Court Ruling shows the GPL is both copyright license and contractual agreement

https://sfconservancy.org/news/2022/may/16/vizio-remand-win/

by pabs3 • 4 years ago

259 97 4 years ago

sfconservancy.org

messe• 4 years ago

In California.

EDIT: I’m wrong and need to pay more attention. See comments below.

michaelmrose• 4 years ago

A state with a population of 40M people. If CA were a country it would be 37th in the world. Importantly software available in the US will ultimately be available to CA citizens.

usrn• 4 years ago

Different things are available in different states all the time.

tedivm• 4 years ago

No, that's the whole point. The lawsuit started in California, but Vizio tried to move it to federal court claiming that since it was a copyright claim it belonged in Federal court and not in state court.

The federal court said that because this was a contract issue, not just a copyright concern, that copyright law could not be used to bypass the contract law to move the case to federal court.

The May 13 ruling by the Honorable Josephine L. Staton stated that the claim from Software Freedom Conservancy succeeded in the “extra element test” and was not preempted by copyright claims, and the court finds “that the enforcement of ‘an additional contractual promise separate and distinct from any rights provided by the copyright laws’ amounts to an ‘extra element,’ and therefore, SFC's claims are not preempted.“

This isn't California specific at all.

Supermancho• 4 years ago

This isn't California specific at all.

It's a District court. This is specific to California by nature of the jurisdiction. The finding of the Honorable Josephine L. Staton is, an element of that case, not the ruling. This will end up in the Appellate.

It's a good first step, but don't overstate the facts.

not2b• 4 years ago

Read more carefully. The decision to send the case back to California on the argument that it wasn't solely a copyright matter was made by a federal court. It wasn't a California court decision.

gurjeet• 4 years ago

Even if the claimant wins the case "just" in California, it impacts all companies doing business in California. And since almost every large (US/World) business operates in California, this ruling will help all consumers/customers of those companies.

(Late addition): In fact, it seems that SFConservancy _wants_ the case to be tried "just" in California, hence the fought in Federal court and brought the case back in a State court. Perhaps the advantage is that it's easier to win the case at State level, but the ramifications of a win will be US-wide, or even Worldwide, as explained above.

redleader55• 4 years ago

Parent is right, sort of - it's only in US for now. It would be interesting to see this tested in other courts of law and included in trade agreements.

bitwize• 4 years ago

Judges in Europe have ruled that software licenses are contractual agreements. So we already have some case law in some countries establishing this.

The tricky bit in common-law countries like the USA and UK is that normally, a contract requires three things: an offer, acceptance, and consideration -- something of value exchanged for the offer in the contract. No consideration means no contract, and the license reverts to a bare license -- one that can be revoked at any time for any reason. If we now have case law establishing that the GPL fulfills the requirements of a contract, that will make software under the GPL safer, as it will not be at risk of having the copyright holders revoke permission to use or distribute it once it's out there under the GPL.

nightpool• 4 years ago

The specific difference here seems to be about who is allowed to sue for GPL violations: "[Sandler] explains that in past litigation, the plaintiffs have always been copyright holders of the specific GPL code. In this case, Software Freedom Conservancy hopes to demonstrate that it's not just the copyright holders, but also the receivers of the licensed code who are entitled to rights." Stating a contractual claim seems to be the first step towards proving this (but not sufficient in and of itself).

unnah2• 4 years ago

Is the contract of interest between the author of the GPL code and the buyer of the Vizio TV, so that the buyer would have a claim of tortious interference against Vizio?

henryfjordan• 4 years ago

It's not tortious interference but rather "3rd party / intended beneficiary" coming into play here. The idea is that the contract between the author and Vizio was for the benefit of a 3rd party (the end user) and so that party has the right to sue.

For another example, think of someone who is hired to handle disbursing an estate by someone who is dying. Their kids/heirs can sue the executor for contractual issues if the executor does anything shady because even though they weren't party to the contract because they stood to explicitly benefit.

https://www.upcounsel.com/intended-beneficiary-example

sirius87• 4 years ago

If Software Freedom Conservancy - which isn't seeking monetary damages as "receiver of the licensed code" - succeeds in this litigation, does this mean other end-users could sue for monetary damages?

gpm• 4 years ago

I'm not a lawyer, nor am I very familiar with contract law, so take this with a grain of salt.

I think technically yes, practically it is a separate up hill battle. Monetary damages have to be not-speculative, something like "because of defendant not complying with the contract I ended up spending <this> money on <these> software licenses" would probably work, but something like "because of defendant not complying with the contract I ended up making an inferior product (since I had to rewrite this code from scratch)" probably wouldn't.

