The GPLv2 Goes To Court

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Posted by samzenpus on Monday December 15, 2014 @05:56AM from the laying-down-the-law dept.

Jason Baker writes Despite its importance, the GPLv2 has been the subject of very few court decisions, and virtually all of the most important terms of the GPLv2 have not been interpreted by courts. This lack of court decisions is about to change due to the five interrelated cases arising from a dispute between Versata Software, Inc. and Ameriprise Financial, Inc.. These cases are dealing with four important terms in the GPLv2: 1) What are the remedies for breach of the terms of the GPLv2? 2) What is a "distribution" under the GPLv2 that triggers the obligations under the GPLv2? 3) Does the GPLv2 include a patent license? 4) What type of integration between proprietary code and GPLv2 licensed code will result in creating a "derivative work" and subject such proprietary code to the terms of the GPLv2?

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If only PJ was still running groklaw! by Chirs · 2014-12-15 06:00 · Score: 5, Insightful

This would have been the perfect story to get covered there....
1. Re:If only PJ was still running groklaw! by tanderson92 · 2014-12-15 07:24 · Score: 3, Informative
  
  That is NOT why she folded up groklaw. See more at http://www.groklaw.net/article...
2. Re:If only PJ was still running groklaw! by a_n_d_e_r_s · 2014-12-15 07:36 · Score: 5, Insightful
  
  Actually she tried to turn it over to someone else for a while. But the other person did not have her clarity in explaning the court document that PJ had and it was mostly her anyway.
  Yes it was taking alot of her time and she did it on her spare time. So I understand why she did not had time to continue to update it.
  There is a new site trying to do what PJ did - but missing her brilliance it's a very small site which not many visit:
  http://grokthelaw.freeforums.net/ but anyone who wants to, is welcome to help.
  
  --
  Just saying it like it are.
3. Re:If only PJ was still running groklaw! by greg1104 · 2014-12-15 07:45 · Score: 5, Informative
  
  Groklaw folded mainly due to e-mail privacy concerns. PJ wanting more of her personal time back was a factor, as she'd tried to back away from the site a few times already. But it wasn't the main stated reason for the shutdown. I could understand that some people feel e-mail privacy was a silly reason to fold the site, even if I don't agree myself.
4. Re:If only PJ was still running groklaw! by gbjbaanb · 2014-12-15 08:31 · Score: 2
  
  You'd think she could come back for this one-off Christmas special edition. Finding out what the legally-enforceable terms and conditions of the GPL are in court is of principal importance to the whole open source software community (and the proprietary one too!)
Re:Hope they keep Stallman off the stand... by jedidiah · 2014-12-15 06:09 · Score: 4, Informative

RMS only commissioned the license. He did not create it. The lawyer that actually drafted the license would likely be a much better "witness" assuming that such things would even be considered in this case.
Amicus briefs are likely the only means of being seen or heard in a case like this.

--
A Pirate and a Puritan look the same on a balance sheet.
Why not ask the authors of the GPL Ver.2? by bogaboga · 2014-12-15 06:10 · Score: 2

...4) What type of integration between proprietary code and GPLv2 licensed code will result in creating a "derivative work" and subject such proprietary code to the terms of the GPLv2?
It upsets me that this question will be answered by those who [probably] know nothing about software and code. Why won't they ask those who created this GPL? Wouldn't they surely know better?
1. Re:Why not ask the authors of the GPL Ver.2? by Richard_at_work · 2014-12-15 06:16 · Score: 5, Insightful
  
  No, the creators will tell you what it was intended to do, the court will tell you what it actually does. Potentially huge difference there.
2. Re:Why not ask the authors of the GPL Ver.2? by gstoddart · 2014-12-15 06:23 · Score: 4, Insightful
  
