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

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

Wed, May 17th 2017 6:28pm — Glyn Moody

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.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: contract, copyright, ghostscript, gnu, gpl, license
Companies: artifex, hancom

80 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

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.
[ link to this | view in chronology ]
- Marek Novotny, 18 May 2017 @ 10:21am
  
  Re: Should never generalize "license" to allow commercial entities! Giving products away to public is good, but corporations will always keep secrets.
  Apple is using BSD which has a BSD license. That license has no requirement to give back any changes.
  
  The GPLv2 does, however, require you to give back any modifications you make to the original. If you don't like the GPLv2 then simply DO NOT use GPLv2 software as the basis of your project.
  
  Lastly, learn what it is you're talking about before making a fool of yourself.
  [ link to this | view in chronology ]
  - orbitalinsertion (profile), 18 May 2017 @ 1:02pm
    
    Re: Re: Should never generalize "license" to allow commercial entities! Giving products away to public is good, but corporations will always keep secrets.
    Yes, there is no reciprocal clause in the BSD license, which is freely available. That covers both the current derivatives of the BSD userland and also the Mack kernel from which XNU was derived (long ago). And Apple bought Next so no licensing issue there, and they still host the source for some version of XNU/Darwin as open source.
    
    And "a few changes" makes a derivative work. The license is in effect from the time you take the code, regardless whether and how you modify it after.
    
    If AC has a problem with complicating copyright, and licensing being unenforceable for people without money, i don't know what your problem with the Techdirt community is other than the flaming strawman they erect about how "we all hate copyright [full stop]". We hate bad and unnecessary copyright rules ridiculously extended for ludicrous terms simply for the people who already have money. Yes, there are a few destroy-copyright people, but they have the same traction as destroy-regulation people.
    
    Or maybe the problem simply is people without major financial resources. Screw the poor and middle class has always been a popular concept with some.
    
    As for Artifex, they have been perfectly fine since forever. Someone not licensing their code is straight up textbook infringement, and they are enforcing the license. Maybe AC is the one who hates copyright...
    [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 1:49pm
    
    Re: Re: Should never generalize "license" to allow commercial entities! Giving products away to public is good, but corporations will always keep secrets.
    Uh, no. The GPL never had a term requiring any changes be contributed back upstream. If you want to argue this please quote the term which requires this.
    
    What the GPL does require is that if your modified code is distributed to customers, you must give those customers the code if they want it.
    [ link to this | view in chronology ]
    - Marek Novotny (profile), 18 May 2017 @ 10:54pm
      
      Re: Re: Re: Should never generalize "license" to allow commercial entities! Giving products away to public is good, but corporations will always keep secrets.
      2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
      
      b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
      
      Essentially, you modify it, and you distribute it in any way, means you must also give the source code away under the same license. You don't have to contact an upstream and offer it, but you do have to publish it and thus the original author must have access to the source code changes. Unless you plan on keeping it specifically to yourself, this is a rule.
      [ link to this | view in chronology ]
Anonymous Coward, 17 May 2017 @ 7:32pm

I hope PJ still has her red dress. Oh I miss Groklaw so much.
PJ, if you read this, I wish you all the best!
[ link to this | view in chronology ]
- Zem, 19 May 2017 @ 12:27am
  
  Re:
  Groklaw is stil in my bookmarks. I will never take it out.
  [ link to this | view in chronology ]
Kal Zekdor (profile), 17 May 2017 @ 7:35pm

Meh, GPL.
I'll take an MIT license project over a GPL or derivative any day of the week.
[ link to this | view in chronology ]
- stine, 17 May 2017 @ 10:45pm
  
  Re: Meh, GPL.
  Perhaps you'd care to give us an explanation, in relation to this court case, of your reasons for preferring the MIT license?
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 1:03am
    
    Re: Re: Meh, GPL.
    A MIT or BSD license allow any use, including in proprietary program, with their main requirement being preservation of copyright notices. .While it is hard to be in breach of these licenses, AT&T managed it when including BSD code in their UNIX.
    [ link to this | view in chronology ]
    - DB (profile), 18 May 2017 @ 3:10am
      
      Re: Re: Re: Meh, GPL.
      You missed the point: how is this not off-topic trolling?
      [ link to this | view in chronology ]
      - Kal Zekdor (profile), 21 May 2017 @ 2:29pm
        
        Re: Re: Re: Re: Meh, GPL.
        I'll cop to being somewhat off-topic, but how is this trolling? Just last week had to write a library from scratch (that was pretty basic) because GPL is incompatible with pretty much any of my clients' environments. It gets frustrating. If you want to open source your code, open source your code.
        
