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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

#181

Post by belorn »

emodendroket wrote: post #131
belorn wrote: post #112

Earlier quoted context omitted.

Disclaimer and limitation of liability is a very old legal aspect about trade law which from a US perspective historically originate from UK law before the time of colonization. It has nothing to do with copyright or technology. As the story go, someone bought a mill shaft but the delivery was delayed and the customer sued the seller and wanted compensation for the delay. This in turn lead to a legal requirement to m…

OK, but so what? It still in some sense restricts the rights of the person using the software.

Its not about software, so no, it does not restricts the rights of the person using the software. It restricts the right of the consumer who are in a consumer-seller relation.

Disclaimers are about what the buyer can except and have a right to after a transaction. The product in question is more or less irrelevant, through some laws in some places do consider a free gift to also be a transaction between consumer and seller but with a price of zero. This makes the law more complicated. For example, if a baker gives out free bread samples but that happens to be bad, the baker can still be held liable. However if I give a friend a home made cookie the law could easily treat the two cases in a very different way. As much with the law it depend on the situation and the details and the expectations of everyone involved.

This is in part why some open source project do not include disclaimers. They don't consider themselves to be in a consumer-seller relation with anyone and thus do not need to disclaim any consumer expectation which could occur if there were such relation. Some lawyers disagree with doing so because of the baker example above, through there is a lot of uncertainty and a lawyers job is to consider all possible bad outcomes even those that are unlikely to happen, or as it is to my knowledge in this case, never have happened to any open source developer in the world.

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

#182

Post by [deleted] »

qb45 wrote: post #179
tzs wrote: post #176

Earlier quoted context omitted.

> “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.

[deleted]

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

#183

Post by apo »

matt4077 wrote: post #146
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…

It appears that Rosen's "reciprocity" is simply another term for the "infectious", or "copyleft" nature of GPL. In that case I fail to see the significance. There isn't really any remaining doubt about the enforceability of GPL, which may actually be the reason for the relative dearth of case law.

I'd be interested in knowing which cases you're thinking about.

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

#184

Post by apo »

anigbrowl wrote: post #174
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.

Maybe I'm mistaken then but I seem to remember having seen numerous cases in which GPL was involved, but only in the sense that the software was being redistributed as an unmodified unit or with modifications. But those cases may have been settled - I'm not sure.

Reciprocity and the conditions that trigger it (I link to your GPL library and so must release my application source code) has never been ruled on from what I've seen.

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

#185

Post by anigbrowl »

apo wrote: post #184
anigbrowl wrote: post #174

Earlier quoted context omitted.

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.

Maybe I'm mistaken then but I seem to remember having seen numerous cases in which GPL was involved, but only in the sense that the software was being redistributed as an unmodified unit or with modifications. But those cases may have been settled - I'm not sure. Reciprocity and the conditions that trigger it (I link to your GPL library and so must release my application source code) has never been ruled on from what…

Reciprocity is an ethical concept. I told you, there is no law that mandates people have to be nice to each other. Courts do consider matters of pure equity from time to time, but such disputes are heavily fact-based and don't generalize well. That's why contracts exist; they're a mechanism for establishing predictability between people who may have very different moral assumptions, but (ideally) negotiate agreements of limited scope to which they are both willing to adhere while still maintaining their different interests/ moral beliefs/ tribal membership etc.

Courts don't want to be moral arbiters if they can possibly avoid it because questions of morality are inherently political. Contractual relations are a mechanism for dealing with that problematic social reality.

Edit: if it helps, think of contract law as a language specification. The compiler cannot and does not evaluate the worthiness or value of a program, only its semantic consistency. An individual contract is like a program, the law as a whole is like the operating system, institutions are the firmware, physical assets are the hardware. It's an imperfect analogy but it might make the scope issues easier to understand.

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

#186

Post by smhenderson »

mark-r wrote: post #80
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…

I'm guessing Stallman is completely disgusted by the possibility of dual licensing. But the legal copyright holder has the right to establish whatever licenses they wish, whether Stallman approves or not. As to your question, you've already agreed not to charge for your patch by the fact that you've utilized the GPL to access the code in the first place. That's one of the points of the GPL after all.

As to your question, you've already agreed not to charge for your patch by the fact that you've utilized the GPL to access the code in the first place.

Nothing about the GPL stats that you can't _charge_ for your software, in fact RMS explicitly encourages people to make money from free software. You just can't restrict the buyer from redistributing it once you sell it to them.

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

#187

Post by nolemurs »

smichel17 wrote: post #150
kevindqc wrote: post #90

Earlier quoted context omitted.

