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Arthur T Knackerbracket has found the following story:
A recent federal district court decision denied a motion to dismiss a complaint brought by Artifex Software Inc. ("Artifex") for breach of contract and copyright infringement claims against Defendant Hancom, Inc. based on breach of an open source software license. The software, referred to as Ghostscript, was dual-licensed under the GPL license and a commercial license. According to the Plaintiff, those seeking to commercially distribute Ghostscript could obtain a commercial license to use, modify, copy, and/or distribute Ghostscript for a fee. Otherwise, the software was available without a fee under the GNU GPL, which required users to comply with certain open-source licensing requirements. The requirements included an obligation to "convey the machine-readable Corresponding Source under the terms of this License" of any covered code. In other words, under the open source license option, certain combinations of proprietary software with Ghostscript are governed by the terms of the GNU GPL.
Plaintiff alleged that because Defendant did not have a commercial license for Ghostscript, its use and distribution of Ghostscript constituted consent to the terms of the GNU GPL, Section 9 of which states:
You are not required to accept this License in order to receive or run a copy of the Program...However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.
Plaintiff further alleged that Hancom failed to comply with key provisions of the GNU GPL, including the requirement to distribute the source code for Hancom's software.
Hancom responded to these allegations with three arguments. First, it alleged Plaintiff failed to state a claim for breach of contract and that any such claim is preempted by copyright law. Second, it alleged Plaintiff's copyright claim must be dismissed in part because Plaintiff has failed to allege that Defendant committed a predicate act in the United States. Finally, Defendant moved to strike portions of the relief sought in the complaint.
The Court rejected all three arguments. On the first issue, the court stated: "Defendant contends that Plaintiff's reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. Not so. The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license." The Court added: "Plaintiff's allegations of harm are also adequately pled. Plaintiff plausibly alleges that Defendant's use of Ghostscript without obtaining a commercial license or complying with GNU GPL deprived Plaintiff of the licensing fee, or alternatively, the ability to advance and develop Ghostscript through open-source sharing. Indeed, as the Federal Circuit has recognized, there is harm which flows from a party's failure to comply with open source licensing: "[t]he lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration" because "[t]here are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties."
[...] This case highlights the need to understand and comply with the terms of open source licenses. Many companies use open source without having adequate open source usage policies or understanding of the legal risks of using open source. As this case highlights one of the key risks with using open source is that in certain circumstances, a company may be required to release the source code for its proprietary software based on usage of open source code in the software. It also highlights the validity of certain dual-licensing open source models and the need to understand when which of the options apply to your usage. If your company does not have an open source policy or has questions on these issues, it should seek advice.
(Score: 5, Interesting) by sgleysti on Sunday September 10 2017, @07:12PM (18 children)
In the code that I write for work, I am very careful to avoid all copyleft licenses like the GPL. MIT, BSD, MPL, and related licenses are great. They let me use open source software (mainly a Linear Algebra package and an XML parser) without having to open source my company's code. They only require a license notice to be distributed along with our software, which is fair enough.
I can admire RMS's commitment to his principles, but I don't see non-free software as necessarily morally evil. That said, I'm glad this case is turning out the way it is.
(Score: 5, Insightful) by Anonymous Coward on Sunday September 10 2017, @07:37PM (9 children)
I see it this way:
If you're profiting off of the generous free work done by others, you have the societal and moral obligation to make any improvements or modifications made on the code freely available for the public good. You're essentially standing on the shoulders of giants, and it doesn't hurt to become that very giant yourself upon whom others may stand on and continue to improve the quality of products we produce.
I see GPL more as a symptom of a toxic intellectual property litigation culture, not as a trendy meme in legalese.
