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Open Source The Courts

Court Allows Case Over Violating Open Source License (lexology.com) 156

Slashdot reader destinyland writes: The District Court for the Northern District of California recently issued an opinion that is being hailed as a victory for open source software. In this case, the court denied a motion to dismiss a lawsuit alleging violation of an open source software license, paving the way for further action enforcing the conditions of the GNU General Public License... As part of its motion to dismiss, Hancom argued that using open source code offered under open source licensing terms does not form a contract... The District Court ruled that Artifex's breach of contract claim could proceed, finding that the GPL, by its express terms, requires that third parties agree to the GPL's obligations if they distribute the open-source-licensed software [and] concluded that royalty-free licensing under open source conditions does not preclude a claim for damages...

In denying a motion to dismiss, the District Court only holds that the claims may proceed on the theories enunciated by Artifex, not necessarily that they will ultimately succeed. Still, the case represents a significant step forward for open source plaintiffs... In the past decade, while enforcement of open source licensing violations has become more common, few enforcement cases result in published law. The open source community will be watching this case carefully, and this initial decision vindicates the rights of the open source authors to enforce GPL terms on both breach of contract and copyright theories.

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Court Allows Case Over Violating Open Source License

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  • Contracts (Score:5, Interesting)

    by Anonymous Coward on Sunday May 07, 2017 @07:31PM (#54373537)

    "As part of its motion to dismiss, Hancom argued that using open source code offered under open source licensing terms does not form a contract..."

    If they had been able to dismiss it successfully, would that have set a legal precedent? Could it have been inferred that no license agreement for any software constitutes a contract, and breaching those terms cannot be penalized by law? If so it's interesting to think about the ramifications for EULAs and such in general that could have happened.

    • Re:Contracts (Score:5, Interesting)

      by tietokone-olmi ( 26595 ) on Sunday May 07, 2017 @07:38PM (#54373579)

      Dismissing the GPL would've done them no good: then they'd have been without any license at all, which would make them guilty of all sorts of egregiously-penalized criminal copyright violations. A party can either accept the GPL in all its parts, or not have any rights to distribute the work or its derivatives whatsoever.

      • Re:Contracts (Score:4, Informative)

        by mysidia ( 191772 ) on Sunday May 07, 2017 @07:52PM (#54373641)

        That's exactly the state they're in right now, because violating the GPL automatically causes your licensed rights granted by the GPL to be permanently terminated according to the GPL.

        8. Termination.

        You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11).

        • by jbn-o ( 555068 ) <mail@digitalcitizen.info> on Sunday May 07, 2017 @08:17PM (#54373719) Homepage

          Under GPLv2 yes, and this is one of the reasons why licensees should prefer GPLv3. GPLv3 allows for a 30-day period following receipt of notice of the violation where a first-time violator can come into compliance and regain the rights they lost. See copyleft.org for more on this in two sections, one on GPLv2 termination on violation [copyleft.org] and another on GPLv3's "lighter" approach [copyleft.org]. Here's a quote from the relevant section on GPLv3:

          GPLv3 Â8 now grants opportunities for provisional and permanent reinstatement of rights. The termination procedure provides a limited opportunity to cure license violations. If a licensee has committed a first-time violation of the GPL with respect to a given copyright holder, but the licensee cures the violation within 30 days following receipt of notice of the violation, then any of the licenseeâ(TM)s GPL rights that have been terminated by the copyright holder are âoeautomatically reinstatedâ.

          • by Khyber ( 864651 )

            When people use a gun wrongly, you generally want them to not have access to a gun ever again. The same logic should apply to those that would egregiously flout the GPL contract, and GPLv3 is just a piece of garbage with that logic following.

            But I'm quite sure most of you guys won't learn from history - any leniency towards any corporation tends to get you fucked over. That's what the GPLv3 is.

            • If you use a gun wrongly, people die.

              If you use GNU wrongly, people have more difficulty accessing the source code than they might other wise have.

              I don't think the tow situations compare.
            • It's a compromise for practical reasons.

              If you have no license, you can face an immediate injunction---which forces you to stop selling the infringing product. This makes GPLv2 very risky for businesses, as any non-compliance could force them to pull a product until they relicense the code. If your revenue relies on subscribers or SLAs, it could hurt very badly.

              The GPLv3 reduces that risk by allowing a grace period. This allows a licensee time to correct oversights or minor transgressions.

              E.g., documentatio

          • by Anonymous Coward

            > GPLv3 allows for a 30-day period following receipt of notice of the violation where a first-time violator can come into compliance and regain the rights they lost.

            99.999% of GPL-violation cases start with a letter to the violator that effectively says "You're violating the GPL, please stop. Here's how you can come into compliance.". 100% of the cases that go from there down the road to litigation take far longer than four weeks after the receipt of that initial letter to get anywhere close to a courtro

            • by tietokone-olmi ( 26595 ) on Sunday May 07, 2017 @09:42PM (#54373981)

              >Allowing for an explicit 30-day grace period is nice, but there's already a defacto grace period that's much, much wider.