Nice! By that logic it means EULA are not enforceable! I just clicked Accept, I didn't sign anything! Or a cat could've clicked that Accept button, or a toddler

Courts -- at least US ones -- generally treat digital signatures the same as physical ones. Not sure off hand whether clicking accept is the equivalent of signing if you don't type your name.

It's actually a bit of a misconception that signatures (digital or otherwise) have any particular legal significance.

A contract just requires an agreement between some parties. Signatures only matter to the extent that they serve as proof of an agreement. You can't go into court and say "yes, I agreed to the contract, but I never signed it." That's a losing argument.

You can, on the other hand, totally go into court and argue "Yes I signed the contract, but I never agreed to it!" That's obviously not an easy argument to make, and you'll need to give a pretty compelling argument if you want a shot at winning, but fundamentally, the signature is just evidence of an agreement, not some legal requirement.

So, clicking 'accept' on a EULA is solidly in a gray area. Everyone knows that no one reads the terms before clicking, so if the EULA has you signing away your first born, you can totally argue "yeah, I clicked the EULA, but I didn't agree to THAT" and probably win. On the other hand, clicking the EULA does mean that you're on notice that you've agreed to something. If the EULA is just the standard stuff that you'd expect to find in it, then a court is likely to enforce the terms.

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

#188

Post by sounds »

eridius wrote: post #177
sounds wrote: post #149

Earlier quoted context omitted.

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…

Can you point to actual statements by any company on "why we avoid the GPL?"

Here is a great example of Google reversing course on the AGPL (when they reversed their decision to ban AGPL code from Google Code in Sep 2010):

https://www.theregister.co.uk/2011/03/31/google_on_open_sour...

Apple also _still_ ships GPL code in macOS Sierra 10.12:

http://meta.ath0.com/2012/02/05/apples-great-gpl-purge/

People use GPL software, extensively.

Any use of GPL software is a compliment to the software authors.

Any contribution back to the software will improve it for everyone. Would it really be so hard for Apple to maintain a GPLv2 fork of bash that backported the security fixes, a la RedHat?

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

#189

Post by geofft »

10165 wrote: post #123
geofft wrote: post #109

Earlier quoted context omitted.

> 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. Nothing is stopping someone from paying the rights owner of a BSD-licensed work for the right to use it without preserving the copyright notice. The analysis is the same as for a GPL-licensed work. If the argument is that it's better to have BSD-licensed works without pai…

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.…

> But they need not be functional or even intelligible as anything other than as part of instructions, e.g., short strings of octal values representing characters, with wildcard characters interspersed.

I think you're misunderstanding how copyright law views works. A "work" in the sense of copyright law isn't a pattern of bits: it's a creative expression of an idea (a binding between a pattern of bits and some concept in a human brain) that has a context for how it came to exist.

The classic article "What Colour are your bits" is a good overview of this: http://ansuz.sooke.bc.ca/entry/23

It's worth reading, to understand exactly what copyright law covers / how it works. But suffice it to say that the ability to create a set of bits that does not include any inherent reference to the GPL'd work does not make the bits no longer a derivative work, any more than Monolith (the example from that article) causes bits to stop being copyrighted.

Which answers your question of why programmers do not distribute instructions on how to modify GPL source code without distributing the source itself: there's no point. The legal requirements on them are exactly the same.

My comment about BSD licensing is that if people who own GPL'd works sometimes accept payment to give you the work without the requirements of the GPL, nothing is stopping people who own BSD-licensed works to accept payment to give you the work without the requirements of the BSD license. If it's a bad thing that you can in theory pay money to avoid the GPL, it's equally a bad thing that you can in theory pay money to avoid the BSD license.

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

#190

Post by mark-r »

smhenderson wrote: post #186
mark-r wrote: post #80

Earlier quoted context omitted.

I'm guessing Stallman is completely disgusted by the possibility of dual licensing. But the legal copyright holder has the right to establish whatever licenses they wish, whether Stallman approves or not. As to your question, you've already agreed not to charge for your patch by the fact that you've utilized the GPL to access the code in the first place. That's one of the points of the GPL after all.

As to your question, you've already agreed not to charge for your patch by the fact that you've utilized the GPL to access the code in the first place. Nothing about the GPL stats that you can't _charge_ for your software, in fact RMS explicitly encourages people to make money from free software. You just can't restrict the buyer from redistributing it once you sell it to them.

True, charging not explicitly prohibited. But since everybody you distribute to is free to redistribute it again without charge under the terms of the license, it does put a practical limit in place.
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