
A federal court has denied a pre-trial motion to dismiss a GPL enforcement case - imanewsman
https://qz.com/981029/a-federal-court-has-ruled-that-an-open-source-license-is-an-enforceable-contract/
======
DannyBee
This happened a few weeks ago. But it's just a ruling on a preliminary
injunction motion.

That is, it's not even a final decision of a court.

So while interesting, it's incredibly early in the process. The same court
could issue a ruling going the exact opposite way after trial.

As someone else wrote, basically a court rule that a plaintiff alleged enough
facts that, if those facts were true, would give rise to an enforceable
contract.

IE they held that someone wrote enough crap down that if the crap is true the
other guy may have a problem.

They didn't actually determine whether any of the crap is true or not.

(In a motion to dismiss, the plaintiff's allegations are all taken as true.
This is essentially a motion that says "even if everything the plaintiff says
is right, i should still win". If you look, this is why the court specifically
mentions a bunch of the arguments the defendant makes would be more
appropriate for summary judgement)

~~~
tzs
> This happened a few weeks ago. But it's just a ruling on a preliminary
> injunction motion.

Is "preliminary injunction" the right terminology here? It sounds like it was
a motion for dismissal.

Anyway, it's appalling how often the press confuses pre-trial motions like
this with substantive rulings on the issues of the case.

...and it is also, sadly, no surprise that they also think that this sets
precedent. Why is it so hard for them to understand the difference between
trial courts and appellate courts and which set precedent?

~~~
qb45
I'll be cynical: some call it "having an axe to grind". Why do research if you
can just post something that seems to align with your cause and makes you
happy?

 _In all that we do at Quartz, we embrace openness: open source code, an open
newsroom, and open access to the data behind our journalism._

~~~
tzs
> “Not so,” [yeah, I'm sure this is a literal quote from a court document]
> said Judge Jacqueline Scott Corley in her order on the motion on April 25.

That is in fact a literal quote from the court document:

    
    
        Defendant contends that Plaintiff’s reliance on
        the unsigned GNU GPL fails to plausibly demonstrate
        mutual assent, that is, the existence of a contract.
        Not so. The GNU GPL, which is attached to the
        complaint, provides that the Ghostscript user agrees
        to its terms if the user does not obtain a
        commercial license. Plaintiff alleges that Defendant
        used Ghostscript, did not obtain a commercial
        license, and represented publicly that its use of
        Ghostscript was licensed under the GNL GPU. These
        allegations sufficiently plead the existence of a
        contract. See, e.g., MedioStream, Inc. v. Microsoft
        Corp., 749 F. Supp. 2d 507, 519 (E.D. Tex. 2010)
        (concluding that the software owner had adequately
        pled a claim for breach of a shrink-wrap license).
    

See page 4, line 17 here: [https://cases.justia.com/federal/district-
courts/california/...](https://cases.justia.com/federal/district-
courts/california/candce/3:2016cv06982/305835/32/0.pdf)

~~~
qb45
OK, I stand corrected. I'm removing the rant.

------
apo
_To use Ghostscript for free, Hancom would have to adhere to its open-source
license, the GNU General Public License (GPL). The GNU GPL requires that when
you use GPL-licensed software to make some other software, the resulting
software also has to be open-sourced with the same license if it’s released to
the public. That means Hancom would have to open-source its entire suite of
apps._

 _Alternatively, Hancom could pay Artifex a licensing fee. Artifex allows
developers of commercial or otherwise closed-source software to forego the
strict open-source terms of the GNU GPL if they’re willing to pay for it._

This obligation has been termed "reciprocity," and it lies at the heart of
many open source business models.

[http://www.rosenlaw.com/pdf-
files/Rosen_Ch06.pdf](http://www.rosenlaw.com/pdf-files/Rosen_Ch06.pdf)

The more important issue here is reciprocity, not whether an open source
license should be considered to be a contract.

AFAIK, the reciprocity provision of any version of the GPL hasn't been tested
in any meaningful way within the US. In particular, the specific use cases
that trigger reciprocity remain cloudy at best in my mind.

Some companies claim that merely linking to a GPLed library is sufficient to
trigger reciprocity. FSF published the LGPL specifically to address this
point.

