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.

Comments

Contracts

[Anonymous Coward]

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

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

Re:Contracts

[tietokone-olmi]

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

Re:Contracts

[phantomfive]

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

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

Re:Contracts

[ShanghaiBill]

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

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

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

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

Re:Contracts

[Michael Woodhams]

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

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

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

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

Re:Good

[ohnocitizen]

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.

Re:Good

[Anonymous Coward]

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.

The summary is missing some details.

[Anonymous Coward]

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.

This is one reason to prefer GPLv3

[jbn-o]

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:

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

Re:This is one reason to prefer GPLv3

[tietokone-olmi]

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

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

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

Credit where credit is due: Free software license

[jbn-o]

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.

Re:Open Source is bad sometimes...

[Anonymous Coward]

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.

Re:Good

[Alain Williams]

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.