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The specific difference here seems to be about who is allowed to sue for GPL violations: "[Sandler] explains that in past litigation, the plaintiffs have always

The specific difference here seems to be about who is allowed to sue for GPL violations: "[Sandler] explains that in past litigation, the plaintiffs have always been copyright holders of the specific GPL code. In this case, Software Freedom Conservancy hopes to demonstrate that it's not just the copyright holders, but also the receivers of the licensed code who are entitled to rights." Stating a contractual claim seems to be the first step towards proving this (but not sufficient in and of itself).

unnah 4y ago
Is the contract of interest between the author of the GPL code and the buyer of the Vizio TV, so that the buyer would have a claim of tortious interference against Vizio?
- henryfjordan 4y ago
  It's not tortious interference but rather "3rd party / intended beneficiary" coming into play here. The idea is that the contract between the author and Vizio was for the benefit of a 3rd party (the end user) and so that party has the right to sue. For another example, think of someone who is hired to handle disbursing an estate by someone who is dying. Their kids/heirs can sue the executor for contractual issues if the executor does anything shady because even though they weren't party to the contract because they stood to explicitly benefit. https://www.upcounsel.com/intended-beneficiary-example https://www.upcounsel.com/intended-beneficiary-example
sirius87 4y ago
If Software Freedom Conservancy - which isn't seeking monetary damages as "receiver of the licensed code" - succeeds in this litigation, does this mean other end-users could sue for monetary damages?
- gpm 4y ago
  I'm not a lawyer, nor am I very familiar with contract law, so take this with a grain of salt. I think technically yes, practically it is a separate up hill battle. Monetary damages have to be not-speculative, something like "because of defendant not complying with the contract I ended up spending <this> money on <these> software licenses" would probably work, but something like "because of defendant not complying with the contract I ended up making an inferior product (since I had to rewrite this code from scratch)" probably wouldn't. I doubt that leaves many big lawsuits, it's hard to think of concrete damages that result from people improperly modifying and distributing linux (unfortunately common). Maybe customers of ChessBase who purchased Fat Fritz 2 or Houdini 6 (context: [1]) would have a claim for the return of their license fees, since if ChessBase was properly distributing it as GPL software they almost certainly would have been able to acquire it for free - that's like $50/person though - not a huge money maker. [1] https://stockfishchess.org/blog/2021/our-lawsuit-against-chessbase/ https://stockfishchess.org/blog/2021/our-lawsuit-against-che...
kazinator 4y ago
If so, those receivers probably have to pay for something. You can't have a contract without exchange of value, right? So that is to say, if I sell you some hardware-software package where the software is based on GPL code, then I paid for that software too, and so we are in a contract, part and parcel of which is the content of the GPL. Suppose I sell you just the hardware, and you download and install the GPLed software separately from that. My sales agreement doesn't mention the existence of that software at all. Then there can be no contract there; that's just some free stuff you got somewhere. Perhaps that somewhere was my own server, where I prepared the images, but that is neither here nor there.
- danielheath 4y ago
  > You can't have a contract without exchange of value, right? IANAL, but I believe a contract is binding once a party has made some undertaking in relation to it (eg if you order bespoke goods from me, the contract is enforceable once I start working on them, or when you pay for them). Training staff in the use of some software could be ruled a relevant undertaking.
  - kazinator 4y ago
    OK, but in these cases, the contract itself spells out the this-for-that. The actual exchange of this for that doesn't have to commence for the contract to be binding; but without it being spelled out in the contract, it's not a contract. E.g. we can't sign a document which says I will mow your lawn every Wednesday, April to October and call it a contract. It's missing the compensation clauses, so it's saying the mowing will be free of charge. The GPL is one-sided in that it spells out that some receiving user's rights are to be upheld in such and such a ways, without requiring that user to lift a finger. It's like the free lawn-mowing document in that sense. But, obviously, that part of it will come from some larger umbrella contract whereby the user is sold the software. Those parts of the GPL which resemble contract clauses should be effectively absorbed into that sales contract. According to the larger contract, the user paid for the software, and so the counterparty is bound by the GPL clauses contractually. (Or so it would seem is the court decision here.) I doubt that the court decision means that if you give someone a Debian DVD-ROM at a party (let's pretend for a second people still do that) you are now obliged to do additional things for them by a contract.

