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Court Allows Case Over Violating Open Source License (lexology.com)
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.
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.
"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.
Adequacy dot org we've missed you so much.
You need new lawyers.
Avoid it then. If it's companies wanting to avoid paying for software they then profit off of - and they can't be bothered to read the license and comply, screw them and their lazy greedy selves. Plenty of companies use open source every day without violating the different licenses.
> So you can imagine our suprise
Not really. You shouldn't be surprised when you don't bother to read the license agreement before using someone else's software and then get bit in the ass.
https://trac.ffmpeg.org/query?...
Lock and load, boys.
Your issue is not Linux; you hired bad lawyers who should probably be disbarred, for ignoring specific exceptions listed in the license And not understanding what activities the GPL terms apply to.
I don't think you'll find closed-source software vendors to be any happier than your average Stallmanite when you breach their license agreement.
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.
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 and another on GPLv3's "lighter" approach. Here's a quote from the relevant section on GPLv3:
Digital Citizen
We need some legal precedent of assholes burning on GPL violation. Hope that will teach corporations to respect open source just like they want their rights to be respected.
If you are not distributing your software (Internal use), you do not need to redistribute the changes. Period.
If you install the modified software for a customer, the customer has a right to the source code, including your changes. Since you have added to the whole work, you may not modify the license. This guarantees that your customer can support the system if your company goes belly-up. It does not, however, mean that you must distribute the changes to the world.
Sad that you were so excited about using software that others wrote for you to freely use, yet consider the modified source to be somehow proprietary.
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.
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 which includes, in the summary that EditorDavid also allegedly edited, this sentence:
See that "Preview" button?
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 and listen to rms talks 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.
Digital Citizen
https://www.youtube.com/watch?...
Inheritance is the sincerest form of nepotism.
This so much.
Furthermore, after reviewing this GPL our lawyers advised us that any products compiled with GPL'ed tools - such as gcc - would also have to its source code released. This was simply unacceptable
I have worked for many companies. The rule of thumb is if you modify GPL code THAT can be open sourced if you redistribute it. But only to those you distribute it to (as per the plain text in the license). Your lawyer sucks if they read into it that you need to throw it up on the net randomly. ONLY to those you give the code to. Also the kernel happens to be GPL2 and you can have non-GPL code in there through the use of plugins. That is why they invented GPL3. Most of your customers will never know the difference. There is a risk of that happening. But you can usually negate it with an NDA. Which would scare off most other lawyers.
Compiled with the tools does not make it open source. If so pretty much 99% of the products out on the market need to be open sourced (think cell phones and TVs). That is not going to happen.
Fire your lawyers. They are incompetent. They are ripping you off. Just because they have a law degree does not mean they know anything. Many jr lawyers charge you time to learn how to do their job. My dad had the unfortunate exp of someone charging him 40+ hours at 120 an hour. My sister (a real lawyer) and I intervened and made his lawyer sit down and actually READ the law, the case law, and contracts.
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. In fact there are various ways in which computers actually intentionally blur it's linearly. Everything in a computers memory is virtual and hence theoretical. And all that is the basis of linkage.
Those of us that actually understand compilers and languages understand what Stallman was getting at but vague words do not make a good contract. I'm not saying that something like the GPLv2 or 3 isn't possible using more precise language and better concepts. I'm pretty sure Stallman and the FSF knows it as they never bothered to bring a contrived test case to court.
My BELIEF is that when it finally goes to court the judge will laugh at it's wording and declare it's viral nature effectively unenforceable but all the code used will still need to be documented and made available.
The damages could be as simple as not allowing the defendant to use the software if they continue their non-compliance.
Putting something free in with something that isn't doesn't misrepresent or otherwise affect the free software's reputation?
Replied to the wrong post but the point remains valid.
I had a big angry post about to blast... but it violated a dozen EULAs and I don't want to be sued.
Next. Next. I agree. Finish.
It's a copypasta, Lester. Smaller type'a troll.
https://www.reddit.com/r/copyp...
Oh it's very easy. X lines of code, which typically costs Y per thousand lines to develop on the high end. Their prior commercial licenses, or costs of licenses of compatible software as the low end.
This was doing the rounds in the 90s on Usenet.
