back to article For now, GNU GPL is an enforceable contract, says US federal judge

A question mark over whether the GNU GPL – the widely used free-software license – is enforceable as a contract may have been resolved by a US federal judge. In a California district court, Judge Jacqueline Scott Corley refused [PDF] to accept what has been an uncomfortable legal precedent for the past decade. She ruled that …

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But is the GPL an internationally recognised contract? Because I doubt if they try and enforce it in places like Russia, that they'll get any luck in court.

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Anonymous Coward

Try to get any contract enforced in Russia..

Try and get ANY contract enforced in Russia/China/North Korea/Nigeria/[Choose your country] if you don't grease the right palms.

I was involved in an oil based contract worth £500M in Russia. The (very large) UK company decided to just walk away from it as it was clear that all we were going to get out of this was ripped off by everybody (including the courts) if we were lucky and if we were unlucky, people would get sent to jail or far worse.

When people had to hire full time bodyguards and armoured Mercs just to get around we realised this was not a good place to be.

As a side note, I did meet some of the bodyguards, a nicer bunch of people you could ever meet, all were very polite, lightly built even wiry, very ordinary looking and very clued in to what was going around them. Not one looked anything more than accountants and middle managers, which I suspect is a massive advantage in their line of work.

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I would assume it is..AT LEAST as much as a regular EULA.

One of the arguments the defense claimed were:

"That since it did not sign anything when it downloaded Artifex's software there is no contract to be enforced."

If that point were/are accepted it would have to be applied to EULA's without a written SIGNED contract/license too. (as in, physical/digital signature, not just a button press)

Especially when you consider that businesses usually(/almost always) have less protections than individuals.

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It seems that they want to interpret the GPL as a EULA, when it's not.

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Anonymous Coward

An EULA is not enforcable under English Law since the Contract is established at the time Consideration is exchanged, and so any verbaiage that appears after that which seeks to apply additional terms and conditions is bollox.

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"But is the GPL an internationally recognised contract?"

Yes it is a major thing in the civilized world.

"if they try and enforce it in places like Russia,"

Where?

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Black Helicopters

Obviously, you're not from the US (not a disparagement, just observation), because in the US companies have FAR more protection than individuals, especially in contract law.

That said, your point about the shrink wrap licenses is 110% correct.

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Breaching copyright would be far worse

The penalties for breach of copyright are statutory and are per violation. And they are far worse than breach of contract. If I were Hancom, I would be very cautious about try to turn this in to a copyright case. Give the potential value of that and the potential criminal liability, it could be the end of a company (c.f. MegaUpload)....

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Re: Breaching copyright would be far worse

That is not correct under US copyright law that is relevant to this case.

You can take 2 paths to compensation in breech of copyright:

1) Actual damages;

2) Statutory damages.

If you choose 1, and you can put a number, with evidence to back it up, on the actual damages, you could get more damages than statutory damages.

However, actual damages in copyright are notoriously hard to prove, therefore most plaintiff's opt for the statutory damages which doesn't require the plaintiff to be able to prove a specific damages amount, just that the violation did occur. Then it's up to the discretion of the judge decide what range out of the $750-$30k per work to levy, which can be increased up to $150k depending on how willful the judge determines it was. Alternatively, if the defendant can prove they had no idea, and no reason to believe they were violating copyright, it could actually be reduced down to as low as $200.

Also, from memory, if you claim actual damages, you can only claim from the date of registration of the copyright with the copyright office. For example, if someone has been violating your copyright for 50 years, and you can prove it cost you $1million a year, you might be expecting a $50m payout. However, if you didn't register the copyright until 49 years into that 50 year period, you'll only get the damages for 1 year.

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"That since it did not sign anything when it downloaded Artifex's software there is no contract to be enforced."

That's a very odd argument. Do you think it would work if I downloaded Windows and then tried to argue that I hadn't signed anything?

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That's different: That's a plain and simple copyright violation.

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Re: That's different:

That's different: That's a plain and simple copyright violation.

Not different.

Under the Berne Convention, any unique software is automatically copyright.

Therefore, downloading any software, be it Windows or be it some GPL'd s/w, is copying copyrighted material.

The holder of the copyright gets to dictate who may make copies of the work and under what circumstances. Microsoft says you can copy their stuff if you hand over some wonga. Other s/w may invoke different terms, such as the GPL.

The GPL says you are entitled to make a copy provided you comply with certain conditions. If you make a copy but do not comply with those conditions then you have violated copyright. You have made a copy under conditions which the copyright holder explicitly states to be impermissible.

Which bit of this is hard to understand?

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Anonymous Coward

Re: That's different:

The part where not all countries signed onto the Berne Convention. There are still 21 countries that are not signatory, such as Kuwait.

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Downloading or Copying Windows

MS says you are quite free to copy windows, in any fashion.

