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A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

853 points by imanewsman 9y ago

pvdebbe 9y ago
Excellent news.
- StreamBright 9y ago
  Yeah few more contributions to GPL projects from companies or/and removing GPL code base from some products using GPL without contibuting back.
  - vkazanov 9y ago
    Fewer contributions? Or fewer companies abusing open-sourced code?
    - yoz-y 9y ago
      Most probably both. However this is probably for the best.
      - vkazanov 9y ago
        Dura lex, sed lex (c), and there's no way around it.
  - _jal 9y ago
    I see this attitude, but don't understand it. It seems based on a view that more software is always better, no matter how it comes in to being. But of course, attacking the legal constructs under which assumptions people create software means fewer people would create it in the first place. It is privileging parasites over the host. And the attitude is almost always myopically limited to the GPL. Would you react the same way to a suit that substituted the infringement of Microsoft copyright? "Microsoft sued someone for infringing their copyright, so now I'm scared to link their code" doesn't pass the giggle test.
etskinner 9y ago
"GNL GPU", must be Nvidia's new line of graphics cards.
carlmcqueen 9y ago
while an important step, the last line of the article makes it clear it is still pretty early in this process.
dhimes 9y ago
This was a ruling that the contract between the plaintiff and defendant existed, not on the validity of the contract (which is the GNU GPL license). Defendant (Hancom) was trying to say that because they didn't sign anything they didn't have a contract. But Hancom "represented publicly that its use of Ghostscript was licensed under the GNL GPU" Therefore, the Judge ruled that in their own words they publicly acknowledged the contract.
- imanewsman 9y ago
  The defense argued that the license was not enforceable. In the order, the federal court laid out the reasons the license _is_ enforceable. Here's the order: https://docs.justia.com/cases/federal/district-courts/california/candce/3:2016cv06982/305835/32 https://docs.justia.com/cases/federal/district-courts/califo...
- ovi256 9y ago
  It's a very narrow ruling, conditioned on the fact that the defendant, Hancom, publicly acknowledged they were using Ghostscript under GPL. It does not say much, if anything, but IANAL, about a defendant who would not have acknowledged this, which seems like the more interesting question. Common law judges are very prudent in their ruling.
cmdrfred 9y ago
I wonder if this applies to non copy left licenses as well.
- icebraining 9y ago
  Probably. In the previous case they mention, the license was the Artistic License, which isn't copyleft, and it was considered infringement.
  - mrout 9y ago
    AL is copyleft.
ckastner 9y ago
> That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. ... so they admitted to the court that they willfully used the software without a license to do so?
- iplaw 9y ago
  This is what happens when you hire short-sighted attorneys with an unreasonable expectation of success. What's funny is that Hancom is essentially arguing that shrink-wrap licenses (contracts) are unenforceable. Ghostscript was open sourced under the GNU GPL which states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL. Integrated the software into their own closed-source software and distributing said closed-source software is unquestionable use. At the same time, you can guarantee that Hancom would fully enforce their own shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.
  - davidgerard 9y ago
    > states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL Not quite technically! The way it works is: you have no permission by default under copyright. The only permission you have to copy is the GPL. If you obey it, fine. If not, you're just violating copyright like any other copyright violation. This can be an important point: it's a license, not a contract. It may be unfortunate that the judgement uses the word "contract", presumably because that's the word the defendant used.
    - iplaw 9y ago
      A license is a contract. I don't understand the artificial distinction between the two, specifically in reference to GNU GPL. http://www.technollama.co.uk/a-licence-or-a-contract http://www.technollama.co.uk/a-licence-or-a-contract
      - 9y ago
iplaw 9y ago
> Of course, whether Artifex will actually win the case it’s now allowed to pursue is another question altogether. It's fairly clear that they will win the case in one fashion or another. I am predicting that the case will quickly be settled out of court for a lump sum plus a running licensing fee. You have a public admission from the defendant that they integrated the plaintiff's Ghostscript software into their own without either: 1) making the resulting Hancom office suite open source, or 2) paying Artifex a licensing fee for the software. The case against Hancom was solid under copyright infringement, and now has the added sting of breach of contract.
apo 9y ago
To use Ghostscript for free, Hancom would have to adhere to its open-source license, the GNU General Public License (GPL). The GNU GPL requires that when you use GPL-licensed software to make some other software, the resulting software also has to be open-sourced with the same license if it’s released to the public. That means Hancom would have to open-source its entire suite of apps. Alternatively, Hancom could pay Artifex a licensing fee. Artifex allows developers of commercial or otherwise closed-source software to forego the strict open-source terms of the GNU GPL if they’re willing to pay for it. This obligation has been termed "reciprocity," and it lies at the heart of many open source business models. http://www.rosenlaw.com/pdf-files/Rosen_Ch06.pdf http://www.rosenlaw.com/pdf-files/Rosen_Ch06.pdf The more important issue here is reciprocity, not whether an open source license should be considered to be a contract. AFAIK, the reciprocity provision of any version of the GPL hasn't been tested in any meaningful way within the US. In particular, the specific use cases that trigger reciprocity remain cloudy at best in my mind. Some companies claim that merely linking to a GPLed library is sufficient to trigger reciprocity. FSF published the LGPL specifically to address this point. So I believe a ruling on reciprocity would be ground breaking.
- matt4077 9y ago
  It appears that Rosen's "reciprocity" is simply another term for the "infectious", or "copyleft" nature of GPL. In that case I fail to see the significance. There isn't really any remaining doubt about the enforceability of GPL, which may actually be the reason for the relative dearth of case law.
  - apo 9y ago
    I'd be interested in knowing which cases you're thinking about.
- 10165 9y ago
