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posted by charon on Friday May 19, @09:18PM   Printer-friendly
from the free-as-in-willy? dept.

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.

Source: https://www.techdirt.com/articles/20170515/06040337368/us-court-upholds-enforceability-gnu-gpl-as-both-license-contract.shtml


Original Submission

Related Stories

GPL as a Contract Survives Summary Judgement 11 comments

A motion for Summary Judgement in the ongoing Artefix v. Hancom GPL enforcement case has been denied. Seen previously on Soylent. From the FSF:

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.


Original Submission

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  • (Score: -1, Troll) by Anonymous Coward on Friday May 19, @09:31PM (3 children)

    by Anonymous Coward on Friday May 19, @09:31PM (#512390)

    Eben was the one who really wrote the GPL while Dick Bathroom Stall-Man took a shit and yelled through the door, "I'm going to call it Copy-LEFT, get it, get it? Hahahahaha. Hold on a minute. I'm pushing out another patch to emacs. Aw man it's hanging from my ass by a hair. No toilet paper! I'll need to reach back and pull out my latest brilliant piece of handiwork. Hahahahaha! Get it! Handiwork and my hand is coated with my own brown genius!! Send in my pet gnu to lick my anus clean. Eben! Eeebbeeen. You hear me???"

    • (Score: 0, Troll) by DECbot on Friday May 19, @09:56PM (2 children)

      by DECbot (832) Subscriber Badge on Friday May 19, @09:56PM (#512402) Journal

      Aaaannd this is why I prefer Vim.

      --
      cats~$ sudo chown -R us /home/base
      • (Score: 0) by Anonymous Coward on Friday May 19, @10:50PM

        by Anonymous Coward on Friday May 19, @10:50PM (#512423)

        Ja, vim skurer effektivt men riper ikke.

      • (Score: 4, Funny) by Azuma Hazuki on Saturday May 20, @03:31AM

        by Azuma Hazuki (5086) on Saturday May 20, @03:31AM (#512514)

        We all know nano/pico is the One True Editor (TM). Vim is a type of cognitohazardous mind virus and Emacs...well, it's interesting as a console-mode OS but maaaaaan does its editor suuuuuuck.

  • (Score: 2) by kaszz on Friday May 19, @10:09PM (4 children)

    by kaszz (4211) on Friday May 19, @10:09PM (#512407) Journal

    If the court had voided the GPL. Then a lot of other really proprietary software would had been at risk too. So the conclusion is from a pure game theory point of view the only reasonable.

    • (Score: 1, Interesting) by Anonymous Coward on Friday May 19, @10:12PM (2 children)

      by Anonymous Coward on Friday May 19, @10:12PM (#512409)

      Well, the thing is, if they had voided the GPL, this guy would have no license to use the software, that wouldn't have gained him anything.

      Then again, that would cause a pretty big commotion from everyone that is respecting the GPL and using that software, since suddenly they would be violating copyright.

      • (Score: 2) by BsAtHome on Friday May 19, @10:50PM (1 child)

        by BsAtHome (889) on Friday May 19, @10:50PM (#512424)

        Not necessarily an infringement without a license. There is an implicit license, a promise, embedded in the GPL and similar licenses. This promise is that you are allowed to use the software.

        • (Score: 2) by Immerman on Saturday May 20, @12:02AM

          by Immerman (3985) on Saturday May 20, @12:02AM (#512443)

          Use, not distribute. Copyright prohibits any redistribution without a license. And the license granted by the GPL is contingent upon the contract.

    • (Score: 2) by Wootery on Saturday May 20, @11:04AM

      by Wootery (2341) on Saturday May 20, @11:04AM (#512578)

      So the conclusion is from a pure game theory point of view the only reasonable.

      You know that's not how the law works, right?

  • (Score: 5, Informative) by Anonymous Coward on Friday May 19, @10:25PM (4 children)

    by Anonymous Coward on Friday May 19, @10:25PM (#512415)

    Poor legal reporting at its finest. The court has not ruled on anything of substance. They have certainly not ruled on the existence of any contract involving the GPL. The court has merely denied a motion to dismiss by the defendant, which basically means that the plaintiff's allegations are actually a valid reason to sue someone.

    A motion to dismiss is basically an argument by the defendant that says "So what if I did?". The court does not evaluate the merits of the case, and the court does not consider any evidence. In a motion to dismiss, the court is asked to determine "If the plaintiff were to successfully prove all their allegations, does the law actually provide for any restitution?" If the answer is "No", then there is no point in a trial. If the answer is "Yes", then the trial can proceed.

    • (Score: 2) by Lagg on Saturday May 20, @12:46AM (2 children)

      by Lagg (105) Subscriber Badge on Saturday May 20, @12:46AM (#512461) Homepage Journal

      They focused on the wrong thing. I don't care for the GPL, GNU or their original authors anymore. But should be noted that this in itself is a victory for the GPL. Not too long ago it was unknown if it would be accepted in court at all.

      --
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      • (Score: 3, Interesting) by Runaway1956 on Saturday May 20, @02:23AM

        by Runaway1956 (2926) Subscriber Badge on Saturday May 20, @02:23AM (#512484) Journal

        "Not too long ago it was unknown if it would be accepted in court at all."

        This ^ There have been a number of serious discussions whether the courts would recognize copyleft. Courts do weird shit sometimes, and it was entirely within the realm of possibility that some judge would rule copyleft invalid for some crazy reason. West Texas has it's Troll court, after all - what if that crazy bastard had ruled on copyleft?

        --
        This broadcast is intended for mature audiences.
      • (Score: 0) by Anonymous Coward on Saturday May 20, @02:29AM

        by Anonymous Coward on Saturday May 20, @02:29AM (#512488)

        I don't know if this is as big of a victory as people think. This was (as far as I can tell) a 12(b)(6) motion. The standard of which is that all the well-pleaded facts, when taken as true and in the light most favorable to the plaintiff, allow a reasonable inference of liability. This is such a weak finding, that it doesn't bind the defense in terms of affirmative defenses against the plaintiff, nor does a finding for the defendant create estoppel of future claims by the plaintiff.

    • (Score: 0) by Anonymous Coward on Saturday May 20, @08:43AM

      by Anonymous Coward on Saturday May 20, @08:43AM (#512551)

      MOD PARENT UP

      this is the same old almost non-story we ran earlier https://soylentnews.org/article.pl?sid=17/05/05/226211 [soylentnews.org]

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