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 …

Thumb Up

Double edge

If you do not like the GPL or agree to its terms, and still use the software covered under it, then you are breaking copyright because there is no other license agreement you can call upon. Once you agree to the terms, then you are contractually bound because you, well, agreed to the terms. The point taken here by the judge is that, once you download the software covered under the GPL, and distribute it, you implicitly agree to the terms of the GPL, thereby binding yourself contractually.

It is the genius of the GPL's formulation that allows this interpretation. If you do not like it, don't use the software. If you want it, you must abide by the rules. As simple as that. The GPL's philosophical debate(*) is a distraction to its pure genius to use a protective - as in nobody may touch me - law to achieve an - anybody may use me - result (hence copy-right becomes copy-left).

(*) Not that the philosophical debate is unimportant, just not relevant for this particular use of the software.

6
3
Silver badge

Re: Double edge

The problem is that the only remedy for a failure to "abide by the rules" is to claim damages. Excepting that some jurisdictions make provision for statutory damages, this usually means demonstrating an actual loss. The loss to a claimant that makes its software freely available is in general going to be hard to assess. For example, one of the triggers for requiring commercial licensing of ghostscript (not apparently the one in this case) is "Distributing Ghostscript or MuPDF on the same media with your non-AGPL application": it doesn't seem reasonable that there is much actual loss to the copyright holder if the infringer has included on a CD exactly the same information that the end-user is perfectly entitled to download free. There may be a loss, but is it tangible?

The judgment makes reference to this, saying:

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.

It may be difficult to quantify the value of "the ability to advance and develop Ghostscript through open-source sharing" for the purposes of assessing damages.

0
0

Re: Double edge

One can argue that the "damage" is the (proportional share of) revenue the infringing party has made/received from distributing without a license. This would be a reasonable argument. Either you distribute freely, according to the license, or you forfeit the income you illegally made.

This argument would be reasonable with or without dual licensing. If the software is distributed under dual license, then the damage amounts to the commercial license. Otherwise, the moneys made from the software are gathered illegally and must be forfeit (whether it goes to the original copyright holder or should be donated is beyond the point).

6
1
Silver badge

Re: Double edge

The point, though, is that the the copyright holder may not actually have "lost" the (proportional share of) the revenue since they would likely never have had that revenue anyway. Indeed, the copyright owner acknowledges that in their complaint which is where they make the argument that what they lost might in fact simply be ""the ability to advance and develop Ghostscript through open-source sharing". If the infringing party has in fact made only insignificant changes to the software or changes that are only of any use in integrating it with their product then the copyright holder has lost very little in its ability to "advance and develop" its product.

The purpose of a claim in damages is not primarily to punish the infringer, but to restore the position of the claimant. It may well be that even if an infringement has occurred, the complainant is in no significantly different position than if had not. They're not entitled to money simply because an agreement was broken, even if the infringer has profited by it On the other hand, they're entitled to their restitution even if the infringer made nothing at all. In the case of Oracle vs. Terix, for example, the $58M awarded to Oracle for unauthorised use of Solaris patches was based on the amount of support business Oracle reckoned to have lost not on the amount of money Terix was supposed to have made. In file-sharing cases, offenders are liable for the assessed damages even if they themselves made nothing from it. The fact that Hancom may or may not have made money from any potential infringing activity is not the first consideration in working out what may or may not be owed to Artifex.

2
2

Re: Double edge

The point of "not having lost" anything is a matter of perspective. One can also argue that the reputation of the original creator has been tarnished by the third party, which amounts to the revenue of the offending party (because the creator /could/ have made that amount if he/she would have taken the offender's path).

However, as you point out somewhat indirectly, there is no precedent of what "loss" is suffered when we talk about free and open software, or, for that matter, any copyleft style license. This is new territory for the legal profession and has yet to be decided by the courts (at least, in many if not all jurisdictions). Alternatively, the executive branch must update the laws accordingly, but that is a different discussion.

I am merely pointing out that there are reasonable arguments for pleading damages, even if the distribution is free. It will be for the courts to decide what is reasonable in this context.

1
1
Silver badge

Re: Double edge

Whether anything has been "lost" is irrelevant. If someone uses software covered by the GPL without following its terms they are guilty of copyright infringement. The law specifies penalties of $150,000 per instance of infringement, so the way to deal with it could be "either you come to an agreement to follow the terms of the GPL, or we'll sue you under copyright law at $150K per violation and bankrupt you!"