So I believe a ruling on reciprocity would be ground breaking.

~~~
10165
Question: Is that what Stallman intended to accomplish with the GPL? Pay a fee
for GPL source code and bypass the GPL? (I apologize for my ignorance here.)

It seems like "reciprocity" has an even worse outcome than BSD source code.
The origin of the source code can be completely hidden from the user.

Do users deserve to know at least that the original source code was _freely
available_? What happens when users discovers that they are paying for
something that others are getting for free? Do they care?

Is this a case of taking something that was free (but valuable), i.e., the
original GPL source code, and concealing it as a closed source work in order
to generate revenue/profit for some specific person or entity?

Stupid question: If someone fixes or adds something valuable to GPL source
code and wants to charge for it, then why not just charge for the patch or the
additional code?

(Assume that patches or additional source code files are distributed by
themselves _without the original GPL source code_ and that they do not contain
any functional portion of the original GPL source code. Assume further that
they do not use "interfaces" designed by the GPL source code author. Finally,
assume that the end user can compile their own software and no binaries are
distributed.)

~~~
bluGill
> If someone fixes or adds something valuable to GPL source code and wants to
> charge for it, then why not just charge for the patch or the additional
> code?

You can legally do this, but it will not be easy. You cannot distribute a
binary in this way, if you do your patch becomes GPL so the first person who
buys your patch can legally give it to everyone else. That means you have to
sell the source code to your patch and your customers have to build the binary
themselves. You need to ensure that your customers understand that they cannot
distribute any binaries they make. (they probably can distribute it within
their company but they need to have some process to ensure that their
employees know they cannot distribute this)

If anyone is thinking about this, make sure all sales include your lawyer: you
will need to ensure that your customer understands all the subtleties
otherwise the courts might decide your patch is GPL.

~~~
bighi
As other people already said, intellectual property laws restrict not only the
work itself, but also derivative works.

A patch is a derivative work, no matter how you try to dodge that part of the
law. So it would still be violation of copyright.

~~~
10165
To be clear, the silly question I posed was not directed at avoiding copyright
violations. What I ask is whether anyone is ever curious about the value of
the derivative work versus the original work.

For example, the original work might be very valuable, a significant work. It
could be the collective work of many authors. But it has been made available
for _free_. The derivative work, maybe patches or some additional source code
by a single author, is also valuable but on its own much less so.

Then the large original work is packaged together with the patches and
additonal source code as a "derivative work". It is commercially licensed to
an end user who sees the value _as a whole_ , most of it coming from the
original work, which of course was available for free.

Depending on whether attribution is given, the user may have no idea that the
core of the product was open source and available for free.

More importantly, there appears to be no assessment of the relative "value" of
the free portion versus the closed-source commercial portion of the product.

------
rlpb
"Corley denied the motion, and in doing so, set the precedent that licenses
like the GNU GPL can be treated like legal contracts, and developers can
legitimately sue when those contracts are breached."

The GNU GPL was written on the basis that if someone does not accept its
terms, then that without any other license from the copyright holder,
redistribution puts that person in violation of copyright law.

Suing for damages on the basis of a breach of copyright law clearly does not
require any contract.

So this is more about a technicality of the legal process in this particular
case, rather than anything about whether copyleft is legally enforceable or
not in general.

Specifically, because the motion denial was based on the defendant's own
admission being deemed to be the agreement of a contract, this says nothing
about the general enforceability of the GPL (future defendants could simply
avoid making such an admission).

Further, since the ruling was in response to a specific motion, it only
concerns the claims made in that motion: about whether a contract exists in
this particular case. It says nothing about the "copyright violation if you
don't accept the license" mechanism of copyleft.

Finally, the article does not provide any evidence that there has been any
ruling that determined that the GPL is an _enforceable_ legal contract,
contrary to its title. The ruling as quoted just says that the defendant, by
its own admission, did accept to enter in to the GPL-defined contract.

~~~
bighi
But if for some reason some court rules the GPL invalid, doesn't it mean that
the companies using the GPL'ed software are violating copyright?

Because the GPL license is the only thing granting them the rights to use that
intellectual property, right?

~~~
rlpb
> ...doesn't it mean that the companies using the GPL'ed software are
> violating copyright?