        End of rant.
        [ link to this | view in chronology ]
        
        The Wanderer (profile), 22 May 2017 @ 5:05am
        
        Re: Re: Re: Re: Re: Meh, GPL.
        It can be argued to be trolling because bringing up the disagreement over the philosophy behind the copyleft licenses and the one behind the permissive licenses serves no purpose except to stir up an argument, and that's very close to the base definition of trolling (as I've put it in a few places and quoted it in this very comments section, "posting with the intent to cause a furor)".
        
        You may very well be 100% sincere in your preference for non-copyleft do-as-you-will open-source licenses - but the sincerity of a post does not neutralize its potential for trollishness, and your sincerity doesn't change what the effect of bringing that point up when that "vs." is not already under discussion is.
        [ link to this | view in chronology ]
        
        Karl (profile), 23 May 2017 @ 4:24am
        
        Re: Re: Re: Re: Re: Meh, GPL.
        
        GPL is incompatible with pretty much any of my clients' environments
        
        Just FYI, if you're not distributing the code to the public, you don't have to open up the source code. I am a programmer, and my employer uses GPL code all the time; yet none of our software is open source.
        [ link to this | view in chronology ]
Anonymous Coward, 17 May 2017 @ 7:46pm

Stallman was right.
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 18 May 2017 @ 12:24am

So, just to be clear:

Open Source Copyright Enforcement - GOOD.
Closed Source Copyright Enforcement - BAD.

Open Source Activists filing and winning lawsuits - GOOD.
Closed Source Businesses filing and winning lawsuits - BAD.

Patents owned by Open Source companies - GOOD
Patents owned by anyone else - BAD

This is a little similar to Trump's travel ban, right?
Anyone else does it - GOOD.
Trump does it - BAD.

Is that about right?
[ link to this | view in chronology ]
- DannyB (profile), 18 May 2017 @ 6:15am
  
  Re:
  Open Source Copyright Enforcement GOOD because it encourages the widest possible dissemination and freedom of the copyrighted work. Maximum openness. The very purpose of the license. A license deliberately and freely chosen by the work's author(s).
  
  Closed Source Copyright Enforcement is not generally bad. I am in favor of prosecuting piracy of closed source software to the maximum possible extent of the law and then some. If you're going to use or encourage people to use closed source software then you should have to pay and pay and pay and pay to use it. It seems only fair.
  
  Open Source Activists filing and winning lawsuits GOOD because it protects open source.
  
  Closed Source Businesses filing and winning lawsuits is not bad unless it is not really about piracy. A good example would be Oracle vs Google. This isn't about copyright. Google used an independently developed Java that did not come from Oracle / Sun. Sun had blessed Apache Harmony as okay. IBM contributed the vast bulk kof resources to the development of Apache Harmony. Then Oracle tries to claim APIs are copyrightable -- contrary to decades of established industry practice and expectation. Like claiming electrical outlets are copyrighted.
  
  Patents owned by Open Source companies GOOD because they are used defensively to protect open source.
  
  Patents owned by anyone else are BAD when misused -- which is frequently the case. I won't use the loaded term "patent trolls". I'll use PTEs instead (patent trolling entities). PTEs are a drag on innovation. They contribute nothing. They develop nothing. They exist to ride on the back of others who do all the hard work and actual innovation. Patents owned by PTEs are deliberately vague and in some cases unworkable. (I was an insultant on a patent defense in the 90's that never went to trial. The patent was even self contradictory in how it worked.)
  
  Trump's travel ban is, as stated by Trump's own words, repeatedly, is for an improper purpose in violation of the constitution.
  
  Others travel ban is for a constitutional purpose.
  
  I hope that helps. I tried to put it in terms simple enough in the hopes you would be able to understand it.
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 7:44am
    
    Re: Re:
    "Open Source Copyright Enforcement GOOD because it encourages the widest possible dissemination and freedom of the copyrighted work. Maximum openness. The very purpose of the license. A license deliberately and freely chosen by the work's author(s)."
    
    Don't you think the suggestion about barring anyone owning an Open Source copyright from filing a lawsuit about it would provide "maximum openness" and "freedom" better?
    [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2017 @ 1:57pm
      
      Re: Re: Re:
      I wouldn't think so, because any violation of the GPL (other licenses are different) occur when the guilty try to restrict openness and freedom. The GPL explicitly says anything else is allowed.
      [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 18 May 2017 @ 12:40am

Come on, where are the TechDirt posters that are ready to say the Copyright and Patent System are broken beyond repair and should be abandoned? This article is celebrating the "enforceability" of Copyright Law, right? But only for Open Source. Oh, wait, another question - are these guys Trolls? Or am I a troll? They are in court enforcing a copyright and demanding damages that probably never occurred in the real world. I am posting on a web site - but I'm willing to bet I am the troll in this case, right? The objective of THEIR suit means they are not a troll, but my pointing out the hypocrisy of your position means I am a troll.
[ link to this | view in chronology ]
- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 18 May 2017 @ 1:08am
  