That might not be a Stallman-approved way of handling it, but I think it would work better than dancing around the issue. The GPL relies on the fact that GPLed software is copyrighted to function, so use that.

0
0
Silver badge

Re: Double edge

Saying that the plaintiff has not lost any money from sales as it is under the GPL is missing the point.

There is the cost of having to go to court to enforce the copyright, lawyers do not come cheap, and secondly there is the diversion of resources involved in fighting the claim which might otherwise have been used to more useful purpose.

So yes, the FSF has lost out due to the behaviour of Hancom in not complying with the terms of the GPL.

1
0
Silver badge

Re: Double edge

The law specifies penalties of $150,000 per instance of infringement

US law, Wikipedia tells me, provides for the possibility of statutory damages of from $750 to $30K per work, not per copy, to be awarded in the case that the number of copies distributed cannot be reasonably determined. There is an exceptional award of $150k available in the case of 'wilful infringement', but, again, I assume that's mostly intended for circumstances in which actual damages cannot reasonably be calculated.

2
0
Silver badge

Re: Copyright holder may not actually have "lost"

No, no, no!

"Lost of revenue" only applies to civil claims for damages. It's separate from copyright as such. Copyright has "default" very strict conditions, but the copyright holder define the use, such as it must not be distributed in a different cover, or must not be used in advertising, or not in politics, or you can copy freely for education etc. Or MS saying you can even give people a copy, as long as they licence it!

0
0

Re: Double edge

Damages are extremely easy to calculate. Determine the amount that would have been paid if the commercial license had been used. End of damage calculation.

1
0

Re: Double edge

Yes it is tangible.

Hancom was offered a choice of licenses

A commercial license that allowed them to keep their work closed source. Payment of money required to get permission to use the code under these terms

A GPL license that allows them to sue the code without monetary payment. Instead the payment for use of the code under this license is GPL licensed copies of the complete work being distributed that the GPL licensed code is included in.

Hancom can either pay cash and keep their code secret or pay with GPL licensed copies of their code and keep the cash.

Artifex offers only these two licenses. Hancom chose a commercial license keeping their modification closed source while claiming that no payment is required because they used the GPL license (and failed to comply with the terms of the license)

The judge is basically telling them that they are required to comply with whatever Artifex requires in return for the use of the code or not use it.

Artifex is asking for the cash now stating that Hancom is complying with the commercial license without making the required payments. This will get expensive for them as it is either a contract violation or copyright infringement. Which set of statures will apply is about all the court has leeway to decide. The judge in this case has ruled that it is a contract violation, which will probably save Hancom quite a bit of dosh as copyright penalties for willful infringement can escalate quite quickly.

3
0
Silver badge

Re: Double edge

"The law specifies penalties of $150,000 per instance of infringement, so the way to deal with it could be "either you come to an agreement to follow the terms of the GPL, or we'll sue you under copyright law at $150K per violation and bankrupt you!""

The $150,000 per violation is actually _per work_. So it would have to be paid _once_. And you would have to be particularly evil to get the $150,000. (A few years ago, in Apple vs. Psystar, Psystar was ordered to pay 2 x $30,000 for making about 800 copies of two different versions of MacOS X. Times two because they copied two different versions, therefore two works. On the other hand, copying a CD with 20 songs is copying 20 works. If you don't understand why, I don't either). However, that is _statutory_ damages that you can ask for if you have no evidence of actual damages. In this case there seem to be significantly higher actual damages.

0
0
Silver badge

Re: Double edge

"The problem is that the only remedy for a failure to "abide by the rules" is to claim damages. Excepting that some jurisdictions make provision for statutory damages, this usually means demonstrating an actual loss."

Breach of GPL is copyright violation. As the copyright holder (plaintiff), you can require that all distributed infringing copies be recalled and destroyed, plus demand court and legal fees as a starting point - which the court will be minded to give, because the respondent was uncooperative.

etc etc.

0
0
Silver badge

Re: Double edge

…you implicitly agree to the terms of the GPL…

Implicit contracts are always a legal nightmare.

0
0
Silver badge

Re: Double edge

The $150,000 per violation is actually _per work_. So it would have to be paid _once_.

