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There's this application whose official website requires that people provide their email and agree to a EULA before they send you a download link. The EULA forbids redistribution and publication of derivative work.

Still, you find many derivative versions of that application in GitHub projects, some of which have made essentially no changes, i.e. you can just download their ZIP and it's effectively like downloading the original app (and one can make it exactly like the original app by essentially removing a few new files). Some of these derivative versions have project license files, e.g. Apache License v2.

I have no idea how they got the code; but how legal is it to distribute something which derives from that code based on the claim that the code was obtained from publicly-accessible websites which published it under a relatively permissive license?

Edit: I actually misread the license, so now this example is actually theoretical.

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  • I'm not a lawyer, but if you deal with stolen goods you will likely get fined.
    – user188153
    Nov 24, 2016 at 22:15
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    @ThomasKilian: I don't see how your comment is relevant, there are no goods involved and nobody stole anything.
    – einpoklum
    Nov 24, 2016 at 23:11
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    I'm voting to close this question as off-topic because the devil is in the details, and you've not provided none. It matters not, as the details are almost surely outside the scope of acceptable licensing questions. Nov 24, 2016 at 23:19
  • The devil is indeed in the details. Can you provide a link to the GitHub repo? (You cannot get into trouble for doing so; if anyone can get into trouble, it's either GitHub or the person who illegally uploaded it there -- assuming it's illegal to begin with, which is begging the question).
    – Andres F.
    Nov 25, 2016 at 1:21
  • In this case, whether the chicken or the egg came first matters.
    – Blrfl
    Nov 25, 2016 at 2:38

1 Answer 1

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I have no idea how they got the code; but how legal is it to distribute something which derives from that code basde on the claim that the code was obtained from publicly-accessible websites which published it under a relatively permissive license?

Not legal at all. If the publicly-accessible website didn't have the right to distribute it under a FOSS license in the first place, then you can't invoke your rights under the FOSS license notwithstanding the fact that it was distributed to you under the terms of a FOSS license. If you weren't aware of infringing, then it's likely (but not guaranteed) that the copyright holder will be happy enough if you cease and desist without necessarily demanding damages. If you are successfully sued for damages, you can in turn file suit against the distributor for misleading you as to the applicability of the FOSS license to try and get your money back as it were. This is not guaranteed to work, and even if you win such a lawsuit, it may be hard to collect a judgment against a FOSS project.

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    There is at least one situation in which it can be legal: if some version of the software was published by the copyright owner under a FLOSS license, and then the owner published a later version protected by an EULA/different license/whatever: in this case, the FLOSS version will still be legally available and people are entitled to upload its source code to GitHub or wherever they please. Of course, we cannot know if this is the scenario unless the OP says which software he/she is talking about.
    – Andres F.
    Nov 25, 2016 at 1:24
  • But: 1. We don't know whether the distributors do or do not have the right to distribute. 2. If there's widespread publicly-visible distribution for years, and a copyright holder does not try to enforce a restriction on distribution - does he/it not lose the rights to do so at some point?
    – einpoklum
    Nov 25, 2016 at 9:19
  • @einpoklum Note that I was only addressing the narrow question of whether it is legal to distribute based on the claim that the code was obtained from (suspectedly erroneous) publication under a FOSS license as OP asked. There may of course be other ways it can be legal. As to laches, see wnlaw.com/blog/… for an explanation for why they aren't a very good defense in copyright suits. Nov 26, 2016 at 1:37
  • Oh, the US supreme court... ah, I guess I should have been more specific in the question about where it is that I live. Well, what's done is done.
    – einpoklum
    Nov 26, 2016 at 1:46

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