted in a court forcing the infringing company to GPL their own code they were trying to protect by non-compliance).

So, to answer your question, theres no actual avenue here which results in you obtaining the source code you have copyright ownership of - the legal actions you can take are ones of stopping infringement and claiming damages. You might be able to come to an out-of-court settlement or a voluntary agreement to provide the code, but court actions will be about stopping the infringement and damages.

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  • And to stop infringement (or have the threat of stopping the infringement be sufficient for them to willingly publish the source without a court order), I have to have contributed code as a copyright holder, right? Does this require having an explicit copyright line in the source code header?
    – forest
    Commented Jun 8, 2021 at 1:51
  • The only standing you have to sue is the copyright ownership, so yes, you have to have contributed code and retained the copyright so you can have standing. No, you do not need an explicit copyright line in the source code header, merely being able to point to a line of code and then to the source-control commit(s) that is unequivocally yours where you added the code is enough to establish ownership. Then being able to say "there is no copyright assignment for this project, so I retain copyright and allow the project the use of it under the same license the defendant enjoys" is enough.
    – user28517
    Commented Jun 8, 2021 at 2:00
  • So if I added even one line to kernel/fork.c (a source file that's always included regardless of configuration) and could establish ownership, I would have standing to sue a company which refuses to abide by the GPL and force them to either discontinue releasing the binaries (or use that as leverage to get them to release the source code)?
    – forest
    Commented Jun 8, 2021 at 2:05
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    @forest yes, that is correct. (Couldnt just say "yes" because of the comment length limit.)
    – user28517
    Commented Jun 8, 2021 at 2:09
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    Agree that a court will not order specific performance (i.e. make them comply with a licence) when monetary damages are adequate compensation (which copyright law says they are).
    – Dale M ♦
    Commented Jun 8, 2021 at 5:06
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Anyone can demand the source code. But if you don't get it, only copyright holders can sue. The fact that anyone didn't receive the source code they demanded makes the distribution copyright infringement. So a copyright holder can sue for copyright infringement, even if they were not the person who was refused the source code.

So your steps would be: Request the source code. If you don't get it, inform a copyright holder. You may also send a letter informing the company of the legal requirements in case they don't know. For the copyright holder it would be the simplest, easiest and cheapest way to do the same, except they can add "if you don't play by the rules, I will sue you". Which has a good chance of solving the problem at minimal cost.

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