  It upsets me that this question will be answered by those who [probably] know nothing about software and code. Why won't they ask those who created this GPL? Wouldn't they surely know better?
  Because, the GPL is essentially a contract written in the framework of contract law, which says "you have a copyright exemption under the following circumstances".
  There's been tons of confusion about what it actually means, and if it legally means what people think it means.
  Until a court actually rules on this, everything else is an opinion based on someone's interpretation.
  But, from there, if it stands and the court says "this is the impact", then we'll know and there will be legal precedent.
  It's within the realm of the possible the court could invalidate the whole damned thing. And the court could also provide an interpretation which narrows the scope of it. The court could also expand it.
  So, it may upset you, but the foundation of the legal system is more or less until a judge rules on it, and until there is a legal precedent ... you don't really know if it holds water or not.
  Those who created the GPL may not know as much as they think about writing a software license. Or, they knew an awful lot and the court will agree.
  At the very least, this should remove some of the ambiguity and confusion.
  
  --
  Lost at C:>. Found at C.
3. Re:Why not ask the authors of the GPL Ver.2? by Kjella · 2014-12-15 06:26 · Score: 3, Insightful
  
  Well, that part is actually not up to the GPL to define it's a key part of copyright law, if it's not derivative it's not covered by copyright so the GPL wouldn't apply.
  
  --
  Live today, because you never know what tomorrow brings
4. Re:Why not ask the authors of the GPL Ver.2? by BasilBrush · 2014-12-15 06:44 · Score: 3, Informative
  
  If there's fine print, then there's no need for the opinion of the creators. Indeed there's no need for their opinion either way, because if it's not in the license already, in written words, no one is subject to it.
5. Re:Why not ask the authors of the GPL Ver.2? by itzly · 2014-12-15 06:46 · Score: 2
  
  What the creators intended isn't as important as what they wrote down.
6. Re:Why not ask the authors of the GPL Ver.2? by rahvin112 · 2014-12-15 06:51 · Score: 2
  
  The court will interpret intent when the language is unclear, but the "plain language" rule from the supreme court will take precedent.
7. Re:Why not ask the authors of the GPL Ver.2? by caseih · 2014-12-15 06:59 · Score: 3, Interesting
  
  No there's a third remedy. Negotiate with the copyright holder for more suitable terms of license. So to summarize, there are three remedies available:
  1. Cease distributing the offending code (replace it, or withdraw the software from distribution entirely)
  2. Re-license the derivative work under compatible terms (essentially release the entire work as GPLv2)
  3. Buy a suitable license for the copyrighted code under terms compatible with the needs of the derivative work.
  Note that #3 is impossible for some projects, as all copyright holders must agree. For some large projects this is very difficult, especially when some contributors can no longer be found. The Linux Kernel is one example.
  For one-man shows, this is why I always recommend the GPL for released code. This allows you the option to sell commercial licenses should your code prove popular. And you still have the option to add additional open source licenses as others request. Releasing code under a permissive license, such as the BSD or even MIT, shuts the door on some of these options. You can always relicense your own code, but you can't recall code you've previously released under another license.
8. Re:Why not ask the authors of the GPL Ver.2? by tiberus · 2014-12-15 07:04 · Score: 2
  
  Sadly too true.
  There is often a vast gap between saying what you mean and meaning what you say.
  It's a real PITA to have someone interpret your words and force you to accept that they don't mean what you intended them to.
9. Re:Why not ask the authors of the GPL Ver.2? by fche · 2014-12-15 07:10 · Score: 2
  
  The authors of a license, even the GPL, cannot simply redefine the pre-established legal concept of "derivation" (absence of which implies irrelevance of license, no matter what the licensor prefers).
10. Re:Why not ask the authors of the GPL Ver.2? by bill_mcgonigle · 2014-12-15 07:11 · Score: 5, Interesting
  
  So asking the creators of the GPL in this instance will get you nowhere because their opinion on the matter lacks any weight, its what the actual wording says which determines what you are beholden to.
  Most prose can be interpreted in multiple ways and not every interpretation occurs to every human at every time. Courts are well aware of this, which is why they will only ever offer an Opinion about what things mean - never claiming to offer the Truth. Even SCOTUS only offers opinions.
  Now, those courts will also issue orders to men with a violent streak to enforce their opinions, so effectively they are Law. But never Truth, which is why subsequent cases can overturn previous ones. This also means that Law is never Truth, only the prevailing view of the status quo of a given time.
  
