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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.
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.
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
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
There's no point to taking the GPL to court, as a defendant. Any defense that could be come up with will be based on denying the GPL's applicability, thereby either arguing that some other license exists and producing it, or admitting criminal copyright infringement.
Your point was salient 20 years ago, but these days it's the case that GPL cases are settled out of court because there's no viable defense and never has been. Practical difficulties in GPL enforcement arise from jurisdiction and the cost and effort of going to court, but not from the license being in some way "untested".
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 damages could be as simple as not allowing the defendant to use the software if they continue their non-compliance.
It's a copypasta, Lester. Smaller type'a troll.
https://www.reddit.com/r/copyp...
Viral nature? Arbitrary fictional concepts? What on earth are you talking about?
See that "Preview" button?
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.
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...
SJW n. One who posts facts.
This was doing the rounds in the 90s on Usenet.
YHBT HTH HAND
SJW n. One who posts facts.
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 reader to go read a chapter from another book as if it were included here. (However if you also distribute that chapter yourself, the it's probably the case you've make a derived work.)
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 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.
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
They don't have to give access to the source under GPL 2 as it is an embedded system. See also Tivoization.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Tivo gave or was obligated to give sources, you just had no practical way of modifying the software on the device. Distributing software on an embedded system is still clearly a distribution in the legal sense.
I stand corrected. I mis-remembered The details of the case :-(
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
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.'"
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.
If a license agreement is required at all, it's not truly free is it? One is *bound* by the license agreement. Truly free software would be software where the author relinquishes all dibs - all - on its use, copying, source, adaption and changing, sale, etc. etc. That said, AFAICT the GNU-Linux platform isn't free (generally speaking), rather one is just bound to a different set of conditions (than say when one uses macOS).
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."
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
That only applies to GPLed software you've written, not the output of gcc. You don't have to make any written offer if you throw another DVD-ROM or three into the nice package, that includes the source. Your customer can then distribute it if they want, which they normally wouldn't want to because they paid for your modifications and don't have to share them. If you make a written offer, then your customer, in the unlikely event of redistribution, can distribute copies of your offer if they don't redistribute much, and then you do need to honor the copies of your written offer. It doesn't say you have to give the source code to anyone who asks.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
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 to create a derived work if you're going to distribute the GPLed stuff.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
It gets complicated. Here's a possible way to get around it.
Company A uses Linux in a lot of devices they manufacture. Whenever they sell a batch do distributors B-Z, they include a little box with the source file in GPL-compliant form. The redistributors have a lot of devices, and redistributing those devices doesn't require a copyright license. Therefore, you buy a device with GPLed software that was always in compliance, and you have no legal claim to the source. I brought this case up in the GPLv3 open comment period.
This only works if the software is not changed. If the software has to be changed in the end user's device, that constitutes distribution to the end user, who is then legally entitled to the source code (or, alternately, the authors of the GPLed part of the software are entitled to damages and injunctions). The FSF didn't seem concerned about the distribution of software in ROMs.
"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
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.
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.'"
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...