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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.
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.
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
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".
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.
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.
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.
This isn't News for Most People, this is News For Nerds. This is the one news site that should understand and articulate the difference, even when the hack that wrote the actual article doesn't.
See that "Preview" button?
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.
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.
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.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
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.
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.