  Re:
  Another question - after all the attacks describing your (this community's) idea of "bogus" copyright suits and "trolls", is it even POSSIBLE that this suit is bogus? For example, maybe the plaintiff is obsessed with his software, and his perceived rights, or his ego (feelings) is driving this whole thing. One could argue that the expense of the court, and the attorneys, and everyone else's time will not COME CLOSE to the actual damages this guy suffered. He gives away his stuff for free, for crying out loud. How much could it be worth? Is it even POSSIBLE that this is a deluded individual that is wasting everyone's time for no good reason? Or is it indisputable that his cause is noble and the rest of us are trolls tilting at windmills?
  [ link to this | view in chronology ]
  - Matthew Cline (profile), 18 May 2017 @ 3:26am
    
    Re: Re:
    
    For example, maybe the plaintiff is obsessed with his software, and his perceived rights, or his ego (feelings) is driving this whole thing. One could argue that the expense of the court, and the attorneys, and everyone else's time will not COME CLOSE to the actual damages this guy suffered. He gives away his stuff for free, for crying out loud. How much could it be worth? Is it even POSSIBLE that this is a deluded individual that is wasting everyone's time for no good reason?
    
    Hmmm. So how would you feel about a law making it so that copyright holders of open source software can't sue over copyright violations?
    [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2017 @ 3:41am
      
      Re: Re: Re:
      That would seem to be completely consistent with their stated goals. But, I imagine they would fight to the death to preserve their right to sue, but no one else's.
      [ link to this | view in chronology ]
      - DannyB (profile), 18 May 2017 @ 6:24am
        
        Re: Re: Re: Re:
        I pointed out earlier that as a supporter of open source, I am quite happy to cheer on businesses that sue over copyright infringement of closed source software. The use of pirated closed source software is someone that either (1) should have found an alternative, possibly open source, or (2) should have paid for the software they are using. Software doesn't just grow on trees.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 7:33am
        
        Re: Re: Re: Re: Re:
        So I guess you would take issue with Michael Masnick about Intellectual Property being neither intellectual, nor property. You see it (copyrightable things) as property, yes, with property rights that can be enforced? That would be a gigantic step in the right direction.
        [ link to this | view in chronology ]
        
        Thad, 18 May 2017 @ 8:50am
        
        Re: Re: Re: Re: Re: Re:
        He never said any of those things, anywhere, in any of his posts.
        
        "Copyright exists and is enforceable" does not imply "copyright is property and comes with property rights."
        
        Copyright is exactly what it says on the tin: a right to copy. It's a right to a verb, not a noun; an action, not a thing. Actions are not property.
        
        It's entirely possible to believe that (1) copyright law exists and (2) copyright law is not the same area of law as property law. The reason it is possible to believe those things is that they are facts.
        
        Not for nothin', it's also possible to support some areas and applications of copyright law and not others. A person can support a win for the GPL while also opposing the length of copyright term, or even support the DMCA's safe harbor provisions while opposing its anti-circumvention rules. Recognizing that some laws are good and some laws are bad is not a contradiction, it's common sense.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:03am
        
        Re: Re: Re: Re: Re: Re: Re:
        https://www.techdirt.com/articles/20080306/003240458/if-intellectual-property-is-neither-intellectua l-property-what-is-it.shtml
        
        Thad? Is that you? I've never known you to be completely wrong before.
        [ link to this | view in chronology ]
        
        Anonymous Anonymous Coward (profile), 18 May 2017 @ 9:14am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        
        In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property.
        
        No, he isn't.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:17am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "He never said any of those things, anywhere, in any of his posts."
        
        He did say it, right in the title to his piece, right?
        [ link to this | view in chronology ]
        
        Anonymous Anonymous Coward (profile), 18 May 2017 @ 9:27am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        >If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
        
        No, he didn't.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:34am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "So I guess you would take issue with Michael Masnick about Intellectual Property being neither intellectual, nor property."
        
        "He never said any of those things, anywhere, in any of his posts."
        
        Michael Masnick: "If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?"
        
        What am I missing? I quoted Michael Masnick, Thad said he never said that, but the article I cited actually carried it almost verbatim as the title, and you want to say ...? What exactly? You want to say Thad was right to say Mike never said any of those things? I can't quite catch your point. Thad is a genius, most days, he can quote verbatim stuff I haven't read in 30 years, like the amendments to the constitution. In this ONE case, he made a mistake, and I'm pointing it out. You are saying ...?
        [ link to this | view in chronology ]
        
        Thad, 18 May 2017 @ 9:30am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Ah. Pronoun trouble.
        
        The "he" I was referring to is DannyB. The "any of those things" he (DannyB) never said are the things you claimed that he said -- "you would take issue with Michael Masnick about Intellectual Property being neither intellectual, nor property" (he did not take issue with that statement); "You see it (copyrightable things) as property, yes, with property rights that can be enforced" (he said nothing at all that rempotely implied that copyright is property).
        
