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 …

  1. Your alien overlord - fear me

    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.

    1. Anonymous Coward
      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.

    2. rmoore

      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.

      1. Frumious Bandersnatch Silver badge

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

      2. Anonymous Coward
        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.

        1. This post has been deleted by its author

      3. hnwombat
        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.

    3. gerdesj Silver badge

      "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?

    4. ckm5

      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)....

      1. eldakka Silver badge

        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.

  2. Ken Hagan Gold badge

    "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?

    1. A Non e-mouse Silver badge

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

      1. handleoclast Silver badge

        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?

        1. Anonymous Coward
          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.

        2. Alan Brown Silver badge

          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.

      2. Mage Silver badge

        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.

  3. JulieM Silver badge

    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.

    1. Charles 9 Silver badge

      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.

      1. bazza Silver badge

        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.

        1. Charles 9 Silver badge

          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.

        2. bombastic bob Silver badge
          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...

  4. ShelLuser

    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?

    1. LDS Silver badge

      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.

    2. Destroy All Monsters Silver badge

      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.

      1. Anonymous Coward
        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...

      2. Anonymous Coward
        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...

    3. Ben Tasker Silver badge

      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

      1. heyrick Silver badge

        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...

        1. Ben Tasker Silver badge

          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.

        2. Alan Brown Silver badge

          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.

        3. eldakka Silver badge

          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.

    4. Anonymous Coward
      Anonymous Coward

      @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 ?

  5. Wayland Bronze badge

    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.

    1. frank ly Silver badge

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

      1. Destroy All Monsters Silver badge

        This is what this all is about, right?

    2. bazza Silver badge

      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.

      1. Ben Tasker Silver badge

        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.

      2. Alan Brown Silver badge

        "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?

    3. gnasher729 Silver badge

      "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.

  6. frank ly Silver badge

    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'?

    1. moiety

      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.

    2. handleoclast Silver badge

      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.

    3. William 3 Bronze badge

      Re: Technical Point

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

    4. Ben Tasker Silver badge

      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

    5. Fritzr

      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.

      1. Ben Tasker Silver badge

        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

      2. John Brown (no body) Silver badge

        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!

    6. PNGuinn Silver badge
      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.

      1. the spectacularly refined chap

        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.

        1. Vic

          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.

  7. b0llchit
    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.

    1. Warm Braw 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.

      1. b0llchit

        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).

        1. Warm Braw 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.

          1. b0llchit

            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. DougS 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.

              1. Warm Braw 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.

                1. Fritzr

                  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.

                2. Joe Kraska

                  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.

              2. gnasher729 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.

                1. Tom 38 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?

            2. nematoad 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.

          2. Mage 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!

      2. Fritzr

        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. Alan Brown 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.

      4. Loud Speaker

        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.

    2. Charlie Clark Silver badge

      Re: Double edge

      …you implicitly agree to the terms of the GPL…

      Implicit contracts are always a legal nightmare.

  8. jMcPhee

    Precedent

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

    1. a_yank_lurker 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. Mage 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]

      2. gnasher729 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.

  9. Nick Kew 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.

    1. diodesign (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.

      1. Nick Kew 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.

  10. GrumpenKraut Silver badge
    Happy

    Hippy ya yeah!

    Someone had to say it.

    1. allthecoolshortnamesweretaken Silver badge
      Pint

      Re: Hippy ya yeah!

      Groovy, Schweinebacke. Have a pint!

      1. GrumpenKraut Silver badge
        Pint

        Re: Hippy ya yeah!

        Jawoll. Oink!

  11. Lee D 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.

    1. Updraft102 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. William 3 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. GrumpenKraut 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.

        1. allthecoolshortnamesweretaken Silver badge

          "That never was even remotely what it meant."

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

        2. Fritzr

          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

          1. Charles 9 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)?

    2. gnasher729 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.

      1. Charles 9 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?

        1. gnasher729 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.

    3. Alan Brown 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.

  12. Destroy All Monsters 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. Dave Bell

      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. Mage 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.

        1. dlc.usa

          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.

    2. Vic

      Re: Good writeup, I guess

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

      Yep.

      Vic.

  13. Frumious Bandersnatch 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. Charles 9 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.

  14. Anonymous Coward
    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.

    1. a_yank_lurker 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.

    2. Ben Tasker 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.

  15. dbtx 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.

  16. Herby 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).

  17. Christian Berger Silver badge

    Luckily it's not _that_ important

    The GPL is more or less a sign you put onto your code to declare that people can use it in sane ways. It's not something that's basic to free software as such. In fact really free software should be simple enough, by design, so you can easily reimplement every bit of it with reasonably little effort.

  18. Anonymous Coward
    Anonymous Coward

    Thoughtful discussion and comments here, http://www.technollama.co.uk/a-licence-or-a-contract, and here, http://www.groklaw.net/article.php?story=20031214210634851. Although I passed Contracts, and barely passed Property in my first year of law school, over a decade of practice in US courts before changing careers and becoming a sysadmin left me with an appreciation for just how conflicted, confusing, uncertain and sometimes illogical US law can be. My brief forays into civil law found similar traits. There's a reason why most legal documents are painfully wordy. Precision in language is essential, but frustratingly elusive at times. Moglen's insistence that the GPL is not a contract is aimed at preventing its interpretation by general American common law principles. But if the body of purely copyright license legal precedent is insufficient to provide guidance on an issue, American courts are going to do what they've always done: go to the closest legal analogue they can find that does shed some light. This is also why good trial lawyers settle cases.

  19. This post has been deleted by a moderator

  20. amolbk
    Unhappy

    It's 2017

    and we are still interpreting/debating GPL. Greed wins.

  21. This post has been deleted by its author

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

Biting the hand that feeds IT © 1998–2019