I doubt that leaves many big lawsuits, it's hard to think of concrete damages that result from people improperly modifying and distributing linux (unfortunately common). Maybe customers of ChessBase who purchased Fat Fritz 2 or Houdini 6 (context: [1]) would have a claim for the return of their license fees, since if ChessBase was properly distributing it as GPL software they almost certainly would have been able to acquire it for free - that's like $50/person though - not a huge money maker.

[1] https://stockfishchess.org/blog/2021/our-lawsuit-against-che...

kazinator2• 4 years ago

If so, those receivers probably have to pay for something. You can't have a contract without exchange of value, right?

So that is to say, if I sell you some hardware-software package where the software is based on GPL code, then I paid for that software too, and so we are in a contract, part and parcel of which is the content of the GPL.

Suppose I sell you just the hardware, and you download and install the GPLed software separately from that. My sales agreement doesn't mention the existence of that software at all. Then there can be no contract there; that's just some free stuff you got somewhere. Perhaps that somewhere was my own server, where I prepared the images, but that is neither here nor there.

danielheath2• 4 years ago

You can't have a contract without exchange of value, right?

IANAL, but I believe a contract is binding once a party has made some undertaking in relation to it (eg if you order bespoke goods from me, the contract is enforceable once I start working on them, or when you pay for them).

Training staff in the use of some software could be ruled a relevant undertaking.

pdabbadabba2• 4 years ago

You can't have a contract without exchange of value, right?

Yes. But, generally speaking, that thing of value doesn't have to be money. You could have a perfectly good contract where I get to use your software in exchange for agreeing to your terms, since both (the use of the software, and the commitment to comply with the terms) are valuable.

[Hopefully I'm stating the obvious here but, this is not legal advice. It's a general observations about U.S. law, and does not necessarily apply to any particular situation.]

bdowling2• 4 years ago

The claim here is that SFC is a third-party beneficiary of the alleged contract between the software creator and Visio. A third-party beneficiary can sue even though it is a non-party to the contract. (e.g., if Alice pays Bob to paint Charlie's house, then Charlie can sue Bob if Bob doesn't paint the house.)

RcouF1uZ4gsC• 4 years ago

“The ruling is a watershed moment in the history of copyleft licensing. This ruling shows that the GPL agreements function both as copyright licenses and as contractual agreements,” says Karen M. Sandler, executive director of Software Freedom Conservancy. Sandler noted that many in the Free and Open Source Software (FOSS) legal community argue incorrectly that the GPL and other copyleft licenses only function as copyright licenses.

If the GPL is a contractual agreement, does that mean that a court can require that an entity to release the closed source portion of infringing software that uses the GPL?

If that is the case, the legal jeopardy involved with using GPL software just got a lot higher.

8ytecoder• 4 years ago

That was always the case. This simply alters who can enforce it.

ChuckMcM2• 4 years ago

I believe both of these statements are correct.

One of the interesting effect of finally litigating the GPL is that the 'theoretical' implications become a matter of fact. And with that comes a bunch of clarity around what the risks are of using GPL software in your products.

It will be interesting if GPL "wins" and a bunch of companies immediately tells their employees to strip every bit of GPL code out of the system and rewrite from first principles any function that is required for the product to operate. There will be a market for programmers who do systems programming (which is currently not a big market, but it will get bigger.)

coldpie• 4 years ago

what the risks are of using GPL software in your products

"Risk" is a weird way to phrase it. It's a cost for taking advantage of someone else's work, just the same as if you paid for a library. If you're not willing to pay the cost, don't use the software, just like companies would tell their employees not to use a pirated version of Photoshop.

It will be interesting if GPL "wins" and a bunch of companies immediately tells their employees to strip every bit of GPL code out of the system and rewrite from first principles any function that is required for the product to operate.

This seems unlikely. Is it really that common for companies to violate the GPL today?

riskable2• 4 years ago

There will be a market for programmers who do systems programming (which is currently not a big market, but it will get bigger.)

What‽ The market for systems programmers is enormous! You think "smart" things program themselves? What about cars or industrial systems or traffic lights or well, literally everything that isn't running on a full blown computer?

Systems programmers don't get much play on open source sites like Github but they're probably the majority of software developers world-wide because there's vastly more embedded systems than there are desktop and servers.

dsr_• 4 years ago

You pay for all the software you use, unless you are in a country with public domain and the software is clearly cast into it.

Some software you pay for in dollars. Some in postcards. Some by exchanging patent rights, or promising not to sue. Some by accepting contracts to contribute back changes you make, under certain circumstances.

There is no legal jeopardy involved in using GPL software that is different from buying a math library: you read the contract, you pay the price, you use the software in accordance with the contract.

