Firstly (a minor detail) I don’t think GPL requires you to “publish” source code per se. Just make sure that every recipient of a binary copy can also receive the source code.
But more importantly, the license doesn’t “infect” things. In no way can you be forced to license your code according GPL. Failure to comply with the GPL simply means the license isn’t applicable and the situation reverts back to normal copyright rules.
>But more importantly, the license doesn’t “infect” things.
[I’m not your lawyer and this is not legal advice.]
It can have that effect. My understanding is that if you include GPL code in your software[1] and distribute it without sharing your source code, you are committing an ongoing contract/copyright violation that can be remedied either by recalling and destroying the offending products, complying with license terms by releasing your source code, or settling with the original copyright owner (effectively, paying a license).
As for a court forcing you to release the code, that is in fact what the GPL contract requires so the court is within its rights to require specific performance instead of monetary damages. Even though common law courts strongly prefer monetary damages, they will turn to specific performance if they think it's appropriate.
All of this is going to turn on some questions about when you can bring copyright infringement vs. contract actions. It's not an area I'm super familiar with, but see my response below about at least one case that suggests you could sustain a contract action for a GPL violation in some circumstances.
[1] In the way that requires you to release your own software under the GPL. Of course, there are ways to use GPL software that don't implicate that. I'm not talking about those.
> they will turn to specific performance if they think it's appropriate
Do you know of any cases with the GPL where a court has in fact done so? I'm not aware of any outcomes where code has been forcefully licensed as a penalty. Absent strange outside circumstances (like a signed contract) I'd instinctively (but without legal training) think that that a court would treat the violator as "acting without a license" rather than "had specifically agreed to the terms of a contract and then broken it".
It was a live issue in the Artifex case. The parties ultimately settled so we don't have a final answer, but the district court was going along with the contract theory. The availability of specific performance remains an open question too. But if you can in fact enforce the GPL as a contract, then it's not a big step to some plaintiff getting specific performance, which is going to turn on case-specific things like the adequacy of monetary damages.
Firstly (a minor detail) I don’t think GPL requires you to “publish” source code per se. Just make sure that every recipient of a binary copy can also receive the source code.
But more importantly, the license doesn’t “infect” things. In no way can you be forced to license your code according GPL. Failure to comply with the GPL simply means the license isn’t applicable and the situation reverts back to normal copyright rules.