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The District Court for the Northern District of California1 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 ("GPL").
[...] Artifex's complaint asserts that Hancom's violations of the conditions of the GPL constitute both copyright infringement and breach of contract. Artifex has requested remedies including compensatory, consequential, and statutory damages, as well as attorneys' fees and costs. Artifex also sought injunctive relief barring further infringement by Hancom and requiring Hancom to comply with obligations under the GPL. Hancom moved to dismiss Artifex's complaint on several grounds. The District Court denied Hancom's motion to dismiss on each ground.
[...] Here, 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.
ARTIFEX SOFTWARE, INC. v. HANCOM, INC.
(Score: 0) by Anonymous Coward on Saturday May 06 2017, @05:11PM (2 children)
I highly doubt that even if the Court finds that it has jurisdiction over this case, that it will enforce the GPL. If the GPL was not agreed to, it simply becomes a case of copyright infringement.
Shrinkwrap terms do not create a valid contract. The reason why is that you didn't agree to the part that says "by using this software you agree", since you didn't agree to that term, it has no effect. The only issue that arises is that of implied consent. But implied consent is a shaky ground and a mistake of fact or simply not reading the license carefully or choosing to ignore it will likely nullify a claim of implied consent. See e.g. In re Zappos, shrinkwrap/browserwrap terms are not enforceable per se. As the court noted, "[...] the Court will not dismiss the request for specific performance—directing Defendant to distribute its source code—even though the ultimate imposition of such relief is extremely dubious.". The chance of requiring source code distribution is virtually zero. The Court, if it does find infringement, is extremely unlikely to award injunctive relief. First, the balance of equities would not favor this relief if the Defendant simply didn't read the GPL carefully enough, and also because the Defendant is in south korea, I highly doubt any sane court would issue that kind of relief. Likely, the court would award money damages.
Second, under usual contract law, consideration is a required element to constitute a valid contract. So even if we suggest that there was "acceptance" of the GPL, since the GPL license terminated as of the violation, it would have no longer been enforceable for lack of consideration. The result, simple copyright infringement, not a breach of contract. Possible the court will enjoin the further infringement of the GPL, but I doubt it would do anything more than that.
(Score: 2) by MrGuy on Sunday May 07 2017, @01:18AM (1 child)
Citation needed.
I don't like shrinkwrap licenses or contracts of adhesion. But it would be a massive impact to the software industry (the PROPRIETARY software industry) if such agreements were not considered valid contracts.
If this is a statement of opinion, or what you think the law SHOULD be, fine, but say so. If you want to claim this is how the law works, please cite some precedent for this statement. From what I'm aware of, the courts do not share your view.
(Score: 1) by arcz on Sunday May 07 2017, @01:25AM
In re: Zappos
https://en.wikipedia.org/wiki/In_re_Zappos.com,_Inc.,_Customer_Data_Security_Breach_Litigation [wikipedia.org]
The question is implied consent, which requires at minimum a showing that you knew or should have known that there were terms and conditions attached. But I highly doubt that implied consent could serve as a basis for injunctive relief. I think that it is extremely unlikely that this action will actually result in them being forced to release source code. Instead, money damages. That theory of zero damages does not seem very good to me though.