What's the Worst That the FSF Could Have Done to Apple? Nothing.
photo courtesy of nyuudo, used under a Creative Commons License.
In discussions on the implications of the recent FSF enforcement action against Apple's iTunes App Store, there's been a sort of recurring theme that's come up: what the GPL "requires" or "obligates" anyone to do. There's a strong strain of fantasy in these comments, and it's important to make clear what's actually the case here.
Regardless of what the GPL "requires" or "obligates" a "distributor" to do, Apple never signed a contract agreeing to abide by the GPL, not with the FSF, and not with anyone else. No matter what they'd like, the FSF has absolutely no power whatsoever to force Apple to comply with the GPL in even the slightest way.
Nor would any judge hold Apple to observing the GPL. As I've noted, Apple never agreed, much less contracted to observe it, and you can't force them to without their informed consent. There was no "meeting of minds", no "exchange of considerations", in fact, none of the elements needed to hold a party to the observance of that document.
As a license, in this instance, with respect to Apple, the GPL isn't worth the paper it's printed on. If the law worked the way the FSF seems to wish, then I could hand someone a gift-wrapped box, which when opened, contained nothing but a note saying, "By opening this box, you have agreed that you now owe Lefty $1000." And you would.
As the copyright holder on GNUgo, the FSF can most certainly demand that Apple take it down as a work which infringes their copyright. And they can sue Apple for making available (not "selling", because they didn't) an infringing work, if Apple were, say, to refuse. Period.
Now, let's consider the case where Apple did (for whatever reason) refuse to take the app off the store, and told the FSF to take a hike: our "scorched earth" scenario. The FSF would certainly get a decision in its favor—there's no question as to their holding the copyright here—but they couldn't even recover damages from Apple in spite of "winning", as it happens: there's not a shred of evidence that the FSF was damaged in any material way from the availability of this infringing work, nor does the FSF derive any income from that work.
Apple certainly didn't derive any income from it; in fact, it cost them money to host it, if only a nickel a year, max.
Nor is Apple the one guilty of actual infringement per se, since Apple didn't write the program nor did they even see the infringing source code.
If anyone infringed, it would have to be Robota Softwarehouse, who represented to Apple, in a legitimate contract (remember: that's what the FSF doesn't have) that they had a legal right to market the program.
So, it's not even a case of commercial copyright infringement, and thus, not even a criminal matter. The very best possible result the FSF could come out of such a lawsuit with is a court order for Apple to remove the program from the store. Period.
They cannot make Apple respect, observe, agree to, recognize or even read the General Public License.