  --
  My God, it's Full of Source!
  OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
11. Re:Why not ask the authors of the GPL Ver.2? by gnasher719 · 2014-12-15 07:19 · Score: 3, Interesting
  
  Now all that said, from all I've heard the authors of the GPL were quite competent in what they were doing, so it is quite likely that the GPL says what they meant.
  
  I think the most important thing is about remedies, and there is quite strong precedence. It seems that if you use open-sourced software and don't do what you are supposed to do according to the license, you are a copyright infringer, and not someone in breach of contract. So the damages are those of a copyright infringer (up to $150,000 per work, or the proven damage), and not those of a person in breach of contract.
12. Re:Why not ask the authors of the GPL Ver.2? by Zontar+The+Mindless · 2014-12-15 07:24 · Score: 2
  
  It doesn't even need to be an exclusive copyright. This worked out pretty well for MySQL. They made sure to get at least shared copyright for all contributed code so they could release and licence commercial versions.
  
  --
  Il n'y a pas de Planet B.
13. Re:Why not ask the authors of the GPL Ver.2? by greg1104 · 2014-12-15 07:37 · Score: 2
  
  The details of the Python license jousting was lead by Eben; there's a good summary of the backstory in his 2.1 FSF e-mail. As Mr. Moglen listed himself then as "Professor of Law & Legal History" at Columbia's law school, you're not going to get very far with cheap personal attacks on his credibility. Not that how you tried to do that with Stallman was very productive either, given he's regularly advised by legal counsel when writing.
14. Re:Why not ask the authors of the GPL Ver.2? by linuxrocks123 · 2014-12-15 09:16 · Score: 3, Interesting
  
  So, it may upset you, but the foundation of the legal system is more or less until a judge rules on it, and until there is a legal precedent ... you don't really know if it holds water or not.
  Bullshit. The entire point of having a legal system based on written law is so that people know what the law is without having to just try things and then see if the executive arrests them. There are places in the law that are rough and where you really don't know what a judge will do -- "new areas of the law" -- but, in most cases, you do know what a judge will do, because of statute and precedent in similar cases. This certainty is what gives the law its value.
  The GPL is a fairly simple document. It's pretty clear what it means, so we really don't need a judge to tell us. This court case might clear up a few corner cases about the consequences of infringement (forced relicensing or simple injunction + damages), but it is effectively impossible the entire document will be held null and void. There's enough precedent that it is possible to conditionally license a copyrighted work that the GPL's general validity is not in doubt.
  
  --
  vi ~/.emacs # I'm probably going to Hell for this.
AWESOME! by Anonymous Coward · 2014-12-15 06:11 · Score: 5, Interesting

Versata is essentially a "vulture" company that buys software companies that are down to life-support levels to extract the last bits of value (continuing support contracts, etc.). If you ever see them knocking on your door, find another job ASAP because your company (and your job) is a gonner. Interestingly, one thing that companies do as part of the due diligence when acquiring other companies is determine if there is any open source in the products in order to identify potential liabilities. Btw, companies looking for a buyout often go through a phase to clear out potential open source infringements, so that's a sign if it wasn't clearly spelt out..
I'm guessing that in this case Infosys, a contractor for Ameriprise, probably got paid to develop some software and made it in the form of a library to be used in other contracts. Having outsourced to India before, I was pretty sure that was going on (that and liberal use of open source). After all, rapid development doesn't happen magically.
1. Re:AWESOME! by rgbscan · 2014-12-15 07:16 · Score: 2
  
  I did a stint at Ameriprise in the early 2k's. They let most of us go and farmed out the jobs to IBM when American Express divested us. We used to be a division called "American Express Financial Advisors" (or AEFA internally - which was formed from the remnants of IDS Advisors for you Minnesotans familiar with the IDS tower) but when they spun us off into Ameriprise all of IT was axed. Who IBM got to do all the tech work, I don't know. Maybe it was Infosys or maybe they came later. It was all foreign contractors though.
Programming Language by wisnoskij · 2014-12-15 06:16 · Score: 3, Interesting