              This is true. There was none in the GPLv2, meaning that coming into compliance before being sued would still leave them open. The GPLv3 is the same way once the 30 days are up, meaning that there's now adequate room for an one-time human error; but not for the corporation that'd try to string 30-day periods one after another.

              The clause was in direct response to criticism about the GPLv2 being a loaded gun on a hapless corporation's temple. Now there's some contractual basis to coming into compliance within a given window, meaning that more first time violators will choose to do exactly that. Subsequent violations are as with the GPLv2.

              • The GPLv2 cases I've heard of ended with a settlement, which presumably restored the GPL for the violator. If one ended in court, there would presumably be an injunction against the violator's use of the software without permission anyway.

                The GPL is not a loaded gun. If your company uses software without verifying the license, they're either stupid or trying to get away with something. In that case, any software not under a permissive F/OS license works just the same, and that includes all proprietary

          • by Anonymous Coward

            Interesting, they might have been able to use the 30 day allowance, even from v2 depending on the exact wording of the v2 licence due to the notes under clause 9, which allows you to use a later version of the GPL instead.

            From GPL [gnu.org]:

            If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation.

            • by tepples ( 727027 )

              A distributor can't rely on the GPLv3's new forgiveness if it's not providing the GPLv3's newly required Installation Information (aka the anti-TiVo clause).

      • A party can either accept the GPL in all its parts, or not have any rights to distribute the work or its derivatives whatsoever.

        Sounds a lot like every EULA and software license out there. You can either accept it in all its parts, or not have any right to use of the software whatsoever. Yet somehow people keep making excuses for why "sharing" software doesn't violate anything because nothing is lost.

        • Re:Contracts (Score:4, Insightful)

          by tietokone-olmi ( 26595 ) on Sunday May 07, 2017 @08:17PM (#54373717)

          The GPL governs distribution, whereas EULAs govern use. Two different things.

          (except to nutters such as BSD advocates.)

          • The GPL governs distribution, whereas EULAs govern use. Two different things.

            Nonsense. GPL absolutely covers the use. Most software cannot be used without copying it. GPL says "we don't mind at all copying the software in order to use it". It doesn't _restrict_ use, but it definitely governs it.

            • The GPL covers distribution, not use. The user may make an infinite number of copies. The GPL does not limit the user in any way. If you didn't know that / are not trolling, and believed what you wrote when you wrote it, you now know better.
            • by cfalcon ( 779563 )

              > GPL absolutely covers the use.

              If I modify GPL software for my own internal use, the GPL doesn't have anything that applies to me. If I change my mind and distribute my code, then everyone who I give it to has a right to ask me for a copy of my modifications. Software with a EULA could ABSOLUTELY apply to me, even if I use the software: it could state that I can't use the product to analyze a certain thing, or prevent me from using the results of the program output to make a profit. The GPL is not a

            • The GPL explicitly says that you don't need a license to use the software. In the US, when you have software legally acquired, you can make copies required for use freely without further permission. You could acquire GPLed software illegally, I suppose, and then you wouldn't have those legal rights, but that would normally require extra effort just to be a jerk.

          • The GPL governs distribution, whereas EULAs govern use. Two different things.

            I think if you read a EULA you will rapidly find yourself falling asleep, but barring that you will also rapidly find clauses pertaining to distribution of the software. They usually jump right out at you early on, typically having their own sections.

      • by tlhIngan ( 30335 )

        Dismissing the GPL would've done them no good: then they'd have been without any license at all, which would make them guilty of all sorts of egregiously-penalized criminal copyright violations. A party can either accept the GPL in all its parts, or not have any rights to distribute the work or its derivatives whatsoever.

        Well, technically, copyright violations is also known as piracy, so they could be like a lot of people with bittorrent clients pirating tv shows, movies, video games, software and other thi

        • by jedidiah ( 1196 )

          Pirates have always drawn a bright red line when it comes to commercial exploitation of wares.

          An imaginary damage raises to the level of a real and obvious one at that point.

        • by tepples ( 727027 )

          Unlike access to music, access to GPL software isn't forced on customers in the grocery store.

    • Re:Contracts (Score:5, Interesting)

      by phantomfive ( 622387 ) on Sunday May 07, 2017 @08:05PM (#54373685) Journal

      If they had been able to dismiss it successfully, would that have set a legal precedent?

      For one thing, Google would suddenly have a valid defense against Oracle in their case over Java..........

    • Re:Contracts (Score:5, Insightful)

      by ShanghaiBill ( 739463 ) on Sunday May 07, 2017 @09:14PM (#54373911)

      If they had been able to dismiss it successfully, would that have set a legal precedent?

