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The enforceability of open source licenses like the GNU GPL has long been an open legal question. The Federal Circuit Court of Appeals held in a 2006 case, Jacobsen v. Katzer, that violations of open source licenses could be treated like copyright claims. But whether they could legally considered breaches of contract had yet to be determined, until the issue came up in Artifex v. Hancom.That happened when Hancom issued a motion to dismiss the case on thegrounds that the company didn’t sign anything, so the license wasn’t a realcontract." Judge Jacqueline Scott Corley disagreed with Hancom andsaid: "
These allegations sufficiently plead the existence of acontract." (Thanks to Paul Wise)
Posted May 15, 2017 17:02 UTC (Mon) bytialaramex (subscriber, #21167) [Link] (2 responses) Why take the case? For the money? Take their money, tell them they're screwed, done. If I was representing Hancom I'd be concerned about getting sanctioned for wasting the court's time with this nonsense. It may be there's more depth, but neither this story nor others I've found link the exact text from the court, so who knows. Posted May 15, 2017 18:39 UTC (Mon) byJoeBuck (subscriber, #2330) [Link] (3 responses) Posted May 15, 2017 20:05 UTC (Mon) byxtifr (guest, #143) [Link] Really, I've always thought the best approach to GPL violations is simply to sue for *simple copyright infringement* and allow the other side to raise the GPL *themselves!* (If they dare.) Posted May 15, 2017 21:28 UTC (Mon) bychrisV (guest, #43417) [Link] (1 responses) Artifex's argument was strengthened by the fact that they dual-license ghostscript under a non-GPL license for a fee. The issue is mainly one of remedies. If there is a breach of contract, the infringer may be obliged to account for their profits, as a minimum where derived from US customers. In addition, if there is only a breach of copyright, the US federal court can only injuct against further infringement where carried out in (or otherwise falling within) the US jurisdiction: otherwise Artifex would have to sue in South Korea. There is a somewhat longer analysis here:https://www.theregister.co.uk/2017/05/13/gnu_gpl_enforcea... Posted May 15, 2017 21:30 UTC (Mon) bychrisV (guest, #43417) [Link] Posted May 15, 2017 21:36 UTC (Mon) bypr1268 (subscriber, #24648) [Link] (3 responses) I was going to ask why Hancom didn't just use Artifex's proprietary license, but then I noticed that Artifex charges a fee for such licensing (see original Quartz link above). So now my question is, how expensive is that? Note: I'm not looking for specific or proprietary information here, just a "ball park" value. And not for Artifex in particular, but for any company that dual-licenses their software under both GPL and proprietary terms. Artifex certainly cannot charge so high a fee for their proprietary license as to cause Hancom to expropriate the code and risk having to defend itself in this kind of litigation, right? GPL compliance would seem cheap (financially) for any company wishing to use it. Posted May 16, 2017 4:08 UTC (Tue) byatai (subscriber, #10977) [Link] (2 responses) Posted May 16, 2017 4:52 UTC (Tue) byraven667 (subscriber, #5198) [Link] Posted May 16, 2017 13:32 UTC (Tue) byPaf (subscriber, #91811) [Link] And, of course, such a license cost would be within their rights, it would just mean no one would ever buy their license. Posted May 16, 2017 2:23 UTC (Tue) bywelinder (guest, #4699) [Link] The court ruled against a motion to dismiss. Artifex has not proven that they have a contract with Hancom, but rather Artifex has made that claim in a legally acceptable way. Basically, it looks like Hancom said "we never signed anything so there couldn't possibly be a contract" and the judge said "nice try". Posted May 16, 2017 5:25 UTC (Tue) byiabervon (subscriber, #722) [Link] (11 responses) Posted May 16, 2017 12:33 UTC (Tue) byWol (subscriber, #4433) [Link] (10 responses) So here we have a very clear meeting of minds - the developer has said "here's the licence", and Hancom said "we accept the licence". Bingo, one contract! Cheers, Posted May 16, 2017 13:20 UTC (Tue) byfelixfix (subscriber, #242) [Link] (IANAL; I just read a lot of history, and may have some of the details wrong.) Posted May 17, 2017 12:40 UTC (Wed) bynix (subscriber, #2304) [Link] (8 responses) Posted May 17, 2017 18:02 UTC (Wed) byWol (subscriber, #4433) [Link] Technically, the price tag on an item is called "an invitation to treat", and it is ILLEGAL for the retailer to charge a higher price. They can decline the sale, though. But I've known retailers say "sorry the price is wrong, you have to pay £X". I should have reported them (Argos, actually) to Trading Standards, but I couldn't be