  Question: Is that what Stallman intended to accomplish with the GPL? Pay a fee for GPL source code and bypass the GPL? (I apologize for my ignorance here.) It seems like "reciprocity" has an even worse outcome than BSD source code. The origin of the source code can be completely hidden from the user. Do users deserve to know at least that the original source code was freely available? What happens when users discovers that they are paying for something that others are getting for free? Do they care? Is this a case of taking something that was free (but valuable), i.e., the original GPL source code, and concealing it as a closed source work in order to generate revenue/profit for some specific person or entity? Stupid question: If someone fixes or adds something valuable to GPL source code and wants to charge for it, then why not just charge for the patch or the additional code? (Assume that patches or additional source code files are distributed by themselves without the original GPL source code and that they do not contain any functional portion of the original GPL source code. Assume further that they do not use "interfaces" designed by the GPL source code author. Finally, assume that the end user can compile their own software and no binaries are distributed.)
rlpb 9y ago
"Corley denied the motion, and in doing so, set the precedent that licenses like the GNU GPL can be treated like legal contracts, and developers can legitimately sue when those contracts are breached." The GNU GPL was written on the basis that if someone does not accept its terms, then that without any other license from the copyright holder, redistribution puts that person in violation of copyright law. Suing for damages on the basis of a breach of copyright law clearly does not require any contract. So this is more about a technicality of the legal process in this particular case, rather than anything about whether copyleft is legally enforceable or not in general. Specifically, because the motion denial was based on the defendant's own admission being deemed to be the agreement of a contract, this says nothing about the general enforceability of the GPL (future defendants could simply avoid making such an admission). Further, since the ruling was in response to a specific motion, it only concerns the claims made in that motion: about whether a contract exists in this particular case. It says nothing about the "copyright violation if you don't accept the license" mechanism of copyleft. Finally, the article does not provide any evidence that there has been any ruling that determined that the GPL is an enforceable legal contract, contrary to its title. The ruling as quoted just says that the defendant, by its own admission, did accept to enter in to the GPL-defined contract.
- imanewsman 9y ago
  In order to dismiss the motion, the court had to explain why the GNU GPL is an enforceable contract: https://docs.justia.com/cases/federal/district-courts/california/candce/3:2016cv06982/305835/32 https://docs.justia.com/cases/federal/district-courts/califo...
  - rlpb 9y ago
    No. The plantiff made two key claims: breach of contract and copyright infringment. This is sensible, because the defendant has either accepted the GPL (and thus is in breach of contract), or has infringed copyright. This is key to the mechanism of copyleft. By suing for both, the defendant cannot just choose whichever is the most convenient and win on the technicality that the other was not considered by the court. The judge ruled that the claim of breach of contract cannot be dismissed on the basis that the contract does not exist, because the defendant has effectively admitted that it did exist. The judge also ruled that the claim of copyright cannot be dismissed on the basis of jurisdiction. None of these things relate to the enforceability of the GPL in general.
davidgerard 9y ago
The GPL has been upheld many times previously, e.g. in BusyBox enforcing its copyright. https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits In one enforcement, the defendant defaulted and the SFLC ended up with a pile of violating televisions! http://www.groklaw.net/article.php?story=20100803132055210 http://www.groklaw.net/article.php?story=20100803132055210 The enforceability of the GPL is in no way news. That anyone would continue to try to violate it is the real WTF.
AsyncAwait 9y ago
This is great - love or hate the GPL, it brings something unique to the table that no other license does and developers should have the ability to license their software under the terms that fits their motivation for developing it in the first place the best - the GPL does exactly that for many.
dragonwriter 9y ago
Actually, a more accurate statement is thst a federal judge has ruled that a plaintiff in a case has alleged the existence of circumstances in which the GPL would be an enforceable legal contract.
- dhimes 9y ago
  Basically: If you admit to having a contract, then you have a contract.
blauditore 9y ago
One thing I often wonder is how a company providing such open source software can find out (and proof) if someone is using it in a closed-source project. All I can think of is "guessing" based on behavior of the downstream tool. Also, the article doesn't say much about how that lawsuit came to be. Did Artifex approach Hancom beforehand to notify them about the license infringement or just directly sue? I guess in this particular case, Hancom knew what they were doing, but I can imagine some (smaller) companies not being fully aware of open source license specifics and unknowingly running into a lawsuit.
- mschuetz 9y ago
  I believe there was a discussion about this in one particular open source project because someone found that the binaries of a proprietary software project contained lots and lots of symbols that were identical to that of the open source project.
- empressplay 9y ago
  one way is to engineer in obscure but reproducible behaviour, along the lines of A->B->C results in D. people who are likely to steal code are unlikely to audit it sufficiently to identify esoteric behaviour.
  - cryptarch 9y ago
    That's a good idea, very similar to map makers hiding small deficits to find copiers. That gets awfully close to DRM, though.
    - sqeaky 9y ago
      It seems like that would be just for the purpose of detection and wouldn't stop people from using either the map or the software. DRM is bad because it both doesn't stop pirates and hurts normal users. This allows detection of pirates and hurts no one.
    - webmaven 9y ago
      It's not DRM (or even "close to it"), it's a "canary trap", or a "barium meal test". The modern equivalents in images, audio files, ebooks, etc. are usually called watermarks, even though they aren't visible (so sometimes called an "invisible watermark"), and are used extensively (including by ebook publishers that don't use DRM).
DannyBee 9y ago
This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. That is, it's not even a final decision of a court. So while interesting, it's incredibly early in the process. The same court could issue a ruling going the exact opposite way after trial. As someone else wrote, basically a court rule that a plaintiff alleged enough facts that, if those facts were true, would give rise to an enforceable contract. IE they held that someone wrote enough crap down that if the crap is true the other guy may have a problem. They didn't actually determine whether any of the crap is true or not. (In a motion to dismiss, the plaintiff's allegations are all taken as true. This is essentially a motion that says "even if everything the plaintiff says is right, i should still win". If you look, this is why the court specifically mentions a bunch of the arguments the defendant makes would be more appropriate for summary judgement)
- tzs 9y ago
