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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

#171

Post by dllthomas »

err4nt wrote: post #129
10165 wrote: post #62

Earlier quoted context omitted.

Question: Is that what Stallman intended to accomplish with the GPL? Pay a fee for GPL source code and bypass the GPL? (I apologize for my ignorance here.) It seems like "reciprocity" has an even worse outcome than BSD source code. The origin of the source code can be completely hidden from the user. Do users deserve to know at least that the original source code was freely available ? What happens when users discove…

Forgive my ignorance too - but I don't think the intended goal of the GPL is to allow you to dual-license, I think Stallman would (I'm guessing) not want people to license code as anything other than GPL, so I imagine he'd discourage paying for non-GPLed code.

The intended goal of the copyleft provisions of the GPL is to make it differentially easier for people to develop free software compared to proprietary software. Requiring that they pay in order to do the latter (while being able to do the former gratis) does that.

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

#172

Post by nolemurs »

tzs wrote: post #151
ckastner wrote: post #9

> That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. ... so they admitted to the court that they willfully used the software without a license to do so?

Probably not. We are dealing with a pre-trial motion by the defendant for dismissal. They are just implicitly admitting that plaintiff alleges that defendant used the software without a license, not that they actually did so. To decide such a motion the court assumes that every fact alleged by the plaintiff is true, and then looks at each charge to see if all the necessary facts to support that charge are covered. If…

> the defendant seems to think (for some reason I do not understand...) that you have to sign something in order to have a contract

I know, right? I'm really baffled that any lawyer would even try that argument. That's like, first or second week of first semester contract law right there.

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

#173

Post by Dylan16807 »

Nursie wrote: post #127
10165 wrote: post #123

Earlier quoted context omitted.

Patching might operate by locating patterns in source files and editing the source files. Either deleting, changing existing text and/or adding new text. The patch files themselves might be considered nothing more than instructions on how to make edits. It is true the patterns could be excerpts from the GPL work. But they need not be functional or even intelligible as anything other than as part of instructions, e.g.…

Your patch would be meaningless without the GPL code underneath, so is a derivative work and would therefore likely fall under the GPL.

Requiring another work for meaning, without actually including any of that work, is not enough to make copyright kick in as far as I know.

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

#174

Post by anigbrowl »

apo wrote: post #12

To use Ghostscript for free, Hancom would have to adhere to its open-source license, the GNU General Public License (GPL). The GNU GPL requires that when you use GPL-licensed software to make some other software, the resulting software also has to be open-sourced with the same license if it’s released to the public. That means Hancom would have to open-source its entire suite of apps. Alternatively, Hancom could pay…

The more important issue here is reciprocity, not whether an open source license should be considered to be a contract.

From your ethical perspective, yes. From a court's perspective, reciprocity can't be enforced without the existence of a valid contract because there is no legal obligation for people to be nice to each other. Contracts are the mechanism we use to establish obligations between private parties.

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

#175

Post by cygx »

emodendroket wrote: post #158
cygx wrote: post #139

Earlier quoted context omitted.

In what sense? You can still use the software, you just can't expect its use to yield a particular result and sue the programmer if it doesn't live up to that expectation.

In exactly the sense you just stated.

That doesn't really affect your rights: You still own the program, you may still use the program, and you may even still sue the software vendor if the program doesn't work as expected.

What the disclaimer is supposed to achieve is state that there was no contractual obligation to deliver a piece of working software. For software distributed free of charge, this might be viable, but I would find it rather surprising if such an obligation wasn't automatically implied to at least some degree by any commercial sale.

But this is above my pay grade as I'm not a legal professional or even amateur, for that matter.

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

#176

Post by tzs »

qb45 wrote: post #163
tzs wrote: post #143

Earlier quoted context omitted.

> 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.

> “Not so,” [yeah, I'm sure this is a literal quote from a court document] said Judge Jacqueline Scott Corley in her order on the motion on April 25.