        But then, all that was quite clear from the context of my post, which went on for four more paragraphs after the single sentence you just took out of context. That we're to the point in the conversation where you take the first sentence of my post out of context, pretend that it means something other than what it does, and argue with that instead of with any of the points I actually raised, is more proof that you're not interested in a good-faith debate.
        
        As if we needed any.
        
        Frankly I should have known better than to respond to you at all.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:36am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Come on, Thad, I publicly acknowledged you as a genius, I really did not understand you. It was an honest mistake. You wrote from your context, I read from my context, that simple.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:55am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So, with regards to your other paragraphs, let me give it a go and see if you have the patience to respond to me.
        
        Would you say that a written work is a "property"? I think it is. As is a musical work, a painting, and a variety of other tangible items. They are all tangible items that exist in the real world by and produced by the effort of a person. They did not exist before they were produced, and they did exist after. So they are tangible. Copyright is a way to protect the value of those properties, which do exist, by restricting who can possess them or copies of them. It looks like a property, it smells like a property, and EVEN IF it's Open Source, it can be protected like a property, just as this article celebrates.
        
        In this case, there is a lot of argument above describing the software at issue as being valuable and hard to produce. So, EVEN THOUGH it's "FREE" "OPEN SOURCE", it is protected by both copyright and contract. It exists, it belongs to someone, and that someone has rights. How is this fundamentally different than property rights, other than properties rights typically do not expire over time?
        
        Open Source owners happily tie ALL KINDS of restrictions to THEIR software, but argue that OTHER PEOPLE's software should be "FREE" and "OPEN" and blah blah blah. But the truth is that Open Source Trolls are as determined as Closed Source Trolls to enforce their rights. What's the distinction again? Nothing? That sounds right.
        
        :)
        [ link to this | view in chronology ]
    - orbitalinsertion (profile), 18 May 2017 @ 1:09pm
      
      Re: Re: Re:
      If it isn't almost entirely about someone big thinking they are owed money, then it is not worth it. Protecting completely unsubstantial things like the rights of the open source ecosystem are beneath notice. Just like protecting the environmental ecosystem is merely a trollish way to interfere with large companies with lots of money from making more.
      [ link to this | view in chronology ]
  - DannyB (profile), 18 May 2017 @ 6:25am
    
    Re: Re:
    The actual damages are much greater than you think, and can not be compensated by mere money.
    [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2017 @ 7:30am
      
      Re: Re: Re:
      "Mere" money? Are you kidding?
      [ link to this | view in chronology ]
- DannyB (profile), 18 May 2017 @ 6:21am
  
  Re:
  Open Source is a hack around copyright by using copyright itself.
  
  Celebrating the enforcability of open source is not celebrating copyright in the more general sense.
  
  If copyright and patent disappeared tomorrow, so would open source licenses -- and that would be just fine.
  
  As for the damages, they are real. If Ghostscript is not valuable, then Hancom should have stopped using it years ago. But they didn't. Because Ghostscript is truly difficult and expensive to develop and performs an important function which is a core part of what Hancom's product actually does. So how can you say there are no damages? Ghostscript could have been selling that product. But the real and greater damage is that Hancom has deprived everyone else of Hancom's code which rightfully should be open source under the GPL. If Hancom doesn't like those terms, it shouldn't have used Ghostscript. If I was stealing Microsoft Office and using it as the basis of my product, wouldn't you be arguing that I should have understood the license terms of Microsoft Office before I made such a decision?
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 7:29am
    
    Re: Re:
    It would not be "just fine" if copyright and patent disappeared tomorrow - it would be tragic for inventors, artists, writers, photographers, and countless others.
    [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2017 @ 3:24pm
      
      Re: Re: Re:
      Why tragic?
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 May 2017 @ 9:17am
        
        Re: Re: Re: Re:
        Because everyone could take their work for free and they would starve.
        [ link to this | view in chronology ]
- DannyB (profile), 18 May 2017 @ 6:41am
  
  Re:
  Let me further address your "actual damages" trolling.
  
  http://artifex.com/licensing/
  
  Artifex offers Ghostscript under a commercial license. Why didn't Hancom take the commercial license and pay the price? After all, Hancom is using it for commercial purposes?
  
  Instead Hancom chose to use the software without any license -- the very definition of pure naked copyright infringement.
  
  Hancom cannot claim to have used the software under either the GPL or AGPL. Because they didn't comply with the license. The the license expressly states that if you don't comply with the terms, you have no license at all.
  
