How to save copyleft

In an article published in the International Free and Open Source Software Law Review (Vol. 9, Issue 1), Professor Eben Moglen describes some significant issues he has with the current state of Free Software and copyleft (the article is an edited version of Professor Moglen’s speech at the SFLC Fall Conference 2016). Some in the Free Software movement have expressed concern that the Free Software philosophy, copyleft, and the GPL may be less relevant in today’s open source software environment.

According to Professor Moglen, in order to address this issue, advocates of Free Software should be less concerned with enforcing compliance with the terms of the GPL and more concerned with making the “great idea” of copyleft more appealable to a younger generation of people who write and share programs. In order to do this, copyleft needs to be made “simpler to use, quicker to understand, and better at doing all the jobs it’s supposed to do.”

Professor Moglen states that “[w]e need to refrain from going unnecessarily to war. … This is not war time. This is diplomacy time.” In other words, enforcing compliance with the GPL is not very important when faced with the larger issue of a current lack of interest in, or understanding of, the idea of copyleft and the real benefits of Free Software.

The article can be found here.

Toyota system built on Automotive Grade Linux

Toyota will be including a Linux-powered infotainment system in the 2018 Camry. The system is built on Automotive Grade Linux (AGL), which is supported by the Linux Foundation with the backing of more than 100 automakers, suppliers, and tech firms. The Toyota implementation is the debut of the AGL platform. The platform will also soon be integrated into vehicles from Ford, Mercedes Benz, and Mazda.

Automotive Grade Linux is a project at the Linux Foundation that is planning the open source development of all software systems in vehicles, including software for connected cars and autonomous driving. 

The Artifex case and dual licensing

The initial court ruling in the Artifex v. Hancom case suggests a point in favor of using a dual licensing plan for open source software. Artifex offers a commercial license for its Ghrostscript product for customers who wish to use Ghostscript in their own commercial products. There is a license fee for a commercial license. Artifex also offers use under the Affero GPL for those who do not want to pay for a commercial license.

Artifex’s allegations against Hancom included a breach of contract claim. One of the key factors in the court’s decision to allow this claim to go forward was Artifex’s dual licensing plan. The allegations regarding Artifex’s dual licensing structure (including the fee for the commercial license) were, according to the court, sufficient to plead damages for Artifex’s breach of contract claim.

This ruling means that a dual licensing plan (a commercial license for a fee along with a no-fee open source license) could be helpful in proving damages in the event a breach of contract claim is filed against a commercial user who improperly relies on a no-fee open source license as authorization for using another party’s open source software when a commercial license is available.

Court decision upholds claims based on GPL

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.