Once for gs. Lets hope they didn't also build all those separate works of dvipdf, eps2eps, font2c, ghostscript, gsbj, gsdj, gsdj500, gslj, gslp, gsnd, lprsetup.sh, pdf2dsc, pdf2ps, pf2afm, pfbtopfa, pphs, printafm, ps2ascii, ps2epsi, ps2pdf, ps2pdf12, ps2pdf13, ps2pdf14, ps2pdfwr, ps2ps, ps2ps2 and wftopfa.

Isn't a software package with 20 programs in it the same as an album with 20 songs on it?

0
0

Re: Double edge

The statutory damages are $150K per work, when the infringement is willful. There's also the attorney's fees to consider, which are likely to be granted when the infringer set out to intentionally violate someone else's rights.

0
0
Bronze badge

Re: Double edge

It may be difficult to assess the value of not receiving a poke in the eye with a sharp stick, but in this case the value is clearly the cost of the commercial alternative to the GPL.

0
0

Precedent

Is it significantly different from shrink wrap licensing? That's been decided already

0
0
Silver badge

Re: Precedent

I would argue that GNU GPL and other FOSS licenses are a form of shrink wrap licensing. The part that confuses most is the owner of the work gets to set the conditions users must obey to use it. These licenses make requirements about sharing changes back to the wider community. Copyright law and rights licensing can get messing. But the key is to read the license to see what privileges the right holder has granted. I have some professional photos done by a photographer who gives a standard grant to use the photos for social media and non-commercial use as along as he receives proper credit.

The judge basically said was that GNU GPL and by extension all FOSS licenses are a form of shrink wrap licensing. If she ruled the other way she creates a problem for ALL software EULAs if her ruling is upheld; they would not be valid thus binding.

1
4
Silver badge

Re: GNU GPL and other FOSS licenses are a form of shrink wrap licensing?

No.

A "shrink wrap EULA" isn't visible till you buy the SW and open the box (or even install it). Hence the more recent on screen message, "if you don't want to use this, return it and get a refund"* (Dell has refunded for unused pre-installed MS SW).

1) You can read the GPL before you download.

2) You are not "buying", so if you don't like the GPL or the SW, you can delete with only loss of some time and download cap/cost if metered.

[*No chance in most retailers without legal threats]

3
0
Silver badge

Re: Precedent

"The judge basically said was that GNU GPL and by extension all FOSS licenses are a form of shrink wrap licensing. If she ruled the other way she creates a problem for ALL software EULAs if her ruling is upheld; they would not be valid thus binding."

Shrink wrap licenses are also licenses. Nobody can force you to agree to the terms and to follow the terms, but if you don't agree to and follow the terms, you have no rights to use the software. You can return it to the shop for your money back.

0
0
Silver badge

Come on, el Reg, can we please have at least a pointer to some history of GPL verdicts? A link would be fine: for instance, https://wiki.fsfe.org/Migrated/GPL%20Enforcement%20Cases (listing cases going back to 2001). Or even reports like this from 2004 at El Reg itself.

5
0
(Written by Reg staff) Silver badge

Re: Nick

Thanks, Nick. All links welcome - don't forget that while most of us Reg hacks have been reading the site for ages, we haven't been working for it's entire lifespan. So the people producing El Reg today for you, based on the values we've long held dear, may have skipped an article or two in their write up. Basically, if you can't see a link, it's because we've been running around on fire trying to make quality content for you, and may have left off some old links. I am sorry.

7
1
Silver badge

Re: Nick

Hey, come on. I was taking issue with the suggestion that this case was a first. It doesn't take much to mention that it's in fact the latest in a series of GPL cases, some of which have reached a judge's verdict. And googling those links took just a few seconds.

2
0
Silver badge
Happy

Hippy ya yeah!

Someone had to say it.

1
1
Silver badge
Pint

Re: Hippy ya yeah!

Groovy, Schweinebacke. Have a pint!

1
0
Silver badge
Pint

Re: Hippy ya yeah!

Jawoll. Oink!

0
0
Silver badge

Though the clarification is nice, does ANYONE actually think the GPL and any other licence isn't valid in any sensible country?

If there was even a modicum of doubt, there would be thousands of infringements a year, for more than anyone could chase up, to take advantage of a grey area if nothing else.

I think people quite understand that US/EU law won't take kindly to ripping off GPL or other licenses on code, so they don't try - unless they're in a country that wouldn't care less about doing that.