  Distributing copyrighted works without a license is pure copyright infringement. Wouldn't you agree Mr. Troll? Consider a Microsoft product: SQL Server Developer Edition. It is very inexpensive -- in fact, I am informed it is free now. (Because I am requisitioning two copies of it for development servers.) (Free as in beer, not Free as in freedom) But its license absolutely forbids using it for any production use, eg commercial use. By your argument, Mr. Troll, I should just use Microsoft SQL Server Developer Edition on my production servers instead of paying Microsoft several tens of thousands of dollars PER YEAR, PER CPU CORE on EACH SERVER. After all, I can get Developer Edition for free. Why take out the commercial license at all? Seems like a waste of a vast amount of money. In your own words, Microsoft wouldn't suffer any "actual damages".
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 7:27am
    
    Re: Re:
    Trolling = Expressing an opinion you disagree with, right?
    [ link to this | view in chronology ]
    - Thad, 18 May 2017 @ 8:29am
      
      Re: Re: Re:
      In the game of Troll Bingo, "You're just calling me a troll because I disagree with you" is the free square.
      [ link to this | view in chronology ]
      - Anonymous Coward, 18 May 2017 @ 8:35am
        
        Re: Re: Re: Re:
        Ok, Thad, I know better than to argue with you.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:14am
        
        Re: Re: Re: Re: Re:
        Well, actually, maybe I could argue with you. Are you kidding? (That's my opening). Words matter, definitions of words matter, and really negative words, like Troll, are almost always misused by idiots to serve their deceptive goals. I stand by my assertion that with VERY few exceptions, people who use the word "Troll" are using it deceptively in the place of an actual argument that could be reasoned about. It really shows a lack of judgment and intellect, and is a placeholder signifying nothing of any debatable or intellectual value, but instead is a signifier of a child-like hatred expressed by dunces.
        [ link to this | view in chronology ]
        
        orbitalinsertion (profile), 18 May 2017 @ 1:31pm
        
        Re: Re: Re: Re: Re: Re:
        It's a form of trolling to play ignorant of things or to deny real things are real. Neither of those are opinions, btw, nor are opinions equal to facts when one is used as an argument against the other.
        
        (There are many forms of trolling, but persistence in the face of notification is a key element and i won't claim to have seen that for myself. So i wouldn't 1) claim you are trolling, nor 2) claim this is the framework that was in use. Could have been a mere insult.
        
        But to the point: Actual damages != "I _claim_ this cost/lost me _x_ amount of money." (In this case, there is money involved also, the cost of the licensing denied.) But if you don't need a trip to the ER, a severe punch to the face is not actual damage? Excessively loud neighbors at all hours? Restricting your freedom in the name of some claim of security? These are damages, just like not reciprocating code while making money off the original source you modified is. But then, companies making money from other people's labor with little to no appropriate compensation is nothing new.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 7:28pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Trolling has a VERY broad definition, and in my personal opinion, does little to add any value to a communication. There is no easy way to understand what someone means by a "troll" or "trolling". Fishing? Being persistent? Misunderstanding? From the outside, normal people (not activists) have no idea what it means when used this way.
        
        Yes, I would have to agree with you, there are money damages involved in this suit. There is also money involved with the lawsuit this entity filed. I would venture to guess that most of the time, these "open source" based lawsuits are financed by someone other than the plaintiff, because the actual damages caused are negligible, and the legal expenses are huge. In this particular case, I believe the original author sold the property to someone else, who has now filed suit. IMHO, this set of behavior would absolutely be viewed as "trolling", except for the subject matter. Since it is an issue concerning "open source", all criticism is withheld, the use of the word "troll" is withheld, and the very expensive and time consuming court process is held up as a shining example of justice.
        
        OK, perhaps I'm too critical. I leave room for the possibility that the amount of money involved is large enough to justify the legal expense. It is possible. But the bias towards open source and away from every other type of intellectual property on this site is easy to document and frustrating to read. Could I be wrong about damages - absolutely. Could the writer be wrong about the legitimacy of this suit - absolutely. That's my point.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 9:00pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        OK, question for the community: Is there even ONE legitimate proponent of FREE Open Source that will condemn what is being done in the lawsuit at issue? This is a business enforcing an "open source" copyright to demand money. By the standard always described on THIS WEB SITE, this is WRONG. NOT OPEN. NOT FREE. And, it is actually wrong, in my opinion. If you want to show everyone your code because you think it is good for the world, fine, be happy. As long as it is your code, do what you want, give it away for free. The ONLY legitimate Open Source that is FREE is actually FREE, not restricted with requirements that must be complied with, or to face legal consequences. FREE OPEN SOURCE. YAY! This is not it! BAD! Right? Let's hear from you FREE OPEN SOURCE people (my guess is there are NONE, this whole thing is a FRAUD, but please, prove me wrong). This community actually LOVES the court system and will use it at the DROP OF A HAT to protect their rights, but will resounding CONDEMN anyone else (outside their "insider" group) who does the same.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 12:18am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Sorry, why condemn. There were two choices available, abide by AGPL or buy a commercial licence. That's it. However, they decided to choose a third way, not abide by AGPL and not buy licence.
        