(Score: 3, Interesting) by marcello_dl on Sunday September 10 2017, @09:07PM (5 children)
> you have the societal and moral obligation
BTW
"Freely you have received, freely give". Matthew 10:8
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @11:06PM
"We know that the law is good if one uses it properly. We also know that the law is made not for the righteous but for lawbreakers and rebels, the ungodly and sinful, the unholy and irreligious, for those who kill their fathers or mothers, for murderers, for the sexually immoral, for those practicing homosexuality, for slave traders and liars and perjurers—and for whatever else is contrary to the sound doctrine that conforms to the gospel concerning the glory of the blessed God, which he entrusted to me." 1 Timothy 8-11.
Whatever.
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @11:53PM
but isn't that communism and thus why republicans are not supporters of christianity? ALso why they aren't stewards of the earth and stuff?
I'm not getting mixed messages, am I? I thought most companies just pirated their stuff until lawyers got involved anyway. the BSA is for libtards or something.
(Score: 2, Funny) by Anonymous Coward on Monday September 11 2017, @12:37AM (2 children)
You didn't quote the whole thing: "Heal the sick, raise the dead, cleanse those who have leprosy, drive out demons. Freely you have received; freely give." It's telling us to get rid of BSD.
(Score: 3, Funny) by maxwell demon on Monday September 11 2017, @08:46PM (1 child)
But which dead operating system are we supposed to raise instead?
The Tao of math: The numbers you can count are not the real numbers.
(Score: 3, Funny) by martyb on Tuesday September 12 2017, @12:41AM
So sorry! Haven't you... "Hurd"? :)
Wit is intellect, dancing.
(Score: 2) by frojack on Sunday September 10 2017, @09:30PM (1 child)
But what about non-improvement, rather: simple use - in commercial software?
(And by use, I don't restrict that to simply compiling against libraries, but also embedding huge chunks of source code into another product).
I rather suspect that happens far more times than the anyone actually improves or adds to opensource packages.
No, you are mistaken. I've always had this sig.
(Score: 2, Interesting) by Anonymous Coward on Sunday September 10 2017, @09:56PM
I honestly think this is where existing rules and regulations fail and no clear alternative presents itself.
It's one thing to say, for instance, have dozens of calls to jq in a glue script that realistically only executes once in a blue moon -- It's another matter entirely to, say, base your subscription-based RSS reader on a couple of jq calls that runs thousands of times in a similar script. Do you make your entire RSS reader open-source that may or may not contain business logic inside of it? Or do you attribute nothing to jq developers because you technically haven't modified a single character of the source code?
I think it may be naiive of me to say this, but a shoutout at the very least towards said open source projects would be a good start, or maybe even cursory sharing of profits if the company in question feels like it. It's much better to make something a common practice out of basic civic duty rather than a compulsory compliance towards a regulation.
(Score: 2) by sgleysti on Sunday September 10 2017, @11:29PM
Ah, but I am not modifying the open source code that I use in any way. I merely call the parsing and mathematical routines in the two open source packages that I use. And since we statically link the executables we distribute, using GPL licensed code would require us to open source our code. We could use LGPL licensed code if we provide an additional object file that can be linked against modified versions of any LGPL licensed library incorporated into our code, which is a hassle.
I do agree with the principle you state, that improvements to open source code should be made available to the project. It's just that I'm not making any.
(Score: 1, Interesting) by Anonymous Coward on Sunday September 10 2017, @08:10PM (3 children)
I cannot use the GPL at work because projects are paid for with public money. Everything I write personally is released under the GPL however. If you want to use or improve my software for the benefit of all, that's great. If you want to make money, I want to get paid for my work.
You and your company are freeloading. Do you actually write code, or just glue BSD code together? Their software may arguably be freer, but I have no interest in materially enriching people who take my work but give nothing back.
(Score: -1, Troll) by Ethanol-fueled on Sunday September 10 2017, @08:42PM
You and the responder above both need to lighten the fuck up.
Niggaz gotta eat. Homebody is playing by the rules, homeboy gotta feed his gay lover or his breeding sow and make 'dem car payments. "Stealing" code legally is like "stealing" recipes from a cookbook.
Man, ideological zealots are annoying. Now, if you'll excuse me, I'm going to make America White again!
