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A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

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Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#161

Post by 10165 »

bighi wrote: post #130
bluGill wrote: post #79

Earlier quoted context omitted.

> If someone fixes or adds something valuable to GPL source code and wants to charge for it, then why not just charge for the patch or the additional code? You can legally do this, but it will not be easy. You cannot distribute a binary in this way, if you do your patch becomes GPL so the first person who buys your patch can legally give it to everyone else. That means you have to sell the source code to your patch a…

As other people already said, intellectual property laws restrict not only the work itself, but also derivative works. A patch is a derivative work, no matter how you try to dodge that part of the law. So it would still be violation of copyright.

To be clear, the silly question I posed was not directed at avoiding copyright violations. What I ask is whether anyone is ever curious about the value of the derivative work versus the original work.

For example, the original work might be very valuable, a significant work. It could be the collective work of many authors. But it has been made available for free. The derivative work, maybe patches or some additional source code by a single author, is also valuable but on its own much less so.

Then the large original work is packaged together with the patches and additonal source code as a "derivative work". It is commercially licensed to an end user who sees the value as a whole, most of it coming from the original work, which of course was available for free.

Depending on whether attribution is given, the user may have no idea that the core of the product was open source and available for free.

More importantly, there appears to be no assessment of the relative "value" of the free portion versus the closed-source commercial portion of the product.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#162

Post by frabbit »

frabbit wrote: post #125

This is why if someone were the (usually) imaginary "Free Software zealot" that would like to prevent a private business from profiting off public work, it would be necessary for software not only to be under a Free license, but for the copyright assignment to be held by someone that agrees with said Free Software "zealot".

Or to put it another way: if you are contributing to a Free Software project and the copyright is held by some other entity to who you have duly assigned rights, then you may find that they decided to sell the right to use some of your contributions. So, be careful who you turn your copyright assignment over to.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#163

Post by qb45 »

tzs wrote: post #143
DannyBee wrote: post #33

This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. That is, it's not even a final decision of a court. So while interesting, it's incredibly early in the process. The same court could issue a ruling going the exact opposite way after trial. As someone else wrote, basically a court rule that a plaintiff alleged enough facts that, if those facts were true, would give rise to an en…

> This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. Is "preliminary injunction" the right terminology here? It sounds like it was a motion for dismissal. Anyway, it's appalling how often the press confuses pre-trial motions like this with substantive rulings on the issues of the case. ...and it is also, sadly, no surprise that they also think that this sets precedent. Why is it…

I'll be cynical: some call it "having an axe to grind". Why do research if you can just post something that seems to align with your cause and makes you happy?

In all that we do at Quartz, we embrace openness: open source code, an open newsroom, and open access to the data behind our journalism.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#164

Post by emodendroket »

rlpb wrote: post #137
emodendroket wrote: post #70

Earlier quoted context omitted.

Well obviously their contention is that you're buying a license to use the software and not the software itself. You're free to disagree but it's internally consistent.

That may be their contention, but this is exactly why this is fundamentally different to the copyleft case. The GPL requires none of this. I would add that it seems pretty specious to argue that I bought a license when the license was not presented to me at the time I paid for the product and left the store, but I accept that this could be their contention.

Perhaps, but not without precedent. https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

(note: the period is part of the URL)

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#165

Post by PeterisP »

sqeaky wrote: post #96
PeterisP wrote: post #23

Earlier quoted context omitted.

Shrink-wrap licences are unenforceable in many jurisdictions. However, GPL still works in such jurisdictions since if you claim that you don't accept GPL then you're violating the copyright law by distributing without a licence to do so. General shrink-wrap licences can't use this logic because (in those jurisdictions?) using software or service doesn't require a licence, unlike copying.

I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. I am pretty sure contracts are valid regardless of the amount of copying and pasting used to make them. "Post-purchase agreements" are not enforceable in many jurisdictions because they add terms that one side of the agreement did not agree to and many terms of service fall into the post purchase agreement category. It is hard to argue that ope…

Open source licences IMHO should be viewed not as agreements, but as offers of agreement.

You're free to accept the offer, which then implies certain obligations described in the agreement.

You're also free not to accept the offer, which implies the default conditions set by law, i.e., copying and distribution is prohibited without explicit permission of the author(s). For example, anyone certainly can ignore the provisions of GPL and redistribute the software as closed source if they have obtained some other licence from all the authors.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#166

Post by emodendroket »

sqeaky wrote: post #141
emodendroket wrote: post #132

Earlier quoted context omitted.

