I don't think anyone dropped the claim that Apple was a distributor. I don't see any way to make any kind of rational argument under US copyright law that they are not a distributor.
The question was whether or not they needed permission of the copyright holder of the GPL code in order to distribute. Contrary to widespread believe, distribution does not always require permission.
For instance, if you buy from Best Buy or Amazon a router that contains Linux firmware, then Best Buy or Amazon has in fact distributed Linux to you. Yet they have no obligation whatsoever to provide you with source code, or point you to where you can get it.
That's because the copies they are distributing are copies they got from the router manufacturer. Amazon and Best Buy are not making copies of their own for distribution, or modifying the copies they receive form the router maker before selling the router. They are just passing the copies through.
That puts them squarely under a section of copyright law called the "First Sale Doctrine" which basically says that the copyright owner's right to control distribution does not extend to individual copies that were legitimately distributed with permission of the copyright owner.
So, if Amazon or Best Buy wanted to make you agree to GPL incompatible terms for items you bought from them, there would be no problem. They could continue to sell Linux routers.
Compare to the App Store. Apple receives one copy from the developer. When a sale is made, Apple makes a new copy from that and distributes that new copy. That's the first distribution of that particular copy, and so does not benefit from the First Sale Doctrine.
Well, or possibly not if the routers were made outside the US, then first sale may not apply at all (e.g., the 9th Circuit in Costco Wholesale Corporation v. Omega, S.A.).
The question was whether or not they needed permission of the copyright holder of the GPL code in order to distribute. Contrary to widespread believe, distribution does not always require permission.
For instance, if you buy from Best Buy or Amazon a router that contains Linux firmware, then Best Buy or Amazon has in fact distributed Linux to you. Yet they have no obligation whatsoever to provide you with source code, or point you to where you can get it.
That's because the copies they are distributing are copies they got from the router manufacturer. Amazon and Best Buy are not making copies of their own for distribution, or modifying the copies they receive form the router maker before selling the router. They are just passing the copies through.
That puts them squarely under a section of copyright law called the "First Sale Doctrine" which basically says that the copyright owner's right to control distribution does not extend to individual copies that were legitimately distributed with permission of the copyright owner.
So, if Amazon or Best Buy wanted to make you agree to GPL incompatible terms for items you bought from them, there would be no problem. They could continue to sell Linux routers.
Compare to the App Store. Apple receives one copy from the developer. When a sale is made, Apple makes a new copy from that and distributes that new copy. That's the first distribution of that particular copy, and so does not benefit from the First Sale Doctrine.