[HN Gopher] Italian Courts Find Open Source Software Terms Enfor...
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Italian Courts Find Open Source Software Terms Enforceable
Author : em-bee
Score : 461 points
Date : 2021-12-27 15:11 UTC (7 hours ago)
(HTM) web link (ifthisbetreason.com)
(TXT) w3m dump (ifthisbetreason.com)
| sofixa wrote:
| That's great news, and the fine is pretty decent!
| [deleted]
| stavros wrote:
| Excellent, I find both the ruling and the fine reasonable. It
| wasn't disproportionately heavy, but will make people think twice
| before violating the GPL.
| pitched wrote:
| At 100$/day (or 300 after the first 15 days), I wonder how
| large the app has to be before violating the GPL won't bother
| them anymore? I can see a medium-sized business just treating
| this as a rent/cost-of-business instead of a fine.
| Hamuko wrote:
| Do you have evidence that the fine is fixed regardless of the
| company size? Because the company in question here is a
| single employee shop according to D&B Business Directory.
|
| https://www.dnb.com/business-directory/company-
| profiles.nerd...
| kergonath wrote:
| Depending on the jurisdiction you can sue later if they don't
| comply. Then they would be in contempt, which involves much
| more severe sentences than a EUR100/day fine.
| cbg0 wrote:
| Not a lawyer, but based on the last paragraphs of the press
| release here: https://www.dynamic.ooo/press/groundbreaking-
| acknowledgment-... it seems that they have been ordered to
| comply within 7 days, so going over that would probably mean
| that they would also be in violation of a court order, along
| with the fines.
| seoaeu wrote:
| Seems like the amount was decided by the court. Presumably
| they would have just levied a larger fine if it was a
| business that might plausibly just ignore the order and keep
| infringing on the license
| monocasa wrote:
| Yeah, the courts generally ramp up non-compliance damages
| like that with continued non-compliance.
| snovv_crash wrote:
| Note, the degree of the infringement would be considered in
| any future case. A more serious usage, and more commercial
| leverage of it, would likely result in higher fines. Courts
| take a dim view of companies taking the fines as a "cost of
| business" rather than a deterrent.
| 14 wrote:
| Back just before marijuana was made legal here in Canada a
| number of Pot shops opened up. The city and police mostly did
| nothing but decided they would make some by-laws to make sure
| certain things were in place and it wasn't just people
| running it out of their houses. One such requirement was that
| each shop had a front business window into the shop. A guy I
| knew who had leased a place and set up shop did not have such
| a window just a door. The city made the rules after he had
| set up shop so he was not happy and did not want to move his
| business. So he ignored the requirement until city by-law
| officers showed up to enforce it. They gave him a $150 a day
| fine for not complying. He just shrugged it off and counted
| it a part of doing business since he was making thousands a
| day.
| mcguire wrote:
| Is the rule still in place? Is he still ignoring it?
|
| Code enforcement people aren't stupid. They can and likely
| would escalate in that sort of situation.
| fguerraz wrote:
| Unlike in the US, in Europe we don't have the concept of
| punitive damages. Claimants will only ever get, at most, a
| compensation for the losses they can prove they have had and
| fines go to the state, not the claimant.
| phkahler wrote:
| Somehow I dont believe that. So copyright infringement is
| just treated as lost revenue? I thought the music and film
| industries got you too.
| martin8412 wrote:
| Unless you sell/distribute pirated materials, yes. If you
| download pirated material from a random https mirror,
| then all they can come for you for is the lost revenue.
| If you use torrents it gets more difficult since you're
| seeding the material
| Dylan16807 wrote:
| As far as I understand that's how the US works too.
|
| Penalties only for distributing is quite different from
| no penalties at all.
| futharkshill wrote:
| maybe, maybe not. The EU is not a single country.
| chottocharaii wrote:
| what they said is likely misleading. punitive damages can
| come substantively in differing forms and guises
| Retric wrote:
| This is false. https://www.pinsentmasons.com/out-
| law/news/punitive-damages-...