bothered. The offence was actually aggravated by the fact that they knew the catalog was wrong, but "couldn't be bothered to update it"!!! Cheers, Posted May 17, 2017 22:15 UTC (Wed) bynybble41 (subscriber, #55106) [Link] (6 responses) Actually the reason that "you can't pick something off the shelf and just walk out of the shop with it" is that the item belongs to the retailer, not because of any mutual understanding between you and the retailer about requiring payment. Even if you didn't agree that payment was required it would still be illegal to walk out with the item. Not being able to just take the item is the default state in the absence of any contract. Where implied contracts come into play is when you deliberately allow the store keep the money you paid, and in turn they deliberately let you walk out with the item. That implies a contract to exchange your money for the retailer's item. Acceptance of the implied contract is shown by the fact that both you and the retailer were aware of exactly what the other party was planning to do with your respective property and didn't make any attempt to stop it. Of course, the other requirements applicable to all contracts must also be met, such as an exchange of consideration and "meeting of the minds". This points out an important limitation of implied contracts: the terms can't extend beyond each party simply granting the other permission to do something which they wouldn't normally be allowed to do (e.g. for the buyer to keep the retailer's goods, or the retailer the buyer's money), with no additional strings attached. There are no implied EULAs. Even if the buyer is aware of additional terms the retailer would like to impose, simply exchanging goods is not enough to demonstrate acceptance of those terms. For anything more complex than an immediate exchange of goods you'll need at least a verbal contract. Posted May 17, 2017 23:50 UTC (Wed) bynix (subscriber, #2304) [Link] Posted May 18, 2017 9:55 UTC (Thu) byNAR (subscriber, #1313) [Link] (4 responses) I only knew one example of implied contracts: boarding a public transport vehicle (e.g. bus, tram) means that the traveler is contracted to the company providing the service. In that case thereare additional requirements on the traveler (for example it is not allowed to eat ice cream on board). Aren't these implied EULAs? Posted May 18, 2017 13:35 UTC (Thu) bycladisch (✭ supporter ✭, #50193) [Link] (2 responses) Posted May 19, 2017 8:18 UTC (Fri) byNAR (subscriber, #1313) [Link] (1 responses) Posted May 23, 2017 13:58 UTC (Tue) byWol (subscriber, #4433) [Link] All the payment and/or ticket validation machines are on the tram or bus, so you can't pre-validate - and that's if you're not using your bankcard or your phone as your ticket ... Cheers, Posted May 23, 2017 15:27 UTC (Tue) bynybble41 (subscriber, #55106) [Link] You are not purchasing property and thus they are not restricting what you can do with property you've purchased, so I wouldn't call that an EULA. However, I probably wouldn't call it an implied contract, either. If you buy a ticket then you've entered into a written contract; if you haven't bought a ticket then either you are in the vehicle with the owner's consent or you are trespassing on their property. I would not say that you are contractually obligated to follow the rules in the latter case, but rather that their consent for you to remain onboard can be conditional on you observing the rules. If you break the rules and refuse to leave (or re-board later) then you are simply liable for trespassing—no contract required. If you do leave when asked then there should be no liability for having broken the rules, provided you didn't cause any damage (which you would be liable for regardless). If they require payment up front (but not a ticket) then were would be a more limited implied contract, your payment in exchange for their permission to board their vehicle. However, that implied contract would not automatically extend to include any rules regarding passenger behavior. If the transportation provider wants to enforce their rules with fines, and not just expulsion and possibly lifetime bans from riding their vehicles, then they need to get the passengers' consent in advance as part of a verbal or written contract."the company didn't sign anything"
I don't understand why you would allow a client to go into court saying "But we didn't sign anything". Sure, the client probably doesn't know that this is settled law, but every single law student does. They don't need to wait for the judge, the clerk sorting out her diary can probably cite the case law where it was established what a contract is, and what it is not, and that you don't need to squiggle your name on a piece of paper to create a contract.