  > This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. Is "preliminary injunction" the right terminology here? It sounds like it was a motion for dismissal. Anyway, it's appalling how often the press confuses pre-trial motions like this with substantive rulings on the issues of the case. ...and it is also, sadly, no surprise that they also think that this sets precedent. Why is it so hard for them to understand the difference between trial courts and appellate courts and which set precedent?
  - qb45 9y ago
    I'll be cynical: some call it "having an axe to grind". Why do research if you can just post something that seems to align with your cause and makes you happy? In all that we do at Quartz, we embrace openness: open source code, an open newsroom, and open access to the data behind our journalism.
    - tzs 9y ago
      > “Not so,” [yeah, I'm sure this is a literal quote from a court document] said Judge Jacqueline Scott Corley in her order on the motion on April 25. That is in fact a literal quote from the court document: Defendant contends that Plaintiff’s reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. Not so. The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNL GPU. These allegations sufficiently plead the existence of a contract. See, e.g., MedioStream, Inc. v. Microsoft Corp., 749 F. Supp. 2d 507, 519 (E.D. Tex. 2010) (concluding that the software owner had adequately pled a claim for breach of a shrink-wrap license). See page 4, line 17 here: https://cases.justia.com/federal/district-courts/california/candce/3:2016cv06982/305835/32/0.pdf https://cases.justia.com/federal/district-courts/california/...
siegel 9y ago
The article somewhat overstates the significance of this case in terms of precedential value. On a procedural level, understand that this is a district court opinion and is not binding on any other court. Of course, if other courts find the arguments persuasive, they can adopt the reasoning. But no court has to adopt the reasoning in this opinion. On a substantive level, it's important to look at the arguments the court is addressing and how they are addressed: 1) Did the plaintiff adequately allege a breach of contract claim? We're at the motion to dismiss phase here and the court is only looking at plaintiff's complaint and accepting all of the allegations as true. There are essentially only 2 arguments the court addresses: A) Was there a contract here at all?; and B) Did the plaintiff adequately allege a recognizable harm? Understand that in a complaint for breach of contract, a plaintiff has to allege certain things: (i) the existence of a contract; (ii) plaintiff performed or was excused from performance; (iii) defendant's breach; (iv) damages. So, the court is addressing (i) and (iv), which I refer to as (A) and (B) above. As to (A), the argument the defendant appears to have made is that an open source license is not enforceable because a lack of "mutual assent." In other words, like a EULA or shrink-wrap license, some argue that an by using software subject open source license doesn't demonstrate that you agreed to the terms of that license. The court, without any real analysis, says that by alleging the existence of an open source license and using the source code, that is sufficient to allege the existence of a contract. The court cites as precedent that alleging the existence of a shrink-wrap license has been held as sufficient to allege the existence of a contract. But the key word here is "allege." As the case proceeds, the defendant is free to develop evidence to show that there was no agreement between the parties as to the terms of a license. So, very little definitive was actually decided at this stage. All that was decided is that alleging that an open source license existed is not legally deficient per se to allege the existence of a contract. As to (B), defendant apparently argued that plaintiff suffered no recognizable harm from defendant's actions. The court held that defendant deprived plaintiff of commercial license fees. In addition, and more important for the audience here, the court held that there is a recognizable harm based on defendant's failure to comply with the open source requirements of the GPL license. Basically, the court says that there are recognizable benefits (including economic benefits) that come from the creation and distribution of public source code, wholly apart from license fees. This is key - if the plaintiff did not have a paid commercial licensing program, it could STILL sue for breach of contract because of this second type of harm. That being said, none of this argument is new. There is established precedent on this point. 2) Is the breach of contract claim preempted? Copyright law in the United States is federal law. Breach of contract is state law. A plaintiff cannot use a state law claim to enforce rights duplicative of those protected by federal copyright law. So, what the court is looking at here, is whether there is some extra right that the breach of contract claim addresses that is not provided under copyright law. In other words, if the only thing that the breach of contract claim was addressing the right to publish or create derivative works, then it would be duplicative of the copyright claim. And, therefore, it would be preempted. Here, the court held that there are two rights that the breach of contract claim addresses that are different from what copyright law protects: (A) the requirement to open source; and (B) compensation for "extraterritorial" infringement. The real key here is (A), not (B). With respect to (A), the court here is saying that the GNU GPL's copyleft provisions that defendant allegedly breached are an extra right that is being enforced through the breach of contract claim that are not protected under copyright law. Therefore, the contract claim is not preempted. (B) is a bit less significant for broader application. What (B) is saying is that because the plaintiff is suing for defendant's infringement outside the U.S. ("extraterritorial" infringement), and federal copyright law doesn't necessarily address such infringement, that's an "extra element" of the breach of contract claim. I say this is less significant because it wouldn't apply to a defendant who didn't infringe outside the United States. So, if you were the plaintiff here and the defendant was in California and only distributed the software in the U.S., argument (B) wouldn't apply. I hope this clarifies what is/is not significant about the opinion here.
brian-armstrong 9y ago
The GPL has such strong terms, I think there is good reason to avoid ever reading any GPL codebase. Tainting yourself may imperil any code you write for the rest of your lifetime. And to that end, I think github should place a large warning on any GPL repo before letting you see it, as well as delisting them from search results (or at least hiding the contents)
- mrout 9y ago
  >The GPL has such strong terms, I think there is good reason to avoid ever reading any GPL codebase. Tainting yourself may imperil any code you write for the rest of your lifetime. This is the most ridiculous FUD I've ever seen.
ljfio 9y ago
This article seems to be declaring victory in war, when really only a minor battle in the war has been won.
- dhimes 9y ago
  No, the article is pretty clear that this isn't about the terms of the GNU GPL itself, just about whether there was a contract in this particular case.
danschumann 9y ago
