Copyright

by Glyn Moody


Filed Under:
contract, copyright, ghostscript, gnu, gpl, license

Companies:
artifex, hancom



US Court Upholds Enforceability Of GNU GPL As Both A License And A Contract

from the but-might-that-prove-a-mixed-blessing? dept

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux -- and of thousands of other coding projects -- is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.

A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.

Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.

That's an important new ruling. The judge also affirmed a result of the Jacobsen v. Katzer case, that even though code released under the GPL is available free of charge, damages could still be awarded because:

there is harm which flows from a party's failure to comply with open source licensing.

A useful analysis of the judge's order on the Lexology blog explains the pros and cons of bringing cases under copyright and contract law:

Generally, copyright claims may afford plaintiffs more damages and stronger remedies than contract claims. However, contract claims may help a plaintiff pursue a violator's worldwide conduct in a way that jurisdictional limits on copyright claims might not allow. Breach of contract claims may also be able to address reputational harm and other indirect non-economic benefits that a plaintiff might derive from enforcing open source license conditions. A breach of contract claim might also, in certain instances, allow for specific performance of open source obligations.

However, the fact that Artifex may now proceed, drawing on both copyright and contract law, raises the important question of how those interact. Mike wrote about this back in 2010, and pointed to a longer discussion of the legal questions involved. The decision by the District Court for the Northern District of California to allow Artifex to move forward with its case is certainly an important confirmation of the legal solidity of open source licensing. But it also brings with it important questions about the role of contracts in the world of free software.

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  1. identicon
    Anonymous Coward, 17 May 2017 @ 7:13pm

    Should never generalize "license" to allow commercial entities! Giving products away to public is good, but corporations will always keep secrets.

    I've never approved of the "CC license" and hold that those terms aren't enforceable; small bunches of code-weenies won't have the money to enforce it, same thing. And not good to complicate copyright. YET I can also see how copyright (which I support heartily here in face of rabid opposition) then kicks in...

    But once you've given away code, it's GONE! A few changes produces an entirely different INSTANTION, which is what copyright protects: the CC license is too much like protecting an algorithm. You can't just claim all changes are yours TOO! That's not a license, that's appropriation! -- I had a relapse while writing, now I'm back to not liking the "CC license" at all!

    BTW: can someone outline Apple's position if this enforces copyright? Apple simply took BSD Unix and put yucky GUI on it, and yet it's now proprietary? Why isn't Apple required to publish their code? Let's get some lawyers going on deep pockets of the big Apple!

    ... Struck me, having proposed to target Apple, that it's possible this bunch of code monkeys simply found a deep pocket to go after. Could be a new form of copyright-trolling. At least don't just assume that they're pure of heart.

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