|
| Punitive damages in terms of IP are allowed in the EU, but
| up to individual member states. Ireland and Cyprus
| currently allow punitive damages as did the UK did when it
| was a member.
| pietrovismara wrote:
| As always, if a fine is only a fixed amount it becomes just a
| regular transaction for the rich. Ideally the amount would
| scale with your size/wealth.
| bdowling wrote:
| > Ideally the amount would scale with your size/wealth.
|
| That would quickly lead to poor individuals and non-profit
| companies trying to transfer the benefits of their low-cost
| infractions to others.
| josephcsible wrote:
| That violates the principle of equality before the law.
| What if instead, the fine started at $100 but grew at 5%
| per day? Then even the biggest companies wouldn't be able
| to afford to just keep paying it.
| pietrovismara wrote:
| > That violates the principle of equality before the law
|
| Quite the opposite. It would restore equality in the
| punishment, as it should hurt the same to the offender no
| matter how wealthy they are. As it is now, we're favoring
| the rich overwhelmingly.
| kergonath wrote:
| Which brings the wonderful quote by Anatole France that
| is worth keeping in mind and spreading far and wide:
|
| _The law, in its majestic equality, forbids rich and
| poor alike to sleep under bridges, to beg in the streets,
| and to steal their bread._
|
| Indeed, equality before the law really is not a
| straightforward thing.
| dragonwriter wrote:
| > That violates the principle of equality before the law.
|
| No, it doesn't; a fine of N years income or N% of wealth
| is at least as much equal treatment as a fine of $N. And
| current law recognizes it, because even though fines are
| typically stated with a fixed upper limit, which in some
| cases is low enough to make them ignorable by the rich,
| within that upper limit, the law already recognizes that
| equality before the law doesn't mean "same $ amount for
| everyone". E.g., for federal fines, see 18 USC SS
| 3572(a): "In determining whether to impose a fine, and
| the amount, time for payment, and method of payment of a
| fine, the court shall consider [...] (1) the defendant's
| income, earning capacity, and financial resources; (2)
| the burden that the fine will impose upon the defendant,
| any person who is financially dependent on the defendant,
| or any other person (including a government) that would
| be responsible for the welfare of any person financially
| dependent on the defendant, relative to the burden that
| alternative punishments would impose; [...]"
| piaste wrote:
| Equality before the law applies to citizens, not to bank
| accounts. Take a broader view.
| kevinob11 wrote:
| I've been thinking about this a lot lately because I have
| a friend who always discusses equality when we talk about
| taxes. What makes numbers so equal in the minds of
| humans? Especially when it comes to fines, taxes, etc.?
| If we still punished people by cutting off their hands
| (THANKFULLY WE DON'T - but humor me) would be equal to
| just cut off any part of the arm longer than 24 inches?
| No, effect was what made it equal, cut off the hands so
| you can't use them anymore. The example is gruesome but
| makes it pleasantly obvious that raw numbers are only
| equal if we all make the same amount of money and have
| the same costs in our lives. Since we don't I don't think
| there is anything equal about fixed amounts of money.
| vincnetas wrote:
| Well, if you fine certain percent of income, so everyone
| will be treated equally by law. x% of income where x is
| same for tiny company or mega corp. So principle of
| equality is not violated.
| Dylan16807 wrote:
| If you make sure the fine is some multiple of the damage,
| including the chance of being caught, then for most
| situations making it into a transaction would be
| acceptable.
| eddieh wrote:
| The corollary: reasonable people avoid GPL code at all costs.
| [deleted]
| luckylion wrote:
| I'm sure there will be a few people here that are much more
| knowledgeable than me in all things licenses and GPL, so if I
| may:
|
| WordPress states the opinion [1] (I'm not aware of changes on
| that claim) that the PHP code in themes and plugins are
| derivative works of WP and therefore must be GPL (or compatible)
| because the PHP parts of themes/plugins are "combined" with the
| rest of WP at run time.
|
| Is that (still) a common opinion on the matter? Has it been
| tested in court?