unnah 4y ago

Is the contract of interest between the author of the GPL code and the buyer of the Vizio TV, so that the buyer would have a claim of tortious interference against Vizio?

henryfjordan 4y ago
It's not tortious interference but rather "3rd party / intended beneficiary" coming into play here. The idea is that the contract between the author and Vizio was for the benefit of a 3rd party (the end user) and so that party has the right to sue. For another example, think of someone who is hired to handle disbursing an estate by someone who is dying. Their kids/heirs can sue the executor for contractual issues if the executor does anything shady because even though they weren't party to the contract because they stood to explicitly benefit. https://www.upcounsel.com/intended-beneficiary-example https://www.upcounsel.com/intended-beneficiary-example

sirius87 4y ago

If Software Freedom Conservancy - which isn't seeking monetary damages as "receiver of the licensed code" - succeeds in this litigation, does this mean other end-users could sue for monetary damages?

gpm 4y ago
I'm not a lawyer, nor am I very familiar with contract law, so take this with a grain of salt. I think technically yes, practically it is a separate up hill battle. Monetary damages have to be not-speculative, something like "because of defendant not complying with the contract I ended up spending <this> money on <these> software licenses" would probably work, but something like "because of defendant not complying with the contract I ended up making an inferior product (since I had to rewrite this code from scratch)" probably wouldn't. I doubt that leaves many big lawsuits, it's hard to think of concrete damages that result from people improperly modifying and distributing linux (unfortunately common). Maybe customers of ChessBase who purchased Fat Fritz 2 or Houdini 6 (context: [1]) would have a claim for the return of their license fees, since if ChessBase was properly distributing it as GPL software they almost certainly would have been able to acquire it for free - that's like $50/person though - not a huge money maker. [1] https://stockfishchess.org/blog/2021/our-lawsuit-against-chessbase/ https://stockfishchess.org/blog/2021/our-lawsuit-against-che...

kazinator 4y ago

If so, those receivers probably have to pay for something. You can't have a contract without exchange of value, right? So that is to say, if I sell you some hardware-software package where the software is based on GPL code, then I paid for that software too, and so we are in a contract, part and parcel of which is the content of the GPL. Suppose I sell you just the hardware, and you download and install the GPLed software separately from that. My sales agreement doesn't mention the existence of that software at all. Then there can be no contract there; that's just some free stuff you got somewhere. Perhaps that somewhere was my own server, where I prepared the images, but that is neither here nor there.

danielheath 4y ago
> You can't have a contract without exchange of value, right? IANAL, but I believe a contract is binding once a party has made some undertaking in relation to it (eg if you order bespoke goods from me, the contract is enforceable once I start working on them, or when you pay for them). Training staff in the use of some software could be ruled a relevant undertaking.
- kazinator 4y ago
  OK, but in these cases, the contract itself spells out the this-for-that. The actual exchange of this for that doesn't have to commence for the contract to be binding; but without it being spelled out in the contract, it's not a contract. E.g. we can't sign a document which says I will mow your lawn every Wednesday, April to October and call it a contract. It's missing the compensation clauses, so it's saying the mowing will be free of charge. The GPL is one-sided in that it spells out that some receiving user's rights are to be upheld in such and such a ways, without requiring that user to lift a finger. It's like the free lawn-mowing document in that sense. But, obviously, that part of it will come from some larger umbrella contract whereby the user is sold the software. Those parts of the GPL which resemble contract clauses should be effectively absorbed into that sales contract. According to the larger contract, the user paid for the software, and so the counterparty is bound by the GPL clauses contractually. (Or so it would seem is the court decision here.) I doubt that the court decision means that if you give someone a Debian DVD-ROM at a party (let's pretend for a second people still do that) you are now obliged to do additional things for them by a contract.