[svlug] Judge won't dismiss alleged GPL violation: Why this matters

Rick Moen rick at linuxmafia.com
Sat Jun 3 11:35:55 PDT 2017

Lucid explanation of a significant legal ruling.

-------- Forwarded Message --------
From: Donald Robertson, III, FSF <info at fsf.org>
Date: Fri, 02 Jun 2017 23:46:36 -0400

                                    Free Software Foundation
                              Dear lynux at keepandbeararms.com,
    A denial of a motion to dismiss in Artifex v. Hancom presents some
   interesting topics in GNU General Public License (GPL) enforcement.
      A case in the United States involving the GNU GPL made headlines
      recently with a denial of a motion to dismiss. The case, Artifex
  Software, Inc. v. Hancom, Inc., involves a piece of software licensed
  under the GPL version 3 or later, called Ghostscript. It is a project
        from Artifex for handling PostScript, PDFs, and printers (GNU
Ghostscript is a separate version of the project, and is not involved or
                                    implicated in the case).
     Artifex runs a business of selling exceptions to its GPL-licensed
software. They offer the software for no cost under the terms of the GPL
but then also let others pay to avoid the conditions of the license. If
 someone doesn't pay for the exception, however, then they may only use
                 the work in accordance with the terms of the GPL.
    That is apparently where the problem arose in this case. Artifex’s
   complaint alleges that Hancom incorporated Ghostscript into its own
    proprietary software without following the terms of the GNU GPL or
 paying for an exception. In its suit, Artifex claimed two counts based
on Hancom's inclusion of Ghostscript: (1) a violation of copyright; and
   (2) a breach of contract based on the GPL. Hancom filed a motion to
  dismiss the case. A motion to dismiss under US law is a motion at the
start of the case arguing that the facts the plaintiff presented do not
  support the counts alleged. The court denied the motion, finding that
Artifex could move forward with both the copyright and contract counts.
A few characteristics of the U.S. legal system need to be understood to
place this ruling in the proper context. First, a motion to dismiss does
 not determine the truth of the facts. In other words, a judge making a
 ruling on a motion to dismiss determines whether the law would provide
 the complaining party with the relief it requests if all facts alleged
  in the complaint were true. If the law says that the plaintiff has no
     case (even if all facts were true) then the case can be dismissed
   without the need to introduce or weigh evidence. Otherwise, the case
        proceeds to trial to determine the truth of the complainant's
allegations. Secondly, rulings at this initial lower court have limited
precedential value. Other courts presented with a similar question don't
    have to follow the decision here, though they will likely read and
      consider whether they agree with the reasoning of this judge if
confronted with a similar case. This judge could also be deemed wrong if
     the case is appealed and reviewed by a higher court. For now, the
   opinion presents us with an interesting situation: a GPL enforcement
 lawsuit is proceeding under both a contract and copyright theory. This
                       case is one to watch as it moves forward.
    With that context in place, the opinion does present a fascinating
   question in terms of breach of contract. While a violation of a free
   license giving rise to a copyright violation is now old hat, whether
   violation of a license like the GPL could be treated as a breach of
contract has been long a topic of discussion among licensing geeks. Long
 ago, those who opposed the GNU GPL claimed that it was not enforceable
where a violator had not agreed to its terms. Since you couldn't breach
a contract you hadn't agreed to, the terms of the license lacked any way
to force compliance. But the GPL is a license. The only thing that gave
   you permission to distribute the work was the GPL, and without that
      permission, you cannot distribute the work without violating the
                                     copyright on the work.
 In this case, the judge found that Artifex had adequately stated facts
that support its breach of contract claim. Hancom attacked the contract
  claim on two fronts, first that Artifex had not properly demonstrated
 that there was agreement to the GPL, and secondly that Artifex had not
   properly pled any harm that resulted from the alleged breach. On the
  first front, the judge found that "[t]he GNU GPL... provides that the
    Ghostscript user agrees to its terms if the user does not obtain a
commercial license." (We disagree with the judge's terminology here—the
   GPL is a commercial license; there is no problem charging money for
   providing someone a copy of GPL-covered software as long as they are
   also provided with full rights under the GPL including access to the
 source code.) Artifex also claims that Hancom publicly stated that its
  use of Ghostscript was licensed under the GNU GPL. This was enough to
                            claim the existence of a contract.
     On the latter, the judge found that the business model of Artifex
   indicated a loss of revenue, but also noted that harm could be found
even where money isn't involved. The judge, quoting a prior case, noted
  that there are "substantial benefits, including economic benefits, to
the creation and distribution of copyrighted works under public licenses
      that range far beyond traditional license royalties." While not
   dispostive, this last note is particularly interesting for many free
      software developers, who generally share their work at no cost.
   There is more to the ruling, regarding pre-emption and international
aspects of copyright, that will likely be of interest to law geeks. But
 this section on treating the GPL as a contract truly makes this a case
    that free software activists will want to keep an eye on. We'll be
      following the case closely and publishing regular updates as it
         progresses. To stay in the loop, here's what you should do:
                  * Follow our Licensing & Compliance blog via RSS.
            * Donate or become an associate member to help support our
                                            licensing team.
                                          Read online at:
                                      Donald Robertson, III
                              Licensing and Compliance Manager
Follow us on GNU social | Subscribe to our blogs via RSS | Join us as an
                                          associate member
                        Sent from the Free Software Foundation,
                                 51 Franklin St, Fifth Floor
                              Boston, Massachusetts 02110-1335
                                            UNITED STATES
                           Unsubscribe from this mailing list.

More information about the svlug mailing list