I can't imagine, say, Microsoft just shoving a GPL library into Office and then trying to argue it in court. That's a massive hint that they know they'd lose in seconds.

Though I'm sure there are code violations (e.g. things in firmwares that were sold by some random Chinese firm to an American wifi-router maker or similar), I think it's been quite clear-cut for many, many years that you rip off GPL code at your peril. It doesn't mean it doesn't happen. But it's quite obvious that you wouldn't get away with it in any first-world country. Or the US.

4
1
Silver badge

Snark aside, the US is, by definition, a first-world country, even though the terms are now obsolete.

The first world is all of the countries aligned with the US during the Cold War. The second world is the countries that were aligned with the Soviet Union. The third world is countries that were unaligned, like Switzerland, Ireland, and Finland, as well as all of the poor countries that everyone thinks of when they hear the term.

1
4
Bronze badge

That definition now means any country with a working democracy and decent standard of living.

It's not obsolete, as it's still used today.

2
0
Silver badge

> The third world is countries that were unaligned, like Switzerland, Ireland, and Finland, as well as all of the poor countries that everyone thinks of when they hear the term.

That never was even remotely what it meant.

4
0
Silver badge

"That never was even remotely what it meant."

Exactly. Those were the blockfreie Länder. Look it up.

1
0

First, Second & Third world have had two separate meanings for many years.

The older meaning was

First Workd: US and allied countries

Second World: USSR and allied countries

Third WorldL Everybody else

The more recent (and now default) meaning is

First World: Industrially developed countries/Wealthy countries

Second World: Thers is no second world in this meaning

Third WorldL Countries that are NOT industrially developed/Poor countries

0
0
Silver badge

I thought in the modern sense the Second World represented countries on the rise: having characteristics of BOTH First and Third World countries in terms of industrialization and domestic wealth but definitely on the track FROM Third TO First. For example, would one consider China and India First World (already heavily industrailized) or Second World (in progress)?

0
0
Silver badge

"I can't imagine, say, Microsoft just shoving a GPL library into Office and then trying to argue it in court. That's a massive hint that they know they'd lose in seconds."

If some ex-Microsoft employee (and it would be an ex-employee) put GPL licensed code into Office, and a version of Microsoft containing that code were published, then Microsoft would have the choice of publishing the Office source code, or to pay whatever fine they are given for copyright infringement. Of course they would go to court and argue to keep that fine as low as possible, but they would be ordered to pay.

0
0
Silver badge

"I think people quite understand that US/EU law won't take kindly to ripping off GPL or other licenses on code, so they don't try - unless they're in a country that wouldn't care less about doing that."

As a number of people have found out, it doesn't matter if the violation happens in China. Once the product containing the offending item shows up in a Berne-respecting country the _distributor_ and _seller_ are responsible - as LIDL, ALDI and Logitech Europe have all discovered the hard way (again, when lawyers get involved, they start realising it's cheaper to settle/comply than fight it. Harold Welte in particular has pushed over 100 commercial entities in europe into GPL compliance)

As they're large buyers, when they start pushing back on their upstream, chinese makers start taking notice, etc.

0
0
Silver badge

"If some ex-Microsoft employee (and it would be an ex-employee) put GPL licensed code into Office, and a version of Microsoft containing that code were published, then Microsoft would have the choice of publishing the Office source code, or to pay whatever fine they are given for copyright infringement. Of course they would go to court and argue to keep that fine as low as possible, but they would be ordered to pay."

Whatever happened to arguing that it was not by their hand and simply removing the offending code? Otherwise, what would happen if this were to happen in the Windows kernel?

0
0
Silver badge

"Whatever happened to arguing that it was not by their hand and simply removing the offending code? Otherwise, what would happen if this were to happen in the Windows kernel?"

As I said in my post "if it was done by a Microsoft employee, and the version ended up being published". If it's your employee, it's hard to argue that it wasn't by your hand. and if the version is published, it's published. You can't remove code from copies that you already sold and delivered to end users.

0
0
Silver badge

Good writeup, I guess

Except that the author mixes up self-similarity (fractals), self-propagation (von Neumann machines?) and recursion (GNU is not Unix).

And really, does anyone who isn't self-loathing call himself a hippie? Hippies were a thing when The Shockwave Rider was still science-fiction...