Violate the contract, penalties attach, starting with enforcement of the contract.

phkahler2• 4 years ago

> The funding bodies want us to detail all expenses and justify all the changes in the plan, because they don't want people to say that the public funds are mismanaged. This is just an example. We also write tons of useless papers, to justify that we are productive with this money.

That has always been the case. The alternative would be to disclaim the GPL and face straight copyright infringement, which in the US can be as high as $150K per copy. No company making wide use of GPL and infringing it would want to go the copyright route.

The GPL is not really dangerous except to someone with no legal clue who is deliberately ripping off free software.

tzs2• 4 years ago

The alternative would be to disclaim the GPL and face straight copyright infringement, which in the US can be as high as $150K per copy.

Per work, not per copy.

goodpoint5• 4 years ago

the legal jeopardy involved with using GPL software just got a lot higher

Not at all. If you are a developer, this only protects you from patent trolls or any confused company that might sue the wrong person.

Same if you are a user.

The only "legal jeopardy" is for those who repeatedly violate developers and users right. And that's a good thing.

tempnow98711• 4 years ago

The requirements were there, but yes, now you go from a relatively friendly group of developers eager to see code shared around to the SFC, which has very strong views on things like unlocks on hardware - I think it is potentially a pretty major change here.

user3939382• 4 years ago

I've learned, rightly or wrongly, to basically ignore the significance of court rulings unless they're the outcome of a protracted Jarndyce-v-Jarndyce-esque process litigated by huge companies with huge legal defense budgets, with all appeals except maybe SCOTUS exhausted.

These decisions otherwise seem to get overturned in the future when you have a party with sufficient motivation+resources which is incidentally when they would matter the most.

kqr• 4 years ago

A local stand-up comedian once quipped, "Why do we even have <lowest-level court>? They're always wrong!"

It stuck with me because then I read the news and realised they were right! The lowest level court rulings very often get overturned when challenged in higher level courts.

Of course, even later, I realised it's just selection bias. Cases are not brought before higher level courts unless in those specific case someone is fairly sure they can get the verdict overturned.

tempnow98711• 4 years ago

Wow - to say this is a major major result in an understatement. This is going to turn GPL litigation on its head, and allow more activist type folks to pursue cases aggressively. On the developer side I can see a move away from GPL - as adding third parties into this is going to be pretty unappealing for some developers.

I think historically distribution of source code was seen as a condition of the copyright license (which meant copyright holders enforced), not as a separate contract right available to third parties (which would mean users and other can go after a variety of claims).

riskable2• 4 years ago

On the developer side I see the opposite: End users that are complaining can now deal with problem themselves without having to pester (or even find) the developer.

Anything that amounts to less pestering of developers is (probably) a good thing

Rygian• 4 years ago

I'm unsure of how the burden of proof would work if the developer is not involved. The end user may have a hard time even guessing whether a piece of GPL software is embedded in the defendant's software.

e3bc54b2• 4 years ago

On the contrary, as a developer, this makes GPL even more appealing to me.

I don't have time, money or energy to sue someone for using my code and not giving back.

But if downstream users can, and the math changes.

tempnow98711• 4 years ago

In the old model in that case you could assign or work with any of the litigation groups already doing the work needed to allow them to sue on your behalf.

Downstream users can also of course sue you if you work on a project with a few other people under the GPL even if they didn't write any code or contribute.

fluoridation3• 4 years ago

Someone could "use your code and not give back" while staying perfectly within the limits of the GPL, though. For example, they could use and modify your software in an internal package.

snambi• 4 years ago

True. As a original developer of code, it protects the original author and the real user. However the middlemen (companies who make money using others code) may not like this.

heavyset_go• 4 years ago

This just makes me more confident in choosing GPL licenses for my projects in order to ensure user freedom.

dcow• 4 years ago

Exactly. The choice of GPL is an explicit choice to protect end user freedom over reducing intermediate developer & corporation hassle. If you want to ensure end-user freedom, BSD, MIT, Apache style permissive licenses don't cut it. If you want to become a developer celebrity and have your open source project used in projects everywhere, or if you are a company and you want to hook other devs on your freemium open core product, then those licenses are for you. The decision about whether to use the GPL or not is far more nuanced and there is no one-size-fits-all license out there. If there was I suspect we'd all use it...

Interestingly in this case, this ruling also reduces intermediate developer hassle for devs who are already used to working with GPL code. So that's a nice win (=

tempnow98711• 4 years ago

Then this will be a good result.

You of course may be sued yourself if you have a project using GPL'ed code that doesn't comply with the the current view of GPL (ie, release of encryption keys) or if you infringe your own GPL copyright in some proprietary project (ie, GPL code where user was promised access is in something that you don't want available broadly).