What happens if they claim they downloaded it from somewhere else that didn't include the license.txt file? There is no proof they ever were even notified of the license. (this is why we usually have people sign contracts)
- Thiez 9y ago
  Adobe is about 34 years old, so the copyright on any program that interacts with an Adobe file format (e.g. postscript, pdf) cannot have expired yet (in the absence of time travel). So if the source code did not come with a license, it is their responsibility to obtain one, or they can't use it.
- scarhill 9y ago
  If they used code that they downloaded without a license, they have violated copyright law. (All code created in the US and most other countries has a copyright at creation.) So they either accepted the GPL or violated copyright.
- mi100hael 9y ago
  > “Upon discovering Hancom’s abuse of the GNU GPL and infringement of Artifex’s valuable copyright in Ghostscript, Artifex demanded that Hancom cease its infringement and remit to Artifex a reasonable royalty for Hancom’s years of unlicensed use of Ghostscript,” the company said in its complaint. “Rebuffed by Hancom, Artifex turns to this Court to enjoin Hancom from further infringement and to seek relief and recovery for Hancom’s abuse of Artifex’s open source license.” So the suit was filed only after Artifex had notified Hancom of the license and attempted to work out a solution out of court. There's no way to argue they didn't know about the license beyond a certain date, and it sounds like they willfully continued to infringe upon the license after said date.
MichaelMoser123 9y ago
Congratulations to Stallman. After all these years the GPL has been tested in court. The man must be drunk with joy... Three cheers for the Mr. Stallman and his gcc (joining in on his celebrations)
iamNumber4 9y ago
moral of the story is, know you licences. Adhere to the license terms. Seek out projects with more permissive licenses if you plan to do closed source. It is simple to work around licence issues with your project. You just have to put in the work. Know that your design may have to factor in extra time because you can't use lib XYZ because you have to write your own library to do the same thing. If using lib XYZ will save a bunch of time, then know that you will have to adhere to lib XYZ license. Maybe writing a wrapper application that you opensource, and your closed source application interfaces with might be a design consideration. In the end, it's your project, your call. Just know when you make a decision you weigh the pro's and con's of going forth with that decision.
faragon 9y ago
In my opinion, software equivalent in functionality to Ghostscript should be written using a BSD or similar license. Is there anyone willing to sponsor it?
- qb45 9y ago
  Maybe ask Hancom :p
beat 9y ago
A friend of mine, who is a software engineer turned IP lawyer, made a good point about the GPL - the reason it "has never been challenged in court" isn't about uncertainty, but about certainty. The GPL is based on the most simple, bedrock copyright law. Despite being a clever hack, there's nothing legally exotic about it. Any judge in the country or anywhere else would laugh a GPL challenge right out of court. Any any IP lawyer reading it would tell their client that that's what's going to happen if they try to challenge it. That's why it's never been fully tested in court... no need.
- sounds 9y ago
  Ah, if only. To the first point: the GPL is not used nearly as much as it should be. Thus there's still a strong selection bias on court cases in general being about the GPL, since the GPL is not selected very often. (And there's a reason it is avoided: legal counsel to large companies frequently describe the GPL as "untested." This happens still today, which is frankly ridiculous in the light of all that the Software Freedom Law Center, FSF, etc. have done) To the second point: any court proceeding introduces a huge amount of uncertainty. Costs are up-front, payback may come in a decade or more after all routes of appeal have been exhausted. Judgments are frequently overturned on technicalities; even if the technicalities are flawless the GPL is not unassailable. On a personal note, I am unequivocally in favor of using Free Software further and wider than it has been used. In every potential conflict of interest, I think there is much to be said for attempting to settle with a "GPL violator" using amicable means, even if it takes a long time. I view "GPL violations" as free advertising -- don't be shy about publishing the proceedings, though doing it with some taste may help the party come into compliance, their actions should speak for themselves! People use GPL software, extensively. Any use of GPL software is a compliment to the software authors. Any contribution back to the software will improve it for everyone. etc.
  - eridius 9y ago
    Big companies don't avoid GPL because it's "untested". Big companies avoid GPL because it's actually quite dangerous for them to use. GPLv2 only so far as if they accidentally taint their proprietary code with it, then they need to open up their code (which is bad enough). But GPLv3 is really fucking scary. As it was once put to me, if a single GPLv3 binary accidentally makes it onto the OS image for iOS, Apple would then legally be required to release the master signing key to the whole world, completely destroying the whole security model of iOS and screwing everybody (not just Apple but also Apple's users who rely on that security). Plus the patent clause in GPLv3 is also nasty.
finid 9y ago
That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. Hancom's CEO is a thief.
analog31 9y ago
That means Hancom would have to open-source its entire suite of apps. Ask HN: What if the vendor had structured their product in a way that GhostScript is its own stand-alone app. Would they still be obligated to release their entire code, or just the portion that uses GhostScript?
- scott_karana 9y ago
  As long as it's not linked to their binaries, invoking it separately is fine. I believe they might need to allow for others to download the source of Ghostscript whether modified or not, but that part isn't hard. :)
  - deleted 9y ago
    [deleted]
frabbit 9y ago
This is why if someone were the (usually) imaginary "Free Software zealot" that would like to prevent a private business from profiting off public work, it would be necessary for software not only to be under a Free license, but for the copyright assignment to be held by someone that agrees with said Free Software "zealot".
- frabbit 9y ago
  Or to put it another way: if you are contributing to a Free Software project and the copyright is held by some other entity to who you have duly assigned rights, then you may find that they decided to sell the right to use some of your contributions. So, be careful who you turn your copyright assignment over to.
AndyMcConachie 9y ago
Here is a link to the actual opinion if anyone else is interested. https://scholar.google.com/scholar_case?case=37795293356107925 https://scholar.google.com/scholar_case?case=377952933561079...
georgestephanis 9y ago
Doesn't MySQL distribute in a similar dual-licensed fashion?
ferdterguson 9y ago
I'm not a big fan of the GPL personally, but this is great!
sayelt 9y ago
'The GNU GPL was not designed to be "open source".' —Richard Stallman https://www.gnu.org/philosophy/open-source-misses-the-point.html https://www.gnu.org/philosophy/open-source-misses-the-point....