|
| [1] https://wordpress.org/news/2009/07/themes-are-gpl-too/
| sokoloff wrote:
| This seems analogous to the readline/editline issue (which I
| think has not been tested in court either, but I'd be fairly
| surprised if rms's position [that optionally linking to
| readline means your work must be released under GPL] would be
| sustained.)
|
| If it mattered to me, I'd have a close look at the recent Java
| API case and see if that gave guidance in the direction that a
| generic (but functional) Wordpress theme that was engineered
| from the ground up without copying Wordpress GPL code would be
| in the clear legally.
|
| I'm not a lawyer, but I'd be betting in that direction.
| luckylion wrote:
| Thank you, the Java API case is a good hint.
| [deleted]
| iso1210 wrote:
| That's ridiculous. If the GPL weren't valid, then you have no
| right to copy the code under normal copyright law and the Berne
| Convention, and thus you're breaking the law.
|
| In the US I believe the charge tends to be somewhere in the $150k
| per copy, so if you use a GPL, don't agree to the license, and
| sell 1,000 copies of your sofwtare, you're simply distributing
| "pirate software", and should be on the hook for a $150m fine.
|
| I don't know if Italy has similar statutory damages
| sharpneli wrote:
| It would have been weird if they had been unenforceable. As that
| would mean there is no license to use it at all. And copyright
| law generally doesn't work so that if you don't have a license
| you are free to do whatever. It's the opposite. No license, no
| use whatsoever.
| 77pt77 wrote:
| > It would have been weird if they had been unenforceable.
|
| Well, this is a joke decision since no one will verify whether
| they actually remove the code.
| shukantpal wrote:
| If someone somehow knew they were using GPL code before the
| suit, they can easily do the same check after the suit
| smoldesu wrote:
| I agree. There's a lot of buzz about how "it's never been
| proven in court" and all that, but open source software
| licensing is so cut and dried at this point that it just ends
| up sounding silly. If having a license.md file in your source
| code _isn 't_ enforceable, then how do multi-billion dollar
| apps get away with hiding their terms of use behind several
| clicks and thousands of lines of incomprehensible legal jargon?
| It would certainly be fun to watch Big Tech hire their gold-
| medal mental gymnasts to fight it in court, if nothing else.
| Hamuko wrote:
| There are probably thousands of terms of service agreements
| that are not legally binding in the EU.
|
| https://europa.eu/youreurope/citizens/consumers/unfair-
| treat...
|
| For example, in 2012 the Court of Justice of the European
| Union declared that reselling digital software is legal no
| matter what any EULA attached to the software might say.
|
| https://www.engadget.com/2012-07-03-eu-court-rules-its-
| legal...
| cge wrote:
| Another, rather surprising example, is that while almost
| every proprietary EULA has clauses prohibiting it, reverse
| engineering, including decompilation, is legal regardless
| of EULA terms in the EU for several purposes, including
| interoperability and, apparently, fixing bugs.
| iso1210 wrote:
| If I buy the latest superman film on DVD and play it,
| technically I'm making a copy. I don't have to agree to a
| license to do this, as it wouldn't be a breach of copyright
| law to make a transitory copy myself for the purposes of
| using it. I can't copy it to give to someone else though,
| that would be against copyright law.
|
| Likewise if I take some GPL software, I can do whatever I
| want with it to run it, including copying it into memory. I
| can't give a copy to anyone else (including derivative
| works such as a binary) without agreeing to the GPL.
| seba_dos1 wrote:
| > Likewise if I take some GPL software, I can do whatever
| I want with it to run it
|
| That's true, but unlike the DVD case it's so only because
| the GPL license explicitly grants you this right. If it
| didn't, you wouldn't be able to run it at all.
| iso1210 wrote:
| Based on what?
| jeroenhd wrote:
| That doesn't make the terms and agreements any less
| binding, though. Parts of them are bullshit and ignored,
| but the other parts are still valid.
|
| Only the parts of the agreement that violate the local laws
| can be ignored.
| luckylion wrote:
| Wouldn't that only (reliably) be the case if they contain
| a severability clause stating that, if any clause is
| found to be invalid, the rest of the license agreement
| shall remain valid?
|
| After all, you're typically agreeing to a package, not
| individually to each term.