However they want appropriate licence fees according to what VM or HW you actually run it on.

They also used to have per seat or per machine/connection licences for server software.

MS don't care if you have one copy or hundreds. It's the installed instances, mostly.

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Re: That's different:

"The GPL says you are entitled to make a copy provided you comply with certain conditions. "

And this is why there have only been a handful of GPL cases in the world _ever_.

Attempting to argue it's not a contract (or its validity) turns it into a copyright violation case (which has severe penalties). Attempting to dispute the contract's terms invalidates it, which..... turns it into a copyright violation case.

In virtually all cases companies which have been confronted with evidence of their GPL violations take their lawyers' advice ("Settle. Now. Comply with the license.").

Many have attempted to bluff their way through it when initially confronted but when lawyers get involved they quickly realise that the more aggressively they defend the claims, the bigger the penalties are that they may face.

GPL exists precisely _because_ of abuse of Creative Commons and is expressly aimed at preventing it.

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That doesn't matter

It doesn't matter whether tbe GPL is legally a contract in some other jurisdiction. They were making derivative works of copyrighted material in excess of their authority to do so, which is still an offence.

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Re: That doesn't matter

But it would be unenforceable if the country in question didn't respect the other country's copyright law. Sovereign power overruling a foreign country's law.

But the thing is, South Korea IS signatory to the Berne Convention, MAKING it enforceable.

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Re: That doesn't matter

But the thing is, South Korea IS signatory to the Berne Convention, MAKING it enforceable.

Enforceable perhaps, but where? I'm not sure the GPL defines which jurisdiction... US law does not have any meaning outside the USA, not matter what Americans think.

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Re: That doesn't matter

Doesn't have to. The Berne Convention establishes common ground for copyright law, meaning in many ways South Korean and American copyright laws will coincide, and makes all signatories respect the copyrights of all other signatories. That's what makes licensing and transferring copyrighted works (such as movies and TV shows) from country to country so complicated.

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Devil

Re: That doesn't matter

"Enforceable perhaps, but where?"

it would be enforceable within the USA. And a Korean company doing business in the USA would have to comply with U.S. laws for distributing their software inside the USA.

But if their software is ONLY distributed in Korea, then yeah, a Korean court would have to hear the case.

I didn't happen to see anything in the article with respect to the specifics of their product distribution though. Perhaps someone else has some insight on this?

and the article was a good analysis of the legal thingies involved, and I'm happy the judgement went in favor of the GPL.

/me also wonders why the software company didn't just say "oops" and hastily create a web page to download the source for the latest modified ghostscript version...

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One point of criticism though...

"The license is designed to ensure software code stays free, as in freedom can be distributed for free, as in free beer; and can be used by anyone anywhere provided they adhere to the license."

Actually I always get the impression that the main intent is to get more software licensed under the GPL, simply because the given freedom is actually limited. You can't take a project licensed under the GPL, fork it, and decide to release it under another free open source license. Even though the software would effectively remain free.

Don't get me wrong here... I'm not trying to imply that this is a bad thing. But I do think it's fair to say that the given freedom is actually limited. Which always makes me wonder how 'free' it really is?

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LDS
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Re: One point of criticism though...

GPL has a clear "political" aim, and it has its own meaning for "freedom" (see "copyleft"). But I believe they have the right to license their software under whatever conditions they like.

They are wrong when they and their worshipper assert that's the only "holy way" to make software available.

I do develop closed source software, and thereby stay away fully from any GPL bit.

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Re: One point of criticism though...

Which always makes me wonder how 'free' it really is?

This is not an interesting question.

About the same as asking how charged an electron really is.

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Re: One point of criticism though...

Actually I always get the impression that the main intent is to get more software licensed under the GPL, simply because the given freedom is actually limited. You can't take a project licensed under the GPL, fork it, and decide to release it under another free open source license. Even though the software would effectively remain free.

You're looking at it through a developers eyes. It's users freedom that the license seeks to protect, the GPL aims to ensure that if code is released, you as a user will always have the right to use it, modify it and pass it onto your friends.

If the license allowed you to release derivatives under a license that didn't provide for all of these, it wouldn't really be doing it's job would it?

To put it another way, if you release something as MIT then, yes, that code is free. I can integrate it into my proprietary codebase (so as a developer I've got freedom). But my users can't then modify and redistribute my stuff which may be fundamentally based upon yours.

Things like MIT give freedom one step down the chain, the GPL pushes that all the way downstream.

Whether you're more comfortable with the former or the latter should dictate your choice of license.

But yeah, the effect is to ensure that more software (everything downstream) is GPL as that's neccessitated by the aim of the license

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@ShelLuser - Re: One point of criticism though...

Let me help clear your confusion.

