Submitted via IRC for Runaway1956
Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.
A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.
Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:
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. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.
In the previous ruling, the judge in the case had denied a motion to dismiss those claims, allowing the case to proceed. We've now reached the next step in the suit, involving a motion for summary judgment on the contract claim, which was also denied. In a motion to dismiss, the court assumes the truth of the allegations involved and rules on whether such allegations actually present a valid legal claim. In summary judgment, the court is asked to look at the undisputed facts and determine whether the outcome is so obvious that the matter need not go through a full trial. Such motions are routine, but making it past summary judgment does mean that the issue of recovery under contract theory is still alive in this case.
Hancom here made several arguments against the contract claim, but one is of particular interest. Hancom argued that if any contract claim is allowed, damages should only be considered prior to the date of their initial violation. They argued that since the violation terminated their license, the contract also ended at that point. The judge noted that:
the language of the GPL suggests that Defendant's obligations persisted beyond termination of its rights to propagate software using Ghostscript ... because the source code or offer of the source code is required each time a "covered work" is conveyed, each time Defendant distributed a product using Ghostscript there was arguably an ensuing obligation to provide or offer to provide the source code.