I wonder if it is possible to create a communication language that has the reproducibility and stability of a programming language. There is hardly even any point in writing out legal rights or documents when everytime it is read it can be interpreted differently. It seems that the law has taken the stance that, since reinterpreting it every time is a hassle and inconsistent, we will just use the interpretation of whoever read it first. But since we have no accurate way of storing legal ideas, how do you interpret the interpretation accurately?

--
Troll is not a replacement for I disagree.
1. Re:Programming Language by oodaloop · 2014-12-15 06:24 · Score: 3, Interesting
  
  I think you're referring to lojban.
  
  --
  Tic-Tac-Toe, Global Thermonuclear War, and relationships all have the same winning move.
2. Re:Programming Language by Anonymous Coward · 2014-12-15 06:39 · Score: 2, Interesting
  
  I view Lojban as fundamentally flawed for general human communication. But it would be excellent for unambiguous technical specifications and legal documents.
  Latin, at one time, was used in law for essentially the same reason. A modern equivalent would be using a controlled language that follows very careful definitions. The common law system, as used in the US, does limit the meaning of many words that have legal significance, but it's an ad hoc system that constantly evolves.
3. Re:Programming Language by bws111 · 2014-12-15 06:50 · Score: 2
  
  This is an idea that is often posted on here, and it never makes sense to me. What makes you think a programming language would do any better with these kinds of questions? There are basically an infinite number of variables - how do you write a program that handles all those variables, especially when some variables or values were not even known to exist (or were otherwise not considered) when the program (law) was written? The best you could do is throw an exception when the set of variables and values does not already match an existing definition.
  Which is basically what the law does. If a case is largely the same as a prior case the principles of law are pretty well understood, and executing the 'program' just determines which party wins based on the established rules. But when a case is not just like a previous case, then more work is required. When that work has been done it becomes precedent, and future cases do not need to consider how those variables should be interpreted.
Slashdot by Anonymous Coward · 2014-12-15 06:17 · Score: 2, Funny

No, no, no. What they should have done is submitted it to Slashdot and read the posts to find out what the GPL means and what they should do.
Re:Hope they keep Stallman off the stand... by TWX · 2014-12-15 06:21 · Score: 2

I hope you're right. I also hope that the significant amount of published literature discussing the nature of the license can count for enough public comment to deflate arguments that the violator didn't know of any other interpretations of the license beyond their own.

--
Do not look into laser with remaining eye.
Does GPLv2 Grant a Patent license by Danathar · 2014-12-15 06:21 · Score: 2

From the Article:
"3. Does the GPLv2 include a patent license?"
No. And THAT is why we have the GPLv3, to head off patent problems (among other things)
1. Re:Does GPLv2 Grant a Patent license by TheRaven64 · 2014-12-15 06:23 · Score: 5, Informative
  
  Well, sort of. Clause 7 could be interpreted as a patent license, in that if you knowingly distribute code that violates your patents then you are violating the license if you don't also include a patent grant. In v3 it's more explicit precisely because it was ambiguous in v2. It's up to the court to decide whether this ambiguous license is a license.
  
  --
  I am TheRaven on Soylent News
2. Re:Does GPLv2 Grant a Patent license by Qzukk · 2014-12-15 07:26 · Score: 3, Insightful
  
  it would make absolute sense
  Now back up a second there and consider proprietary software. Imagine if you bought Microsoft Office for your company and a year later Microsoft comes along and starts threatening you with patent infringement lawsuits over your use of their patents. I can't imagine that a court would stand for that at all without at least a fine print "requires additional patent license" and even then there's fitness requirements that the court would have at least a little discussion on.
  Why would it be different for something given to you for free with explicit permission to use and give away? If the patent holder wants to provide a reference implementation to licensors, they can do so with a license tied to their patent, but it should not be the GPL.
  