Somebody should inform all the companies selling enterprise software whose entire model depends on selling seats, then.

Most of those have agreements at the time of purchase. Those are some of the most legitimate dealings in software sales.

Anyway, as I replied to the other guy, Venor v. Autodesk shows that some courts have upheld "shrinkwrap" licensing. I don't think it's a settled question in US law.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#167

Post by johannes1234321 »

djsumdog wrote: post #147
johannes1234321 wrote: post #134

Earlier quoted context omitted.

Not necessarily. "I've considered selling exceptions acceptable since the 1990s, and on occasion I've suggested it to companies. Sometimes this approach has made it possible for important programs to become free software." Read his full text for some boundaries he sees. https://www.fsf.org/blogs/rms/selling-exceptions

Hm. I did not know he held that view. It does make sense. It sounds like he's against things like Magento/Gitlab/Alfresco which have totally open source versions and commercial/enterprise versions with closed extensions. (I realize those aren't the best examples as they're not GPL). With the dual licensed product, you simply have two licenses for the exact same code base. If you want to reuse it, you can, but you nee…

Just as a remark: He doesn't see Free Software as anti-capitalistic. He i.e. also supports the possibility of selling GPL software. (just as in the 90ies, where downloading large files from the internet was hard and it was common to buy a box with S.u.S.E. Linux)

"Many people believe that the spirit of the GNU Project is that you should not charge money for distributing copies of software, or that you should charge as little as possible—just enough to cover the cost. This is a misunderstanding. Actually, we encourage people who redistribute free software to charge as much as they wish or can. If a license does not permit users to make copies and sell them, it is a nonfree license." https://www.gnu.org/philosophy/selling.html

What he cares about is that the software is free as in freedom and contains no lock-in: You can look at it, you can edit it, you can distribute it.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#168

Post by desdiv »

greenshackle2 wrote: post #104
blauditore wrote: post #54

Earlier quoted context omitted.

> If a company receives a lawsuit, they can claim ignorance and start to comply with the contract. Are you sure claiming ignorance would make a difference? I tried to google it and found the Wikipedia article on "Ignorantia juris non excusat"[1], which claims that in most countries, not knowing a certain law provides no protection whatsoever. https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat

"Usually, whether a breach is material or minor is determined on a case by case basis, with the court using six different guidelines to make its determination. The six guidelines are 1) the extent to which the breaching party has already performed, 2) whether the breach was intentional, negligent or the result of an innocent mistake, 3) how certain it is that the breaching party will perform the rest of the contract,…

Pretty much all GPL'd code comes with a GPL license header, so you'd need someone to strip that header off.

It would be hard to hide the identity of that someone, thanks to Git.

Once that someone takes the stand, the truth becomes hard to conceal because presumably company X doesn't pay them enough to lie under oath.

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#169

Post by DannyBee »

tzs wrote: post #143
DannyBee wrote: post #33

This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. That is, it's not even a final decision of a court. So while interesting, it's incredibly early in the process. The same court could issue a ruling going the exact opposite way after trial. As someone else wrote, basically a court rule that a plaintiff alleged enough facts that, if those facts were true, would give rise to an en…

> This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. Is "preliminary injunction" the right terminology here? It sounds like it was a motion for dismissal. Anyway, it's appalling how often the press confuses pre-trial motions like this with substantive rulings on the issues of the case. ...and it is also, sadly, no surprise that they also think that this sets precedent. Why is it…

No, you are right, it was a motion to dismiss. I wrote the wrong type, but the evidentiary standards I listed are correct;)

As for press, yeah, it's frustrating and annoying, but such is the 24 hour news cycle

Re: A federal court has denied a pre-trial motion to dismiss a GPL enforcement case

#170

Post by [deleted] »

tzs wrote: post #143
DannyBee wrote: post #33

This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. That is, it's not even a final decision of a court. So while interesting, it's incredibly early in the process. The same court could issue a ruling going the exact opposite way after trial. As someone else wrote, basically a court rule that a plaintiff alleged enough facts that, if those facts were true, would give rise to an en…

> This happened a few weeks ago. But it's just a ruling on a preliminary injunction motion. Is "preliminary injunction" the right terminology here? It sounds like it was a motion for dismissal. Anyway, it's appalling how often the press confuses pre-trial motions like this with substantive rulings on the issues of the case. ...and it is also, sadly, no surprise that they also think that this sets precedent. Why is it…

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