It may be a technical violation. This wouldn't in itself make any difference
to anything, however. It would only matter if a court would then award damages
to copyright holders as a consequence of the violation. A violation in civil
law doesn't mean anything in practice except when damages are awarded (and
only changes behaviour when damages _could_ be awarded).

Damages are awarded based on harm done. I think a copyright holder would
struggle to show that any harm was done _by the defendant_ , especially as the
defendant would have been acting in good faith. Of course this depends on the
details of the reason the court ruled the GPL invalid, so it's not really
possible to speculate on your hypothetical further.

~~~
beagle3
But copyright is different; See [0] under Statutory Damages.

EFF / Github should probable set up a "register copyright for this release" to
make it easier for OS developers to use this feature of copyright law.

------
beat
A friend of mine, who is a software engineer turned IP lawyer, made a good
point about the GPL - the reason it "has never been challenged in court" isn't
about uncertainty, but about certainty. The GPL is based on the most simple,
bedrock copyright law. Despite being a clever hack, there's nothing legally
exotic about it.

Any judge in the country or anywhere else would laugh a GPL challenge right
out of court. Any any IP lawyer reading it would tell their client that that's
what's going to happen if they try to challenge it. That's why it's never been
fully tested in court... no need.

~~~
sounds
Ah, if only.

To the first point: the GPL is not used nearly as much as it should be. Thus
there's still a strong selection bias on court cases in general being about
the GPL, since the GPL is not selected very often. (And there's a reason it is
avoided: legal counsel to large companies frequently describe the GPL as
"untested." This happens still today, which is frankly ridiculous in the light
of all that the Software Freedom Law Center, FSF, etc. have done)

To the second point: any court proceeding introduces a huge amount of
uncertainty. Costs are up-front, payback may come in a decade or more after
all routes of appeal have been exhausted. Judgments are frequently overturned
on technicalities; even if the technicalities are flawless the GPL is not
unassailable.

On a personal note, I am unequivocally in favor of using Free Software further
and wider than it has been used. In every potential conflict of interest, I
think there is much to be said for attempting to settle with a "GPL violator"
using amicable means, even if it takes a long time. I view "GPL violations" as
free advertising -- don't be shy about publishing the proceedings, though
doing it with some taste may help the party come into compliance, their
actions should speak for themselves!

People use GPL software, extensively.

Any use of GPL software is a compliment to the software authors.

Any contribution back to the software will improve it for everyone.

etc.

~~~
eridius
Big companies don't avoid GPL because it's "untested". Big companies avoid GPL
because it's actually quite dangerous for them to use. GPLv2 only so far as if
they accidentally taint their proprietary code with it, then they need to open
up their code (which is bad enough). But GPLv3 is really fucking scary. As it
was once put to me, if a single GPLv3 binary accidentally makes it onto the OS
image for iOS, Apple would then legally be required to release the master
signing key to the whole world, completely destroying the whole security model
of iOS and screwing everybody (not just Apple but also Apple's users who rely
on that security). Plus the patent clause in GPLv3 is also nasty.

~~~
sounds
Can you point to actual statements by any company on "why we avoid the GPL?"

Here is a great example of Google reversing course on the AGPL (when they
reversed their decision to ban AGPL code from Google Code in Sep 2010):

[https://www.theregister.co.uk/2011/03/31/google_on_open_sour...](https://www.theregister.co.uk/2011/03/31/google_on_open_source_licenses/)

Apple also _still_ ships GPL code in macOS Sierra 10.12:

[http://meta.ath0.com/2012/02/05/apples-great-gpl-
purge/](http://meta.ath0.com/2012/02/05/apples-great-gpl-purge/)

People use GPL software, extensively.

Any use of GPL software is a compliment to the software authors.

