A recent court ruling in a case out of the U.S. District Court for the Northern District of California represents an initial victory for a company that is attempting to enforce its rights under the GNU General Public License.
Artifex Software, Inc. owns and markets the Ghostscript PDL interpreter. Artifex offers the Ghostscript software under dual licensing – a commercial license for a fee (for those who want to distribute Ghostscript or a product incorporating it) and under the GNU GPL. There is no fee for the GPL, but there are conditions that apply to use of the Ghostscript program under the GPL.
Hancom, Inc., a South Korean software company, owns and markets the Hangul word processing program and Hancom Office, a suite of programs which includes Hangul. Hancom used Ghostscript in its products but did not obtain a commercial license from Artifex. Hancom’s website stated that it had licensed Ghostscript under the GPL. Hancom’s use of Ghostscript was therefore allegedly governed by the terms of the GPL.
Artifex alleged that Hancom had not complied with certain terms and conditions of the GPL, including the requirement to distribute Hancom’s software with source code. A violation of the terms of the GPL terminated Hancom’s license to use Ghostscript. Artifex brought breach of contract and copyright infringement claims against Hancom. Hancom filed a motion to dismiss the Artifex claims.
One of Hancom’s contentions was that the unsigned GPL did not constitute a valid contract because there was no mutual assent to its terms. The court disagreed, finding that certain conduct on the part of Hancom indicated Hancom’s acceptance of the GPL terms even though no document was actually signed. The court found that the allegations in Artifex’s complaint were sufficient to plead the existence of a contract.
The court also found that Artifex’s allegations of harm were adequately pled. The court pointed out that the Federal Circuit Court had previously recognized that there is harm that flows from a party’s failure to comply with open source licensing obligations (Jacobsen v. Katzer (Fed. Cir. 2008)). Also, Artifex’s dual licensing structure was a sufficient basis for pleading damages for the breach of contract claim.
The specific conduct on the part of Hancom that constituted consent to the terms of the GPL was, according to the court, Hancom’s use and distribution of the Ghostscript program without obtaining a commercial license. The court also referred to section 9 of the GPL (Artifex uses Affero GPL) which provides that the user indicates acceptance of the license “by modifying or propagating a covered work.”
The court’s decision with respect to the breach of contract issue has received considerable attention in the free software and open source software communities. It has long been the case that any alleged violation of the terms of the GPL would be considered primarily a matter of copyright infringement rather than breach of contract. The court refused to dismiss Artifex’s claim regarding copyright infringement, allowing that claim to proceed to the next stage of litigation as well.
It will be interesting to see how this case proceeds, especially with respect to the breach of contract issue.