This is all good for users for sure for things like open core projects and projects that used to be open but moved away etc

goodpoint5• 4 years ago

as adding third parties into this is going to be pretty unappealing for some developers

On the contrary: the GPL is meant to PROTECT developers from patent trolls and freeloaders who what to turn FOSS into unpaid labor.

It also protect users, and all developers are also users.

pabs37• 4 years ago

Nothing in the GPL does anything about freeloading; I'm using lots of GPL projects without contributing back funding, bug reports or patches, for eg glibc, GCC and so on.

The only thing the GPL does is give the same access copyright holders have to software to downstream users.

JJMcJ2• 4 years ago

Hard to assess with regard to right-to-repair, but many companies have gotten in trouble by assuming that open source licenses of one kind or another are just some hippie/commie psychodrama.

That's all true until the process servers turn up.

CoastalCoder• 4 years ago

Total tangent, but now I'm curious...

If a U.S. corporation has a registered mail address for legal service, is there ever a need to get a process server involved?

JJMcJ2• 4 years ago

Really don't know but this page, for California corporations, seem to say that's one way.

https://www.sos.ca.gov/business-programs/business-entities/s...

StayTrue2• 4 years ago

Great. I'm even more likely to use GPL now (which is a complete 180 from my early days where I would only consider BSD or MIT).

dralley• 4 years ago

So pretty much every line of code I've written in my professional career has been GPL licensed (I work for an open source software company), but I understand why some people - even those that are strong supporters of free software - take issue with the GPL and similar licenses.

For me, the biggest problems are:

1) Strong copyleft licenses often end up being incompatible with other free software licenses, especially other strong copyleft licenses. GPLv2(not +) and GPLv3 are incompatible, GPLv2 is incompatible with Apache 2.0, etc. Proliferation of strong copyleft licenses can therefore create serious interoperability challenges even within the free/libre software ecosystem.

2) LGPL is deeply tied to the technical specifics of how libraries and executables are linked together. This might have been reasonable when 90% of software on Linux was written in C and most developers could be expected to deeply understand those concepts, but it is no longer a reasonable expectation. Understanding how to comply with LGPL when it comes to C++ with templates, or Rust, or Go, or C with LTO techniques and inlining, is now an incredible headache when compared to licenses like MPLv2 that are approximately similar in scope but much simpler to understand.

3) The definition of "derivative work" is too broad. The FSF considers that re-implementing a library in an entirely different language would be a "derivative work" [0] Perhaps that's fair enough - if the translation is basically identical. But what if it's not? Where does the line between derivative and non-derivative work lie? If I was a very active contributor to some GPL project, and years later I decide to write a vaguely-similar-but-different program in some entirely different language, is that a derivative work? Do I need to walk a lawyer through every line of code?

These incompatibilities and chilling effects do come with a cost to free software as a whole. I still think GPL can be good for many types of software but in some respects it really can get in the way of proliferating free software.

[0] https://www.gnu.org/licenses/gpl-faq.html#TranslateCode

StayTrue2• 4 years ago

I'm not wed to GPL specifically but I feel better if the license is tested rather than theoretical so cases like this are a step forward. Without getting into details, I've released BSD-licensed software that has been used in commercial products and integrated into the surveillance apparatus (without my knowledge or consent). A copyleft license would have made that more difficult so the stronger the better IMO.

bdowling2• 4 years ago

This decision does not establish that the GPL is a contract. This decision of the federal court only says that SFC made contract claims that are not preempted by the Copyright Act, and therefore the case belongs in state court where SFC had originally filed.

So, now it's back to state court where that court will decide whether there is any merit to SFC's claims.

dragonwriter• 4 years ago

(1) This ruling does not show that the GPL is, in general or as applicable to the specific case, a contract, it found that the SFC’s contract claims in the case are distinct, legally cognizable claims that are not preempted by federal Copyright law, so the case can be litigated in state court. It is there that the contract claims, including the threshold issue of the existence of a contract, will be addressed.

(2) Ruling that the GPL is (at least in the context of specific facts between particular parties) a valid contract isn't new [0], so (even if this ruling did find that), it would be odd to paint this ruling as a watershed for finding that:

[0] https://qz.com/981029/a-federal-court-has-ruled-that-an-open...

remram• 4 years ago

This reminded me of the French case in 2020 (same conclusion): https://news.ycombinator.com/item?id=24478769

unnah2• 4 years ago

Unlike common law systems, in the continental European civil law systems there is no concept of a "copyright license" separate from a contract. The only way private parties can put obligations on each other is by contract.

If someone creates derivative works of GPL software, they could of course claim that they have not accepted the GPL contract, but in that case they would plainly have committed copyright infringement.

Court Ruling shows the GPL is both copyright license and contractual agreement

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