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.
Related Stories
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.
(Score: 5, Interesting) by Anonymous Coward on Sunday September 10 2017, @06:55PM (14 children)
Offering both the commercial and GPL is probably the most liberal offer one can make (no, MIT and PD are not as liberal because somebody can close up the source and that is anarchy not freedom), so, non compliance is a bad move, that any serious company should avoid. (no, corporations are not serious company, they are the mob).
(Score: 4, Informative) by Anonymous Coward on Sunday September 10 2017, @07:03PM (12 children)
Under dual licensing, someone can still close up the source code in exactly the same way that one could with the MIT license or with Public Domain work; there is no difference, except that dual licensing involves some kind of exchange to make it all OK.
The word "anarchy" does not mean what you think it means; it means "without a ruler".
Your context gives me no clue as to what you mean by "anarchy", but I'll note for the benefit of others that "anarchy" does not imply a lack of order, it just implies a lack of imposition: People can agree to interact in a certain way without being forced—indeed, most of the productive world exists in a state of anarchy; it's why the West has been so spectacularly good at creating wealth, because each individual has largely been able to pursue his own interests through voluntary interaction with others.
(Score: 5, Insightful) by LoRdTAW on Sunday September 10 2017, @07:37PM (2 children)
Right. The licensee pays for the privilege of a closed source license. The author explicitly does this to discourage closed source while still allowing it. It's a perfect balance in my opinion. It's only fair that if you want to sell open code minus the open part, you have to pay for that privilege. The GPL is probably the best license to go this route because the GPL guards the open code against commercial exploitation.
(Score: 2) by frojack on Sunday September 10 2017, @09:17PM
Dual Licensing is also used when you intend to extend an opensource package by adding functionality or features for which you intend to charge a fee.
In fact its used this way MOSTLY by the developers of the an opensource package - precisely to obtain fees.
Its attractive to second parties PRECISELY to avoid any requirement to release their own source code. They are not concerned with releasing the source code of the opensource package, merely their extensions of that code.
No, you are mistaken. I've always had this sig.
(Score: 1, Insightful) by Anonymous Coward on Monday September 11 2017, @07:31AM
It doesn't have to be to discourage closed source. It can also be a case of "you are paying, one way or the other. Code or money, your choice".
(Score: 1, Insightful) by Anonymous Coward on Sunday September 10 2017, @08:56PM (4 children)
> does not imply a lack of order, it just implies a lack of imposition
Your faith in humanity is quite strong.
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @09:35PM (3 children)
The behavior of humans is irrelevant to the meaning of "anarchy".
Let's say humans to tend impose on each other (because imposition is a dumb man's solution to a problem, and people are pretty dumb).
So what?
The explicit recognition of that tendency can be incorporated into everyday interactions by building societal infrastructure to guide people down a different path without people even realizing it: That's the whole point of, for example, contract theory; getting people to agree to the rules of their interaction in advance is a great way to stamp out a lot of imposition, especially when every ramification of the interaction is clearly spelled out (enforcement of the contract is itself part of the contract, and thus is entirely voluntary).
If anything, what requires faith in humanity is looking to some special organization ("government") that has been blessed culturally with the power to impose its will at the point of a gun; after all, are the officials in government not also human?
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @11:18PM (2 children)
This is by far the best comment about "the violently imposed monopoly" yet. Gj! No sarcasm
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @11:41PM (1 child)
My favorite part was where it begged the question.
(Score: 0) by Anonymous Coward on Monday September 11 2017, @12:20AM
Nowhere does the OP beg the question.
I suppose you think that a system of contracts or the construction of "societal infrastructure" requires some kind of imposed authority; however, by thinking that, you are the one who is begging the question.
(Score: 2, Insightful) by Anonymous Coward on Sunday September 10 2017, @09:02PM (2 children)
an-archy means without authority, be it one ruler or a system of laws imposed in some way, like peer pressure, whatever. When nothing has authority laws are optional. When laws are optional somebody will ignore them. When somebody will ignore them he will become stronger than those who obey the laws. Result: first chaos then totalitarianism.
(Score: 0) by Anonymous Coward on Sunday September 10 2017, @09:48PM
As soon as there is a strong man, you have "authority", and thus no longer anarchy—the bad outcome in your scenario is the replacement of anarchy with... well... archy; I mean, surely, you're not suggesting that "totalitarianism" is an example of anarchy, or that it must follow from anarchy?
Whence comes your preferred system, presumably representative democracy?
You can't have it both ways.
What is law, anyway?
The law that governs you is different from the law that governs me; you and I don't share the same obligations in life—you may be encumbered by the need to make a monthly payment for a car, while I don't, etc.
There's no reason that law must be established by this one particular group of people who call themselves "a legislature"; indeed, law could merely be the collection of all contracts between individuals (you have to pay for your car, but I don't)—it's just that society doesn't yet have the logistical machinery to handle effectively this kind of law in general, in the same way that society at one point didn't have the logistical machinery to handle effectively the masses' ability to engage in democratic voting.
