[PLUG] Judge won't dismiss alleged GPL violation: Why this matters (fwd)

Sat Jun 3 02:59:20 UTC 2017

   For those interested.

Rich

---------- Forwarded message ----------

*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.][0], 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][1] is a separate version of the project, and is not
involved or implicated in the case).

Artifex runs a business of [selling exceptions][2] 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.

[0]: https://cases.justia.com/federal/district-courts/california/candce/3:2016cv06982/305835/32/0.pdf?ts=1493193904
[1]: https://www.gnu.org/software/ghostscript/ [2]:
https://www.fsf.org/blogs/rms/selling-exceptions

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][3]. 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.

[3]: https://www.gnu.org/philosophy/enforcing-gpl.en.html

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][4].
* [Donate][5] or become an [associate member][6] to help support our
   licensing team.

[4]: http://www.fsf.org/static/fsforg/rss/licensing.xml
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[6]: https://www.fsf.org/join

*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