Any contribution back to the software will improve it for everyone. Would it
really be so hard for Apple to maintain a GPLv2 fork of bash that backported
the security fixes, a la RedHat?

~~~
eridius
I'm not aware of public statements, I don't know why any big company would
actually go on record as saying that. But what I described above is
paraphrasing what I personally was told by a lawyer who worked for a big
company.

Also, your own link shows that over time Apple has been shipping fewer and
fewer GPL-licensed packages, and explicitly makes the case that Apple is
trying to get rid of GPL-licensed software.

> _People use GPL software, extensively._

People use all sorts of software. I have no idea why this statement is
relevant to big companies shipping GPL software.

> _Any use of GPL software is a compliment to the software authors._

I'm even more confused by the inclusion of this statement.

------
ckastner
> _That happened when Hancom issued a motion to dismiss the case on the
> grounds that the company didn’t sign anything, so the license wasn’t a real
> contract._

... so they admitted to the court that they willfully used the software
_without_ a license to do so?

~~~
iplaw
This is what happens when you hire short-sighted attorneys with an
unreasonable expectation of success.

What's funny is that Hancom is essentially arguing that _shrink-wrap licenses
(contracts) are unenforceable_. Ghostscript was open sourced under the GNU GPL
which states, in shrink-wrap fashion, that use of the software without an
explicit commercial license binds the user to the GNU GPL. Integrated the
software into their own closed-source software and distributing said closed-
source software is unquestionable use.

At the same time, you can guarantee that Hancom would fully enforce their own
shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.

~~~
rlpb
There is an enormous legal difference between shinkwrap licenses that _limit_
your terms, and a license that _grants you additional permissions_. Your
typical "EULA" is the former type. Copyleft licenses like the GNU GPL are the
latter type.

A typical "EULA" attempts to reduce your rights, without any further
consideration from you (you'll have already paid for it, etc). If you
disagree, the authors like to claim that you are bound by their more
restrictive terms anyway. That is what is legally dubious.

A copyleft license does the opposite: the software comes with an offer to
grant you additional permissions should you choose to accept its terms. You
have the option to decline, and nobody is claiming that your rights are in any
way further restricted if you choose to decline.

Put another way, you are free to use GPL software without accepting the terms
of the license. But if you don't accept the terms, then you violate copyright
law every time you make copies of it.

~~~
xorblurb
There is no such thing as an EULA attempting to limit your terms. Without a
licence, you have no right at all.

~~~
qb45
> Without a licence, you have no right at all.

On what grounds do you have no right to use a copy of software you bought
without obtaining an additional license from the vendor?

As for copying it's copyright, obviously, but I never understood what's the
matter with merely using. IANAL but AFAIK in some EU countries it is
recognized that there is no legal basis for EULAs and they officially are
void, unless signed as a contract _prior_ to the purchase, of course.

~~~
zAy0LfpBZLC8mAC
> unless signed as a contract prior to the purchase, of course.

Not quite. There is no need to sign anything, what matters is if the EULA was
included in the sale contract (so, the buyer was aware that the willingness of
the seller to sell you the product depended on the buyer accepting those
additional terms as part of the contract). On the other hand, if you do indeed
sign an additional contract afterwards on your free will that limits your
rights, that might very well be enforcable. But the point is that there is no
legal necessity to sign such a contract in order to use the software that you
have bought.

~~~
qb45
> There is no need to sign anything, what matters is if the EULA was included
> in the sale contract (so, the buyer was aware that the willingness of the
> seller to sell you the product depended on the buyer accepting those
> additional terms as part of the contract).

Yes, it doesn't have to be _literally_ signed, but it needs to be an agreement
made at the time of purchase. If I agree to buy Windows under the condition
that I won't use it for the development of nuclear weapons, so be it.

But it's still not clear why I would need Microsoft's license just to use a
copy of Windows I have already bought, sometimes even as part of a computer,
which is what parent seemed to claim.

------
dhimes
This was a ruling that the contract between the plaintiff and defendant
existed, not on the validity of the contract (which is the GNU GPL license).

Defendant (Hancom) was trying to say that because they didn't sign anything
they didn't have a contract.

But Hancom "represented publicly that its use of Ghostscript was licensed
under the GNL GPU"

Therefore, the Judge ruled that in their own words they publicly acknowledged
the contract.

~~~
ovi256
It's a very narrow ruling, conditioned on the fact that the defendant, Hancom,
publicly acknowledged they were using Ghostscript under GPL. It does not say
much, if anything, but IANAL, about a defendant who would not have
acknowledged this, which seems like the more interesting question.

Common law judges are very prudent in their ruling.