And what does this mean for EULAs?

Finally, there is no announcement on the GNU.org homepage yet, nor at opensource.org.

1
0

Re: Good writeup, I guess

The Shockwave Rider was published forty years ago. It's rather worrying how good a prediction it has become. though perhaps, that soon after Nixon, the politics was an almost routine thing.

1
0
Silver badge

Re: The Shockwave Rider

I'm confused.

I've re-read it recently and referenced it in some El Reg comments.

Explain relevance, I'm dumb tonight.

0
0

Re: The Shockwave Rider

Relevance: "Hippies were a thing when The Shockwave Rider was still science-fiction..."

TSR was published about ten years before the IBM PC was announced, and the hippy counter-culture was already past its heyday. One can argue when TSR ceased to be fictional but surely opening the https://en.wikipedia.org/wiki/National_Science_Foundation_Network to commercial traffic had to be a prerequisite. I would argue the legitimization of working as a "rasher" is also a prerequisite.

0
0
Vic
Silver badge

Re: Good writeup, I guess

And really, does anyone who isn't self-loathing call himself a hippie?

Yep.

Vic.

0
0
Silver badge

surely the GLP is, first and foremost, about copyright, not contracts

If it's looked at as a copyright statement, then the default state when you put the appropriate (c) mark on the document is that it is your [the author's] property and should fall completely under copyright laws. If that's all you do, then the position is clear: you [someone other than the author] can't go and copy the material except under certain fair use conditions.

When you add the GPL statement, you are granting certain extra rights (but, crucially reserving certain other rights, such as not tampering with the rights granted, or modifying the document and re-releasing it without continuing to honour the conditions set out under the derived works sections) to anyone who might happen to have or receive a copy of the document. It shouldn't be looked at under contract law. In particular, it shouldn't be necessary for both parties (the author and the person who has a copy) to enter into a signed arrangement.

The question of how the person receives the GPL-copyrighted document should also be irrelevant. It's like the question of whether you buy a book from the publisher, a bookseller or you get it second-hand, somehow. The delivery mechanism or how you came by the copy is irrelevant since copyright resides within the copy itself.

1
1
Silver badge

Re: surely the GLP is, first and foremost, about copyright, not contracts

Except we're talking a publisher, a source of copies. Now the copyRIGHT in terms of what you can and can't do in terms of MAKING copies comes into play. The defendant is less a book OWNER than a book MAKER.

0
0
Anonymous Coward

UK position ...

Am I alone in thinking the UK position is quite common sense ?

You enter into a contract - signature or not - when you benefit from the other parties work, as long as the T&Cs are made clear at the point of exchange.

Hardly novel, or new.

This is why it doesn't matter if you refuse to sign a new contract at work ... if you continue to turn up, you are deemed to have accepted them. Same for revised T&Cs from your ISP. Or car parking T&Cs when you *choose* to park on land covered by them.

If this were the UK. Hancom would have been deemed to have accepted the contract T&Cs the moment they started using the code.

2
0
Silver badge

Re: UK position ...

Similar on this side also, explicit T&C's are accepted when one uses the service. Now in most situations the T&C's are basically boilerplate shyster used many in the same industry.

0
2
Silver badge

Re: UK position ...

> This is why it doesn't matter if you refuse to sign a new contract at work ... if you continue to turn up, you are deemed to have accepted them.

I don't get how anyone could object to a change in terms, refuse to sign and then continue turning up after the new terms are considered "in effect".

It seems like a strange, strange thing to do, given the protections that are there to avail yourself of when something like this comes up.

0
0
Bronze badge

Katzer

Model trains and hippies... Sadly, in Akron there is a halfway-house/group-home/softcore-prison/work-program thing for parolees or probationers, where you could count on getting drug tested pretty much all the time. It's also called TMRC.

0
0
Silver badge

Is there a REAL Lawyer in the house?

Maybe they can give insight into the goings on here. As I see it, it is as they say "complicated", and as with most things "legal" clear as mud.

A good lawyer should really go through the decision, and put it in terms we can all understand.

I'm sure that others will argue the details, but for me, it looks like a victory for the GPL, and I can't add much after that as I'm only an engineer, not (thankful;y) a lawyer (or play one on TV).

1
0

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Forums

Biting the hand that feeds IT © 1998–2017