YHBT HTH HAND
SJW n. One who posts facts.
GPL is like a Free Beer Recipe for software.
This is important.
You get the recipe AND you can modify it. You can tweak it. You can share it. The next guy, if they want to use and share their modified recipe, has to allow the 3rd person they share it with to also modify it and share it and use it. They can't keep it a secret if they choose to share it. OTOH, if they only keep it for them self and don't share, then they don't have to share their modifications. Everyone with the beer recipe can use it forever, if they like.
Nobody is forced to make their own beer, if they don't want to. They can just use beer created by others. This is what most people choose with GPL software, via either Linux or BSD distributions.
If you are a company and don't have a brewmaster for the software, you can relatively cheaply hire a brewmaster to modify the recipe for your needs. The original recipe maker can't prevent a new brewmaster from performing this service. There are literally millions of capable brewmasters in the world.
Commercial software is like buying beer from the grocery store. We don't really know what is inside. It is sold by a hot girl to get our attention. We are never promised that it is "useful for any specific purpose" (read an EULA). Once it is gone (or the license is up), we get to pay again (maintenance contracts). If the beer vendor decides to stop making their beer, that's it. We are stuck with the last release until it is gone (or incompatible). We cannot pay anyone else to remake the beer we love or modify it in a way our business needs. There is only 1 company we can pay to make the beer we want. That company can refuse our request and money.
Simple explanation?
iDrive sells the iDrive One backup device.. it's got linux on it, but don't have the source anywhere. They have a small selection of source used in their client software... but don't have the source for the external wifi drive thing.
What they should be made to do is to comply with the GPL: to be ordered to release, under the GPL, their code that the linked to the GPL code. GPL infringement would stop overnight if the courts properly enforced the GPL.
More reason to avoid open source software.
Nice troll. Or else profoundly ignorant. Although funny how often the two seem to go hand in hand.
But just to clarify, open source != GPL. Not all open source projects are copyleft like the GPL. If people want to distribute their software projects under the GPL, companies need to respect that license. But many open source licenses are much more permissive, meaning they can be used in both open and closed source projects. I personally chose the MIT license for my own open source projects (nice and simple: do what you want, and don't sue me), but there are a lot of other permissive licenses as well, like BSD, Apache, zlib, Boost, etc.
If you want to deliver proprietary software and keep your source closed, you can use permissive licensed software, or you can suck it up and write your own. The entire point of GPL'd software is that it HAS to remain open source. That's why many advocates of free software feel strongly about how the GPL works, because it ensures any contributions or improvements remain open source as well.
Irony: Agile development has too much intertia to be abandoned now.
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 actual damages caused by the fact that third parties didn't receive a copy of the source code when requested.
I keep using the name "open source" instead of "free software". This has nothing to do with the Open Source Initiative vs. Free Software Foundation — I have a lot of respect for Mr. Stallmann and his work. The reason is that most people associate the word "free software" with "software I can download without paying", while anyone who's heard the term "source code" understands what "open source" means. I choose to call it open source because it's self-explanatory, unambiguous, and thus a better term from a linguistic standpoint.
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.
And if they had bothered to read the license agreement they would know that those lawyers were wrong.
You're using it to post your comment and generally anything else you do on the interwebs.
If you feel the door hitting your arse on the way out, it's someone kicking the door.
Fire your lawyer. He/She is incompetent. You can make changes to the kernel all day without publishing them unless you distribute them. Since your company certainly doesn't want anyone else to have the code the GPL is a non-issue.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
It says so in the GPL itself. You are free to accept it or not. So suing for breach of contract is nonsensical. You always have to sue for breach of license (which is pretty similar to breach of contractual terms) or copyright violation (unlicensed copying/use), and the defendant can plead for either at his whim.
Which is why there are so few cases actually making precedent for the GPL as such: the GPL is not a contract and not binding to the recipient. It merely spells out the conditions under which the copyright holder will not go to court for copyright violations. And those conditions are binding for the copyright holder, not for the user: the copyright holder cannot sue (successfully at least) for copyright violations if the user meets all license terms.
So the usual case goes like: "do you claim to meet the conditions of the GPL?". "No, I don't consider the GPL legally valid or binding". "Ok, so what other permission do you have for distributing the software in question?" "I need permission?"