------
AsyncAwait
This is great - love or hate the GPL, it brings something unique to the table
that no other license does and developers should have the ability to license
their software under the terms that fits their motivation for developing it in
the first place the best - the GPL does exactly that for many.

------
blauditore
One thing I often wonder is how a company providing such open source software
can find out (and proof) if someone is using it in a closed-source project.
All I can think of is "guessing" based on behavior of the downstream tool.

Also, the article doesn't say much about how that lawsuit came to be. Did
Artifex approach Hancom beforehand to notify them about the license
infringement or just directly sue? I guess in this particular case, Hancom
knew what they were doing, but I can imagine some (smaller) companies not
being fully aware of open source license specifics and unknowingly running
into a lawsuit.

~~~
boomboomsubban
>I can imagine some (smaller) companies not being fully aware of open source
license specifics and unknowingly running into a lawsuit

This is not a real problem until there are licensing trolls, where their sole
purpose is to make money off of breaches.

If a company receives a lawsuit, they can claim ignorance and start to comply
with the contract. This would change it into a minor breach of contract, where
they would only be liable for actual damages caused. Actual damages would
either be nothing or fairly impossible to prove, so the lawsuit would likely
be dropped.

~~~
blauditore
> If a company receives a lawsuit, they can claim ignorance and start to
> comply with the contract.

Are you sure claiming ignorance would make a difference? I tried to google it
and found the Wikipedia article on "Ignorantia juris non excusat"[1], which
claims that in most countries, not knowing a certain law provides no
protection whatsoever.

[https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat](https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat)

~~~
greenshackle2
"Usually, whether a breach is material or minor is determined on a case by
case basis, with the court using six different guidelines to make its
determination. The six guidelines are

1) the extent to which the breaching party has already performed,

2) whether the breach was intentional, negligent or the result of an innocent
mistake,

3) how certain it is that the breaching party will perform the rest of the
contract,

4) how much of the benefit of the contract the non-breaching party has gotten
despite the breach,

5) the extent to which the innocent party can be compensated and,

6) how difficult it would be on the breaching party if the court were to
decide that the breach was material and that the innocent party was under no
obligation to perform his side of the bargain. "[1]

See point 2. My understanding is that ignorance of the law is basically never
an excuse, but ignorance of the facts, for contracts, could be[2].

For example, company X could argue they are ignorant of the fact that software
Z is intellectual property of company Y, distributed under GPL. If they stop
breaching once informed of that fact they can argue it was an innocent
mistake.

But in this case Hancom was advertising that it was using the code under the
GPL, so, they certainly can't claim ignorance.

[1][https://nationalparalegal.edu/public_documents/courseware_as...](https://nationalparalegal.edu/public_documents/courseware_asp_files/contracts/PerformanceAndBreach/MaterialVsMinorBreach.asp)

[2][https://en.wikipedia.org/wiki/Mistake_(contract_law)](https://en.wikipedia.org/wiki/Mistake_\(contract_law\))

~~~
desdiv
Pretty much all GPL'd code comes with a GPL license header, so you'd need
_someone_ to strip that header off.

It would be hard to hide the identity of that someone, thanks to Git.

Once that someone takes the stand, the truth becomes hard to conceal because
presumably company X doesn't pay them enough to lie under oath.

------
davidgerard
The GPL has been upheld many times previously, e.g. in BusyBox enforcing its
copyright.

[https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits](https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits)

In one enforcement, the defendant defaulted and the SFLC ended up with a pile
of violating televisions!

[http://www.groklaw.net/article.php?story=20100803132055210](http://www.groklaw.net/article.php?story=20100803132055210)

The enforceability of the GPL is in no way news. That anyone would continue to
try to violate it is the real WTF.

------
iplaw
> Of course, whether Artifex will actually win the case it’s now allowed to
> pursue is another question altogether.

It's fairly clear that they will win the case in one fashion or another. I am
predicting that the case will quickly be settled out of court for a lump sum
plus a running licensing fee. You have a public admission from the defendant
that they integrated the plaintiff's Ghostscript software into their own
without either: 1) making the resulting Hancom office suite open source, or 2)
paying Artifex a licensing fee for the software.

The case against Hancom was solid under copyright infringement, and now has
the added sting of breach of contract.