853 points by imanewsman 9y ago

pvdebbe 9y ago

Excellent news.

StreamBright 9y ago
Yeah few more contributions to GPL projects from companies or/and removing GPL code base from some products using GPL without contibuting back.
- vkazanov 9y ago
  Fewer contributions? Or fewer companies abusing open-sourced code?
  - yoz-y 9y ago
    Most probably both. However this is probably for the best.
    - vkazanov 9y ago
      Dura lex, sed lex (c), and there's no way around it.
- _jal 9y ago
  I see this attitude, but don't understand it. It seems based on a view that more software is always better, no matter how it comes in to being. But of course, attacking the legal constructs under which assumptions people create software means fewer people would create it in the first place. It is privileging parasites over the host. And the attitude is almost always myopically limited to the GPL. Would you react the same way to a suit that substituted the infringement of Microsoft copyright? "Microsoft sued someone for infringing their copyright, so now I'm scared to link their code" doesn't pass the giggle test.

etskinner 9y ago

"GNL GPU", must be Nvidia's new line of graphics cards.

carlmcqueen 9y ago

while an important step, the last line of the article makes it clear it is still pretty early in this process.

dhimes 9y ago

This was a ruling that the contract between the plaintiff and defendant existed, not on the validity of the contract (which is the GNU GPL license). Defendant (Hancom) was trying to say that because they didn't sign anything they didn't have a contract. But Hancom "represented publicly that its use of Ghostscript was licensed under the GNL GPU" Therefore, the Judge ruled that in their own words they publicly acknowledged the contract.

imanewsman 9y ago
The defense argued that the license was not enforceable. In the order, the federal court laid out the reasons the license _is_ enforceable. Here's the order: https://docs.justia.com/cases/federal/district-courts/california/candce/3:2016cv06982/305835/32 https://docs.justia.com/cases/federal/district-courts/califo...
ovi256 9y ago
It's a very narrow ruling, conditioned on the fact that the defendant, Hancom, publicly acknowledged they were using Ghostscript under GPL. It does not say much, if anything, but IANAL, about a defendant who would not have acknowledged this, which seems like the more interesting question. Common law judges are very prudent in their ruling.

cmdrfred 9y ago

I wonder if this applies to non copy left licenses as well.

icebraining 9y ago
Probably. In the previous case they mention, the license was the Artistic License, which isn't copyleft, and it was considered infringement.
- mrout 9y ago
  AL is copyleft.

ckastner 9y ago

> That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. ... so they admitted to the court that they willfully used the software without a license to do so?

iplaw 9y ago
This is what happens when you hire short-sighted attorneys with an unreasonable expectation of success. What's funny is that Hancom is essentially arguing that shrink-wrap licenses (contracts) are unenforceable. Ghostscript was open sourced under the GNU GPL which states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL. Integrated the software into their own closed-source software and distributing said closed-source software is unquestionable use. At the same time, you can guarantee that Hancom would fully enforce their own shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.
- davidgerard 9y ago
  > states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL Not quite technically! The way it works is: you have no permission by default under copyright. The only permission you have to copy is the GPL. If you obey it, fine. If not, you're just violating copyright like any other copyright violation. This can be an important point: it's a license, not a contract. It may be unfortunate that the judgement uses the word "contract", presumably because that's the word the defendant used.
  - iplaw 9y ago
    A license is a contract. I don't understand the artificial distinction between the two, specifically in reference to GNU GPL. http://www.technollama.co.uk/a-licence-or-a-contract http://www.technollama.co.uk/a-licence-or-a-contract
    - 9y ago

iplaw 9y ago

> Of course, whether Artifex will actually win the case it’s now allowed to pursue is another question altogether. It's fairly clear that they will win the case in one fashion or another. I am predicting that the case will quickly be settled out of court for a lump sum plus a running licensing fee. You have a public admission from the defendant that they integrated the plaintiff's Ghostscript software into their own without either: 1) making the resulting Hancom office suite open source, or 2) paying Artifex a licensing fee for the software. The case against Hancom was solid under copyright infringement, and now has the added sting of breach of contract.

apo 9y ago

To use Ghostscript for free, Hancom would have to adhere to its open-source license, the GNU General Public License (GPL). The GNU GPL requires that when you use GPL-licensed software to make some other software, the resulting software also has to be open-sourced with the same license if it’s released to the public. That means Hancom would have to open-source its entire suite of apps. Alternatively, Hancom could pay Artifex a licensing fee. Artifex allows developers of commercial or otherwise closed-source software to forego the strict open-source terms of the GNU GPL if they’re willing to pay for it. This obligation has been termed "reciprocity," and it lies at the heart of many open source business models. http://www.rosenlaw.com/pdf-files/Rosen_Ch06.pdf http://www.rosenlaw.com/pdf-files/Rosen_Ch06.pdf The more important issue here is reciprocity, not whether an open source license should be considered to be a contract. AFAIK, the reciprocity provision of any version of the GPL hasn't been tested in any meaningful way within the US. In particular, the specific use cases that trigger reciprocity remain cloudy at best in my mind. Some companies claim that merely linking to a GPLed library is sufficient to trigger reciprocity. FSF published the LGPL specifically to address this point. So I believe a ruling on reciprocity would be ground breaking.