GPLv2 addresses this issue in plain language:A federal court has ruled that the GPL is an enforceable contract (Quartz)
You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
A federal court has ruled that the GPL is an enforceable contract (Quartz)
Yes, it seems really silly to argue that the GPL is invalid when it's the *only thing* allowing you to do what you're doing!A federal court has ruled that the GPL is an enforceable contract (Quartz)
The issue, as I understand it, was not whether there was a copyright infringement, but whether there was a breach of contract. The FSF for example have taken the view that creating a derivative work does not of itself create a contract (but it would comprise a breach of copyright if the GPL is not complied with), which is alluded to in clause 9 of the GPL which you quote; but the judge disagreed with that, and concluded that in this case a contract does exist.A federal court has ruled that the GPL is an enforceable contract (Quartz)
Sorry this was intended as a response to "JoeBuck", not to the original article. Operator error.How much for the proprietary license?
How much for the proprietary license?
why not? who said Artifex cannot charge high fees for their proprietary licenses?How much for the proprietary license?
I think the point was that the Artifex proprietary license is probably less expensive than the litigation, so this is ultimately a losing fight for Hancom no matter what the outcome of the court case.How much for the proprietary license?
Note the "as to cause". He's saying the cost is presumably not so high it would suggest to others they should try infringement instead. Not that it can't be arbitrarily high in theory, but in practice, there's a limit set by the incentives it creates. A billion dollars for our post script code! Eeehhhh, no. We'll either go elsewhere or infringe.A federal court has ruled that the GPL is an enforceable contract (Quartz)
That's a fairly misleading title.A federal court has ruled that the GPL is an enforceable contract (Quartz)
An important aspect is that (according to Quartz quoting the ruling), Hancom (allegedly) "represented publicly that its use of Ghostscript was licensed under the [GNU GPL]." Just using it without saying that the GPL lets you is only copyright infringement, but if you say the GPL lets you use it, then you've entered into a contract.A federal court has ruled that the GPL is an enforceable contract (Quartz)
As I understand it, basically a contract is a "meeting of minds". In the UK, it was quite common for a verbal contract to be sealed with a handshake, and while it might not be enforceable in court for lack of evidence, it was pretty impossible to renege upon. If you see two people in a UK film negotiating, and then they slap their hands together, that's it. They've made a contract. And it's not long ago that contracts like that were still made in places like Lloyds Insurance Market!
WolA federal court has ruled that the GPL is an enforceable contract (Quartz)
A lot of handshake contracts were (and still are) enforced not by government courts but by ostracization. Lloyd's, for instance, in its early days, probably enforced handshake contracts by banning those who reneged. The Law Merchant operated the same way in the medieval period; any merchant who lost a dispute at a merchant fair was banned from that merchant fair and possibly others. It was a very serious affair, and probably drove the transgressor out of business.A federal court has ruled that the GPL is an enforceable contract (Quartz)
Most contracts require even less than that. The classic example of an implied contract is a personal retail purchase: you can't pick something off the shelf and just walk out of the shop with it because both you and the retailer have a mutual understanding that payment is required: an implied contract. No handshake or overt indication required. (Though it is rare for such cases to go to court because most people have a little common sense, there have been cases in the UK where adults with sufficiently severe mental impairments have been accused and then acquitted of shoplifting because they did not have the relevant side of the mutual understanding: they didn't realise that you couldn't just pick something off the shelf and walk out with it, or eat it, or whatever, without paying.)A federal court has ruled that the GPL is an enforceable contract (Quartz)
Retailers are known to renege on that promise, too, though :-(
WolA federal court has ruled that the GPL is an enforceable contract (Quartz)
A federal court has ruled that the GPL is an enforceable contract (Quartz)
Thanks, I was vague in an area I didn't realise I was being vague in, and you clarified it nicely :)
"an important limitation of implied contracts:[...] There are no implied EULAs."A federal court has ruled that the GPL is an enforceable contract (Quartz)
A federal court has ruled that the GPL is an enforceable contract (Quartz)
The transportation companies take care to post the terms at each stop, and inside the vehicle, so that it is impossible to buy a ticket without having the opportunity to read them.A federal court has ruled that the GPL is an enforceable contract (Quartz)
Locally they definitely don't post them at each stop and if it's inside the vehicle, the contract is already made... Also, in many cases it is physically possible to board a vehicle without any ticket examination (possibly even without a ticket).A federal court has ruled that the GPL is an enforceable contract (Quartz)
London's road public transport, it's now almost impossible to be in possession of a valid ticket until AFTER you've boarded ...
WolA federal court has ruled that the GPL is an enforceable contract (Quartz)
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