------
pvdebbe
Excellent news.

~~~
StreamBright
Yeah few more contributions to GPL projects from companies or/and removing GPL
code base from some products using GPL without contibuting back.

~~~
vkazanov
Fewer contributions? Or fewer companies abusing open-sourced code?

~~~
yoz-y
Most probably both. However this is probably for the best.

~~~
vkazanov
Dura lex, sed lex (c), and there's no way around it.

------
analog31
_That means Hancom would have to open-source its entire suite of apps._

Ask HN: What if the vendor had structured their product in a way that
GhostScript is its own stand-alone app. Would they still be obligated to
release their entire code, or just the portion that uses GhostScript?

~~~
scott_karana
As long as it's not _linked_ to their binaries, invoking it separately is
fine.

I believe they might need to allow for others to download the source of
Ghostscript whether modified or not, but that part isn't hard. :)

------
AndyMcConachie
Here is a link to the actual opinion if anyone else is interested.

[https://scholar.google.com/scholar_case?case=377952933561079...](https://scholar.google.com/scholar_case?case=37795293356107925)

------
dragonwriter
Actually, a more accurate statement is thst a federal judge has ruled that a
plaintiff in a case has alleged the existence of circumstances in which the
GPL would be an enforceable legal contract.

~~~
dhimes
Basically: If you admit to having a contract, then you have a contract.

------
carlmcqueen
while an important step, the last line of the article makes it clear it is
still pretty early in this process.

------
faragon
In my opinion, software equivalent in functionality to Ghostscript should be
written using a BSD or similar license. Is there anyone willing to sponsor it?

~~~
qb45
Maybe ask Hancom :p

------
iamNumber4
moral of the story is, know you licences. Adhere to the license terms. Seek
out projects with more permissive licenses if you plan to do closed source.

It is simple to work around licence issues with your project. You just have to
put in the work. Know that your design may have to factor in extra time
because you can't use lib XYZ because you have to write your own library to do
the same thing. If using lib XYZ will save a bunch of time, then know that you
will have to adhere to lib XYZ license. Maybe writing a wrapper application
that you opensource, and your closed source application interfaces with might
be a design consideration.

In the end, it's your project, your call. Just know when you make a decision
you weigh the pro's and con's of going forth with that decision.

------
danschumann
What happens if they claim they downloaded it from somewhere else that didn't
include the license.txt file? There is no proof they ever were even notified
of the license. (this is why we usually have people sign contracts)

~~~
Thiez
Adobe is about 34 years old, so the copyright on any program that interacts
with an Adobe file format (e.g. postscript, pdf) cannot have expired yet (in
the absence of time travel). So if the source code did not come with a
license, it is _their_ responsibility to obtain one, or they can't use it.

------
ljfio
This article seems to be declaring victory in war, when really only a minor
battle in the war has been won.

~~~
dhimes
No, the article is pretty clear that this isn't about the terms of the GNU GPL
itself, just about whether there was a contract in _this particular case_.

------
ferdterguson
I'm not a big fan of the GPL personally, but this is great!

------
georgestephanis
Doesn't MySQL distribute in a similar dual-licensed fashion?

------
cmdrfred
I wonder if this applies to non copy left licenses as well.

~~~
icebraining
Probably. In the previous case they mention, the license was the Artistic
License, which isn't copyleft, and it was considered infringement.

------
siegel
The article somewhat overstates the significance of this case in terms of
precedential value.

On a procedural level, understand that this is a district court opinion and is
not binding on any other court. Of course, if other courts find the arguments
persuasive, they can adopt the reasoning. But no court has to adopt the
reasoning in this opinion.

On a substantive level, it's important to look at the arguments the court is
addressing and how they are addressed:

1) Did the plaintiff adequately allege a breach of contract claim?

We're at the motion to dismiss phase here and the court is only looking at
plaintiff's complaint and accepting all of the allegations as true.

There are essentially only 2 arguments the court addresses: A) Was there a
contract here at all?; and B) Did the plaintiff adequately allege a
recognizable harm?

Understand that in a complaint for breach of contract, a plaintiff has to
allege certain things: (i) the existence of a contract; (ii) plaintiff
performed or was excused from performance; (iii) defendant's breach; (iv)
damages. So, the court is addressing (i) and (iv), which I refer to as (A) and
(B) above.