matt4077 9y ago
It appears that Rosen's "reciprocity" is simply another term for the "infectious", or "copyleft" nature of GPL. In that case I fail to see the significance. There isn't really any remaining doubt about the enforceability of GPL, which may actually be the reason for the relative dearth of case law.
- apo 9y ago
  I'd be interested in knowing which cases you're thinking about.
10165 9y ago
Question: Is that what Stallman intended to accomplish with the GPL? Pay a fee for GPL source code and bypass the GPL? (I apologize for my ignorance here.) It seems like "reciprocity" has an even worse outcome than BSD source code. The origin of the source code can be completely hidden from the user. Do users deserve to know at least that the original source code was freely available? What happens when users discovers that they are paying for something that others are getting for free? Do they care? Is this a case of taking something that was free (but valuable), i.e., the original GPL source code, and concealing it as a closed source work in order to generate revenue/profit for some specific person or entity? Stupid question: If someone fixes or adds something valuable to GPL source code and wants to charge for it, then why not just charge for the patch or the additional code? (Assume that patches or additional source code files are distributed by themselves without the original GPL source code and that they do not contain any functional portion of the original GPL source code. Assume further that they do not use "interfaces" designed by the GPL source code author. Finally, assume that the end user can compile their own software and no binaries are distributed.)

rlpb 9y ago

"Corley denied the motion, and in doing so, set the precedent that licenses like the GNU GPL can be treated like legal contracts, and developers can legitimately sue when those contracts are breached." The GNU GPL was written on the basis that if someone does not accept its terms, then that without any other license from the copyright holder, redistribution puts that person in violation of copyright law. Suing for damages on the basis of a breach of copyright law clearly does not require any contract. So this is more about a technicality of the legal process in this particular case, rather than anything about whether copyleft is legally enforceable or not in general. Specifically, because the motion denial was based on the defendant's own admission being deemed to be the agreement of a contract, this says nothing about the general enforceability of the GPL (future defendants could simply avoid making such an admission). Further, since the ruling was in response to a specific motion, it only concerns the claims made in that motion: about whether a contract exists in this particular case. It says nothing about the "copyright violation if you don't accept the license" mechanism of copyleft. Finally, the article does not provide any evidence that there has been any ruling that determined that the GPL is an enforceable legal contract, contrary to its title. The ruling as quoted just says that the defendant, by its own admission, did accept to enter in to the GPL-defined contract.

imanewsman 9y ago
In order to dismiss the motion, the court had to explain why the GNU GPL is an enforceable contract: https://docs.justia.com/cases/federal/district-courts/california/candce/3:2016cv06982/305835/32 https://docs.justia.com/cases/federal/district-courts/califo...
- rlpb 9y ago
  No. The plantiff made two key claims: breach of contract and copyright infringment. This is sensible, because the defendant has either accepted the GPL (and thus is in breach of contract), or has infringed copyright. This is key to the mechanism of copyleft. By suing for both, the defendant cannot just choose whichever is the most convenient and win on the technicality that the other was not considered by the court. The judge ruled that the claim of breach of contract cannot be dismissed on the basis that the contract does not exist, because the defendant has effectively admitted that it did exist. The judge also ruled that the claim of copyright cannot be dismissed on the basis of jurisdiction. None of these things relate to the enforceability of the GPL in general.

davidgerard 9y ago

The GPL has been upheld many times previously, e.g. in BusyBox enforcing its copyright. https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits In one enforcement, the defendant defaulted and the SFLC ended up with a pile of violating televisions! http://www.groklaw.net/article.php?story=20100803132055210 http://www.groklaw.net/article.php?story=20100803132055210 The enforceability of the GPL is in no way news. That anyone would continue to try to violate it is the real WTF.

AsyncAwait 9y ago

This is great - love or hate the GPL, it brings something unique to the table that no other license does and developers should have the ability to license their software under the terms that fits their motivation for developing it in the first place the best - the GPL does exactly that for many.

dragonwriter 9y ago

Actually, a more accurate statement is thst a federal judge has ruled that a plaintiff in a case has alleged the existence of circumstances in which the GPL would be an enforceable legal contract.

dhimes 9y ago
Basically: If you admit to having a contract, then you have a contract.

blauditore 9y ago

One thing I often wonder is how a company providing such open source software can find out (and proof) if someone is using it in a closed-source project. All I can think of is "guessing" based on behavior of the downstream tool. Also, the article doesn't say much about how that lawsuit came to be. Did Artifex approach Hancom beforehand to notify them about the license infringement or just directly sue? I guess in this particular case, Hancom knew what they were doing, but I can imagine some (smaller) companies not being fully aware of open source license specifics and unknowingly running into a lawsuit.

mschuetz 9y ago
I believe there was a discussion about this in one particular open source project because someone found that the binaries of a proprietary software project contained lots and lots of symbols that were identical to that of the open source project.
empressplay 9y ago
one way is to engineer in obscure but reproducible behaviour, along the lines of A->B->C results in D. people who are likely to steal code are unlikely to audit it sufficiently to identify esoteric behaviour.
- cryptarch 9y ago
  That's a good idea, very similar to map makers hiding small deficits to find copiers. That gets awfully close to DRM, though.
  - sqeaky 9y ago
    It seems like that would be just for the purpose of detection and wouldn't stop people from using either the map or the software. DRM is bad because it both doesn't stop pirates and hurts normal users. This allows detection of pirates and hurts no one.
  - webmaven 9y ago
    It's not DRM (or even "close to it"), it's a "canary trap", or a "barium meal test". The modern equivalents in images, audio files, ebooks, etc. are usually called watermarks, even though they aren't visible (so sometimes called an "invisible watermark"), and are used extensively (including by ebook publishers that don't use DRM).