        Their choice. Their consequences. There is no problem here. The software in question, at the instigation of the author, has allowed two choices, one of them being use freely but abide by AGPL. If you use freely then simply abide by AGPL.
        
        The problem you are missing is that it is Open Source by the authors. In doing this and using the licence in question they have put a requirement on you to abide by their choice. If you don't like, you are free to go elsewhere. They have not chosen some other licence, which they are free to do, but this specific one. What's your problem?
        
        I have released my stuff under various licences, including none where I have placed the code directly into the Public Domain. My choice. If it is based on someone else's code base, I abide by their choice of licence.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 12:45am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I and, judging by his various actions and writings, the head of the Free Software Foundation will disagree with you.
        
        In the copyright maximalist's framing we don't want them to "steal" our code, as that would give them the opportunity to cobble our efforts not to legally restrict our users.
        
        While I don't like many of the ways copyright has been applied recently (as can be clearly seen by the articals on this blog), I can't complain about anyone (no matter what license or lack there of they use) using the courts to settle straight forward plagiarism cases like the ones we sue over.
        
        P.S. I've worked with a company full of Free/Open Source folks, hence I know we exist.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 1:07am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        To be clear I think there's two main issues with how the maximalists push copyright:
        
        1) They push it in ways that harm freedom of speech or gets dangerously close to it. That's WRONG.
        2) They waste money playing whack-a-mole with pirates. That's FRUITLESS and they should try different approaches with the problem.
        
        However all we ask of them is that they either a) rewrite our software in their own words, b) go elsewhere, c) possibly pay us (if the developers are open to that), or d) release they're larger project as free software. As such we're not restricting their speech, and the FSF has found enforcing the GPL (and variants) very fruitful, I don't see the problem with our use of free software.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 19 May 2017 @ 8:42am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        
        Is there even ONE legitimate proponent of FREE Open Source that will condemn what is being done in the lawsuit at issue? This is a business enforcing an "open source" copyright to demand money.
        
        I think you misunderstand the purpose of copyleft licenses.
        
        If copyright didn't exist, there would be no need for copyleft licenses. Copyleft licenses are a workaround to defeat the default position that everything created is automatically copyrighted at the time of fixation, which makes sharing among coding communities very difficult. There is no legal way, currently codified in US law, to release something as Public Domain. (There have been instances of authors releasing works to the Public Domain, only to have their heirs sue for infringement after their deaths.) Copyleft licenses were developed to keep anyone from locking up the code and preventing anyone else from using it.
        
        So, yes, copyleft licenses have to use copyright to be able to prevent copyright from locking up innovation. Since copyright is mostly civil law, monetary relief is the usual remedy.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 19 May 2017 @ 9:07am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        And yes, I am a strong proponent of open source software. I have used GNU/Linux for the last decade and as a hobbyist programmer, I have released a couple of projects under the GPLv3 license so that I may "pay it forward" to the open source community.
        
        https://github.com/Gwiz65
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 9:25am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Nice code. I have the same bracket religion you do.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 19 May 2017 @ 2:18pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        
        I have the same bracket religion you do.
        
        Lol. That's old habits leftover from when I used to get paid to code in LISP (or to be more precise, AutoCAD's AutoLisp). Nothing worse than spending a day searching for an unmatched parenthesis.
        [ link to this | view in chronology ]
      - Anonymous Coward, 18 May 2017 @ 9:39pm
        
        Re: Re: Re: Re:
        Thad, even though you wield your comments with the same authority that Thor the Thundergod wields his great Hammer, I think you are absolutely agreeing with me. "Free square" in this case means something everyone already has, that is, everyone is a troll, everyone is not a troll, the word is meaningless. You are acknowledging that with your post, and I believe you would likewise acknowledge that people who use meaningless words in written debate are poor debaters, and often deceptive idiots. I add deceptive (I infer intent), but it is at least poor practice to use words (repeatedly and often) that are devoid of meaning or distinction. Right, Thor? (Thad)
        [ link to this | view in chronology ]
        
        Anonymous Coward, 18 May 2017 @ 10:02pm
        
        Re: Re: Re: Re: Re:
        And just to give a concrete example (often asked for) of a deceptive idiot that overuses this meaningless word (troll) and is very familiar to this very community (chief moderator), please consider this: http://www.ripoffreport.com/reports/wendy-cockcroft-web-design-wendy-cockcroft-interservecom/interne t/wendy-cockcroft-web-design-wendy-cockcroft-interservecom-wendy-cockcroft-manchester-u-1280160
        
        Mr. Diaz, who Wendy alleges is a "troll", accuses her of the threat of Internet Defamation in order to resolve her business dispute. In another similar public post, TechDirt is actually named. Simultaneously, she refuses to answer her own contradiction presented in her own materials: that she both was paid by Diaz, and has no idea who he is.
        