That is in fact a literal quote from the court document:

    Defendant contends that Plaintiff’s reliance on
    the unsigned GNU GPL fails to plausibly demonstrate
    mutual assent, that is, the existence of a contract.
    Not so. 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 GNL GPU. These
    allegations sufficiently plead the existence of a
    contract. See, e.g., MedioStream, Inc. v. Microsoft
    Corp., 749 F. Supp. 2d 507, 519 (E.D. Tex. 2010)
    (concluding that the software owner had adequately
    pled a claim for breach of a shrink-wrap license).
See page 4, line 17 here: https://cases.justia.com/federal/district-courts/california/...

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

#177

Post by eridius »

sounds wrote: post #149
beat wrote: post #74

A friend of mine, who is a software engineer turned IP lawyer, made a good point about the GPL - the reason it "has never been challenged in court" isn't about uncertainty, but about certainty. The GPL is based on the most simple, bedrock copyright law. Despite being a clever hack, there's nothing legally exotic about it. Any judge in the country or anywhere else would laugh a GPL challenge right out of court. Any an…

Ah, if only. To the first point: the GPL is not used nearly as much as it should be. Thus there's still a strong selection bias on court cases in general being about the GPL, since the GPL is not selected very often. (And there's a reason it is avoided: legal counsel to large companies frequently describe the GPL as "untested." This happens still today, which is frankly ridiculous in the light of all that the Softwar…

Big companies don't avoid GPL because it's "untested". Big companies avoid GPL because it's actually quite dangerous for them to use. GPLv2 only so far as if they accidentally taint their proprietary code with it, then they need to open up their code (which is bad enough). But GPLv3 is really fucking scary. As it was once put to me, if a single GPLv3 binary accidentally makes it onto the OS image for iOS, Apple would then legally be required to release the master signing key to the whole world, completely destroying the whole security model of iOS and screwing everybody (not just Apple but also Apple's users who rely on that security). Plus the patent clause in GPLv3 is also nasty.

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

#178

Post by lolc »

10165 wrote: post #152
saidajigumi wrote: post #128

Earlier quoted context omitted.

You are misinterpreting "reciprocity"; it has nothing to do with Artifex's dual-licensing arrangement. If you read the linked PDF, you'll find this: Reciprocity means a mutual or cooperative interchange of favors or privileges. Something is reciprocal when it is performed, experienced, or felt by both sides. (The American Heritage Dictionary of the English Language, 4th edition.) The GPL license is reciprocal, becaus…

Yes, the "outcome" to which I was referring was in fact the effect of dual-licensing. With respect to the book chapter, as I interpret it, reciprocity includes asking for the licensee to open source their work. But I leave this to the experts to interpret definitively. Assuming I am not misunderstanding, if the licensee "reciprocates", then there is no closed source and the "problem" I am alluding to goes away. Becau…

You cannot have GPL-licensed code in closed-source code. It's a violation of the license so the code ceases to be GPL-licensed and becomes unlicensed. If you distribute that code, in source or binary form, you can get sued by the copyright holders which is what this case is about.

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

#179

Post by qb45 »

tzs wrote: post #176
qb45 wrote: post #163

Earlier quoted context omitted.

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.

> “Not so,” [yeah, I'm sure this is a literal quote from a court document] said Judge Jacqueline Scott Corley in her order on the motion on April 25. That is in fact a literal quote from the court document: Defendant contends that Plaintiff’s reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. Not so. The GNU GPL, which is attached to the complaint, pro…

OK, I stand corrected. I'm removing the rant.

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

#180

Post by Nursie »

Dylan16807 wrote: post #173
Nursie wrote: post #127

Earlier quoted context omitted.

Your patch would be meaningless without the GPL code underneath, so is a derivative work and would therefore likely fall under the GPL.

Requiring another work for meaning, without actually including any of that work, is not enough to make copyright kick in as far as I know.

Then any source patch would fall outside of licensing.

It's clearly a derivative work, as described.

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