      It would have set precedent within this court's jurisdiction [uscourts.gov], which would have had a powerful impact, since it encompasses Silicon Valley, San Francisco, and all of coastal California from Monterey to the Oregon border.

      It would not have set binding precedent in other jurisdictions, but other courts would still tend to tilt toward an established ruling.

      TL;DR: If it had gone the other way, it would have been really bad.

      • TL;DR: If it had gone the other way, it would have been really bad.

        Yes, but it also would have been bad for lots of other kinds of contracts, so it would have also been particularly shocking if it had gone the other way. It would have even broader-reaching affects than these.

    • Re:Contracts (Score:5, Interesting)

      by Michael Woodhams ( 112247 ) on Sunday May 07, 2017 @09:26PM (#54373947) Journal

      A contract requires that both parties receive something from the other. When you buy software with an EULA, you get software and the programmer gets your money. When you use GPL software, you get software and the programmer gets ???

      There are various things we could put in the place of "???", but it is not clear whether they count as being a consideration for the purpose of contract law. Defendant Hancom argued that it was clear that ??? was not a consideration so the contract claim should be summarily dismissed. By rejecting that motion, the court has not concluded that ??? is a consideration, but finds the issue non-clear-cut enough to allow plaintiff Artifex to argue that there is a consideration.

      Finding that there is no contract in the GPL case would not affect EULAs, because in that case there is payment which makes it clear there is a contract

      I am not a lawyer, everything I say might be wrong.

      • But an EULA (usually) comes after payment, so that doesn't hold. In the case of an EULA, you get to use what you payed for, and the company gets your soul.

        • The theory is that copying the media onto your persistent storage and system memory requires a license. It's not really been definitively test in court as a good argument for fair use of implied license is there. However it;s kind of bygone and physical copies of sotware are rarely sold nowadays.

          • The theory is that copying the media onto your persistent storage and system memory requires a license.

            In what country? The article is about a case in the United States, where 17 USC 117(a)(1) [cornell.edu] states that copying a program "as an essential step in the utilization of the computer program in conjunction with a machine" is not infringement.

            • Never-mind then, I was wrong. I was thinking of a Blizzard case, but that additionally involved modification of resources in memory by third party applications.

      • You are not required to accept the GPL in order to use the software. Only in the case you modify, distribute, or copy the covered and copyrighted work in the absence on any other license are you assumed to have accepted the GPL. The contract allows such modification, distribution, or copying in return that the same contract be offered on all copies and derived works. The promise to offer a specific contract in the future is definitely withing the realm of accepted consideration, otherwise all option contra

  • by Anonymous Coward

    https://trac.ffmpeg.org/query?... [ffmpeg.org]

    Lock and load, boys.

  • by Anonymous Coward on Sunday May 07, 2017 @08:13PM (#54373703)

    This involves dual-license software - ghostscript in this case. One license is GPL, the other is proprietary for people that wish to avoid using the GPL. The defendant chose to not pay for the proprietary license, and they chose to not comply with the GPL. So they got sued.

  • by Anonymous Coward

    Words matter. If it looks like an EULA and sounds like an EULA, call it an EULA. There's plenty of case law to support them.

  • I'm confused (Score:2, Informative)

    by Orgasmatron ( 8103 )

    The summary keeps talking about "open source license", but also makes it sound like the license in question is GPL, which is the Free Software License.

    Perhaps user destinyland and editor EditorDavid missed this earlier story [slashdot.org] which includes, in the summary that EditorDavid also allegedly edited, this sentence:

    Stallman also required that the article describe free software without using the term open source, a phrase he sees as "a way that people who disagree with me try to cause the ethical issues to be forgo

    • Re: I'm confused (Score:4, Insightful)

      by Zero__Kelvin ( 151819 ) on Monday May 08, 2017 @06:15AM (#54375163) Homepage
      Either that or we respect Stallman for his contributions, but not to the degree that we are going to allow him to dictate our language.
      • You don't think that the guy that devoted his entire life to software freedom should have any say in how we talk about the license that he wrote for the movement he started? Exactly what are you doing to show respect for his contributions if you can't even muster the effort to use language that makes other people aware of the freedoms we all have, largely thanks to his work on our behalf?

        • I don't think he gets to be right just because he is Stallman. That is correct. I also don't think that Kleenex gets to insist we refer to their product as Kleenex and everyone else's product only as facial tissue. :-)
    • The Open Source Initiative lists all varieties of the GPL as open source licenses. The Gnu people would prefer you used "Free" instead of "Open Source", but either usage is valid and correct.

      The GPL is also not "the" Free software license, as BSD-style licenses are Free. In practice, almost all Open Source licenses are Free and vice versa. There are some edge cases.