Yes, freedoms given by GPL are limited in that you are not allowed to impose any restrictions beyond those that were imposed to you. What you get is what you give, how's that for simplicity ?

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Re: One point of criticism though...

"the GPL pushes that all the way downstream."

Assuming the company bothers to pay attention. I emailed MCLSamar a while ago for the GPL code for my buggy-as-hell IP camera.

No response.

I'm not even remotely surprised...

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Anonymous Coward

Re: One point of criticism though...

"This is not an interesting question."

It very much is. I dabble in the periphery of several projects that go out of their way to reject any hint of GPL. The projects are open source, but in a sense rather more open than the GPL understands...

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Re: One point of criticism though...

Assuming the company bothers to pay attention

Well, yes, the GPL, like any other license is reliant on people actually observing the terms of the license. Otherwise the copyright holder will need to try and enforce the terms.

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Anonymous Coward

Re: One point of criticism though...

Now how charged an electron is, is a REALLY interesting question?

That leads into how electrons get their charge. Which leads to this which explains this far, far better than I ever could.

http://sciexplorer.blogspot.co.uk/2014/08/what-is-electron-really.html

The reason this gets exciting is that we then get into Special Relativity, Dirac Equation, Fermions and the Standard Model, which all leads eventually to the Higgs Boson, the God Particle (dreadful phrase).

Who'd have thought the charge on an electron could be so exciting...

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Re: One point of criticism though...

The hard part about enforcing GPL is that (of course) the only entity with any standing to enforce it is the copyright holder.

In general, unless you're a large company with an army of lawyers at your disposal, if you want that to work, you need to assign copyright to the FSF.

What you _can_ do is notify the author of the code block of the violation and Cc the FSF. They do send out warning letters on letterhead and that's frequently enough to scare abusers into complying.

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Re: One point of criticism though...

Try getting a lawyer to send the email, then see what their response it.

To them, you are a nobody, why would they bother? If you've left it there, done nothing further, then it's proven their inaction was perfectly effective for them.

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Of course GPL is a contract. You can't miss it if you're developing the software further. You would be aware that you are using someone else's work and you would want to know what they required from you. Quite simple, you either feed your improvements back into the GPL world or you pay the developer for a license to develop your own version for your own exclusive use. This seems very fair and presents no barrier to them to do what ever they want except steal software.

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It's not a contract, it's a license. The legal difference is complicated.

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This is what this all is about, right?

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It is not a contract, at least not in the UK. A contract absolutley has to have an exchange (e.g. £1) to bind it. No money, no contract. There's no monetary exchange when you download GPL code.

There used to be Gentlemen's Agreements, centuries ago. If a man (and it had to be a man, not a woman) gave their word, it was enforcable. This meant, amongst other things, that proposing marriage to a woman was a binding promise. If the fellow reneged on the promise, he'd have to pay up. When the law was changed and Gentlemen's Agreements were dropped, engagement rings became the financial guarantee of compensation for the woman if the man changed his mind.

Having said that, I certainly don't support ignoringGPL; someone has gone to a lot of effort to create some software, it would be churlish indeed to ignore their wishes.

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It is not a contract, at least not in the UK. A contract absolutley has to have an exchange (e.g. £1) to bind it. No money, no contract.

Incorrect.

There has to be a consideration, that's usually money, but can be anything of value. To put it another way, you essentially have to forgo or sacrifice something.

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"Of course GPL is a contract. You can't miss it if you're developing the software further. You would be aware that you are using someone else's work and you would want to know what they required from you. "

No, it's not, but in practice there isn't much difference

The GPLicense gives you permission to make copies of code if you fulfil certain conditions. If you fulfil the conditions, everything is fine. If you don't fulfil the conditions and make copies of the code, you commit copyright infringement. If you commit copyright infringement, you can be sued for damages. There is no contract needed here, it's just copyright infringement.

How would you calculate the damages? In this case, the company offers a commercial product where you get exactly the same product, but with no conditions. So the damage is obviously the amount of money that would have allowed you to do what you did without copyright infringement. But remember, no contract, and no contract needed.

This case is a bit different: The company offers everyone to either download the software under the GPL (license, no contract), or to enter a contract, pay money, and get the software without the GPL conditions. So you have choice A and B. The judge seems to say that if you download the software and claim you made choice A, but don't actually meet the GPL conditions, then you have demonstrated that you actually picked choice B and entered a contract that requires payment. That's not an unreasonable view. But it doesn't mean GPL is a contract. It means that if you are given the choice between GPL and a contract, and your behaviour makes clear that you didn't accept the GPL, then you have entered the contract.

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"It is not a contract, at least not in the UK. A contract absolutley has to have an exchange (e.g. £1) to bind it. No money, no contract. There's no monetary exchange when you download GPL code."

in which case if you make a derivative work and fail to comply with the contract conditions you can be done for simple copyright violation.