DannyBee 9y ago

This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. That is, it's not even a final decision of a court. So while interesting, it's incredibly early in the process. The same court could issue a ruling going the exact opposite way after trial. As someone else wrote, basically a court rule that a plaintiff alleged enough facts that, if those facts were true, would give rise to an enforceable contract. IE they held that someone wrote enough crap down that if the crap is true the other guy may have a problem. They didn't actually determine whether any of the crap is true or not. (In a motion to dismiss, the plaintiff's allegations are all taken as true. This is essentially a motion that says "even if everything the plaintiff says is right, i should still win". If you look, this is why the court specifically mentions a bunch of the arguments the defendant makes would be more appropriate for summary judgement)

tzs 9y ago
> This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. Is "preliminary injunction" the right terminology here? It sounds like it was a motion for dismissal. Anyway, it's appalling how often the press confuses pre-trial motions like this with substantive rulings on the issues of the case. ...and it is also, sadly, no surprise that they also think that this sets precedent. Why is it so hard for them to understand the difference between trial courts and appellate courts and which set precedent?
- qb45 9y ago
  I'll be cynical: some call it "having an axe to grind". Why do research if you can just post something that seems to align with your cause and makes you happy? In all that we do at Quartz, we embrace openness: open source code, an open newsroom, and open access to the data behind our journalism.
  - tzs 9y ago
    > “Not so,” [yeah, I'm sure this is a literal quote from a court document] said Judge Jacqueline Scott Corley in her order on the motion on April 25. That is in fact a literal quote from the court document: Defendant contends that Plaintiff’s reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. Not so. The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNL GPU. These allegations sufficiently plead the existence of a contract. See, e.g., MedioStream, Inc. v. Microsoft Corp., 749 F. Supp. 2d 507, 519 (E.D. Tex. 2010) (concluding that the software owner had adequately pled a claim for breach of a shrink-wrap license). See page 4, line 17 here: https://cases.justia.com/federal/district-courts/california/candce/3:2016cv06982/305835/32/0.pdf https://cases.justia.com/federal/district-courts/california/...

siegel 9y ago

The article somewhat overstates the significance of this case in terms of precedential value. On a procedural level, understand that this is a district court opinion and is not binding on any other court. Of course, if other courts find the arguments persuasive, they can adopt the reasoning. But no court has to adopt the reasoning in this opinion. On a substantive level, it's important to look at the arguments the court is addressing and how they are addressed: 1) Did the plaintiff adequately allege a breach of contract claim? We're at the motion to dismiss phase here and the court is only looking at plaintiff's complaint and accepting all of the allegations as true. There are essentially only 2 arguments the court addresses: A) Was there a contract here at all?; and B) Did the plaintiff adequately allege a recognizable harm? Understand that in a complaint for breach of contract, a plaintiff has to allege certain things: (i) the existence of a contract; (ii) plaintiff performed or was excused from performance; (iii) defendant's breach; (iv) damages. So, the court is addressing (i) and (iv), which I refer to as (A) and (B) above. As to (A), the argument the defendant appears to have made is that an open source license is not enforceable because a lack of "mutual assent." In other words, like a EULA or shrink-wrap license, some argue that an by using software subject open source license doesn't demonstrate that you agreed to the terms of that license. The court, without any real analysis, says that by alleging the existence of an open source license and using the source code, that is sufficient to allege the existence of a contract. The court cites as precedent that alleging the existence of a shrink-wrap license has been held as sufficient to allege the existence of a contract. But the key word here is "allege." As the case proceeds, the defendant is free to develop evidence to show that there was no agreement between the parties as to the terms of a license. So, very little definitive was actually decided at this stage. All that was decided is that alleging that an open source license existed is not legally deficient per se to allege the existence of a contract. As to (B), defendant apparently argued that plaintiff suffered no recognizable harm from defendant's actions. The court held that defendant deprived plaintiff of commercial license fees. In addition, and more important for the audience here, the court held that there is a recognizable harm based on defendant's failure to comply with the open source requirements of the GPL license. Basically, the court says that there are recognizable benefits (including economic benefits) that come from the creation and distribution of public source code, wholly apart from license fees. This is key - if the plaintiff did not have a paid commercial licensing program, it could STILL sue for breach of contract because of this second type of harm. That being said, none of this argument is new. There is established precedent on this point. 2) Is the breach of contract claim preempted? Copyright law in the United States is federal law. Breach of contract is state law. A plaintiff cannot use a state law claim to enforce rights duplicative of those protected by federal copyright law. So, what the court is looking at here, is whether there is some extra right that the breach of contract claim addresses that is not provided under copyright law. In other words, if the only thing that the breach of contract claim was addressing the right to publish or create derivative works, then it would be duplicative of the copyright claim. And, therefore, it would be preempted. Here, the court held that there are two rights that the breach of contract claim addresses that are different from what copyright law protects: (A) the requirement to open source; and (B) compensation for "extraterritorial" infringement. The real key here is (A), not (B). With respect to (A), the court here is saying that the GNU GPL's copyleft provisions that defendant allegedly breached are an extra right that is being enforced through the breach of contract claim that are not protected under copyright law. Therefore, the contract claim is not preempted. (B) is a bit less significant for broader application. What (B) is saying is that because the plaintiff is suing for defendant's infringement outside the U.S. ("extraterritorial" infringement), and federal copyright law doesn't necessarily address such infringement, that's an "extra element" of the breach of contract claim. I say this is less significant because it wouldn't apply to a defendant who didn't infringe outside the United States. So, if you were the plaintiff here and the defendant was in California and only distributed the software in the U.S., argument (B) wouldn't apply. I hope this clarifies what is/is not significant about the opinion here.

brian-armstrong 9y ago

The GPL has such strong terms, I think there is good reason to avoid ever reading any GPL codebase. Tainting yourself may imperil any code you write for the rest of your lifetime. And to that end, I think github should place a large warning on any GPL repo before letting you see it, as well as delisting them from search results (or at least hiding the contents)

mrout 9y ago
>The GPL has such strong terms, I think there is good reason to avoid ever reading any GPL codebase. Tainting yourself may imperil any code you write for the rest of your lifetime. This is the most ridiculous FUD I've ever seen.

ljfio 9y ago

This article seems to be declaring victory in war, when really only a minor battle in the war has been won.

dhimes 9y ago
No, the article is pretty clear that this isn't about the terms of the GNU GPL itself, just about whether there was a contract in this particular case.

danschumann 9y ago

What happens if they claim they downloaded it from somewhere else that didn't include the license.txt file? There is no proof they ever were even notified of the license. (this is why we usually have people sign contracts)