  • I understand this is /., corporate news and open-source friendly website (even to the point of apparently denying giving any credit to the Free Software Foundation). However it's worth noting that writing and talking about the GNU GPL as "open source" license makes it seem like an Open Source Initiative member had something to do with writing this license when that's not the case at all. In fact, the earlier versions of the GNU GPL predate the OSI and the open source movement entirely. And the GPL's principal author (Richard Stallman, founder of the Free Software Foundation) repeatedly goes around the world giving talks describing why he started the GNU Project, wrote the GNU GPL, and pointing out that the open source effort is a corporate reactionary counter to software freedom. Stallman takes time in every one of his talks to point out that he is not for 'open source'. Indeed, the open source movement eschews software freedom. Please do take the time to read the essays [gnu.org] and listen to rms talks [gnu.org] to learn more about this.

    I'm all for everyone (including open source enthusiasts) licensing software under the GNU GPL, but I'm also for understanding why the license exists in the first place and giving credit where credit is due. Its existence is certainly not due to anything 'open source' but instead to a driving interest in making and preserving software freedom. The work is (as Eben Moglen, long-time FSF lawyer, software freedom fighter, and excellent speaker has said) principally written by Richard Stallman. Just because press releases written by people who either don't know better or which to cast the license's history in a different light get it wrong doesn't mean you have to follow them.

    • Re: (Score:3, Insightful)

      by 91degrees ( 207121 )
      I think you're shouting into the wind with this. The ship has sailed. Everyone knows what "Open source" means in this context. "Free Software" is a more obscure term that hasn't really caught on.

      Stallman's argument "that the open source effort is a corporate reactionary counter to software freedom" is something most users don't care about. They're perfectly happy to use a proprietry solution if they have to. The benefit of Free software is the price, not the freedom.
      • I think you're shouting into the wind with this. The ship has sailed. Everyone knows what "Open source" means in this context. "Free Software" is a more obscure term that hasn't really caught on.

        The average Slashdotter knows the difference and either uses the term to be precise or doesn't use it because of Stallman's toejam. But there's no reason to give users a free pass on imprecision here, of all places. This is a place where we should demand precision.

    • Indeed, the open source movement eschews software freedom.

      I don't agree. From your link, RMS says: "As far as we know, all existing released free software source code would qualify as open source." This is clearly saying that all free software is a subset of open source. Thus, open source does not eschew software freedom. Please explain the disconnect.

      • by jbn-o ( 555068 )

        I'm not sure if the set of approved licenses from the Free Software Foundation and Open Source Initiative are properly described in that way, but I am sure that approach misses the point entirely—you won't understand what the free software movement aims to achieve and why by looking at sets of licenses.

        The open source group (I should not have called it a movement because open source is not a social movement) started over a decade after the free software movement started. 'Open source' is a call to a b

  • The weakest part of the GPL (both standard and LGPL) is that it is based upon arbitrary fictional concepts that in theory would will falter to slippery slope augments. It's all about "bundling" in conjunction to linking. Everything digitally is distributed as a stream. That certain ordering of the data is valid but others are not is ridiculous when the words to describe it are arbitrary. Computer memory isn't physical and is merely treated as linear conceptually depending on how you relatively look at it

    • Viral nature? Arbitrary fictional concepts? What on earth are you talking about?

      • He's making a deeply mistaken point: people call the GPL viral because it "infects" your code even if you only use a bit. It's not of course the GPL, it's copyright in general. Your work is a derived work even if you only use a little bit of something else (excluding certain exemptions). And if you have a a derived work, then the original copyright holder gets to call the shots.

        So basically he's betting that the judge will strike down ths entire concept of derived works. Seems unlikely...

        • IANAL, but I've seen lawyers say there's a distinction here. If you use GPLed software and change it yourself, you've created a derived work which is covered under the GPL. The FSF maintains that linking to GPLed software creates a derived work, and apparently that isn't generally considered the case for copyright. From what I've read, there's uncertainty between (a) linking does not create a derived work, and so the GPL only applies to object files with GPLed code, and (b) you need to consider linking

    • The GPL 2.0 does not contain either the words "bundling" or "linking" and instead uses the terms "is contained or derived from" and "aggregate". The problem lies in case law that has yet to precisely define what the term "derivative work" and "seperate work" means in terms of software. Static linking certainly does, because it is essentially the same as copying and pasting a chapter from another book into your own. Dynamic linking on it's own may potentially not be, as it's more of an instruction to a re

  • In the USA, the GPL license is indeed not a contract. Using GPL licensed software in violation of its terms is not breach of contract, it is copyright infringement.

    And copyright infringement is usually a much stronger weapon for the copyright owner than breach of contract. With huge statutory damages. With the ability to force the thief to remove any GPL licensed code from their products. If you claim breach of contract, you'd have to prove actual damages caused by the breach of contract, for example act

In English, every word can be verbed. Would that it were so in our programming languages.

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