        When you see the word "troll", in my opinion and experience, and especially on this site, you are hearing from a deceptive idiot. If they actually had something to say, they would use a suitable word to convey their meaning, not hide behind a hateful childish fairy tale.
        [ link to this | view in chronology ]
        
        Wendy Cockcroft, 19 May 2017 @ 5:38am
        
        Re: Re: Re: Re: Re: Re:
        Reading comprehension fail; I never met this individual, who has offered no evidence of this. Nor did I receive anything of any kind except troll postings on review sites.
        
        If the only evidence you've got is troll posts, not screenshots of any correspondence, etc., you've got nothing and are therefore a troll; someone who spouts nonsense, arguing for the sake of it to gain attention for himself.
        
        As I've said many times before, these allegations are of criminal offenses. Why not go to the police? And why have I not retaliated if it's actually true?
        
        Because I've no idea who this numbnut is; I've never met him before. Q.E.D.
        
        Produce evidence of your assertions or shut up and go away. Troll posts on ROR do not count as evidence.
        
        I expect to be accused of being in partnership with them via reputation defence companies any day now. I presume an audio recording will be made available implicating me in cyber-fraud in which I promise to make ROR posts go away for a small consideration. It seems to happen to anyone who gets caught up in this mess.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 8:33am
        
        Re: Re: Re: Re: Re: Re: Re:
        Wendy, are these your tweets? Maybe I am mistaken. If so, I apologize. I cut and pasted these from your twitter posts. Maybe it is a joke? Is it funny from some angle? It seems very complex to be a joke.
        
        Wendy Cockcroft‏ @wendycockcroft · 16 Jan 2016
        
        @JulianLives Gah! I would have got away with it if it wasn't for you pesky kids! Yeah, I took cash from Diaz, but only because I wanted to..
        @JulianLives ...be associated with the making of an epic z-movie that merged horror and sci-fi. He promised me an executive producer credit
        @JulianLives ...if I made the website. We fell out when I embedded a YouTube video of the trailer on my own website. He said I was enabling
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 8:40am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        This is his allegation, cut and pasted from the ripoffreport:
        
        Ms Cockcroft suddenly became very angry and threatened to ruin my business before it started. She said that she was in with a very influential group of people on a technical blog who would write about me and many other people would comment. She said this would mean that my reputation would be ruined and it would remain at the tip of Google. Wendy Cockcroft refused to refund my money, refused to re-do the work and threatened to destroy my business and personal reputation before it even started.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 6:07pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        As Wendy so aptly points out, IF this allegation were proven true, it appears to be criminal extortion, which is a RICO predicate offense.
        [ link to this | view in chronology ]
        
        Thad, 19 May 2017 @ 1:45pm
        
        Re: Re: Re: Re: Re: Re:
        Fuck's sake, dude, did you just reply to my comment four times?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 3:01pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "Fuck's sake" dude, did you just say nothing at all?
        [ link to this | view in chronology ]
        
        Thad, 19 May 2017 @ 3:51pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        So did you, it just took you four posts to do it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 May 2017 @ 5:40pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Would you like to add "na na na", moron?
        [ link to this | view in chronology ]
Seegras (profile), 18 May 2017 @ 1:17am

The Anonymous Trolls are on it
The GPL is a hack to preserve rights IN SPITE of copyright. So yes, this "victory" is somewhat double-edged, especially the "contract"-part. The whole thing has to be looked at a bit more nuanced than "good" and "bad".

Unless you've got a better idea to give everyone rights -- but not the right to take away these rights -- while under a copyright regime, just crawl back under your bridges with your black-and-white world view.
[ link to this | view in chronology ]
- Anonymous Coward, 18 May 2017 @ 1:59am
  
  Re: The Anonymous Trolls are on it
  Me crawl back, right, I am the troll. Thank you for being consistent. Biased (totally), but consistent.
  [ link to this | view in chronology ]
ender (profile), 18 May 2017 @ 2:20am

Isn't GhostScript actually AGPL, and not just GPL?
[ link to this | view in chronology ]
- DannyB (profile), 18 May 2017 @ 6:34am
  
  Re:
  From a bit of googling, that appears to be the case.
  