| [deleted]
| brewmarche wrote:
| Indeed in German law a partially void contract becomes
| completely void unless it is protected by a severability
| clause (which means in practice all contracts have them
| and they usually state that the void part is to be
| replaced by something with the same or similar economic
| consequences).
|
| Standard form contracts (take it or leave it rules that
| are distributed to everyone) are exempt from this though
| (here the void part falls back to default rules).
| namibj wrote:
| Indeed, the normal threshold for whether a contract
| was/is an AGB (stnadard form contract; allgemeine
| geschaeftsbedingungen = general rules of business ~ TOS)
| is whether it was _practically_ negotiable.
| kergonath wrote:
| > That doesn't make the terms and agreements any less
| binding, though. Parts of them are bullshit and ignored,
| but the other parts are still valid.
|
| Different people have different ideas of what is
| reasonable and what is bullshit. Different jurisdictions
| as well, which is why some clauses in EULAs written by
| American lawyers are invalid in the EU.
|
| > Only the parts of the agreement that violate the local
| laws can be ignored.
|
| That is the whole point: to know for sure which ones you
| can ignore, you need to test them in court.
| rndm_access wrote:
| There was a lot of FUD being spread about supposed non
| enforceable quality of license.
| scotty79 wrote:
| It could turn out that copyright is only enforceable if it
| involves payment or authorship.
|
| So if you don't sue to get paid or to get attribution you don't
| have a case. This way GPL would be unenforceable.
| mannerheim wrote:
| You can still sue to get paid for the GPL. Some projects
| (e.g. Qt) make money off of licensing GPL software. Damages
| could be counted either in terms of lost license fees or the
| cost it would have taken the infringer to write code to
| achieve the same function as the infringed code.
| masklinn wrote:
| > It could turn out that copyright is only enforceable if it
| involves payment or authorship.
|
| That would make any gift of copyrighted material invalid.
| Vespasian wrote:
| In some countries such copyright assignments are in fact
| invalid.
|
| Germany had to amend the law back in the day to make Open
| Source legal.
|
| Before that it wasn't possible to forgoe payment and even
| now it's not possible in many cases.
| em-bee wrote:
| do you have a reference to that law change?
|
| as far as i know only the moral rights can not be given
| up, but i am unaware that there was an issue with giving
| away work for free.
| Vespasian wrote:
| I found an article on the german Wikipedia
|
| https://de.m.wikipedia.org/wiki/Linux-Klausel
|
| The referenced article is SS32 UrhG
| em-bee wrote:
| thank you. so it wasn't that it was not possible to give
| away stuff for free but rather that there was a proposal
| to change the law which would have made it difficult, if
| not impossible, and as a result the added clause ensured
| that it would remain possible, at least as long as it is
| given to the general public.
| manquer wrote:
| Contracts typically require consideration. It is
| important part of contract law.
|
| There are lot of nuances what constitutes consideration,
| it varies by jurisdiction and also there is lot of common
| law ( i.e. based on judicial precedents ) that can be
| complicated and only experts could really could even a
| given opinion on that and only way to be really _know_ is
| after that issue comes up in a case for first time in
| that jurisdiction.
| gpderetta wrote:
| IANAL, but as far as I know consideration is usually a
| feature of common law not civil law.
| zauguin wrote:
| But that's not something this decision was about, this was
| just about missing attribution. I can't imagine that anyone
| seriously thought that the attribution clause of the GPL
| wouldn't be enforceable.
|
| There are some other aspects of the license which I would've
| found much more interesting to be tested in court, especially
| the FSF's concept of treating dynamically linked executables
| as derived works and the question who can sue if no source
| code is provided.
| ashtonkem wrote:
| That would hamper all kinds of commercial activities though,
| as it would effectively make free trials impossible.
|
| It also sounds like it would be a pretty radical change to
| how copyright laws work, but I'm no expert here.
| Vespasian wrote:
| If the author is effectively payed trough the (expected)
| purchase later on its probably fine. Or if the author is an
| employee and gets a salary
| mcguire wrote:
| In which case you would not have any license to use or
| distribute the software.