Thiez 9y ago
Adobe is about 34 years old, so the copyright on any program that interacts with an Adobe file format (e.g. postscript, pdf) cannot have expired yet (in the absence of time travel). So if the source code did not come with a license, it is their responsibility to obtain one, or they can't use it.
scarhill 9y ago
If they used code that they downloaded without a license, they have violated copyright law. (All code created in the US and most other countries has a copyright at creation.) So they either accepted the GPL or violated copyright.
mi100hael 9y ago
> “Upon discovering Hancom’s abuse of the GNU GPL and infringement of Artifex’s valuable copyright in Ghostscript, Artifex demanded that Hancom cease its infringement and remit to Artifex a reasonable royalty for Hancom’s years of unlicensed use of Ghostscript,” the company said in its complaint. “Rebuffed by Hancom, Artifex turns to this Court to enjoin Hancom from further infringement and to seek relief and recovery for Hancom’s abuse of Artifex’s open source license.” So the suit was filed only after Artifex had notified Hancom of the license and attempted to work out a solution out of court. There's no way to argue they didn't know about the license beyond a certain date, and it sounds like they willfully continued to infringe upon the license after said date.

MichaelMoser123 9y ago

Congratulations to Stallman. After all these years the GPL has been tested in court. The man must be drunk with joy... Three cheers for the Mr. Stallman and his gcc (joining in on his celebrations)

iamNumber4 9y ago

moral of the story is, know you licences. Adhere to the license terms. Seek out projects with more permissive licenses if you plan to do closed source. It is simple to work around licence issues with your project. You just have to put in the work. Know that your design may have to factor in extra time because you can't use lib XYZ because you have to write your own library to do the same thing. If using lib XYZ will save a bunch of time, then know that you will have to adhere to lib XYZ license. Maybe writing a wrapper application that you opensource, and your closed source application interfaces with might be a design consideration. In the end, it's your project, your call. Just know when you make a decision you weigh the pro's and con's of going forth with that decision.

faragon 9y ago

In my opinion, software equivalent in functionality to Ghostscript should be written using a BSD or similar license. Is there anyone willing to sponsor it?

qb45 9y ago
Maybe ask Hancom :p

beat 9y ago

A friend of mine, who is a software engineer turned IP lawyer, made a good point about the GPL - the reason it "has never been challenged in court" isn't about uncertainty, but about certainty. The GPL is based on the most simple, bedrock copyright law. Despite being a clever hack, there's nothing legally exotic about it. Any judge in the country or anywhere else would laugh a GPL challenge right out of court. Any any IP lawyer reading it would tell their client that that's what's going to happen if they try to challenge it. That's why it's never been fully tested in court... no need.

sounds 9y ago
Ah, if only. To the first point: the GPL is not used nearly as much as it should be. Thus there's still a strong selection bias on court cases in general being about the GPL, since the GPL is not selected very often. (And there's a reason it is avoided: legal counsel to large companies frequently describe the GPL as "untested." This happens still today, which is frankly ridiculous in the light of all that the Software Freedom Law Center, FSF, etc. have done) To the second point: any court proceeding introduces a huge amount of uncertainty. Costs are up-front, payback may come in a decade or more after all routes of appeal have been exhausted. Judgments are frequently overturned on technicalities; even if the technicalities are flawless the GPL is not unassailable. On a personal note, I am unequivocally in favor of using Free Software further and wider than it has been used. In every potential conflict of interest, I think there is much to be said for attempting to settle with a "GPL violator" using amicable means, even if it takes a long time. I view "GPL violations" as free advertising -- don't be shy about publishing the proceedings, though doing it with some taste may help the party come into compliance, their actions should speak for themselves! People use GPL software, extensively. Any use of GPL software is a compliment to the software authors. Any contribution back to the software will improve it for everyone. etc.
- eridius 9y ago
  Big companies don't avoid GPL because it's "untested". Big companies avoid GPL because it's actually quite dangerous for them to use. GPLv2 only so far as if they accidentally taint their proprietary code with it, then they need to open up their code (which is bad enough). But GPLv3 is really fucking scary. As it was once put to me, if a single GPLv3 binary accidentally makes it onto the OS image for iOS, Apple would then legally be required to release the master signing key to the whole world, completely destroying the whole security model of iOS and screwing everybody (not just Apple but also Apple's users who rely on that security). Plus the patent clause in GPLv3 is also nasty.

finid 9y ago

That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. Hancom's CEO is a thief.

analog31 9y ago

That means Hancom would have to open-source its entire suite of apps. Ask HN: What if the vendor had structured their product in a way that GhostScript is its own stand-alone app. Would they still be obligated to release their entire code, or just the portion that uses GhostScript?

scott_karana 9y ago
As long as it's not linked to their binaries, invoking it separately is fine. I believe they might need to allow for others to download the source of Ghostscript whether modified or not, but that part isn't hard. :)
- deleted 9y ago
  [deleted]

frabbit 9y ago

This is why if someone were the (usually) imaginary "Free Software zealot" that would like to prevent a private business from profiting off public work, it would be necessary for software not only to be under a Free license, but for the copyright assignment to be held by someone that agrees with said Free Software "zealot".

frabbit 9y ago
Or to put it another way: if you are contributing to a Free Software project and the copyright is held by some other entity to who you have duly assigned rights, then you may find that they decided to sell the right to use some of your contributions. So, be careful who you turn your copyright assignment over to.

AndyMcConachie 9y ago

Here is a link to the actual opinion if anyone else is interested. https://scholar.google.com/scholar_case?case=37795293356107925 https://scholar.google.com/scholar_case?case=377952933561079...

georgestephanis 9y ago

Doesn't MySQL distribute in a similar dual-licensed fashion?

ferdterguson 9y ago

I'm not a big fan of the GPL personally, but this is great!

sayelt 9y ago

'The GNU GPL was not designed to be "open source".' —Richard Stallman https://www.gnu.org/philosophy/open-source-misses-the-point.html https://www.gnu.org/philosophy/open-source-misses-the-point....