And that's the point where the judge tells the defendant that he better aim for settling the case.
If it's licensed under the GPL it's Free Software not Open Source.
I would have thought the editors of /. should know the difference and why it might be important.
It's Copyright. You don't have to show any and never have. That's just sauce for the goose here.
A Pirate and a Puritan look the same on a balance sheet.
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) states that copying a program "as an essential step in the utilization of the computer program in conjunction with a machine" is not infringement.
Section 5 of the GPL 2.0 clearly states the the offer of license is accepted by performance. The Hancom performed the protected acts is evidence of acceptence (or flat out criminality, but courts are required to assume parties were acting in good faith unless there is evidence to the contrary), that the performance was substantially flawed is what constitutes breach on contract. Each copying thereafter was simply a violation of copyright.
Section 5 of the GPL 2.0 clearly states the the offer of license is accepted by performance. The first time Hancom performed the protected acts with each specific version of the protected work is evidence of acceptance (or flat out criminality, but courts are required to assume parties were acting in good faith unless there is evidence to the contrary), that the performance was substantially flawed is what constitutes breach on contract. Each copying thereafter was simply a violation of copyright.
Furthermore, after reviewing this GPL our lawyers advised us that any products compiled with GPL'ed tools - such as gcc - would also have to its source code released. This was simply unacceptable.
Of course it was unacceptable for your lawyers to have misadvised you so. In the vast majority of cases, the output of a GPL tool is not GPL. From the GPL FAQ:
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.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Where are you when we need you most???
Dammit, I miss Groklaw!
Well, no.
The GPL and GPL-like licenses are the only actual open source licenses.
What you're describing would better be called "closable" licenses, because they allow the code to be closed.
There's really very little difference between one of those and simply declaring your code public domain.
You don't need to.
. Instead, the Copyright Act establishes a predetermined amount of damages that ranges from $750 to $30,000 for each work infringed. Also under statutory damages, a judge can award extra damages up to $150,000 for willful infringement, or reduce damages to $200 for unknowing infringement.
Under copyright law, you can ask for money based on (purely hypothetical, so make the number high) sales lost, and also you can include any money the perpetrator earned by using the copyrighted material. The number can be quite high.
"First they came for the slanderers and i said nothing."
What you write was try 15 years ago.
This is a different Slashdot than you remember.
And when they refuse?
Courts typically have only a few options as their disposal that are going to pass constitutional muster. Jail and fines.
Everything else is offered in lieu of jail or fines. Refuse probation? Then stay in jail until probation is over. Refuse to stand in the street wearing a sign saying that you ran over a bus load of nuns? Jail and fine. Refuse to hand over source code? Pay a fine.
Might as well just skip to the fine or jail time.
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.
AC is correct. The argument that OP's lawyers made is equivalent to saying, "if you build your code with Microsoft Visual Studio, then the terms of the MS license apply to the code you created".
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
You're welcome to that opinion, but I'm obviously not going to agree with it. And I suspect you'll have about as much success with that narrow redefinition of open source as convincing everyone to call Linux "GNU/Linux".
Irony: Agile development has too much intertia to be abandoned now.
That's not something the courts can do. In a civil case, the court can award damages and issue injunctions, so if a company is distributing my GPLed code not according to the license I can at most get money from them and an order to the company to stop doing that. The GPL is a license, not a contract, and so the company would be guilty of infringing copyright, not violating the terms of a contract.
There are cases in which the violator starts conforming to the GPL, but that's voluntary, and is normally part of a settlement. Stallman would much rather have people distribute under the GPL than pay money.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
The GPL and similar copyleft licenses are not the only Open Source licenses (according to the Open Source Initiative) or Free licenses (according to the Gnu project and Free Software Foundation). I can take some BSD-licensed software, change it, and redistribute under a proprietary license, but I can't do anything to restrict the original software. You're just as free to build on the code I used as I was.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
And, of course, if Hancom manages to successfully dodge the contract violation rap, they're in trouble for distributing copyrighted stuff without a license. The contract view is iffy, but the license view isn't. The GPL says that only the GPL gives you the right to redistribute, clearly meaning that if you violate it you don't have any such right.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
"Open source" is about emphasizing a software development methodology over the free licensing of software. It's a corporate thing, de-emphasizing copyleft in order to position powerful companies to benefit from gratis software without paying it forward.