Do you really want to do that?

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Technical Point

I thought there was an old legal principle that for a contract to exist, there had to be 'consideration'. This essentially means there has to have been some form of payment by one party that had been accepted or acknowledged by the other party. (The payment need not be money, it could be work done as part of the contract.)

When I download some GPL software, there has been no 'consideration' between myself and the rights-holder so I'm wondering how there can be a legally binding contract between us. There is of course my implied acceptance of the licensing terms of the GPL.

Is American law different as regards 'consideration'?

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Re: Technical Point

By that logic, you could say that the work done programming the software was the consideration; and abiding by the contract would be you -the accused downloader's- half of the deal.

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Re: Technical Point

American law is, if anything, strong as regards "consideration." The US has a long tradition of making what are effectively gifts into contracts by stating that "X received Y for $1 and other valuable considerations."

The real point can be found in your acknowledgement that the consideration (you called it a payment) need not be of money. So you receive the GPL s/w and your consideration in return is the conditional promise that if you modify it and distribute the modified s/w you will submit the modifications back to the project. You get to use it for free (no contract). You get to modify it for your own use for free (no contract). You distribute your modifications then you have to pay by submitting your modifications back (contract).

Actually, it's a shade more complicated than that, and IANAL. But you get the idea.

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Re: Technical Point

I would say the process of clicking the "download" button would be classed as "consideration".

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Re: Technical Point

> I thought there was an old legal principle that for a contract to exist, there had to be 'consideration'.

There does, however it's not that black and white. If you're given something for free in a shop, no money has changed hands but you can still legally make a claim if it's not fit for purpose.

But, if I put my lawyer hat on for a minute, I'd actually spin this around.

If I provide you this software you will abide by the GPL.

The promise is that you'll abide by the GPL, the software is the consideration. With the added benefit that I've provided the consiseration so have the right to enforce the contract.

Whether that'd stand up in a court of law is something else, but spinning it round does fit nicely with copyleft vs copyright

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Re: Technical Point

The consideration is paid when you distribute your modifications.

In return for permission to use the copyrighted material you agree that should you distribute your work, it will be licensed in the same manner as the licensed work you incorporated in the work you distribute.

So yes, the requirement that a "consideration" be paid is met. The consideration is in the form of giving recipients of your work permission to use and freely distribute your work or work incorporating your work under the same license the work you received was distributed with..

GPL is a viral license that infects everything a GPL'd work touches unless the particular GPL license is one of the limited ones that restricts the viral nature of the license.

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Re: Technical Point

The consideration is paid when you distribute your modifications.

Yup, you could argue that it's an executory consideration (you're promising to do something in the future)

An exchange of promises meets the bar to be considered a consideration, so you'd probably have a good argument there

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Boffin

Re: Technical Point @frank ly

The GPL

Yes, sure. You may have his / my / our GPL'd software, including source code, for free. No cost. Nada.

You may do what you like with it. Anything. Legal or not - that's up to you and your jurisdiction. You are responsible - not him / me / us. And - NO GUARANTEES IF IT BREAKS - but you do get to keep both halves.

AND you may modify the code.

BUT if you modify the program AND DISTRIBUTE THE MODIFICATION YOU DO HAVE TO PAY.

The price is THE SOURCE CODE OF YOUR MODIFICATION(s). FREE FOR ALL. Under the GPL.

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Re: Technical Point

"So yes, the requirement that a "consideration" be paid is met."

I think the question is, in which, if any, jurisdictions might that be considered a valid "consideration". The law is fickle and lawyers get paid to argue over the definitions of words and what they might mean in a specific instance. And you forgot the obligatory IANAL, unless you are and stand by your opinion.

PS IANAL either!

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Re: Technical Point @frank ly

The price is THE SOURCE CODE OF YOUR MODIFICATION(s). FREE FOR ALL. Under the GPL.

I suggest you read the license, because this comes across as ill-informed zealotry rather than an informed considered position. You do not have to give everyone access to your source code - the only requirement is you have to give the source to the people you distribute the software to and are unable to restrict them from further redistribution - you have no obligations whatsoever to third parties.

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Vic
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Re: Technical Point @frank ly

You do not have to give everyone access to your source code - the only requirement is you have to give the source to the people you distribute the software to and are unable to restrict them from further redistribution - you have no obligations whatsoever to third parties.

That is true for a section 3(a) distribution under GPLv2, but utterly incorrect for a distribution under section 3(b), which is what most redristibutions fall under.

For 3(a) to apply, you must ship source code *with* the binaries.

If you do not ship source with the binaries, either 3(b) or 3(c) applies. 3(c) is only permissible for non-commercial redistribution of unmodified code. So 3(b) is the norm.

And 3(b) says :-

Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange

(Emphasis mine)

Vic.

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