(Score: 2) by sgleysti on Sunday September 10 2017, @11:37PM
I mainly use the Eigen package to perform various linear algebra operations in some C++ code. Mostly I use it for matrix multiplication, the SVD, and Householder QR with column pivoting. It would take a lot of time for me to implement and test the latter two, and the Eigen project has already done that. The project is released under MPL 2, which is permissive. http://eigen.tuxfamily.org/ [tuxfamily.org]
(Score: 0) by Anonymous Coward on Monday September 11 2017, @04:16AM
https://joinup.ec.europa.eu/software/page/eupl/introduction-eupl-licence [europa.eu]
(Score: 2) by TheRaven on Monday September 11 2017, @07:56AM (3 children)
I can admire his goals, but not agree with his tactics. There are two big problems with the GPL that both stem from forgetting that about 90% of software developers are employed to write in-house software that is never distributed.
The first doesn't matter to RMS, because the GPL has served its goal in his eyes, though not in the eyes of many people who write GPL'd code: a company can take GPL'd code, create a private fork, and develop a competitive advantage from using it, without the need to ever share any code. The GPL requires only that you give code to people downstream from you, not upstream. There is no contribute back clause. This is fine for RMS, because the company (the user of the software) gets the four freedoms. It's not so great for the wider free software ecosystem, because everyone is taking and no one is giving back.
The second is that a lot of in-house software is provides no commercial advantage. It's not maintained because it would cost the company if a competitor got a copy of it, it's maintained because there's no off-the-shelf solution that does what they need. If you want to end up in a world where free software is the norm, then you need to transition through a world in which all of the generally useful parts of these programs are using free software components. If a company decides to replace an internal component with a GPL'd part and contribute back to that instead of maintaining their own thing, they have to ensure that the whole of the rest of their codebase is GPL compatible and they face potential liabilities if anything isn't. There are two obstacles here. The first is that no competent manager will okay this without having a very expensive conversation with a copyright lawyer (and unless the savings are significantly greater than the cost of talking to the lawyer, it won't happen). The second is that the lawyer will probably say it's not worth it for the increased liability. In contrast, a permissively licensed component can be incorporated with minimal risk.
The positive trend I've seen in the last few years is that companies that want to use a GPL'd library, but can't for legal reasons, are increasingly paying someone to write a permissively licensed replacement rather than a proprietary replacement. It boils down to a difference in philosophies: the GPL regards proprietary software as evil and is willing to accept that less free software will be written if it's a side effect of less proprietary software, the BSDL regards free software as good and is willing to accept more proprietary software being written as a side effect of writing more free software.
sudo mod me up
(Score: 3, Insightful) by maxwell demon on Monday September 11 2017, @08:53PM (1 child)
Do you really want to force any attempt at modifying GPLed software to be contributed back? Because I don't think there's a way to legally distinguish between some in-house software and some private project. I think the moment you require contributing changes back, you'll get overwhelmed with crappy little modifications (unless your home users either consciously or, more likely, unknowingly violate your license by not sending back the crap that rots on their hard disk).
The Tao of math: The numbers you can count are not the real numbers.
(Score: 2) by TheRaven on Tuesday September 12 2017, @07:20AM
sudo mod me up
(Score: 0) by Anonymous Coward on Tuesday September 12 2017, @11:37PM
A(ffero)GPLv2 and AGPLv3 cover this exact usage example. And in fact many open source MMOs, as well as the Povray renderer have chosen to (re)license under them thanks to this exact reasoning.
Any code you utilize to provide a third party service requires the release of source code to any user of said service.
This STILL doesn't cover an entirely in house usage of code by only the current company or a wholly owned subsidiaries employees, but even there it technically covers most use cases, since even having a contractor use the code would potentially allow a license violation claim since ANY non-employee is considered external to the company (at least if I am reading the license correctly.)
As such the most restrictive AGPL really does plug all but the 'personal development' hole, which probably won't result in anything too revolutionary that won't be released eventually.