from the by-reading-this-department-you-agree-to-the-following dept.
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.
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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.
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.
(Score: -1, Redundant) by Anonymous Coward on Thursday October 12 2017, @06:30AM (1 child)
Cuz the summary sucks donkey's ball.
(Score: 1, Insightful) by Anonymous Coward on Thursday October 12 2017, @07:13AM
It is a relatively small update on issue that has been reported on twice already. Is there anything more that needed to be said?
(Score: 3, Insightful) by FakeBeldin on Thursday October 12 2017, @07:01AM (5 children)
"If I actually did anything wrong, only count damages from before I started doing something wrong, would you kindly dear Judge?"
That makes no sense whatsoever. Glad to see that in the US legal system, this didn't make much sense either.
(Score: 3, Funny) by aiwarrior on Thursday October 12 2017, @07:03AM
I was going to comment on exactly the same.
This is like: "I only am liable until I get caught". When I am caught I can proceed with my wrong doing because i was already caught and can't be caught again. Whoa!
(Score: 2) by Bot on Thursday October 12 2017, @07:08AM (2 children)
Do not complain about that. It means you can kill the lawyer who thought that up and walk away free, as long as the first blow is fatal.
Account abandoned.
(Score: 0) by Anonymous Coward on Thursday October 12 2017, @07:16AM (1 child)
no. it actually means that you can hit the lawyer once without killing them, and then kill them with the second blow.
you break the law with the first hit, and the second hit no longer counts because you had already broken the law.
(Score: 2, Funny) by Anonymous Coward on Thursday October 12 2017, @09:18AM
I find your views interesting and would like to subscribe to your newsletter. Please start my subscription with your second issue ...
(Score: 5, Interesting) by TheRaven on Thursday October 12 2017, @11:28AM
sudo mod me up
(Score: 3, Interesting) by Anonymous Coward on Thursday October 12 2017, @07:45AM (1 child)
They have a point. I just don't thing they realize the consequences of what they argue.
The GPL does not require you to agree to anything. It allows you to do certain things (distribute) as long as you also do certain other things (source), anything else false back to copyright law. It also does have the part about becoming invalid if you break the conditions.
So year, they have a point in that the GPL is not a contract and they haven't agreed to anything. What they apparently don't realize is that under copyright law they have no right to distribute, and they can then either pay treble damages RIAA style - but since the price was the entire source, what's three times the entire source? - or recall the product in question, refunding every single purchase.
There is a reason that until now every time the FSF has threatened to sue anyone for GPL violations, they have chosen to distribute the source under the GPL. The alternatives are way more expensive.
Even Microsoft realizes this. That's why they forbid any use of GPL software in projects they are not willing to release the source for - and release the source for those that they do.
(Score: 1, Informative) by Anonymous Coward on Thursday October 12 2017, @12:12PM
The price I imagine will be based on how much Hancom was selling its infringing software for, or more generally how much revenue they've derived from redistribution. It's the same as with most copyright infringements even of proprietary software, and there will be attorney's fees as well for Artefix's lawyers.
(Score: 0) by Anonymous Coward on Thursday October 12 2017, @09:42AM