| ikiris wrote:
| there's a healthy overlap between the people who think that
| open source licenses are unenforcable, and the people who think
| masks don't work.
|
| Its almost all based on "I wish", and not "these fact"
| kergonath wrote:
| I haven't run a full study, but I have found the opposite
| amongst people I know: a large overlap between the people who
| moan about their freedoms being taken away by vaccine
| mandates and those who moan about the ideological purity of
| Free Software.
|
| If you see things only in black and white and everything is a
| crusade, then you don't care much about facts. I would guess
| that this is the result of the same mechanisms that prime a
| conspiracy theorist to see conspiracies everywhere.
| lnxg33k1 wrote:
| It's not that if you are a company you can download a car
| vincnetas wrote:
| If you don't know what "downloading a car" is referring to :
| https://www.youtube.com/watch?v=HmZm8vNHBSU
| riffraff wrote:
| I prefer the one from "The IT Crowd":
| https://www.youtube.com/watch?v=ALZZx1xmAzg
| lnxg33k1 wrote:
| I never seen it, but I prefer it too now :D
| [deleted]
| iso1210 wrote:
| Of course I know what it is, because I took my perfectly
| legal DVD of a film that I spent money on a few years ago and
| popped it in my player, and it forced me to watch it.
|
| I then went onto piratebay to get a copy of the film without
| it.
|
| It's ridiculous showing such an advert to people who have
| already given you money, I have no idea what was going
| through their heads.
|
| (It's been many years since I bought a DVD. I stopped buying
| family guy seasons because of that type of behaviour. Yes I
| could rip the dvd and remove it, but then that's illegal, so
| I may as well go the whole hog.
| lnxg33k1 wrote:
| Don't forget that in the current society you're guilty
| until proven innocent
| lnxg33k1 wrote:
| Ah it was steal a car, what a pity :D
| toyg wrote:
| The actual case is a bit less black & white. What happened was
| that two developers left a company and then effectively forked
| and repackaged the GPL software they had worked on at the
| previous outfit - and sold it also as GPL. The original company
| sued them _for failing to mention that it was a derivative
| work_ of their original code, as the GPL would require.
|
| It's a bittersweet ruling: yes, GPL terms were found
| enforceable in Italy, but in practice the little guys got
| shafted over a technicality (and arguably against the original
| spirit of the license).
| alpb wrote:
| The site has failed under the load from HN. Here's a mirror
| http://web.archive.org/web/20211224205455/http://ifthisbetre...
| bdowling wrote:
| Note that the court ordered the defendants to comply by removing
| the GPL code from their product, not to comply by publishing
| their source code. [0]
|
| [0] https://www.dynamic.ooo/press/groundbreaking-
| acknowledgment-...
|
| Edit: Link changed to press release w/ copy of court's order.
| hannasanarion wrote:
| That's not true. Your own link contradicts it. They are ordered
| to "bring the software in compliance with the license". They
| can do that by removing the GPL components, or by adding the
| acknowledgements that GPL requires.
|
| Don't mind me, just being a dummy :)
| bdowling wrote:
| Thanks. A statement of the court's order was included in the
| "press release" link, not the link I originally posted. Link
| updated.
|
| > The Judge, considering the articles 156 I.d.a. and 700
| c.p.c.,
|
| > Orders the defendants (Marco Poglie, Francesco Pesce and
| Nerds Farm Srl) to cease any use made available to the
| public, as well as any publications, of the software named
| E-addons for Elementor, if not after having eliminated every
| recurrence (exception made for a maximum amount of 500 lines)
| of the code included in the 1.9.5.2 version of Dynamic
| Content for Elementor, sub doc.2 produced by the Applicant,
| within seven days of the communication of this provision.
|
| https://www.dynamic.ooo/press/groundbreaking-
| acknowledgment-...
| fsckboy wrote:
| what he said is true, and therefore what you said is less
| than true.
|
| the GPL requires source corresponding to distributed binaries
| be released. They distributed GPL binaries and they have not
| been required to release the source.