  --
  If I have been able to see further than others, it is because I bought a pair of binoculars.
3. Re:Does GPLv2 Grant a Patent license by Aighearach · 2014-12-15 08:03 · Score: 4, Informative
  
  Contrary to the FUD you may read on the internet, the GPL does not need to be "tested in court" and will not be by these cases. You can't challenge a license you're not a party to; you can't sue to harm yourself; if the Court throws out the contract, it cannot write a new one. So you can't be using GPL code and then challenge the license. If you proved the license to be fatally deficient, you'd lose your right to use the code; you'd be harmed by your own court action, and you'd be the only loser. So the Court wouldn't even let you argue that; it is not a valid basis for a case.
  You can fight over the smaller details of a license and what it means, but you can't actually attack the license here. Because it is free, you can't claim to have been misled, or been a victim of an unfair business practice. So you can only argue the edge cases and how they effect you; you can't both have standing, and also challenge the validity of the license.
  It is mostly just misrepresenting the cases that conflates them with having to do with the GPL. These are cases that revolve around business practices and contracts between companies, where there are issues related to their partnerships and business practices related to each other. It has nothing to do with the GPL itself, except in weighing the reasonable expectations of the different parties. If the rulings go one way or the other, it won't affect the GPL or companies using the GPL. It will only affect companies that engage in whatever practices are found to be unfair or harmful.
  In the cases here, there are three companies involved; company A licensed software from company B under proprietary terms. That license is actually the main one involved in the 5 cases. Company A was allowed to use 3rd party contractors to edit the code, subject to terms. Company C (the 3d party contractor) is accused by Company B of having use Company B's code in a competing project. Company B also accuses Company A of not terminating their contract with Company C when they learned they were in violation of the agreement. Company A accuses Company B of having used GPL code in the code they licensed, and therefore that they didn't have the right to license it, and that the entire codebase is a derivative work of that GPL code.
  So the GPL is "involved" in the sense that the Court has to decide if this code is licensed rightfully under the proprietary license, and/or the GPL. Depending on the answer to that question, some number of these companies may be found to have been naughty, and be made to pay. But the GPL is not being questioned here; and it won't ever be in the sense that people always meant by "testing it in court."
4. Re:Does GPLv2 Grant a Patent license by EvilSS · 2014-12-15 09:39 · Score: 2
  
  Actually there are four companies involved, plus a group of companies other than "Company A" that also use "Company B's" software. That would be the company (Company D?) that wrote the the GPL2 licensed code to begin with, and they are the plaintiff in most of the cases talked about in the article.
  
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  I browse on +1 so AC's need not respond, I won't see it.
Re:Hope they keep Stallman off the stand... by gnasher719 · 2014-12-15 06:47 · Score: 4, Insightful

RMS only commissioned the license. He did not create it. The lawyer that actually drafted the license would likely be a much better "witness" assuming that such things would even be considered in this case.
Even so, what the lawyers who created the license intended doesn't matter. Or what he was told that the license should achieve, doesn't matter either. The text of the license matters.
Work visas by tepples · 2014-12-15 07:09 · Score: 4, Funny

software patents are not legal in most parts of the world. so, why should I careas world citizen?
Because if the U.S. legislature and courts make software engineering impractical, your country will end up with a lot of skilled U.S. citizens applying for work visas.
Remedies by bill_mcgonigle · 2014-12-15 08:03 · Score: 2

1) What are the remedies for breach of the terms of the GPLv2?
This one is easy - if there's a breach then the license is void and Copyright is the effective law. Code was copied without permission, which becomes a copyright violation, and remedies are already established for that.
GPL is entirely based on the teeth of copyright - almost every OSI license is. If you hate imaginary property then you might question your use of licenses that depend on it.

--
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Re:I quite doubt that the GPLv2 goes to court here by greg1104 · 2014-12-15 08:10 · Score: 2

RTFA. The whole point of why this one is interesting is that the upstream here--Ximpleware--is suing and claiming damages.