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

kevin dankwardt kevin.dankwardt at gmail.com
Sun Jun 4 19:51:56 PDT 2017

Interesting. Thanks for sharing.

On Sat, Jun 3, 2017 at 11:35 AM, Rick Moen <rick at linuxmafia.com> wrote:

> 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:
> https://www.fsf.org/blogs/licensing/motion-to-dismiss-
> denied-in-recent-gnu-gpl-case
>                                               Sincerely,
>                                       Donald Robertson, III
>                               Licensing and Compliance Manager
> Follow us on GNU social | Subscribe to our blogs via RSS | Join us as an
>                                           associate member
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>                                             UNITED STATES
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