Oh, I know that's what they say.
But unless it's copyleft, it's essentially no change from public domain. Sure, the original source code is still there, but whatever changes you've made are lost.
And that's really the point of open source, not just to distribute the code as open, but to keep the code AND all changes to it open.
So I'm afraid that I have to disagree that non-copyleft licenses are really open source. They're just public domain with an attribution requirement.
And hey, it's convenient for commercial developers, but it does nothing to advance the ultimate goal of making all software non-proprietary.
Oh, I didn't expect you to agree.
I do think it's a definition that needs to be the standard, though.
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).
Do you think the current editorial staff even knows what the FSF is -- much less reads the comments, beyond deleting crapfloods?
The Open Source Initiative lists all varieties of the GPL as open source licenses.
Furthermore, its Open Source Definition is almost word-for-word identical to the Debian Free Software Guidelines.
Shh.. the PR of RMS and FSF have worked very hard to conflate Free Software with Open Source.
But seriously, the mistake is forgivable. All Free Software is Open Source, but not all Open Source is Free Software. It's not necessary to go on a 3 paragraph rant.
“Common sense is not so common.” — Voltaire
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 business-centric development methodology; a message chiefly aimed at businesses that essentially focuses on how software is developed. The free software movement is a social movement which talks about the freedoms to run, inspect, share, and modify published software—software freedom. The people who started the open source movement noticed that free software was gaining ground but they wanted to bring this message to businesses and drop the freedom talk perhaps in an effort to make sure proprietors could try to horn in on the benefits free software brings without having to distribute free software. In so doing the open source enthusiasts dropped the ethical underpinnings of the free software movement; the ethics of the free software movement are grounded in critical ethical examinations of how people ought to treat one another with regard to computer software. This is not an anti-business message, it's a message that doesn't place business desires first.
As Stallman points out (in a newer essay in a section called "Different Values Can Lead to Similar Conclusionsâ¦but Not Always" which revises an older essay on the same topic) consider the radical difference in how a free software activist and an open source enthusiast react to proprietary software: the open source enthusiast might remark in a way that notes how the proprietor achieved some convenience or technical achievement without using open source development methodology but then accept the program. The free software activist might remark on how accepting this program would mean giving up software freedom, then reject the program and set about writing or funding a replacement program so people can have the functionality that program provides without giving up one's software freedom.
The Free Software Foundation has a license list in which you can find almost all of the same licenses you'd find in the Open Source Initiative's license list but the FSF's list includes commentary on most of those licenses discussing one's software freedom under each license and the effect that license's choices have on the software freedom of derivative works: copylefted free software licenses and non-copylefted free software licenses. Consider how the OSI frames licensing choices—one picks from a large list of licenses ungrouped by what foreseeable affect they would have on software freedom. That's because open source enthusiasts don't speak of software freedom and don't arrange their resources along any lines having to do with software freedom (I recall an essay written by a Red Hat lawyer, linked to in a /. story some years back, which went out of its way to describe the effect of "copyleft"—the preservation of software freedom in derivative works—but without saying "copyleft" so as to not bring to mind software freedom).
Digital Citizen
This is a different Slashdot than you remember.
I refuse to give the ignoranuses a free pass. If you want to let Slashdot go into the toilet, by all means, go gently.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
All of Microsofts EULAs cover distribution, and fordid it. So your theory is that is out of place.
United States not the only legal system around.
Public domain as an international legal concept is close to being mythical. Check out the history of the new creative commons public domain license.
The problem is that if I offer the wonder program as public domain then some sleaze will file copyright on it and then prevent you from using it. Similarly, patents.
Open Source is not itself concerned with making all software non-proprietary. That's more a Free Software thing, with Stallman's plan to build up a corpus of GPLed software that would be too tempting to pass up. Stallman considers permissive licenses (and public domain) to be Free..
What the permissive licenses do is allow someone to make changes to software and use them freely. I don't know that any of them require changes to be divulged (I haven't checked the Affero GPLv3 recently), since none of them require distribution, and most software is for private use and is not distributed.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
I wonder if all these guys have some sense of lost, unearned, future income and who may become the claimant...