  Now for a bit of irony. This will especially confound the troll in this topic. When a business offers a product under either a commercial license or the AGPL license, that seems like the AGPL is being used to further the uptake of their commercial license. The AGPL would limit your possible use of the software in such a way that it is unlikely you could use it for any commercial profit. You could probably use it internally, without distributing it or making it available as a service over a network. But almost any way that you could make money from it would require taking the commercial license.
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 7:21am
    
    Re: Re:
    Neither the GPL or AGPL prevent making a profit from the software, they just require that you make the source code available to your users. Indeed s Red Hat have so ably demonstrated it is quite possible to make all your source code available, and directly support clones of your operating system, and still have a very profitable business.
    [ link to this | view in chronology ]
    - DannyB (profile), 19 May 2017 @ 9:13am
      
      Re: Re: Re:
      I understand the technical distinctions of the license. I understand that the license says nothing about profit. And I understand that Red Hat is profitable with open source.
      
      Unlike Red Hat; Hancom, and many companies that violate the GPL would probably not be profitable if their source code were open source. Yet they violate the GPL, and don't license their own code under the GPL.
      
      Since an alternative commercial license IS available, then I think there ARE actual damages here. Hancom could have taken a commercial license and paid for it. The lost licensing revenue IS the actual damages. If you didn't want the GPL, then the commercial license was the alternative.
      [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2017 @ 7:26am
    
    Re: Re:
    You know, a lot of your comments are interesting, and reflect a careful and considered opinion. With the exception of your use of the word "troll" to describe me. What the heck? I have not filed a lawsuit. I have not abused the legal system. I am simply expressing an opinion different than yours. Can you explain, as you did with your other posts, the logic behind using this term for me, and NOT for the entity that is ACTUALLY filing lawsuits?
    [ link to this | view in chronology ]
    - The Wanderer (profile), 19 May 2017 @ 7:26am
      
      Re: Re: Re:
      Do you have the impression that "trolling" is something that has meaning only in the context of filing lawsuits? Because that's certainly not correct.
      
      The term "troll" has different meanings in different contexts. The shared, underlying concept is hard to winkle out, but seems to be something like "person wanting/trying to cause trouble".
      
      One of the contexts in which the term is used is that of In the context of Internet discourse, the simplest and best definition of "trolling" that I've found yet is "posting with the intention of causing a furor". I.e., posting in order to try to stir up trouble, rather than to further discussion or for other legitimate purpose.
      
      What the intent of a post (or posting pattern) may be is of course a subjective matter, but it's something that people can try to discern by observation and analysis. Posting characteristics which are typical of trolling include ad hominem attacks, the dragging in of offtopic arguments, and gratuitous foul language; none of these definitely indicates trolling, and none of them is essential for it, but when seen as part of an overall pattern they can be indicative of that conclusion.
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 May 2017 @ 9:04am
        
        Re: Re: Re: Re:
        I think my definition is both simpler to explain and more accurate - it is a term used by deceptive idiots to advance an empty argument.
        [ link to this | view in chronology ]
Anonymous Coward, 18 May 2017 @ 6:26am

well, buck 'em
buck the bbc
[ link to this | view in chronology ]
- Thad, 18 May 2017 @ 8:30am
  
  Re: well, buck 'em
  Sometimes I accidentally post a comment in the wrong tab too.
  [ link to this | view in chronology ]
Thad, 18 May 2017 @ 8:36am

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code.

Let's not oversell here. The two major smartphone vendors both use operating systems that are a mix of free/open-source and proprietary components, and rely on proprietary app stores that sell (predominantly) proprietary programs.

If you want to run only the free components of Android, without any proprietary firmware blobs, you have options. But they leave a lot to be desired.
[ link to this | view in chronology ]
- orbitalinsertion (profile), 18 May 2017 @ 1:42pm
  
  Re:
  It is the basis of a lot of software that dominates, without which we would not have that software. (And to be fair, some of that was released open source without drawing on previously existing source code.) It's not an unworthy nit to pick, but the point is protection of the open source ecosystem, which is a backbone for metric craptons of the computational world.
  
  Android is weird since it is very much tied to vendor hardware and implementation, making it a lot less free on the user end. Usage restrictions against user-modified code sort of round that out. But people wanted the appliances they were promised desktops were, and now they have them in devices without much freedom or a general purpose OS.
  [ link to this | view in chronology ]
David, 21 May 2017 @ 12:19am

Rubbish sensationalist headline.

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

No, it doesn't. It allows the suit to move forward on both counts (strictly speaking, it's not even the enforceability of a license that is at bay here but its inavailability outside of heeding its conditions).

If the court were to dismiss on one count, the defense could just plead for this count as a result and get away.

The end result of the court case will uphold either one or the other but not both. More likely, it will uphold neither since defendant will settle once the judge tells him that he has the choice of having no leg or no ground to stand on.

GPL court cases very rarely make it to the finishing line since the finishing line tends to be awfully bleak for the defendant and getting there depends on defendant making an active choice in court just which clearly hopeless avenue he intends to pursue: having a license or having none.

The obviously inane "I choose to have a license without heeding its conditions" requires both license grant and licensing condition check to remain in the case in order to arrive at a verdict matching the situation.
[ link to this | view in chronology ]