(Score: 0) by Anonymous Coward on Monday September 11 2017, @06:25PM
the old "if it weren't for the precious dog-shooting pigs everyone would kill their neighbor" argument. fuck you. how bout that?
(Score: 5, Funny) by kazzie on Monday September 11 2017, @06:26AM
Right, I'm gonna go draw a load of anarchic straight lines...
(Score: -1, Troll) by Ethanol-fueled on Sunday September 10 2017, @08:37PM
Hmm, it seems that RMS is high off his own toejam again.
Put down the foot-cheese, Richard!
(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.
(Score: 1, Troll) by realDonaldTrump on Sunday September 10 2017, @09:31PM (6 children)
I didn't appoint her, but I love this ruling by Judge Jackie. When the Koreans steal our cyber and copy it, they're stealing jobs from our economy. Judge Jackie understands that. I think she understands that. Terrific ruling! And she's not bad looking. Flat chested, but a solid four. She's doing the Grubhub case too. Believe me, I'm watching that one! And I may reappoint her in 2019. Maybe. 🇺🇸
(Score: 1, Insightful) by Anonymous Coward on Sunday September 10 2017, @10:21PM (4 children)
I have to admire your trolling. You do it all the time. But, the joke is wearing thin. Remember the rule of 3. Past 3 times it becomes tiresome. You are bordering on the HOST guy level of trolling...
(Score: 1, Troll) by realDonaldTrump on Sunday September 10 2017, @10:44PM
Only the Fake News Media and Trump enemies want me to stop using Social Media (110 million people). Only way for me to get the truth out! #BoycottGrubhub 🇺🇸
(Score: 4, Insightful) by takyon on Sunday September 10 2017, @11:44PM (2 children)
Each post is pretty unique though.
Maybe the real reason you are tired of it is because you see the same content flowing out of the White House.
[SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
(Score: 4, Informative) by Anonymous Coward on Sunday September 10 2017, @11:56PM
I wouldn't say it's the same, this one is way more coherent. For example, the sentences are complete.
(Score: 1, Informative) by Anonymous Coward on Monday September 11 2017, @02:10AM
Oh I admire it. It is unique on each one. But even a clever joke wears thin. The rule of three can only be broken if it is funny. That is hard to do.
(Score: 1, Informative) by Anonymous Coward on Monday September 11 2017, @03:14AM
You're nuts. She's at least a seven. And if you think she's flatchested you've been playing with silicone for too long.
http://www.cand.uscourts.gov/assets/images/judges/Judge%20Corley.jpg [uscourts.gov]
(Score: 1, Insightful) by Anonymous Coward on Monday September 11 2017, @07:46AM (4 children)
The GPL is not a contract, it's a license. You don't have to agree to it. It only allows you to do a couple of things that copyright law would otherwise deny you. It gives you these permissions as long under a few conditions - that you give anyone who receives your software the same permissions. If you don't do that, you simply don't get any extra permissions on top of copyright law.
Without reading Hancoms arguments, as far as not having agreed to the GPL, I'd say they are correct. However, the result is that the case simply falls back to copyright law - Hancom is not allowed to distribute their software, and must therefore do a full recall, refunding every customer the full purchase price.
And this is why the FSF has been so successful in convincing violators to follow the GPL. It's not that the GPL gives some contractual obligation to release source, the alternative is just that much more expensive.
(Score: 2) by TheRaven on Monday September 11 2017, @10:54AM (1 child)
sudo mod me up
(Score: 2) by maxwell demon on Monday September 11 2017, @08:58PM
Do you have any source for that claim?
The Tao of math: The numbers you can count are not the real numbers.
(Score: 0) by Anonymous Coward on Monday September 11 2017, @06:55PM (1 child)
Yeah, which is also why the AGPL is bullshit -- or, more precisely, is only as legally valid/enforceable as a EULA -- it tries to impose conditions more restrictive than copyright's default of "all rights reserved". The validity of that, then, depends on the ability to compel users to agree to a license after you've aleady handed them the software. If users are allowed to decline (as they are with GPL), the AGPL becomes toothless, because the whole point of AGPL is to address cases the GPL can't touch because there is no distribution happening.
(Score: 2) by TheRaven on Tuesday September 12 2017, @07:22AM
sudo mod me up
(Score: 1, Informative) by Anonymous Coward on Monday September 11 2017, @05:16PM
We already covered this decision back in May: https://soylentnews.org/article.pl?sid=17/05/19/1941215 [soylentnews.org]
This really is a non-story. A motion to dismiss is a basic procedural issue and the merits of the case are not considered, beyond answering the question "If everything the plaintiff says is taken at face value, are they actually entitled to any restitution under the law?"