|
| They are allowed to make future binaries which are not GPLed,
| but the users of the GPLed binaries have not had their right
| to see the source satisfied.
| bdowling wrote:
| > ...the users of the GPLed binaries have not had their
| right to see the source satisfied.
|
| That's the intent of the GPL (GPL v3 Preamble) but it's not
| an outcome that a license can guarantee. A copyright
| license can only be enforced using copyright law, and the
| remedies for copyright infringement are limited to monetary
| damages (actual or statutory). Sometimes the threat of a
| copyright infringement suit may compel an infringer to
| release their source code rather than be ordered to pay
| damages, but sometimes not.
| phonebanshee wrote:
| That sounds like a very American thing to say. You're
| talking about Italian law here?
| dheera wrote:
| Of course they are enforceable? They have been all along, how
| did the courts only find about it just now? Did they not get
| the memo like 20 years ago?
| CogitoCogito wrote:
| Courts regularly hold contracts unenforceable for various
| reasons. And the question of whether the license is a
| "contract" or something else also depends on jurisdiction. So
| no the legal enforceability of the GPL isn't a priori
| obvious.
| dheera wrote:
| I meant to say, it is physically able to be enforced,
| therefore it is "enforceable", whether the law chooses to
| actually enforce it is another story.
|
| I guess the headline should be "Italian Courts decide to
| enforce" rather than "Italian Courts find out [about this
| new thing they could choose to enforce called open source]"
| Uehreka wrote:
| (IANAL, etc.) My understanding is that in legal contexts,
| the term "unenforceable" doesn't necessarily refer to
| things that can't be physically enforced in reality (like
| "the undersigned agrees to think about a white elephant
| once per day") but to things that, if enforced, would
| violate a pre-existing law or part of the jurisdiction's
| constitution (or equivalent "meta-law").
|
| So if a country's court decided that the owner of a piece
| of IP could license it to other people, but that they
| could not dictate the terms under which it would be
| redistributed (because that's how "free speech" is
| interpreted in that country) then they would rule the GPL
| unenforceable in their country.
|
| This seems unlikely in most countries, but until it
| actually gets tested in a given country's courts, it
| cannot be 100% ruled out. Most companies think the risk
| of the GPL standing up is high enough that they don't
| want to be the ones to test it, so they comply.
| IshKebab wrote:
| You only know if something is legally solid when it is tested
| in court. The GPL has had _very_ little testing, because
| violations are mostly secret, in China, or not worth suing
| over.
| mikejulietbravo wrote:
| I think the large news here is that there haven't been many
| rulings. And for the companies like mongo and elastic that have
| changed their licenses, this likely gives them more teeth
| [deleted]
| gjsman-1000 wrote:
| Just because a license says something doesn't make it enforceable
| - though, thankfully, the GPL was found fully enforceable in this
| case.
|
| Something to ponder though is whether an open-source license
| _could, potentially_ have unenforceable clauses on it. I think it
| 's unlikely, but if a part of a major open-source license was
| found unenforceable (i.e. the definitions of networking in
| AGPLv3?) the open-source ecosystem would be thrown for a loop.
|
| So much of the open-source ecosystem (and it's contributions!)
| rely on the licenses being valid legally. I would just say that
| there are some licenses (AGPLv3 in particular) that are so long
| and verbose there's bound to be something that could be twisted
| into unenforceability.
| mcguire wrote:
| Certainly there could be unenforceable clauses---one Fortran
| compiler I ran across years ago had a clause saying it couldn't
| be used for "military purposes". That would be so vague I can't
| see it being enforced. (It also makes it not Open Source, so
| there's that, though.)
| adrr wrote:
| Copyright licenses aren't EULAs. You can't tell an end user
| of the software how to use the copyrighted art. It only
| affects distribution where copyright law operates. If I don't
| distribute the software, i don't need to abide by a copyright
| license. It also only covers the person doing the
| distribution.
| foxfluff wrote:
| Depends on jurisdiction. In EU some goof decided that the
| transient copy/copies your computer makes to run software
| constitutes copying, and therefore you must have a license
| to _use_ software.
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