As to (A), the argument the defendant appears to have made is that an open
source license is not enforceable because a lack of "mutual assent." In other
words, like a EULA or shrink-wrap license, some argue that an by using
software subject open source license doesn't demonstrate that you agreed to
the terms of that license.

The court, without any real analysis, says that by alleging the existence of
an open source license and using the source code, that is sufficient to allege
the existence of a contract. The court cites as precedent that alleging the
existence of a shrink-wrap license has been held as sufficient to allege the
existence of a contract.

But the key word here is "allege." As the case proceeds, the defendant is free
to develop evidence to show that there was no agreement between the parties as
to the terms of a license. So, very little definitive was actually decided at
this stage. All that was decided is that alleging that an open source license
existed is not legally deficient per se to allege the existence of a contract.

As to (B), defendant apparently argued that plaintiff suffered no recognizable
harm from defendant's actions. The court held that defendant deprived
plaintiff of commercial license fees.

In addition, and more important for the audience here, the court held that
there is a recognizable harm based on defendant's failure to comply with the
open source requirements of the GPL license. Basically, the court says that
there are recognizable benefits (including economic benefits) that come from
the creation and distribution of public source code, wholly apart from license
fees.

This is key - if the plaintiff did not have a paid commercial licensing
program, it could STILL sue for breach of contract because of this second type
of harm.

That being said, none of this argument is new. There is established precedent
on this point.

2) Is the breach of contract claim preempted?

Copyright law in the United States is federal law. Breach of contract is state
law. A plaintiff cannot use a state law claim to enforce rights duplicative of
those protected by federal copyright law.

So, what the court is looking at here, is whether there is some extra right
that the breach of contract claim addresses that is not provided under
copyright law.

In other words, if the only thing that the breach of contract claim was
addressing the right to publish or create derivative works, then it would be
duplicative of the copyright claim. And, therefore, it would be preempted.

Here, the court held that there are two rights that the breach of contract
claim addresses that are different from what copyright law protects: (A) the
requirement to open source; and (B) compensation for "extraterritorial"
infringement.

The real key here is (A), not (B). With respect to (A), the court here is
saying that the GNU GPL's copyleft provisions that defendant allegedly
breached are an extra right that is being enforced through the breach of
contract claim that are not protected under copyright law. Therefore, the
contract claim is not preempted.

(B) is a bit less significant for broader application. What (B) is saying is
that because the plaintiff is suing for defendant's infringement outside the
U.S. ("extraterritorial" infringement), and federal copyright law doesn't
necessarily address such infringement, that's an "extra element" of the breach
of contract claim. I say this is less significant because it wouldn't apply to
a defendant who didn't infringe outside the United States. So, if you were the
plaintiff here and the defendant was in California and only distributed the
software in the U.S., argument (B) wouldn't apply.

I hope this clarifies what is/is not significant about the opinion here.

------
etskinner
"GNL GPU", must be Nvidia's new line of graphics cards.

------
frabbit
This is why if someone were the (usually) imaginary "Free Software zealot"
that would like to prevent a private business from profiting off public work,
it would be necessary for software not only to be under a Free license, but
for the copyright assignment to be held by someone that agrees with said Free
Software "zealot".

~~~
frabbit
Or to put it another way: if you are contributing to a Free Software project
and the copyright is held by some other entity to who you have duly assigned
rights, then you may find that they decided to sell the right to use some of
your contributions. So, be careful who you turn your copyright assignment over
to.

------
finid
_That happened when Hancom issued a motion to dismiss the case on the grounds
that the company didn’t sign anything, so the license wasn’t a real contract._

Hancom's CEO is a thief.

------
MichaelMoser123
Congratulations to Stallman. After all these years the GPL has been tested in
court. The man must be drunk with joy... Three cheers for the Mr. Stallman and
his gcc (joining in on his celebrations)

------
brian-armstrong
The GPL has such strong terms, I think there is good reason to avoid ever
reading any GPL codebase. Tainting yourself may imperil any code you write for
the rest of your lifetime. And to that end, I think github should place a
large warning on any GPL repo before letting you see it, as well as delisting
them from search results (or at least hiding the contents)

